R.H., In Interest of
| Decision Date | 29 September 1988 |
| Docket Number | 88-0605,Nos. 88-0372,s. 88-0372 |
| Parties | In the Interest of R.H., III, a person under the age of 18. T.H., Appellant, v. LA CROSSE COUNTY, Respondent. In the Interest of L.H., a person under the age of 18. L.H., Appellant, v. STATE of Wisconsin, Respondent. d |
| Court | Wisconsin Court of Appeals |
Meryl R. Manhardt, Asst. Dist. Atty., on the brief, for respondents.
Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.
In these appeals under the Children's Code we construe secs. 48.30(6) and 48.31(7), Stats. We conclude that the thirty-day time limit in each section is mandatory. In each case the trial court lost competency to exercise its jurisdiction to hear the petition initiating proceedings under ch. 48 because it did not observe the time limit. In In the Interest of L.H. v. State, we also decide that L.H. did not consent to a continuance of the dispositional hearing. We remand with directions to vacate the dispositional orders and dismiss the petitions.
L.H. pled no contest to a delinquency petition. Her dispositional hearing was held thirty-eight days after the plea hearing. Section 48.30(6), Stats., 1 provides that the trial court "shall set a date for the dispositional hearing which ... is ... no more than 30 days from the plea hearing for a child who is not held in secure custody." In In Interest of R.H., III. v. La Crosse County, the court, after a fact-finding hearing before a jury, found that R.H., T.H.'s son, was a child in need of protection and services. The dispositional hearing was held thirty-two days after the fact-finding hearing. Section 48.31(7) 2 provides that the trial court "shall set a date for the dispositional hearing which ... is ... no more than 30 days from the fact-finding hearing for a child not held in secure custody." Neither R.H. nor L.H. was held in secure custody. In neither case was a continuance ordered under sec. 48.315.
If the thirty-day time limit in each section is mandatory, failure of the trial court to observe the time limit deprived it of competency to exercise its jurisdiction to hear the matter. State v. Rosen, 72 Wis.2d 200, 208, 240 N.W.2d 168, 172 (1976). We conclude that the time limit in each statute is mandatory.
RULE OF CONSTRUCTION: WHEN TIME LIMITS ARE MANDATORY
The general rule is that the word "shall" in a statute setting a time limit is presumed to be mandatory. Karow v. Milwaukee County Civil Serv. Comm., 82 Wis.2d 565, 570, 263 N.W.2d 214, 217 (1978). Statutes setting time limits have, however, often been held to be directory despite the use of the word "shall." Id. at 571, 263 N.W.2d at 217. The Wisconsin Supreme Court has said that "a statute prescribing the time within which public officers are required to perform an official act is merely directory, unless it denies the exercise of power after such time, or the nature of the act, or the statutory language, shows that the time was intended to be a limitation." State v. Industrial Comm., 233 Wis. 461, 466, 289 N.W. 769, 771 (1940), quoted in Karow, 82 Wis.2d at 571, 263 N.W.2d at 217.
The language in secs. 48.30(6) and 48.31(7), Stats., that the court shall set a hearing date which "is no more than" a specified number of days from the previous event, implies that the time is intended to be a limitation. Where a time limit has been held to be directory, the statute simply provided that the act "shall" be done within a specified time. See, for example, Galewski v. Noe, 266 Wis. 7, 16, 62 N.W.2d 703, 708 (1954) (), State ex rel. Johnson v. Nye, 148 Wis. 659, 669, 135 N.W. 126, 129 (1912) (), cited in Karow, 82 Wis.2d at 571 n. 6, 263 N.W.2d at 217 n. 6.
When similar language has been used in other statutes, the context of the legislation has suggested an urgency in accomplishing the directed task. See sec. 40.06, Stats. (payments to public employee trust fund of department and agency delinquencies), sec. 66.024, Stats. (filing petition for annexation referendum in circuit court), secs. 101.22, 101.222, Stats. (filing petitions alleging discrimination in housing and public places of accommodation and amusement), sec. 196.795, Stats. (reporting by public utility holding company of formation, etc. of nonutility affiliate). As we will shortly show, the legislative history of the Children's Code shows that the legislature considers that there is an urgency in the prompt disposition of ch. 48 petitions affecting children and their parents.
We recognize, however, that statutory time limits may be construed as directory if necessary to carry out the legislature's clear intent. Karow, 82 Wis.2d at 571, 263 N.W.2d at 217. We therefore turn to the legislative history of secs. 48.30(6) and 48.31(7), Stats., to determine whether the time limit in either of these sections must be construed as directory in order to carry out the intent of the legislature.
Chapter 48, the Children's Code, was substantially revised by ch. 354, Laws of 1977 (1977 Assembly Bill 874). The revision culminated efforts over several legislative sessions. Charles M. Hill, Sr., Executive Director, Wisconsin Council on Criminal Justice, Analysis of AB 795/Assembly Substitute Amendment 1, Proposed Children's Code Revisions, "Historical Background and Current Status," March 5, 1976. Legislative History Record, 1975 Assembly Bill 795, Folder 1, Wisconsin Legislative Council. 1975 AB 795 was drafted by a coalition of the Governor's Advocacy Committee on Children and Youth, the Board of Juvenile Court Judges, the Council on Human Concerns, the state department of health and social services, child welfare agencies, and legal services attorneys. Id. The bill was introduced at the request of the state Judicial Council and In the development of the revised Children's Code, input was received from numerous other interested organizations and individuals. See Statement of State Representative Peter Tropman to Assembly Judiciary Committee, July 19, 1975 and Tropman, Background Information on Assembly Bill 795 and a Description of Changes Incorporated in Assembly Substitute Amendment 1, February 2, 1976, Legislative History Record, 1975 AB 795, Folder 1, Wisconsin Legislative Council; Staff Memorandum, Description of Engrossed 1977 Assembly Bill 874, The Proposed Revision of the Children's Code, Legislative History Record, 1977 AB 874, Wisconsin Legislative Council.
the Governor's Advocacy Committee. The drafting records of the Wisconsin legislative reference bureau show that 1975 AB 795 was the document from which 1977 AB 874 was [147 Wis.2d 28] drafted. Many of the 1975 revisions were included without change in 1977 AB 874.
Contemporaneous with the earlier legislative activity the Wisconsin Council on Criminal Justice considered and adopted juvenile justice standards and goals. Special Study Committee on Criminal Justice Standards and Goals, Wisconsin Council on Criminal Justice, Juvenile Justice Standards and Goals (December 1975). A comparison of these standards and goals with 1977 AB 874 makes it evident that their general objectives were considered in the drafting of 1977 AB 874. 3 Concern for the protection of the child's due process rights is reflected in these standards and goals. Subgoal No. 12.4: Time Limits, states:
To ensure speedy adjudication of juvenile matters, time limits shall be set as to the maximum time allowed between identified critical stages within the adjudication process.
Juvenile Justice Standards and Goals, supra, at 80.
The proponents of revision of the Children's Code perceived that changes were needed to modernize an inoperable juvenile justice system, to treat children who are not law violators in the least drastic placement, and to protect the child's constitutional rights, including the right to due process. Tropman, Background Information on Assembly Bill 795, supra, at 2-3.
It is apparent from several sources that the legislature accepted that it was necessary to revise the Children's Code to assure the constitutional rights of children. 4 In his analysis of 1975 AB 795, the executive director of the Wisconsin Council on Criminal Justice, stated: Hill, Analysis of AB 795, supra p. 2.
The principal legislative proponent of revision of the Children's Code stated: "In the wake of these decisions [Gault, Winship, and Kent ], not only is much of Wisconsin's present Children's Code inoperable, but many new procedures are required that are not explicitly provided for in our statutes." Tropman, Statement to Assembly Judiciary Committee, supra.
The legislative council's introduction to its description of engrossed 1977 AB 874 states: "Assembly Bill 874 is a proposal to bring statewide uniformity to the operation of the juvenile court and to update the current statutes by codifying federal and state court decisions rendered during the past twenty-two years." Description of Engrossed Assembly Bill 874, supra.
The analyses of 1977 AB 874 by the legislative council and the legislative reference bureau...
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