State ex rel. State Public Defender v. Percy

• Decision Date: 16 May 1980
• Docket Number: No. 80-298,80-298
• Citation: 97 Wis.2d 627,294 N.W.2d 528
• Parties: STATE ex rel. STATE PUBLIC DEFENDER, Petitioner-Respondent, v. Donald PERCY, Secretary, Department of Health & Social Services, Appellant.
• Court: Wisconsin Court of Appeals

Page 528

294 N.W.2d 528

97 Wis.2d 627

STATE ex rel. STATE PUBLIC DEFENDER, Petitioner-Respondent, v. Donald PERCY, Secretary, Department of Health & Social

Services, Appellant.

No. 80-298.

Court of Appeals of Wisconsin.

Submitted on Briefs April 24, 1980.

Opinion Released May 16, 1980.

Opinion Filed May 16, 1980.

Bronson C. La Follette, Atty. Gen., with whom on the briefs was Robert D. Repasky, Asst. Atty. Gen., for appellant.

Steven P. Weiss, Asst. State Public Defender, and Thomas E. Dixon, youth policy & law center, Madison, for respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

The secretary of the Department of Health and Social Services has appealed from the order of the circuit court. The order requires him to apply the Children's Code, ch. 48, Stats. 1977, to all children in the department's custody, including those whose custody was acquired under ch. 48 before the effective date of its amendment, November 17, 1978. The amendment was effected by ch. 354, Laws of 1977. We refer to the Children's Code as it existed immediately before and after November 17, 1978 as the "old" and "new" code, respectively.

The old code required the juvenile court to order one of several dispositions of a child adjudicated delinquent, ranging from counseling to transferring legal custody of the child to a relative, a county agency, a licensed child welfare agency or to the department. Sec. 48.34(1)(a) through (d), Stats. 1975. ¹ Section 48.34(3) of the old code provided that transfers to the department were until age eighteen, unless the department discharged the child earlier under sec. 48.53, Stats. 1975. A delinquent child under sec. 48.12(1) ² of the old code was one who violated a state or federal criminal law or a county, town or municipal ordinance that conformed to the criminal law.

The new code limits the definition of delinquency to violation of a federal or state criminal law. Sec. 48.12, Stats. 1977. Section 48.34(1) through (4) of the new code requires the court to order a disposition, ranging from counseling to transferring legal custody to a relative, a county agency or a licensed child welfare agency. Transfer of custody of a delinquent to the department is now permitted in narrowed circumstances. Section 48.34(4m) provides that the court shall transfer custody to the subunit of the department administering corrections for placement in a secured correctional facility if the child is found delinquent for the commission of an act which if committed by an adult would be punishable by a sentence of six months or more and the child is a danger to the public and needs restrictive custodial treatment.

The new code contains a one-year termination provision which applies to all dispositional orders for delinquents, including transfer of custody to the department. Secs. 48.355(1) and (4), Stats. 1977. ³ Section 48.365 ⁴ of the new code permits the court to extend a dispositional order under sec. 48.355 on notice to the parties after a court report has been submitted and evidence taken. Subsection (5) provides that extension orders shall be for a specified length of time not to exceed one year.

The State Public Defender and the Youth Policy & Law Center brought this action on behalf of juveniles adjudicated delinquent under the old Children's Code and whose legal custody was transferred to the department. ⁵ The complaint and answer establish that the department maintains and intends to continue to maintain legal custody over those juveniles for periods greater than one year, as authorized by the old code, without obtaining judicial extensions of the custody orders under the new code. We are advised that some seven hundred children are in the affected category.

The complaint alleges that the department's actions are contrary to secs. 48.355(4) and 48.365, Stats., of the new Children's Code and deny equal protection of the laws to juveniles adjudicated delinquent under the old code by treating them differently from those adjudicated under the new code. The complaint seeks judgment declaring that secs. 48.355(4) and 48.365, Stats. 1977, must be applied to all juveniles whose legal custody is in the department and requiring the department to implement a plan to terminate such custody or to provide judicial hearings to extend custody, within a reasonable time as determined by the court.

The answer asserts that all juveniles have been "committed" ⁶ to the department in accordance with the statutes applicable at the time of commitment and that equal protection is not denied. The answer affirmatively alleges that the legislature considered the expense of implementing the new code, that to apply the procedures of the new code to juveniles committed under the old code would involve substantial additional administrative expenses and that it is reasonable to differentiate between children committed under the old and new codes.

The trial court, on the State Public Defender's motion for judgment on the pleadings, held that two classes of children have been created by legislation and the department's action. The court concluded that the classification denies equal protection of the laws. The court declined to pursue the question of statutory construction. The court ordered defendant to apply the new Children's Code to all children in the department's custody and to file petitions for extension of custody pursuant to the new code within thirty days. We stayed the trial court's order pending the department's appeal, on conditions not pertinent to this appeal.

If secs. 48.355(4) and 48.365, Stats., of the new code apply to dispositional orders entered under the old code, then the constitutional issue of equal protection does not exist. Termination and extension of dispositional orders will be subject to the provisions of the new code, regardless when delinquency was adjudicated, and delinquent children will not have been divided into two classes.

The courts of this state will never decide a question of constitutional law if it is unnecessary to do so. State ex rel. Clarke v. Carballo, 83 Wis.2d 349, 353, 265 N.W.2d 285, cert. den. sub nom. Clarke v. Percy, 439 U.S. 964, 99 S.Ct. 449, 58 L.Ed.2d 421 (1978); State ex rel. Ellenburg v. Gagnon, 76 Wis.2d 532, 536, 251 N.W.2d 773 (1977); and Cohen v. Towne Realty, Inc., 54 Wis.2d 1, 4-5, 194 N.W.2d 298 (1972). ⁷

We therefore scrutinize the statutes involved to determine whether they apply to orders under the old code rather than first determining whether equal protection of the laws would otherwise be denied.

The secretary argues that secs. 48.355(4) and 48.365, Stats., of the new code are clearly inapplicable, when read in light of sec. 990.04, Stats., to a transfer of custody to the department under sec. 48.34 of the old code. ⁸ The secretary asserts that an adjudication of delinquency is at least a civil liability for an offense and that commitment to the department is a penalty. As the new code does not expressly abrogate or abolish liabilities under the old code, the secretary contends that a dispositional order entered after an adjudication of delinquency under the old code is unaffected by the sections of the new code with which we are concerned.

Section 990.04, Stats., deals with the effect of the repeal of a statute upon "civil or criminal liability for offenses committed, penalties or forfeitures incurred or rights of action accrued under such statute before the repeal thereof." We conclude that statutes affecting the disposition of a child adjudicated delinquent are not within the purview of sec. 990.04.

Neither adjudication of delinquency nor disposition of a delinquent can be classified as a civil liability for an offense within the meaning of sec. 990.04, Stats. "(U)sed in its broadest and most comprehensive sense it (liability) would include any obligation which a party was bound in law or justice to perform and is synonymous with responsibility." State ex rel. Milwaukee v. Milwaukee E.R. & L. Co., 144 Wis. 386, 403, 129 N.W. 623, 630 (1911). When used in conjunction with the words "offenses committed," as in sec. 990.04, however, "liability" implies guilt or fault.

"(T)he role of the juvenile court is not to determine guilt or to assign fault, but to diagnose the cause of the child's problems and help resolve those problems." State ex rel. Herget v. Waukesha Co. Cir. Ct., 84 Wis.2d 435, 451, 267 N.W.2d 309, 316 (1978). The code "can hardly be said to provide a remedy for a wrong." State ex rel. Koopman v. Waukesha Co. Ct. Judges, 38 Wis.2d 492, 498, 157 N.W.2d 623, 626 (1968). The code does not affect a civil claim against the child who is the subject of a juvenile court proceeding. State ex rel. Herget, supra. ⁹ The right of the department to compel a child to undergo a given disposition is a statutory incident to the department's custody of the child and is not a right of action held by the department against the child. The terms of the department's custody can be modified by a statute enacted after custody has been acquired. State ex rel. Johnson v. Hershman, 55 Wis.2d 499, 200 N.W.2d 65 (1972).

An adjudication of delinquency or the disposition of a delinquent is even less a "criminal liability for offenses committed" or a penalty or a forfeiture, as those terms are used in sec. 990.04, Stats., than it is a civil liability. Commitment of a juvenile to the department is not for the purpose of penalty or punishment, but to effect a result which will serve the best interests of the child, its parents and the public. In re Interest of J. K. (a minor), 68 Wis.2d 426, 431, 228 N.W.2d 713 (1975). "The entire philosophy of the Children's Code is avowedly the antithesis of criminal prosecution." Winburn v. State, 32 Wis.2d 152, 158, 145 N.W.2d 178, 180 (1966).

We conclude that sec. 990.04, Stats., does not require that dispositional orders transferring custody to the department under repealed provisions of...