State ex rel. A.E. v. Circuit Court for Green Lake County, 79-1524-W

• Citation: 94 Wis.2d 98,292 N.W.2d 114
• Decision Date: 19 May 1980
• Docket Number: No. 79-1524-W,79-1524-W
• Court: United States State Supreme Court of Wisconsin
• Parties: STATE ex rel. A. E., Petitioner, v. CIRCUIT COURT FOR GREEN LAKE COUNTY, The Honorable David C. Willis, Circuit Judge, Presiding, Respondent.

Page 114

292 N.W.2d 114

94 Wis.2d 98

STATE ex rel. A. E., Petitioner, v. CIRCUIT COURT FOR GREEN LAKE COUNTY, The Honorable David C Willis, Circuit Judge, Presiding, Respondent.

No. 79-1524-W.

Supreme Court of Wisconsin.

Submitted Dec. 14, 1979.

Decided Feb. 7, 1980.

Motion for Reconsideration Granted on April 8, 1980.

Memorandum on Motion for Reconsideration May 19, 1980.

Robert A. Ferg and Hayes Law Offices, S. C., Ripon, for petitioner.

Arthur Wiesender, Dist. Atty., Green Lake County, Bronson C. La Follette, Atty. Gen., and Sally L. Wellman, Asst. Atty. Gen., for respondent.

PER CURIAM

(on motion for reconsideration).

Upon reconsideration, we conclude that juvenile waiver orders are not appealable by right because they are neither "final orders" under sec. 808.03(1), Stats., nor "adjudications" under sec. 48.47. The appropriate route for review by a party aggrieved by a juvenile waiver order is to seek leave to appeal under sec. 808.03(2) in the manner and within the ten-day deadline specified in sec. 809.50.

Because, upon reconsideration of State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980), we rejected the three criteria used by federal courts to test finality, our initial opinion in this case lacks precedential support. Viewed under the appropriate test set forth in sec. 808.03(1), Stats., a juvenile waiver order is not a final order because it does not "(dispose) of the entire matter in litigation as to one or more of the parties." The waiver order merely transfers the matter to another court.

Similarly, a juvenile waiver order is not appealable by right under sec. 48.47, Stats., ¹ because it is not an "adjudication" on the merits of the case. As we noted in In Interest of D. H., 76 Wis.2d 286, 251 N.W.2d 196 (1977), a juvenile waiver order does not fit comfortably within the concept of adjudication for purposes of appeal under sec. 48.47.

In D.H., supra, a case which arose before the implementation of the court of appeals and the new appellate procedure rules, we fashioned an appellate remedy to supplant the inadequate and time-consuming remedy available to contest juvenile waiver orders under sec. 48.47, Stats., 76 Wis.2d at 294-95, 251 N.W.2d 196. The special procedure established in D.H. called for prompt review in the circuit court, followed by a discretionary writ of prohibition in this court. The court noted parenthetically that the special procedure should be followed "until the legislature provides otherwise." 76 Wis.2d at 294, 251 N.W.2d 196.

The legislature did in fact act subsequently in three related areas, the combined effect of which rendered the D.H. procedure unnecessary. The legislature (1) repealed and recreated the statutory procedure for waiving juveniles to adult court; ² (2) reorganized the state court system; and (3) enacted, in conjunction with this court, the new rules of appellate procedure. In contrast to the old appellate practice rules criticized in D.H., the new rules provide an efficient and expeditious procedure for seeking permissive review of juvenile waiver orders. Under Rule 809.50, permissive appeals must be initiated within ten days. Moreover, where time is of the essence, the appellant can move for expeditious handling of the appeal pursuant to Rule 809.20. The appellant may also move for a stay of the proceedings in the adult court pursuant to sec. 808.07 and Rule 809.12.

A further advantage of proceeding under sec. 808.03(2), Stats., as opposed to the writ of prohibition procedure established in D.H., is that an adequate record would come before the court of appeals if leave to appeal is granted. See, Rules 809.50(3) and 809.15. As the present case evidences, a petition for a writ of prohibition ordinarily provides no mechanism for bringing the full juvenile court record before the appellate court. ³ In State ex rel. TDD, supra, 91 Wis.2d at 235, 280 N.W.2d 264, the minor's initial writ of prohibition was denied on the ground that the sparse record accompanying the writ provided an insufficient basis for review.

In D.H. we emphasized the critical importance of an order waiving juvenile jurisdiction and the resultant need for prompt appellate review. 76 Wis.2d at 292-94, 251 N.W.2d 196. In the court's words: "The transfer of the juvenile to the adult criminal process is a grave step, and there should be a way for the juvenile to obtain immediate review of the decision." 76 Wis.2d at 292, 251 N.W.2d at 200. Our adherence to this view remains unchanged. ⁴

Given the significance of a waiver of juvenile jurisdiction orders, we urge that the court of appeals, in the exercise of its discretion, give careful consideration to the merits presented by appeals from such orders. Review will often be necessary to protect the minor from "substantial or irreparable injury" one of the three criteria for granting permissive appeals under sec. 808.03(2), Stats. Juvenile waiver orders, like orders denying motions to dismiss based on double jeopardy (see, Jenich, supra ), represent a unique type of intermediate order which require prompt appellate review where necessary to prevent "substantial or irreparable injury."

The editors of the new manual on Wisconsin juvenile court practice advocate handling appeals from juvenile waiver orders in the manner set forth above. The editors state that:

"Although the provision for appeal in the Children's Code, s. 48.47, provides for an appeal only of an 'adjudication of the juvenile court,' the Wisconsin Supreme Court has held that an order of waiver under Wis.Stat. s. 48.18(6) is an appealable order. In re D.H., 76 Wis.2d 286, 251 N.W.2d 196 (1977). However, the language of In re D.H. is probably modified by Wis.Stat. s. 808.03(1). Under that section, a waiver order is not appealable as a matter of right because it is not a final order. However, it is appealable as a discretionary appeal under ss. 808.03(2) and 809.50 and there should be no difficulty demonstrating under ss. 808.03(3) (808.03(2)) and 809.50(1)(c) that an immediate review of the order is necessary to protect the juvenile from substantial and irreparable injury." Wisconsin Juvenile Court Practice, sec. 9.23, p. 151 (Youth Policy & Law Center, 1978).

The numerous papers filed on behalf of A.E. and the state throughout A.E.'s repeated attempts to obtain appellate review of the waiver order demonstrate that counsel valiantly attempted to make sense out of the unexplained interplay between sec. 48.47, sec. 808.03(1) and (2), and the court made appeal procedure established in D.H. The customary disposition of a case like this would be to deny the writ and remand for trial in the circuit court. However, due to the unique procedural background of this case, we deem it advisable, in the interests of justice, to permit A.E. the opportunity to seek leave to appeal under sec. 808.03(2) within ten days of our mandate.

The petition is denied without costs, and the cause remanded to the juvenile court for further proceedings consistent with this opinion.

ABRAHAMSON, Justice (concurring on motion for reconsideration).

I agree with the majority that the juvenile waiver order does not constitute a final order under sec. 808.03(1), Stats., but is an order appealable by permission of the court of appeals under sec. 808.03(2), Stats. Because this court continues to adhere to the view expressed in In Interest of D.H., 76 Wis.2d 286, 294, 251 N.W.2d 196 (1977) (per curiam opinion p. ---), that the juvenile should have immediate, speedy and efficient review of a juvenile waiver order, I conclude, as I did in State v. Jenich, 94 Wis.2d 74, 82, 288 N.W.2d 114 (1980), rehearing May 19, 1980 (Shirley S. Abrahamson, J. concurring), that the court of appeals should grant leave to appeal as a matter of course to all petitions for leave to appeal juvenile waiver orders to protect the juvenile from substantial and irreparable injury. In the event of a frivolous appeal from an order, the court of appeals should summarily affirm the juvenile waiver order.

I do not agree with the majority's disposition of the writ. If we can speak in terms of "customary disposition of a case like this," I would say that the customary disposition would be to deny the petition for a writ of prohibition and to extend the stay of criminal proceedings in the circuit court for Green Lake county, which this court granted on October 8, 1979, for ten days from the date of our mandate to give petitioner opportunity to file a petition for leave to appeal and to seek a further stay. See sec. 808.07 and Rule 809.12, Stats.

I do not understand why the court remands the case to the "juvenile court." The judge entered an order waiving juvenile jurisdiction and pursuant to sec. 48.18(6), Stats., the instant case is presently pending before the Green Lake county circuit court as an adult criminal matter; this court has stayed further adult criminal proceedings. I do not know what the "juvenile court" can or should do on remand.

Although I do not doubt this court's power to dismiss the writ of prohibition and to grant A.E. additional time to file a petition for leave to appeal with the court of appeals, I think the court is putting too heavy an emphasis and value on form instead of on substance. We should not dismiss proceedings on procedural, technical grounds. I believe this court should, as it has in other recent proceedings, remand or transfer the matter to the court of appeals. The court of appeals should be directed to treat A.E.'s petition for a writ of prohibition as a petition for leave to appeal.

A.E. has filed three sets of papers with the clerk of the supreme court (who serves as clerk to both the supreme court and the court of appeals) and has expended $75.00 in filing fees. The court now forces A.E. to pay additional legal fees to counsel to redraft the same papers for a fourth time and to pay another $25.00 filing fee upon filing the petition with the clerk. There are presently three...