State v. A. L. ( 2019 )

2019 WI 20
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP880
COMPLETE TITLE: In the interest of A.L., a person under the age
of 17:
State of Wisconsin,
Petitioner-Appellant,
v.
A. L.,
Respondent-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 378 Wis. 2d 721, 904 N.W.2d 543
PDC No:2017 WI App 72
OPINION FILED: March 7, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 5, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Christopher T. Dee
JUSTICES:
CONCURRED: KELLY, J. concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent-petitioner, there were briefs
filed by Jorge R. Fragoso, assistant state public defender.
There was an oral argument by Jorge R. Fragoso.
For the petitioner-appellant, there was a brief filed by
Luke N. Berg, deputy solicitor general, with whom on the brief
was Brad D. Schimel, attorney general, and Misha Tseytlin,
solicitor general. There was an oral argument by Luke N. Berg.
2019 WI 20
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP880
(L.C. No. 2012JV389A)
STATE OF WISCONSIN : IN SUPREME COURT
In the interest of A.L., a person under the
age of 17:
State of Wisconsin, FILED
Petitioner-Appellant, MAR 7, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
A.L.,
Respondent-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. The Milwaukee County
Circuit Court, T. Christopher Dee presiding, denied the State's
motion to recall A.L.'s juvenile delinquency proceedings. We
review the court of appeals' decision reversing the circuit
court.1
¶2 A.L. seeks review of two issues: (1) whether a
circuit court can resume suspended juvenile delinquency
1
State v. A.L., 2017 WI App 72, 378 Wis. 2d 721, 904
N.W.2d 543.
No. 2016AP880
proceedings to reexamine the competency of a juvenile who was
initially found not competent to proceed under Wis. Stat.
§ 938.30(5)(d) (2015-16)2 and not likely to become competent
within the statutory time limits; and (2) whether the circuit
court retains competency over juvenile delinquency proceedings
after an accompanying juvenile in need of protection or services
(JIPS) order has expired.3
¶3 We conclude that a circuit court can resume suspended
juvenile delinquency proceedings to reexamine the competency of
a juvenile who was initially found not competent and not likely
to become competent within the statutory time frame. We also
conclude that a circuit court retains competency over juvenile
delinquency proceedings even after an accompanying JIPS order
has expired. Accordingly, we affirm the decision of the court
of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 The juvenile delinquency petition at issue pertains to
an incident that occurred in November 2012 when A.L. was 15
years old. Milwaukee police officers were dispatched to a
residence where they found a man lying on the front porch with a
stab wound to his chest. During a search of the residence, the
officers recovered a silver metal knife in the kitchen sink.
2 All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3 A "juvenile in need of protection or services" order, as
discussed in Wis. Stat. § 938.13, is commonly referred to as a
"JIPS" order.
2
No. 2016AP880
A.L. admitted to an officer that he had stabbed his 25-year-old
cousin after observing him violently fighting with A.L.'s 16-
year-old brother.
¶5 A delinquency petition was filed in November 2012 when
A.L. was 15 years old, alleging A.L. committed second-degree
reckless homicide while armed with a dangerous weapon. At
A.L.'s plea hearing, defense counsel challenged A.L.'s
competency to proceed. The circuit court suspended the
proceedings and ordered two competency evaluations of A.L. Both
psychologists found A.L. not competent and not likely to become
competent within the statutory time frame, and the circuit court
agreed. Pursuant to Wis. Stat. § 938.30(5)(d), the circuit
court suspended the delinquency proceedings against A.L.,
entered a JIPS order, and placed A.L. in a residential treatment
center. A.L.'s JIPS order was later extended for another year
and expired in March 2015.
¶6 While the JIPS order was pending, the State filed
additional charges against A.L.: (1) a June 2014 juvenile
delinquency petition alleging criminal damage to property; and
(2) a December 2014 complaint alleging battery, criminal damage
to property, and disorderly conduct in adult criminal court.4 In
the 2014 delinquency proceedings, A.L. was found not competent
and not likely to become competent within the one-year statutory
4 A.L. was 17 years old at the time of the December 2014
offense and therefore the State filed adult criminal charges.
A.L. is now 21 years old.
3
No. 2016AP880
time frame. The circuit court suspended the proceedings and
entered another JIPS order which expired in October 2015.
However, in the adult criminal proceedings A.L. was found not
competent but likely to become competent. A.L. was then sent to
Mendota Mental Health Facility in March 2015 for competency
remediation. In May 2015, a doctor at Mendota found A.L.
competent to proceed. A.L. did not challenge this competency
finding and pled guilty to the battery and criminal damage to
property charges.
¶7 As a result of the competency finding in the adult
criminal proceedings, the State moved for a reevaluation of
A.L.'s competency in the 2014 delinquency proceedings. After
hearing testimony, the circuit court found A.L. competent and
resumed proceedings on the June 2014 delinquency petition.
¶8 The State then filed a motion to recall for
reconsideration of A.L.'s competency in the November 2012
juvenile delinquency case. The circuit court held that under
the circumstances, where A.L. was initially found not competent
and unlikely to become competent, Wis. Stat. § 938.30(5) did not
provide a procedure for reinstating the suspended delinquency
proceedings. Therefore, the circuit court denied the State's
motion and ruled that the proceedings remained suspended, and
"just kind of sit[] in limbo." The State appealed the circuit
court's decision.
¶9 The court of appeals reversed and remanded the matter,
concluding that Wis. Stat. § 938.30(5)(d) allows the circuit
court to retain authority over delinquency proceedings where the
4
No. 2016AP880
juvenile remains not competent such that the circuit court may
revisit the issue of competency when circumstances warrant
reevaluation. See State v. A.L., 2017 WI App 72, ¶36, 378
Wis. 2d 721, 904 N.W.2d 543. The court of appeals determined
that § 938.30(5)(d) was ambiguous and therefore relied upon
legislative history to determine its meaning. See id., ¶2.
¶10 A.L. seeks review of two issues: (1) whether a
circuit court can resume suspended delinquency proceedings to
reexamine the competency of a juvenile who was initially found
not competent to proceed under Wis. Stat. § 938.30(5)(d) and not
likely to become competent within the statutory time limits; and
(2) whether the circuit court retains competency over
delinquency proceedings after an accompanying JIPS order has
expired.
II. STANDARD OF REVIEW
¶11 The focus in this case is on the interpretation of
Wis. Stat. § 938.30(5), the statute that governs competency
within the Juvenile Justice Code. Statutory interpretation is a
question of law that this court reviews de novo. Noffke ex rel.
Swenson v. Bakke, 2009 WI 10, ¶9, 315 Wis. 2d 350, 760
N.W.2d 156. The purpose of statutory interpretation is to
"determine what the statute means so that it may be given its
full, proper, and intended effect." State ex rel. Kalal v.
Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633,
681 N.W.2d 110. Statutory language is "given its common,
ordinary, and accepted meaning," unless there are technical or
specially-defined words or phrases. Id., ¶45. "A statute's
5
No. 2016AP880
purpose or scope may be readily apparent from its plain language
or its relationship to surrounding or closely-related statutes—
that is, from its context or the structure of the statute as a
coherent whole." Id., ¶49.
III. ANALYSIS
¶12 This case concerns a circuit court's ability to resume5
suspended delinquency proceedings to reexamine the competency of
a juvenile who was initially found not competent and unlikely to
become competent, and what effect, if any, an expired JIPS order
has on the circuit court's competency over the delinquency
proceedings.6 The court of appeals concluded that the language
of Wis. Stat. § 938.30(5) was ambiguous and therefore turned to
legislative history. A.L. and the State disagree with the court
of appeals' holding that § 938.30(5) is ambiguous. Instead,
both parties assert that the language of § 938.30(5) is
unambiguous and supports their respective positions. In the
5
The State labelled its motion "State's Motion to Recall
Suspended Case." Such a motion would be the procedural
mechanism triggering a circuit court to order a competency
evaluation. If A.L. is ultimately found competent, the circuit
court could then resume the proceedings in the November 2012
juvenile delinquency case. The circuit court would then have
two options: dismissal of the action with prejudice or waiver
of jurisdiction pursuant to Wis. Stat. § 938.18.
6
Noncompliance with statutory mandates affects a court's
"competency," which is "not jurisdictional at all, but instead,
is defined as 'the power of a court to exercise its subject
matter jurisdiction' in a particular case." City of Eau Claire
v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738
(quoted source omitted).
6
No. 2016AP880
alternative, A.L. asserts that the circuit court retained
competency over him only for the duration of his JIPS order,
which had expired at the time the State filed its motion to
recall.
A. The circuit court has authority to resume
suspended juvenile delinquency proceedings
to reexamine competency.
¶13 We interpret Wis. Stat. § 938.30(5) and determine
whether the statute is ambiguous. Section 938.30(5)(d) provides
that if a juvenile is found not competent to proceed, the
circuit court "shall suspend proceedings" on a juvenile
delinquency petition and order the State to file a petition for
a Wis. Stat. ch. 51 commitment or a JIPS petition. Where a
juvenile is found not competent but likely to become competent
"within 12 months or within the time period of the maximum
sentence that may be imposed," § 938.30(5)(e) mandates periodic
reexaminations with written reports to be filed "every 3 months
and within 30 days" before the juvenile's commitment or
dispositional order expires. If a report indicates that the
juvenile has become competent, the circuit court "shall hold a
hearing within 10 days" and "determine whether the juvenile is
competent. If the court determines that the juvenile is
competent, the court shall terminate the juvenile's commitment
or dispositional order and resume the delinquency proceeding."
§ 938.30(5)(e)2. However, § 938.30(5) does not address what
becomes of the suspended delinquency proceedings for juveniles
7
No. 2016AP880
who are found not competent and not likely to become competent
within the statutory time frame, like A.L.
¶14 The court of appeals concluded that because Wis. Stat.
§ 938.30(5)(d) provides no guidance as to a particular procedure
to follow in cases where a juvenile is found not competent and
not likely to become competent within the statutory time limits,
the statute is ambiguous. See A.L., 378 Wis. 2d 721, ¶2. The
court of appeals thus turned to legislative history to resolve
this perceived ambiguity.
¶15 Upon examination of the language of Wis. Stat.
§ 938.30(5), in conjunction with the language of ch. 938, we
agree with the parties that there is no ambiguity. Although
there is no explicit procedure laid out in § 938.30(5) to
reinstate the suspended delinquency proceedings in A.L.'s case,
the language of § 938.30(5)(d) and the surrounding subsections
are unambiguous. Ambiguity results where statutory language
reasonably gives rise to different meanings, and that is not the
case here. See Kalal, 271 Wis. 2d 633, ¶47. Instead, reading
§ 938.30(5) in conjunction with the language of ch. 938
demonstrates that a circuit court has the authority to resume
suspended proceedings in cases where a juvenile was initially
found not competent to proceed under § 938.30(5)(d) and not
likely to become competent within the statutory time limits.
¶16 First, the word "suspend" signifies a temporary
postponement and implies that a circuit court can resume the
proceedings if the reason for the suspension disappears. We
rely on dictionary definitions when the legislature fails to
8
No. 2016AP880
provide a definition in the statute. Wisconsin DOR v. River
City Refuse Removal, Inc., 2007 WI 27, ¶46, 299 Wis. 2d 561, 729
N.W.2d 396. According to Black's Law Dictionary, "suspend"
means "to interrupt; postpone; defer." Suspend, Black's Law
Dictionary 1584 (9th ed. 2009). See also Oxford English
Dictionary 318 (2d ed. 1989) (defining "suspend" as "to stop or
check the action of movement of something temporarily");
Webster's Third New International Dictionary 2303 (2002)
(defining "suspend" as "stop temporarily"). The word suspend
thus implies that something is postponed until a condition has
been met. Here, the precondition of suspension that no longer
exists is A.L.'s lack of competency.
¶17 Second, Wis. Stat. § 938.30(5) distinguishes between
dismissal of a petition where a circuit court finds a juvenile
not responsible by reason of mental disease or defect, and
suspension of proceedings on the petition where a circuit court
finds a juvenile is not competent. Compare § 938.30(5)(c) with
§ 938.30(5)(d). "[S]tatutory language is interpreted in the
context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-
related statutes; and reasonably, to avoid absurd or
unreasonable results." Kalal, 271 Wis. 2d 633, ¶46. When the
legislature uses different terms in a statute, the terms are
presumed to have distinct meanings. See Johnson v. City of
Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (Ct. App. 1996).
The words dismiss and suspend in §§ 938.30(5)(c) and (5)(d) are
9
No. 2016AP880
intended to function differently, especially in light of the
fact that subsections (5)(c) and (5)(d) are otherwise identical.7
¶18 Further, there is a logical distinction between the
suspension of a case where a juvenile is not competent to
proceed and the dismissal of a case where a juvenile's
affirmative defense is lack of mental responsibility. The
latter resolves the case on the merits and there is no matter
left for the circuit court to decide. On the other hand, a
juvenile's lack of competency bears only upon the juvenile's
current ability to participate in the proceedings; it is not
related to the merits of the case. If the circuit court cannot
resume suspended proceedings once a juvenile becomes competent,
there would be no means of conclusion or resolution of the case,
and A.L.'s 2012 delinquency proceedings would be suspended
indefinitely. Where a juvenile does not become competent within
the statutory time frame, suspension would therefore act as the
functional equivalent of dismissal. Reading Wis. Stat.
§ 938.30(5) in such a manner would upend the distinction between
suspension and dismissal, rendering the terms essentially
identical in practice.
7Compare Wis. Stat. § 938.30(5)(c) ("[i]f the court finds
that the juvenile was not responsible by reason of mental
disease or defect, as described under [Wis. Stat. §§]
971.15(1) and (2), the court shall dismiss the petition with
prejudice"), with § 938.30(5)(d) ("[i]f the court finds that the
juvenile is not competent to proceed, as described in [Wis.
Stat. §§] 971.13(1) and (2), the court shall suspend proceedings
on the petition").
10
No. 2016AP880
¶19 Lastly, reading Wis. Stat. § 938.30(5) in relation to
the language of a surrounding statute, Wis. Stat. § 938.12(2),
the circuit court retains jurisdiction to resume A.L.'s
suspended delinquency proceedings to reevaluate A.L.'s
competency regardless of the fact that A.L. is currently 21
years old. Section 938.12(2) provides:
If a petition alleging that a juvenile is
delinquent is filed before the juvenile is 17 years of
age, but the juvenile becomes 17 years of age before
admitting the facts of the petition at the plea
hearing or if the juvenile denies the facts, before an
adjudication, the court retains jurisdiction over the
case.
Here, the petition was filed when A.L. was 15 years old and,
because A.L. was found not competent, the proceedings were
suspended. A.L. neither admitted nor denied the facts of the
petition before turning 17 years old and therefore the circuit
court retained jurisdiction over the delinquency proceedings
pursuant to § 938.12(2).
¶20 A.L. asserts that Wis. Stat. § 938.30(5)(e)2. is the
exclusive path to resumption of the delinquency proceedings
because it is the only subsection that references resumption of
proceedings. A.L. points to the following language, "[i]f a
report under [§ 938.30(5)(e)1.] indicates that the juvenile has
become competent" and the circuit court agrees, "the court shall
terminate the juvenile's commitment or dispositional order and
resume the delinquency proceeding." § 938.30(5)(e)2. However,
there is no support for A.L.'s claim that § 938.30(5)(e)2. is
the exclusive mechanism for the circuit court to resume
11
No. 2016AP880
delinquency proceedings upon a finding of competency. Section
938.30(5)(e) does not use limiting language such as "only," or
"except for," and we will not read limiting language into the
statute. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI
27, ¶16, 316 Wis. 2d 47, 762 N.W.2d 652; C. Coakley Relocation
Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶24, 310 Wis. 2d
456, 750 N.W.2d 900.
¶21 A.L. additionally argues that the time frame for
reexamination and filing of written reports set forth in Wis.
Stat. § 938.30(5)(e)1. for juveniles likely to become competent
establishes the exclusive authority of the circuit court to
reexamine juveniles who have been found not competent. Section
938.30(5)(e)1. dictates that such juveniles "shall be
periodically reexamined with written reports of those
reexaminations to be submitted to the court every 3 months and
within 30 days before the expiration of the juvenile's
commitment or dispositional order." There is no statutory
requirement for how often these reexaminations can or should
take place; instead, the statute only places minimum
requirements for submission of reports on those reexaminations.
Therefore, § 938.30(5)(e)1. does not otherwise supplant the
circuit court's authority to order a reexamination, during or
after the statutory time frame, especially where the defendant
has been found competent in more recent cases.
¶22 Lastly, A.L. asserts that the State's interpretation
of Wis. Stat. § 938.30(5) is inequitable, as illustrated by the
hypothetical situation of the State moving to recall suspended
12
No. 2016AP880
delinquency proceedings to reevaluate the competency of a 50-
year-old who was found not competent as a 15-year-old. Under
A.L.'s hypothetical, any unfairness as a result of the circuit
court resuming proceedings8 years later would be checked by the
defendant's constitutional rights to due process and a speedy
trial.9 A.L. also stresses the purpose of the Juvenile Justice
Code and the importance of diverting juveniles from the juvenile
justice system through early intervention. While that is a
stated purpose of the Juvenile Justice Code, another stated
8 If A.L. is found competent, the State intends to ask the
circuit court to waive its jurisdiction so that the case could
be tried in adult criminal court. The Juvenile Justice Code
specifically provides that a circuit court retains jurisdiction
over a delinquency case, see Wis. Stat. § 938.12(2), and that
the State may seek waiver, see Wis. Stat. § 938.18(2), even
after the juvenile becomes an adult. See State v. Phillips,
2014 WI App 3, ¶6, 352 Wis. 2d 493, 842 N.W.2d 504. The circuit
court would still need to make the discretionary waiver
determination by applying the criteria listed in § 938.18(5).
Alternatively, the circuit court could choose to dismiss the
action with prejudice.
9 The violation of the right to a speedy trial is a case-by-
case determination that weighs, among other factors, the
"prejudice to the defendant." See Barker v. Wingo, 407 U.S.
514, 532 (1972). Further, the constitutional guaranty of due
process is a protection against prejudice to the defense caused
by passage or lapse of time. See United States v. MacDonald,
456 U.S. 1, 8 (1982). An individual's due process rights are
rooted in the Fourteenth Amendment to the United States
Constitution and Article I, Section 8 of the Wisconsin
Constitution. State v. Wood, 2010 WI 17, ¶17, 323 Wis. 2d 321,
780 N.W.2d 63. The question of fairness is addressed as a
matter of "procedural" due process. Id. In A.L.'s posed
hypothetical situation, there may be concerns about the
defendant's ability to confront and cross-examine witnesses, as
well as call witnesses in his own defense.
13
No. 2016AP880
purpose is "[t]o hold each juvenile offender directly
accountable for his or her acts" and to protect the public.
Wis. Stat. §§ 938.01(2)(a) and (b).
¶23 We conclude that the language of Wis. Stat.
§ 938.30(5), read in conjunction with the language of ch. 938,
allows a circuit court to resume delinquency proceedings that
were suspended because a juvenile was initially found not
competent to proceed under § 938.30(5)(d) and not likely to
become competent within the statutory time limits.10
B. An expired JIPS order is irrelevant to a circuit court's
competency over juvenile delinquency proceedings.
¶24 In the alternative, A.L. asserts that the circuit
court retained competency over A.L. only for the duration of the
accompanying JIPS order, which expired in March 2015. A.L.
contends that the circuit court could have reexamined him only
through March 2015 because his JIPS order was not extended
beyond that time. However, A.L. points to no statutory language
that supports the position that a circuit court loses competency
over delinquency proceedings just because an accompanying JIPS
order expires.
¶25 On the other hand, the State points to several cases
where this court has determined that a criminal proceeding is
10
Wisconsin Stat. ch. 51 allows temporary civil commitment
for those who are "mentally ill," "proper subject[s] for
treatment," and "'dangerous' to themselves or to others." See
In re Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814
N.W.2d 179.
14
No. 2016AP880
jurisdictionally independent from a civil commitment based on
lack of competency. See State ex rel. Porter v. Wolke, 80
Wis. 2d 197, 257 N.W.2d 881 (1977); see also State ex rel.
Haskins v. County Court of Dodge Cty., 62 Wis. 2d 250, 214
N.W.2d 575 (1974). The State asserts that Porter explicitly
rejects A.L.'s argument. Porter, 80 Wis. 2d 197. In Porter,
criminal proceedings against a defendant were suspended when the
defendant was found not competent to stand trial and was later
civilly committed. Id. at 200. Shortly thereafter, the
defendant was released from civil commitment and the district
attorney moved for a reexamination of the defendant to determine
if he was competent to stand trial. Id. at 201-02. The
defendant asserted that the criminal proceedings against him
could not be resumed. Id. at 202. This court held that the
circuit court did not lose its jurisdiction to proceed on the
criminal charges because they were independent of the
defendant's commitment. Id. at 204-05. However, this court did
not foreclose the possibility of a defendant's claim of denial
of the right to a speedy trial. Id. We agree with the State
that Porter applies here to render JIPS proceedings
jurisdictionally independent from delinquency proceedings.
¶26 A.L. cites to Wis. Stat. § 938.13 for the proposition
that after a circuit court suspends delinquency proceedings
because a juvenile is found not competent, a court presiding
over the JIPS proceedings is granted "exclusive original
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No. 2016AP880
jurisdiction" over the juvenile.11 According to A.L., if the
JIPS order expires before the juvenile is found competent to
proceed on the delinquency proceedings, the circuit court loses
competency over the delinquency proceedings. However, the JIPS
court has jurisdiction only over the JIPS proceedings, which are
separate from the delinquency proceedings. A JIPS order or ch.
51 commitment assists only in competency restoration and
provides services and safety to juveniles.
¶27 Wisconsin Stat. § 938.30(5)(e) further demonstrates
that the court presiding over the JIPS proceedings does not
truly have "exclusive original jurisdiction" in the sense that
A.L. asserts. Pursuant to § 938.30(5)(e), a juvenile who is
found not likely to become competent is subject to a separate
JIPS order, yet the circuit court may continue to exercise
jurisdiction over the juvenile through reexamination for
competency and resumption of delinquency proceedings if the
juvenile becomes competent within the statutory time frame.
Therefore, the expiration of A.L.'s accompanying JIPS order in
March 2015 has no bearing on the circuit court's competency to
proceed with A.L.'s delinquency proceedings.
IV. CONCLUSION
¶28 We conclude that a circuit court can resume suspended
juvenile delinquency proceedings to examine the competency of a
11
Wisconsin Stat. § 938.13 reads: "[e]xcept as provided in
[Wis. Stat. §] 938.028(3), the court has exclusive original
jurisdiction over a juvenile alleged to be in need of protection
or services."
16
No. 2016AP880
juvenile who was initially found not competent and not likely to
become competent within the statutory time frame. We also
conclude that a circuit court retains competency over juvenile
delinquency proceedings even after an accompanying JIPS order
has expired. Accordingly, we affirm the decision of the court
of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2016AP880.dk
¶29 DANIEL KELLY, J. (concurring). We perceived a need
for Wis. Stat. § 938.30(5) to say more than it actually does.
And that perception drove us to conjure additional material that
doesn't really exist in the statute. That's an understandable
impulse——we are loath to leave silence alone, to let a voice not
speak, to leave something unsaid.
There is a silence where hath been no sound,
There is a silence where no sound may be,
In the cold grave—under the deep deep sea,
Or in wide desert where no life is found,
Which hath been mute, and still must sleep profound;
No voice is hush’d——no life treads silently,
But clouds and cloudy shadows wander free.
Thomas Hood, Silence (1827). In conversations, in stories, in
all manner of communications we nod along as one thought flows
comfortably into the next. But when the narrative unexpectedly
stops, we reflexively rebel against the silence that denies us
the rest of the story. So we finish the unspoken thought,
complete the unfinished plot. As natural as that reaction might
be in most affairs of life, we must give it no heed when we
construe statutes. It is for the legislature to decide when to
compose, and when to lay aside the pen. If that choice brings
silence earlier than we expect or hope, our disappointment does
not give us leave to take up the pen and write in its name.
¶30 But still, we did. The circuit court suspended A.L.'s
delinquency proceeding pursuant to Wis. Stat. § 938.30(5)
because it found he was not competent, and not likely to regain
competency within the required timeframe. Subsequently, Mr. L.
demonstrated competency in an unrelated proceeding, and thus
arose the question of whether the circuit court could resume the
1
No. 2016AP880.dk
delinquency proceeding to evaluate his competency. We looked to
§ 938.30(5) to see what it might say about such a possibility.
There we discovered that "§ 938.30(5) does not address what
becomes of the suspended delinquency proceedings for juveniles
who are found not competent and not likely to become competent
within the statutory time frame, like A.L." Majority op., ¶13.
Alas, a double-edged silence: the statute said nothing about
how proceedings might resume, nor did it require their
termination. The apparent result, as the circuit court
observed, was a procedural "limbo" in which the proceeding could
neither progress nor be dismissed.
¶31 We could not abide the statute's silence, so we said
that our "reading of § 938.30(5) in conjunction with the
language of ch. 938 demonstrates that a circuit court has the
authority to resume suspended proceedings in cases where a
juvenile was initially found not competent to proceed under
§ 938.30(5)(d) and not likely to become competent within the
statutory time limits." Id., ¶15. Within the space of two
paragraphs, we transformed Wis. Stat. § 938.30(5) from a statute
that does not even address resumption of suspended delinquency
proceedings, into a statute that definitively provides the
necessary authority to resume. I think the first iteration was
right. If the statute has something to say in paragraph 15 that
it did not say in paragraph 13, it's only because we used the
legislature's pen to finish the story we thought we should have
heard.
2
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¶32 This intrusion into legislative silence was not just
unwarranted, it was completely unnecessary. When the
legislature adopted Wis. Stat. § 938.30(5), it was composing
against the background of our pre-existing authority. We have
already recognized that the authority to suspend and resume
proceedings based on a defendant's incompetency pre-dated this
statute. In fact, our competency statutes are actually
codifications of principles and practices that were already old
before we even became a state. In State v. Seward, we recalled
the practice of English courts when competency was an issue:
Also if a man in his sound memory commits a capital
offense, and before arraignment for it he becomes mad,
he ought not to be arraigned for it, because he is not
able to plead to it with that advice and caution that
he ought. And if, after he has pleaded, the prisoner
becomes mad, he shall not be tried, for how can he
make his defense? If, after he be tried and found
guilty, he loses his senses before judgment, judgment
shall not be pronounced; and if, after judgment, he
becomes of nonsane memory, execution shall be stayed;
for peradventure, says the humanity of the English
law, had the prisoner been of sound memory, he might
have alleged something in stay of judgment or
execution.
124 Wis. 623, 630, 102 N.W. 1079 (1905) (quoting 4 William
Blackstone, Commentaries ch. 2 *24-25). "Our statute," we said,
"is an affirmance of these humane principles of the common law,
and the reason upon which it rests makes manifest the intention
of the Legislature." Id. at 630-31. See also Crocker v. State,
60 Wis. 553, 556, 19 N.W. 435 (1884) ("At common law, if a
person, after committing a crime, became insane, he was not
arraigned during his insanity, but was remitted to prison until
such incapacity was removed.").
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¶33 The authority to regulate our proceedings is not, of
course, exclusive to us——the legislature may make its
contribution as well: "[T]he power to regulate procedure has
been regarded not as an exclusively legislative power, nor yet
as an exclusively judicial power, but certainly as a power
properly within the judicial province when not otherwise
directed by the legislature." Rules of Court Case, 204
Wis. 501, 510, 236 N.W. 717 (1931). So the real question is
whether the legislature, in adopting Wis. Stat. § 938.30(5),
removed our pre-existing authority to resume juvenile
delinquency proceedings to determine whether the defendant has
regained his competency. The court's opinion does a convincing
job of demonstrating there is no such prohibition, and I agree.
Therefore, in the absence of any statutory prohibition the court
may resume the suspended juvenile delinquency proceedings. But
it may do so not because of any authority granted by
§ 938.30(5), but because the legislature did not remove the
authority we already had.
¶34 When the legislature stops writing, "There is a
silence where hath been no sound / There is a silence where no
sound may be . . . ." We should not surmise it is
unintentional, or accidental. No sound belongs there because it
is the silence of the people's representatives choosing not to
speak. "No voice is hush'd" there because there is no voice
wishing to be heard. And in that stillness, "no life treads
silently" in hopes we will give it expression. The quietness
following the period in the statute's last sentence is the
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oracular pronouncement that all has been said that will be said.
We may no more compel the legislature to speak than we may
ignore it when it does. For these reasons, I join the court's
opinion except to the extent it discovers authority to resume
Mr. L.'s delinquency proceedings in Wis. Stat § 938.30(5). The
authority to resume those proceedings both pre-dated and
survived enactment of that statute.
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