State v. J. A. J.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 14, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2022AP2066 Cir. Ct. No. 2021JV1057
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
IN THE INTEREST OF J.A.J., A PERSON UNDER THE AGE OF 18:
STATE OF WISCONSIN,
PETITIONER-RESPONDENT,
V.
J.A.J.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Milwaukee County:
AUDREY K. SKWIERAWSKI, Judge. Affirmed.
¶1 GEENEN, J.1 J.A.J., a juvenile adjudicated delinquent and placed
in the Serious Juvenile Offender Program (SJOP), raises two issues in his appeal.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP2066
The first issue, one of first impression for this court, is whether the circuit court
erred when it entered a dispositional order under WIS. STAT. ch. 938, the Juvenile
Justice Code, ordering J.A.J. into the SJOP with placement at Lincoln Hills
School, a Type 1 secure juvenile correctional facility operated by the Department
of Corrections (DOC),2 in light of statutory amendments to ch. 938 in 2017 Wis.
Act 185 (2017 Act) and 2019 Wis. Act 8 (2019 Act). These Acts made changes to
the dispositional options for the secured confinement of juveniles adjudicated
delinquent and provided that Lincoln Hills be closed by July 1, 2021. The second
issue is whether the circuit court erred when it ordered restitution based on the
victim’s testimony of the value of the items for which restitution was sought rather
than require receipts or other documentary proof of value.
¶2 This court holds that the amendments to WIS. STAT. ch. 938
contained in the 2017 and 2019 Acts do not prohibit circuit courts from entering
dispositional orders placing juveniles adjudicated delinquent into the SJOP with
placement at a Type 1 juvenile correctional facility where the court has determined
that the criteria in WIS. STAT. § 938.34(4m) apply. This court further concludes
that, where the circuit court has determined that an SJOP placement is appropriate
and it determines that secured correctional confinement is necessary, it is not
prohibited from ordering placement at Lincoln Hills. We also affirm the circuit
court’s restitution order.
2
The DOC operates two Type 1 secure juvenile correctional facilities: Lincoln Hills
School for boys, and Copper Lake School for girls. There is only one other Type 1 facility in
Wisconsin, Mendota Juvenile Treatment Center at the Mendota Mental Health Institute, which is
a Type 1 secure mental health treatment facility operated by the Department of Health Services,
and which is not a juvenile correctional facility as defined by WIS. STAT. § 16.99(3b).
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No. 2022AP2066
BACKGROUND
¶3 On November 17, 2021, the State filed a delinquency petition
charging J.A.J. with three counts of armed robbery—party to a crime (PTAC),
three counts of fraudulent use of a financial transaction card—PTAC, one count of
operating a motor vehicle without owner’s consent—PTAC, and one count of
violation of a nonsecure custody order.
¶4 The delinquency petition was based on a series of events occurring
between October 19 and November 8, 2021. At the plea hearing on February 23,
2022, J.A.J. entered admissions to one count each of armed robbery—PTAC,
fraudulent use of a financial transaction card—PTAC, and operating a motor
vehicle without owner’s consent—PTAC. The remaining counts were dismissed
and read in. On March 31, 2022, the circuit court entered a dispositional order
placing J.A.J. in the SJOP for five years with placement at Lincoln Hills.
¶5 On May 20, 2022, the circuit court held a restitution hearing. Victim
J.S. testified at that hearing and his written impact statement was admitted into
evidence. It listed the items for which restitution were sought (AirPods, LED
lights, a shammy, a wallet, and J.S.’s driver’s license) and their values, amounting
to $375. On May 26, 2022, the circuit court entered an order that, among other
things unrelated to this appeal, ordered restitution to J.S. in the amount of $375
based on J.S.’s testimony.
¶6 On November 28, 2022, J.A.J. filed a notice of appeal challenging
both the March 31, 2022 and May, 26, 2022 orders.
¶7 For the following reasons, this court affirms both orders.
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DISCUSSION
¶8 J.A.J. raises two issues on appeal. First, J.A.J. challenges the circuit
court’s ability to enter a dispositional order that places him at a Type 1 secured
juvenile correctional facility, generally, and Lincoln Hills, specifically, in light of
the 2017 and 2019 Acts’ amendments to WIS. STAT. § 938.34(4m) and the
nonstatutory provisions that directed Lincoln Hills to close by July 1, 2021. This
issue is one of statutory interpretation, a question of law that this court reviews de
novo. State v. Gramza, 2020 WI App 81, ¶15, 395 Wis. 2d 215, 952 N.W.2d 836.
¶9 Second, J.A.J. challenges the evidentiary basis supporting the circuit
court’s restitution order, arguing that the evidence of the value of the items was
insufficient, and that the circuit court should have required receipts or other
documentary proof of value. The circuit court’s factual findings related to the
value of the items will not be set aside unless they are “clearly erroneous,” that is,
“when the finding is against the great weight and clear preponderance of
evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶¶11-12, 290
Wis. 2d 264, 714 N.W.2d 530.
I. Juvenile Justice Code
¶10 The Juvenile Justice Code, WIS. STAT. ch. 938, creates the
framework for addressing juvenile delinquency, protecting the rights of citizens,
imposing accountability for violations of the law, and equipping juvenile offenders
with tools to live responsibly and productively. See WIS. STAT. § 938.01(2). The
legislature, in enacting ch. 938, intended to “respond to a juvenile offender’s needs
for care and treatment, consistent with the prevention of delinquency, each
juvenile’s best interest and the protection of the public,” by allowing circuit courts
to utilize the most effective dispositional option. Sec. 938.01(2).
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No. 2022AP2066
¶11 Therefore, after a juvenile is adjudicated delinquent, a circuit court
enters a dispositional order that specifies the juvenile’s placement and treatment
based on the evidence submitted and consistent with the goals of the Juvenile
Justice Code. WIS. STAT. § 938.355(1). The statute instructs the court to decide
dispositions based on the seriousness of the offense and any read-in delinquent
acts. WIS. STAT. § 938.34. Dispositions include, among other things, counseling,
supervision, probation programs, intensive supervision, electronic monitoring,
Type 2 residential care centers, the SJOP, or correctional placement. Id. Secure
placement in a juvenile correctional facility or a county-supervised secured
residential care center for children and youth (SRCCCY) is presumptively
appropriate for juveniles adjudicated delinquent for certain acts that would be one
of the enumerated felonies if committed by an adult and satisfy other statutory
criteria. WIS. STAT. §§ 938.34(4h)-(4m), 938.355(1), 938.538.
a. Pre-Amendment Dispositional Placement Under WIS. STAT.
§ 938.34 and Post-Amendment Changes
¶12 WISCONSIN STAT. § 938.34 provides the possible dispositions a
circuit court may order for juveniles adjudicated delinquent. This case considers
two separate dispositional options, WIS. STAT. § 938.34(4h), placement in the
SJOP, and § 938.34(4m), correctional placement.
¶13 Before placing a juvenile adjudicated delinquent in the SJOP, the
circuit court, among other things, must find “that the only other disposition that is
appropriate for the juvenile is placement in a juvenile correctional facility under
[WIS. STAT. § 938.34](4m).” WIS. STAT. § 938.34(4h)(b). Prior to the 2017 and
2019 Acts, § 938.34 permitted dispositional orders to “[p]lace the juvenile in a
juvenile correctional facility,” which included Lincoln Hills and Copper Lake, if
the circuit court made the required findings under § 938.34(4m)(a)-(b) (2015-16).
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No. 2022AP2066
As a result, a circuit court entering a disposition under sub. (4h) could also
unquestionably order placement at Lincoln Hills once the court made the findings
required by sub. (4m).
¶14 In 2018, the legislature passed 2017 Wisconsin Act 185 which made
changes to the Juvenile Justice Code and the administration of the juvenile justice
system in Wisconsin. Among other things, it provided for the creation of county-
supervised SRCCCYs, directed the closure of Lincoln Hills and Copper Lake, and
required the establishment of a new DOC-supervised Type 1 juvenile correctional
facility by no later than January 1, 2021. The 2019 Act made some additional,
mostly minor changes, to facilitate the implementation and goals of the 2017 Act,
and it amended the deadline to close Lincoln Hills and Copper Lake to July 1,
2021.
¶15 The Acts made no changes to the SJOP dispositional option at WIS.
STAT. § 938.34(4h). Section 62 of the 2017 Act, however, eliminated reference to
“juvenile correctional facilit[ies]” in § 938.34(4m). As a result, while still titled
“Correctional Placement,” § 938.34(4m) now reads: “Place the juvenile under the
supervision of the county department in a [SRCCCY] identified by the county
department[.]” Although that statute now unambiguously requires initial
placement at an SRCCCY, section 66 of the Act created a procedure by which a
juvenile’s placement may be changed at WIS. STAT. § 938.357(3)(b), which
provides: “Notwithstanding [§ ]938.34(4m) and subject to par. (c), the court may
order placement in a Type 1 juvenile correctional facility operated by the [DOC]
for a juvenile who was adjudicated delinquent under s. 938.34(4m) if the court
finds, after a hearing under this section, that” the county does not have space for
the juvenile in its SRCCCY or that other statutorily prescribed conditions apply.
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No. 2022AP2066
¶16 The 2017 Act also changed the definition of “juvenile correctional
facility.” Before the 2017 Act, WIS. STAT. § 16.99(3b) (2015-16), defined
“[j]uvenile correctional facility” to mean “the Copper Lake School and the
Lincoln Hills School.” The 2017 Act eliminated the specific references to Copper
Lake and Lincoln Hills; § 16.99(3b) now reads: “‘Juvenile correctional facility’
means a Type 1 juvenile correctional facility, as defined in [WIS. STAT. §] 938.02
(19)[.]” See 2017 Wis. Act 185, § 4. Despite the change, Copper Lake and
Lincoln Hills remain “Type 1 juvenile correctional facilit[ies]” and “juvenile
correctional facility[ies]” because they are operated or contracted for by DOC for
holding in secure custody juveniles adjudged delinquent. Sec. 938.02(10p), (19).
¶17 The 2017 Act contemplated transferring juveniles currently placed at
Lincoln Hills and Copper Lake to county-supervised SRCCCYs or other Type 1
juvenile correctional facilities as part of the closure process. In nonstatutory
provisions of the 2017 Act, the legislature provided:
“On the earlier of the date on which all juveniles have been
transferred to [SRCCCY] and Type 1 juvenile correctional
facilities under subsection (1) or January 1, 2021, the
[DOC] shall permanently close the Type 1 juvenile
correctional facilities housed at the Lincoln Hills School
and Copper Lake School in the town of Birch, Lincoln
County.”
2017 Wis. Act 185, § 110(2)(a). Subsection (1), relating to the transfers, provided
that “[n]o juvenile may be transferred to a Type 1 juvenile correctional facility
until the [DOC] determines the facility to be ready to accept juveniles, and no
juvenile may be transferred to a [SRCCCY] until the entity operating the facility
determines it to be ready to accept juveniles,” with the transfer of all juveniles to
occur no later than January 1, 2021. 2017 Wis. Act 185, § 110(1)(a). Section
110(7) required that DOC establish or construct a new Type 1 juvenile
7
No. 2022AP2066
correctional facility by January 1, 2021, to correspond with the closure and
transfer deadlines. Sections 61, 62, and 68 of the 2019 Act extended the
respective deadlines to July 1, 2021.
¶18 The deadline to close Lincoln Hills and Copper Lake was not further
extended and has passed. It is generally known within this court’s jurisdiction and
the parties agree that, as of the date of this opinion, Lincoln Hills and Copper Lake
remain open and are the only DOC-operated Type 1 juvenile correctional facilities
in Wisconsin. Since July 1, 2021, the state legislature has appropriated and
continues to appropriate funds for improvements, operation, and the care of
juveniles placed at existing Type 1 juvenile correctional facilities, and for the
planning and construction of new facilities, including SRCCCYs. See, e.g., 2021
Wis. Act 58, §§ 109, 199, 388-89; 2021 Wis. Act 252; 2023 Wis. Act 19 §§ 51,
242-243, 454g, 9104(5). No SRCCCY or replacement Type 1 juvenile
correctional facility has been built.3
b. J.A.J.’s Challenge
i. Statutory Interpretation
¶19 Before a court can place a juvenile in the SJOP, it must find that the
juvenile is at least fourteen years old, has been adjudicated delinquent for
committing certain statutorily prescribed violations, and “that the only other
disposition that is appropriate for the juvenile is placement in a juvenile
correctional facility under sub. (4m).” WIS. STAT. § 938.34(4h) (emphasis added).
3
A judicially noticed fact must be “(a) A fact generally known within the territorial
jurisdiction of the trial court” or “(b) A fact capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” WIS. STAT. § 902.01(2).
8
No. 2022AP2066
There is no dispute that J.A.J. was at least fourteen years old when he was
adjudicated delinquent for at least one of the statutorily enumerated violations or
that the circuit court concluded that the only appropriate placement was in a
secured facility.
¶20 At the dispositional hearing, the circuit court considered the meaning
of WIS. STAT. § 938.34(4h), specifically, the phrase “placement in a juvenile
correctional facility under sub. (4m),” in light of the fact that, due to the
amendments, sub. (4m) no longer permits placement in or even refers to a
“juvenile correctional facility,” and the only available initial placement under sub.
(4m) is in a county-operated SRCCCY. J.A.J. argued that placement in the SJOP
was an impossibility because an SJOP placement requires the court to first find
that the only other appropriate “placement [is] in a juvenile correctional facility
under sub. (4m),” when sub. (4m) does not allow placement in a juvenile
correctional facility. According to J.A.J., this language prevents circuit courts
from ever making the finding required to enter an SJOP disposition. The circuit
court disagreed and concluded that the SJOP remained a permissible disposition.
¶21 J.A.J. appears to abandon this argument on appeal, instead arguing
that, because the 2017 Act eliminated the reference to “juvenile correctional
facilit[ies]” in WIS. STAT. § 938.34(4m), the only appropriate placement for a
juvenile placed in the SJOP is in an SRCCCY. He further contends that, even if
placement in a Type 1 juvenile correctional facility was permitted, J.A.J. could not
be placed at Lincoln Hills, in particular, because it is supposed to be closed. J.A.J.
concludes that there is currently no secured facility at which a court can place
juveniles adjudicated delinquent for serious crimes because no SRCCCYs and no
Type 1 juvenile correctional facilities other than Lincoln Hills or Copper Lake
exist. J.A.J. does not contend on appeal that the circuit court was without
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No. 2022AP2066
authority to enter a dispositional order under sub. (4h), placing him in the SJOP.
Nevertheless, J.A.J. seeks the reversal of the circuit court’s dispositional order
placing him at Lincoln Hills.
¶22 The effects of the 2017 and 2019 Acts on WIS. STAT. § 938.34(4h)
and (4m) are an issue of statutory interpretation. “[T]he 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 Ct. for Dane
Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We begin with the
language of the statute because it is “assume[d] that the legislature’s intent is
expressed in the statutory language.” Id. Statutory language is given its common,
ordinary meaning, and if the meaning of the statute is plain, the inquiry ordinarily
stops. Id. at ¶45.
¶23 Statutory language is not, however, interpreted in isolation.
“Statutory interpretation centers on the ‘ascertainment of meaning,’ not the
recitation of words in isolation.” Brey v. State Farm Mut. Auto. Ins. Co., 2022
WI 7, ¶13, 400 Wis. 2d 417, 970 N.W.2d 1. The context and structure of the
statute in which the operative language appears are important to its meaning.
Kalal, 271 Wis. 2d 633, ¶46. Thus, “statutory 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.” Id. This means that “[s]tatutory language is read
where possible to give reasonable effect to every word, in order to avoid
surplusage.” Id. “Properly applied, the plain-meaning approach is not
‘literalistic;’ rather, the ascertainment of meaning involves a ‘process of analysis’
focused on deriving the fair meaning of the text itself. Brey v. State Farm Mut.
Auto. Ins. Co., 2022 WI 7, ¶11 (citing Kalal, 271 Wis. 2d 633, ¶¶46, 52).
10
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¶24 The circuit court found that the statutory language was ambiguous.
A statute is ambiguous if it is capable of being understood by reasonably well-
informed persons in two or more senses; it is ambiguous if the language is
reasonably and objectively confusing. See Kalal, 271 Wis. 2d 633, ¶47. If the
statute is ambiguous, the court may rely on extrinsic sources to ascertain its
meaning. Id. at ¶50.
c. WISCONSIN STAT. § 938.34(4m) is not a “correctional placement
authorized under” the SJOP.
¶25 J.A.J.’s contention that the only correctional placement authorized
under the SJOP disposition (i.e., WIS. STAT. § 938.34(4h)) was under
§ 938.34(4m) (i.e., in an SRCCCY), misreads the statute. Subsection (4h) is a
separate dispositional option from sub. (4m). Subsection (4h) was not repealed or
amended. Subsection (4h) does not require a physical placement under sub. (4m)
or in an SRCCCY or any physical placement at all. It requires only a finding that,
if the court does not enter a dispositional order for the SJOP, the only other
appropriate option is mandatory secured confinement pursuant to a dispositional
order under sub. (4m).4 Subsection (4h)(b)’s use of the word “other” with respect
to the sub. (4m) finding is further confirmation that the two dispositions are
distinct from one another.
¶26 Additionally, WIS. STAT. § 938.538 governs the administration of
the SJOP and was not amended or repealed by the Acts. Specifically, WIS. STAT.
§ 938.538(3a) controls the correctional options available when a juvenile is placed
4
The circuit court correctly reconciled the apparent tension between the two provisions
by explaining that, to enter a disposition order under sub. (4h), it must find that the only other
appropriate placement is under sub. (4m), which requires that the court find that both sub.
(4m)(a)-(b) apply.
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No. 2022AP2066
in the SJOP, and those options include placement in a Type 1 juvenile correctional
facility or in a SRCCCY. J.A.J.’s contention that the amendments limited the
correctional options available under the SJOP to county-operated SRCCCYs
renders sections of the statutes surplusage and ignores the fact that the legislature
left the SJOP fully intact. The lack of amendment to the SJOP statutes is
indicative of the legislature’s intent to keep the SJOP and all of its placement
options available to circuit courts.5
¶27 No reasonable interpretation of the amended statute, WIS. STAT.
§ 938.34(4m), results in the conclusion J.A.J. offers. Subsection (4h) cannot be
read to require a placement under sub. (4m), or only in an SRCCCY. The only
reasonable interpretation is that subs. (4h) and (4m) are separate dispositional
options and that, once a juvenile is ordered into the SJOP, physical placement
options are controlled by WIS. STAT. § 938.538.
d. DOC’s Failure to Meet the Nonstatutory Closure Deadlines for
Lincoln Hills does not make J.A.J.’s Placement at Lincoln Hills
Unlawful.
¶28 J.A.J. also argues that it is unlawful for circuit courts to continue
placing juveniles at Lincoln Hills, via the SJOP or otherwise, because under
5
There is no question that the Acts left the SJOP statutes untouched. Nonetheless, it is
noteworthy that the Wisconsin Legislative Council Memo regarding the 2017 Act specified that
“DOC maintains supervision over ... juveniles in the SJOP [under the 2017 Act], but the
supervision of juveniles under other correctional placements is transferred to the counties.” 2017
Wis. Act 185, Wisconsin Legislative Council Memo at 6; see also Teschendorf v. State Farm
Ins. Companies, 2006 WI 89, ¶14, 293 Wis. 2d 123, 717 N.W.2d 258 (courts may look to
legislative history to confirm a plain meaning interpretation).
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No. 2022AP2066
nonstatutory provisions of the 2017 and 2019 Acts, the school was to close by
July 1, 2021, at the latest.6
¶29 Nonstatutory provisions are not codified in the statutes. They are
typically enactments of limited application or duration or both. They include
declarations of intent or purpose, laws that are temporary or limited in duration,
and provisions affecting the timing of a law’s application or non-application,
among other things. WISCONSIN STATE SENATE AND ASSEMBLY JOINT R. 53(2).
Whether nonstatutory provisions have the force of law is not clearly settled and
depends on the specific provision. Compare RURAL v. Public Serv. Comm’n of
Wis., 2000 WI 129, 239 Wis. 2d 660, 619 N.W.2d 888 (treating nonstatutory
provisions of 1997 Wis. Act 204 as binding when analyzing PSC and DNR
compliance with the expedited review process for a certificate of public
convenience and necessity contained therein) with Kalal, 271 Wis. 2d 633, ¶¶65,
69 (Abrahmson, C.J., concurring) (suggesting that nonstatutory provisions qualify
as a type of “legislative history”).
¶30 J.A.J. urges this court to interpret the legislative enactments
providing for the closure of Lincoln Hills and Copper Lake. Whether binding
authority or not, the nonstatutory provision arises out of a legislative enactment,
and J.A.J. tasks this court with determining the legislature’s intent with regard to
such enactment. We thus consider the nonstatutory provisions in the same manner
as a statute and in the context of the whole enactment and applicable statutory
framework.
6
We note that while the State identified this argument in its brief, it did not meaningfully
engage the argument. The State argues that the “change of placement” statute, WIS. STAT.
§ 938.357, somehow rebuts J.A.J.’s argument with respect to the closure deadlines in the Acts. It
does not. Nonetheless, we do not deem the issue conceded. Instead, we analyze J.A.J.’s closure
deadline argument and ultimately reject it on other grounds.
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No. 2022AP2066
¶31 It is undisputed that Lincoln Hills and Copper Lake continue to
operate, and that circuit courts continue to enter dispositional orders under
sub. (4h) placing juveniles, including J.A.J., in the SJOP with physical placement
at those facilities. J.A.J. argues that on July 2, 2021, it became unlawful for
Lincoln Hills and Copper Lake to continue operating, and it likewise became
unlawful for circuit courts to enter dispositional orders that placed juveniles in the
SJOP if it resulted in a placement at Lincoln Hills or Copper Lake. We reject
J.A.J.’s argument.
¶32 The 2017 and 2019 Acts contemplate (1) the construction of
SRCCCYs and new Type 1 juvenile correctional facilities to be operational on or
before July 1, 2021, so that (2) the juveniles currently at Lincoln Hills and Copper
Lake can be transferred to the new facilities on or before July 1, 2021, so that (3)
Lincoln Hills and Copper Lake could be closed on or before July 1, 2021. The
Acts did not alter, waive, or change the requirement in WIS. STAT. § 938.34 that
the court’s dispositional placement account for and meet the juvenile offender’s
and the public’s needs. WIS. STAT. § 938.355(1).
¶33 Furthermore, a legislature makes laws that establish the policy of the
state. Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶138, 358 Wis. 2d 1, 851
N.W.2d 337 (citing National R. Passenger Corp. v. Atchison, T. & S.F.R. Co.,
470 U.S. 451, 466, (1985)). Therefore, a legislative enactment is presumed not to
create “contractual or vested rights but merely declares a policy to be pursued until
the legislature shall ordain otherwise.” Id. (internal quotation marks omitted).
Neither the 2017 nor the 2019 Act contains a remedy for noncompliance with the
nonstatutory closure deadlines. They do not create a private right of action for
J.A.J. or anyone else. The lack of any enforcement mechanism suggests that the
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No. 2022AP2066
deadlines were aspirational policies and not intended to prohibit placements at
Lincoln Hills or Copper Lake if the deadlines were not met.
¶34 Although Lincoln Hills and Copper Lake were ordered closed by the
legislature, these facilities continue to be the only Type 1 juvenile correctional
facilities in Wisconsin. There are no SRCCCYs currently in operation. If J.A.J.’s
argument was adopted, Wisconsin’s most serious juvenile offenders, juveniles for
whom the circuit court determines secured confinement in a SRCCCY or Type 1
juvenile correctional facility is appropriate, would instead receive a significantly
less restrictive disposition than what the circuit court found was warranted by the
evidence. This result runs directly contrary to WIS. STAT. § 938.01(2), wherein
the legislature declared all seven purposes of the Juvenile Justice Code to be
“equally important,” and made repeated reference throughout to the “protect[ion
of] citizens from juvenile crime” and the “protection of the public.” J.A.J.’s
approach would eviscerate the circuit court’s duty to faithfully consider and
effectuate the intent of the legislature if it is unable to place juveniles adjudicated
delinquent of acts that would be the most serious felonies if committed by an adult
in a secured facility.
¶35 This court’s conclusion that circuit courts may continue to order
placement at Lincoln Hills and Copper Lake is further supported by the
legislature’s 2021-23 budget, 2021 Wis. Act 58. This budget, enacted on July 8,
2021, continued to appropriate funds for existing Type 1 juvenile correctional
facilities (i.e., Lincoln Hills and Copper Lake) and for the construction of new
ones. The budget also increased “the per-person daily cost assessment to
counties ... for care in a Type 1 juvenile correctional facility,” and increased the
“the amount authorized for … ‘Type 1 juvenile correctional facilities—
statewide,’” “for the purpose of project planning, development, and design, site
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No. 2022AP2066
selection, and land and property acquisition for a new Type 1 juvenile correctional
facility in Milwaukee County.” Id. at §§ 109, 199, 388-89, 9104(5)(d). The most
recent biennial budget made similar appropriations. E.g., 2023 Wis. Act 19
§§ 454g, 9104(5)(a), 9104(8).
¶36 These appropriations were made by a legislature with full knowledge
that: (1) no SRCCCYs were currently operating, and (2) the only DOC-operated
Type 1 juvenile correctional facilities in existence were the two that they had
ordered closed in the 2017 and 2019 Acts.7 The legislature did not amend the
nonstatutory deadlines, nor did it provide any remedy for noncompliance with
those deadlines. Instead, the legislature continued to fund the facilities that they
had ordered closed.
¶37 In sum, this court concludes that the SJOP at WIS. STAT.
§ 938.34(4h) remains a lawful and valid dispositional option, notwithstanding the
reference to “juvenile correctional facility” in relation to sub. (4m). Furthermore,
the 2017 and 2019 Acts did not limit physical placements under the SJOP at Type
1 juvenile correctional facilities. Therefore, and because Lincoln Hills and Copper
Lake continue to operate as Type 1 juvenile correctional facilities, physical
placements at those facilities is lawful.
II. Restitution
¶38 J.A.J. argues that the record does not support the circuit court’s
restitution order of $375 to victim J.S. J.A.J. argues that J.S.’s testimony and
7
It is presumed that the legislature acted with full knowledge of the existing law. Kindy
v. Hayes, 44 Wis. 2d 301, 314, 171 N.W.2d 324 (1969); Blazekovic v. City of Milwaukee, 225
Wis. 2d 837, 845, 593 N.W.2d 809 (Ct. App. 1999).
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No. 2022AP2066
written victim impact statement attesting to the value of the items for which
restitution was sought was insufficient, and the circuit court should have required
receipts or other documentary proof of value. This court rejects J.A.J.’s argument.
¶39 “[T]he purpose of restitution is to return victims of a crime to the
position they were in before the defendant injured them.” State v. Johnson, 2005
WI App 201, ¶14, 287 Wis. 2d 381, 704 N.W.2d 625. “[A] restitution hearing is
not the equivalent of a civil trial and does not require strict adherence to the rules
of evidence and burden of proof.” Id. The circuit court is free to accept and reject
evidence and give accepted evidence the weight it desires. State v. Boffer, 158
Wis. 2d 655, 663, 462 N.W.2d 906 (Ct. App. 1990).
¶40 During the May, 20, 2022 restitution hearing, victim J.S.’s written
victim impact statement was admitted into evidence. It listed the value of the
items for which restitution was sought:
1. AirPods—$200
2. LED light—$60
3. Shammy—$25
4. Wallet—$50
5. Driver’s license—$40
J.S. testified that the values on the victim impact statement were correct.
¶41 There is no authority supporting J.A.J.’s contention that J.S. should
have been required to provide documentary proof of value to support his request
for restitution. The circuit court accepted J.S.’s testimony as sufficient evidence
and in the absence of evidence to the contrary, its finding was not clearly
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No. 2022AP2066
erroneous. Accordingly, we affirm the circuit court’s May 25, 2022 restitution
order.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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