Supreme Court Rejects Juvenile’s Ex Parte Communication Argument

By Joe Forward, Legal Writer, State Bar of Wisconsin

May 29, 2012 – It was not improper ex parte communication for an assistant district attorney to attend a meeting assembled to decide whether a 15-year-old should be prosecuted in adult court for armed robbery, the Wisconsin Supreme Court recently concluded.

The state wanted to charge a Walworth County juvenile, Tyler, as an adult for his part in a gas station robbery with BB guns resembling semiautomatic weapons. Tyler was also involved in other robberies and crimes in other counties.

The circuit court ordered the county’s Department of Health and Human Services (DHHS) to prepare an investigation report on whether Tyler should be waived as a juvenile and treated as an adult, known as waiver investigation report.

At a meeting on the issue, the assistant district attorney attended, recommending adult treatment. Neither Tyler nor his attorney was invited to participate. A juvenile court intake worker gathered information separately from Tyler, his attorney and his parents.

Ultimately, DHHS filed its report but did not make a final recommendation. Tyler argued that the report should be disregarded because of the assistant district attorney’s involvement. Absent that influence, he argued, DHHS would have recommended juvenile court jurisdiction.

The circuit court waived juvenile court jurisdiction, ruling that the state showed keeping Tyler in the juvenile justice system was not in Tyler’s or the public’s best interest. The court did not find the assistant district attorney’s presence at the waiver investigation meeting to be coercive.

Tyler appealed, asking for preparation of a new waiver investigation report and a new waiver hearing with a different judge. The appeals court rejected Tyler’s request.

In State v. Tyler T., 2012 WI 52 (May 22, 2012), the Wisconsin Supreme Court affirmed by a 4-2 vote (Justice David Prosser did not participate), reviewing a line of cases examining defendant challenges to presentence investigation reports that can influence sentencing.

“While we, like the circuit court, have reservations about the DHHS’s decision to invite only [the assistant district attorney] to its final staffing meeting, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report,” wrote Justice Annette Ziegler.

The majority ruled that DHHS has discretion to compile the information necessary for the waiver investigation report when ordered to do so by a circuit court.

“In the future, however, it may be a better practice for the DHHS to invite both parties, or neither party, to its final staffing meeting,” Justice Ziegler wrote, suggesting that there could be situations in which one party’s presence is coercive. “We will leave that decision to the DHHS.”

Dissent

Justice Ann Walsh Bradley wrote a dissenting opinion (joined by Chief Justice Shirley Abrahamson), arguing that improper ex parte communication occurred.

“Because I conclude that the prosecuting attorney’s ex parte advocacy at the Department’s decision-making meeting was improper, and because I cannot determine that Tyler suffered no prejudice as a result, I respectfully dissent,” Justice Bradley wrote.