70 Op. Att'y Gen. 67 (1981)
 
80 OAG 67 68 69 70 71 72 73 74 END

Wisconsin Attorney General Opinions

OPINION NO. OAG 19-81,

16 April 1981.

Juvenile Court;
Natural Resources, Department Of;
Citation and forfeiture procedures for
juveniles as affected by Chapters 300
and 359, Laws of 1979, are discussed.

CARROLL BESADNY,
Secretary Department of Natural Resources

Your predecessor forwarded to me a series of
questions from the DNR Bureau of Law
Enforcement regarding interpretation of
recent legislative changes in the
Juvenile Code, Chapter 48, Stats.

I will first discuss the Bureau's specific
questions, which I have rephrased in some
cases, and will then attempt to give you a
summary and overview of the changes.

Most of the changes were effected by Chapter
300, Laws of 1979, although that law was
further amended, to a limited extent, by
Chapter 359, Laws of 1979.

In the most general terms,
the new laws

(1) lower to fourteen the age at which some
    form of citation and forfeiture
    procedure can be used;

(2) place that forfeiture procedure
    primarily in the juvenile code; and

(3) remove the circuit court's former
    concurrent jurisdiction over most DNR
    juvenile forfeiture actions.

Note: All references to sections of
Chapter 48 will concern the statutes;
all references to Chapters 300 and 359
will concern the Laws of 1979.

I will omit any discussion of municipal
ordinance violation procedures and will focus
entirely on DNR civil forfeitures.

1. Does the juvenile court have
   jurisdiction over violations of the
   boating and snowmobile laws (Sections
   30.50 to 30.80 and Chapter 350, Stats.,
   respectively)?

Yes, but only if the offender
is fifteen or younger.

80 OAG 67 68 69 70 71 72 73 74 END

By way of introduction, I should note first
that Subchapter III of Chapter 48, including
Sections 48.12 through 48.185, Stats. (1977),
concerns jurisdiction over juvenile
offenders.

Section 48.17 concerns "jurisdiction over
traffic and boating, civil law and
ordinance violations."

Section 48.17, Paragraph (1), was not
directly amended by Chapters 300 and 359,
Laws of 1979. That paragraph continues to
give adult courts (referred to in Chapter 48
as "Courts of criminal and civil
jurisdiction") exclusive jurisdiction over
sixteen- and seventeen-year-olds alleged to
have violated snowmobile or boating laws.

Before the 1979 amendments, Paragraph (2) of
Section 48.17, Stats., gave adult and
juvenile courts concurrent jurisdiction
over civil forfeiture actions involving
sixteen- and seventeen-year-olds.

Both courts were able to use the civil
forfeiture procedures in Sections 23.50 to
23.85, Stats. Civil forfeitures, as they
relate to your Department, are defined in
Section 23.50(1), Stats., to include circuit
court actions to recover forfeitures for
violations of Chapters 23, 26 through 31, and
350; Section 134.60; and any administrative
rules promulgated under those laws.

Under the 1979 amendments, adult courts no
longer have jurisdiction over any DNR civil
forfeiture actions involving juveniles,
except the boating and snowmobile violations
specified in Section 48.17(1) above.

The juvenile court's authority to use a civil
forfeiture/citation procedure is expanded to
include juveniles fourteen or older who are
charged with any of the violations specified
in Section 23.50(1), Stats.

2. Can juveniles be issued citations
   pursuant to Section 23.50, Stats.?

Yes, provided the child is fourteen or older
and new Section 48.237 is observed.

Old Section 48.17(2) allowed juvenile and
adult courts to use the DNR civil forfeiture
procedures of Sections 23.50 to 23.85,
Stats., with specified variations, for
actions involving children sixteen or older.

The 1979 amendments created a new section,
numbered 48.237, on "civil law and
ordinance proceedings initiated
by citation" in juvenile court.

Under amended Section 48.17(2)(b), the
juvenile citation procedure is available only
if the child is fourteen or older, and is
merely available as an alternative to the
filing of a petition under Section 48.125
("Jurisdiction over children alleged to have
violated civil laws or ordinances").

80 OAG 67 68 69 70 71 72 73 74 END

Although new Section 48.237 governs the
juvenile citation procedure, I stated that a
citation can be issued under Section 23.50,
Stats., because Section 48.237 expressly
provides that:

(1) the citation form under Section 23.54
    may be used; and

(2) the procedures for issuance and filing
    of the citation, and for forfeitures,
    stipulations and deposits in Sections
    23.50 to 23.67 and in 23.75(3) and

(4) "shall be used as appropriate."

Note, however, that Chapter 48 governs taking
and holding a child in custody; Section 48.37
governs costs and penalty assessments; and a
capias is substituted for an arrest warrant
(Section 48.237(2)).

You may have noticed that Section 48.237(2)
refers to citations issued by a "law
enforcement officer."

That term is not defined in Chapter 48, and
differs from the term, "peace officer,"
defined in Section 939.22(22), Stats., and
used in the criminal code, and from the term
"enforcing officer," defined in Section
23.51(3), Stats., and used in Sections 23.50
to 23.85, Stats. Section 23.51(3), Stats.,
defined "enforcing officer" as "peace officer
as defined by Section 939.22(22), or a person
who has authority to act pursuant to a
specific statute."

I have construed "peace officer" narrowly,
and have concluded that DNR wardens have
the powers of a peace officer only
under limited circumstances.

68 Op. Att'y Gen. 326, 329 (1979).

For purposes of this opinion, and in the
absence of a legislative definition of "law
enforcement officer" as used in Chapter 48,
I am assuming that "law enforcement officer"
in Section 48.237(2) has the same meaning
as "enforcing officer" in
Section 23.51(3), Stats.

If a juvenile to whom a citation has been
issued does not submit a deposit, or a
stipulation and deposit, note that Chapter 48
governs further proceedings, as detailed in
new Section 48.237(3).

3. What court is to handle the juvenile
   cases, and what does "court assigned"
   mean, in Chapter 300? One or more
   branches of the circuit court is
   assigned to handle juvenile cases.

The new laws simply mean "juvenile court"
when they say "court assigned to exercise
jurisdiction under this chapter."

As stated in Section 48.125, the juvenile
court exercises exclusive jurisdiction over
all DNR civil forfeiture actions against
juveniles, except the boating and snowmobile
violations mentioned in Section 48.17(1).

80 OAG 67 68 69 70 71 72 73 74 END

4. Must the DNR keep juvenile records
   confidential and separate from
   adult records?

No.

Records of children made by "peace officers"
must be kept separate from adult records,
under Section 48.396, old and new, and are
not open to the public generally.

Under Section 48.396(2), records of the
juvenile court are to be kept in books and
files maintained for juvenile records
purposes only, and are not to be opened, or
have their contents disclosed, except by
order of the juvenile court.

There is no confidentiality requirement for
records concerning a juvenile proceeded
against in adult court.

New Section 48.396(4) prohibits the
Department of Transportation from disclosing
information concerning the revocation,
suspension or restriction of a juvenile's
motor vehicle operating privilege to anyone
except specified persons and agencies.

In reading the seven other statutes which are
referred to directly or indirectly in the new
Subsection, you may have noticed that all but
one or two of the incorporated sections also
refer to suspension or revocation of licenses
issued under Chapter 29, by the DNR.

New Section 48.396(4) does not contain a
comparable limitation on disclosure of
information by DNR, concerning restriction
of licenses issued to juveniles under
Chapter 29, Stats.

Courts frequently hold that the express
mention of one thing implies the
exclusion of another.

Since the Department of Transportation is
mentioned and DNR is not, I believe the
prohibitions in new Section 48.396(4)
do not apply to DNR.

There is a general legislative policy
against disclosure of adverse information
concerning juveniles.

However, there is also a strong presumption
"that public policy, and hence the public
interest, favors the right of inspection
of documents and public records."

Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967),

citing

State ex rel.Youmans v. Owens,
28 Wis.2d 672, 682,
137 N.W.2d 241 (1965).

Section 19.21(4), Stats., imposes a mandatory
civil forfeiture, in addition to any other
civil or criminal penalties, upon the public
officer who denies access to public records.

As a general rule, therefore, I suggest that
you follow the literal directions of new
Section 48.396(4), and treat DNR
juvenile records as public.

80 OAG 67 68 69 70 71 72 73 74 END

If an interested party urges you to keep
particular records confidential, you
should follow the following process
as stated in Beckon, 36 Wis.2d at 516:

It is only in the unusual or exceptional
case, where the harm to the public interest
that would be done by divulging matters of
record would be more damaging than the
harm that is done to public policy by
maintaining secrecy, that the inspection
should be denied.

Accordingly, we said in Youmans,
supra, page 682:

   . . it is incumbent upon [the public
   officer] to refuse the demand for
   inspection and state specifically the
   reasons for this refusal.

5. Can penalty assessments be
   used in juvenile cases?

No, except for snowmobile and
boating code violations handled in
adult court under Section 48.17(1).

Chapter 300, Laws of 1979, added the
following sentence to Section 48.37:

   Courts of civil and criminal
   jurisdiction exercising jurisdiction
   under Section 48.17 may assess the same
   costs and penalty assessment [sic]
   against children as they may assess
   against adults, except that witness fees
   shall not be charged to the child.

This sentence applies to sixteen- and
seventeen-year-olds charged with
boating and snowmobile violations.

New Section 48.237(2), Stats., removes
juvenile cases from the civil forfeiture
procedures of Sections 23.50 to 23.85,
Stats., by stating, "Section 48.37 shall
govern costs and penalty assessments."

However, old Section 48.37 only prohibits
assessment of costs by a juvenile court.

The new sentence quoted above allows penalty
assessments in adult court, in specified
cases, but does not address the question
of separate penalty assessments
in juvenile court.

Since Section 48.343 does not include penalty
assessments among its permissible "civil law"
violation dispositions, I conclude that the
Legislature was attempting, in Section
48.237(2), to prohibit penalty
assessments in juvenile court.

In light of this conclusion, another question
arises from the language of new Section
48.237(2): The new Subsection provides that
the forfeiture, stipulation, and deposit
procedures in Sections 23.50 to 23.67 "shall
be used as appropriate, except that . . .
Section 48.37 shall govern costs and penalty
assessments."

Sections 23.66(2) and 23.67(3), setting out
procedures to follow when a person makes a
deposit and does not appear at the time set
in the citation, state that a nonappearance,
or the filing of a stipulation of no contest,
are deemed to be submission by the person to
"a forfeiture and a penalty assessment plus
costs not to exceed the amount of the
deposit."

80 OAG 67 68 69 70 71 72 73 74 END

Since I conclude that Section 48.237(2), read
in conjunction with old Section 48.343, is an
attempt to prohibit penalty assessments and
costs in juvenile court, then a deposit plus
nonappearance by a juvenile may be deemed
submission to a forfeiture not to exceed the
amount of the deposit, but not to a penalty
assessment or costs. Therefore, the terms
"penalty assessment" and "costs" should be
crossed out of the citations or other papers
given to a juvenile whose civil forfeiture
action will be heard in juvenile court.

6. Can natural resource assessments
   be levied in juvenile cases?

Yes, if "natural resource assessment" is
synonymous with "forfeiture" as used in
Section 23.50(1), Stats, for the reasons
set forth in the preceding paragraph.

If the child does not submit either a
stipulation or deposit, new Section 48.237(3)
specifies the procedure to be followed by the
juvenile court: If, after a fact-finding
hearing, the court finds that the child
violated a law punishable by forfeiture under
Section 48.237, the court may enter any
dispositional orders under Section 48.343.

7. Can natural resource restitutions be
   required in juvenile cases?

Yes, under Sections 48.34 or 48.343.

The dispositions authorized under
Section 48.343 include: a forfeiture
not to exceed $25.00; an order to
participate in a supervised work
program; an order to make repairs or
reasonable restitution; if a boating
violation is involved, an order to
attend a safety course under Section
30.74(1), Stats.; and for a violation of
Chapter 29, Stats., suspension of the
license(s) of the child under that
chapter for not more than (the old law
read "not less than") one year. Chapter
300 adds two other natural resources
dispositions: for a firearms violation,
require the child to attend a safety
course under Section 29.225, Stats., and
for a snowmobile violation, order the
child to attend a safety course under
Section 350.055, Stats. Sections
48.343(7) and 48.343(8).

Note that, if the prosecutor has opted to
proceed under Section 48.17(2)(b)2., by a
Section 48.125 petition, Section 48.34
provides various dispositions, including
repair and restitution, a maximum forfeiture
of $50.00, with alternative license
suspension, and an order to participate
in a supervised work program.

80 OAG 67 68 69 70 71 72 73 74 END

If the child fails to contest the citation,
amended Section 48.335(1) requires the court
to proceed under Section 48.237(2).

You may wish to seek legislative
clarification of the portions of Chapter 300,
Laws of 1979, highlighted in this opinion.
The table in the following appendix may
help to summarize the changes effected
by Chapters 300 and 359, Stats.

BCL:MVB

APPENDIX COMPARES OLD AND NEW SECTIONS:

OLD 48.17(1)
Adult courts have exclusive jurisdiction over
sixteen and seventeen year olds alleged to
have violated snowmobile or boating laws.

NEW 48.17(1)
Adult courts have exclusive jurisdiction over
sixteen and seventeen year olds alleged to
have violated snowmobile or boating laws.

OLD 48.17(2)
Adult and juvenile courts have concurrent
jurisdiction in civil forfeitures over
children sixteen and over. Both courts may
follow the DNR forfeiture procedurs of
23.50-.85, with specified variations.

NEW 48.17(2)
Juvenile court has exclusive jurisdiction in
civil forfeiture actions over children
fourteen and over. Court may follow citation
procedure, with some modifications, or
proceed with Section 48.125 petition.

NEW 48.237
This has no OLD counterpart. Chapter 48
stated any variations from Section 23.50.

NR forfeiture statutes govern, except as to
custody, costs and arrest warrants.
Subsection 48.237(3) spells out procedure
where no deposit or stipulation is submitted.

80 OAG 67 68 69 70 71 72 73 74 END

OLD 48.396
If case was handled in adult court, no
special restriction on records. If handled in
juvenile court, Section 48.396 restricted
access to records

NEW 48.396
Since all DNR cases (except snowmobile and
boating) must be in juvenile court, Section
48.396 applies at all times, but DNR is
omitted from new restrictions for motor
vehicle license suspension cases.

OLD PENALTIES AND COSTS.
If handled in adult courts, Sections 23.66,
23.67, and 23.82 provided for forfeiture,
penalty, and cost to be paid by defendant

NEW PENALTIES AND COSTS.
Costs and penalties may not be assessed in
Juvenile court, but deposit and stipulation
procedures of Sections 23.66 and 23.67 apply.
If those procedures are not applicable (i.e.,
a contested case under Sections 48.237(3) and
48.125), court may assess a maximum
forfeiture of $25 under citation procedure of
$50 under petition procedure. Other
dispositions are available, such as repair
restitution and work programs.

80 OAG 67 68 69 70 71 72 73 74 END