1995 Wisconsin Act 352

352,112 Section 112 . 938.396 (2m) (a) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.396 (2m) (a) Notwithstanding sub. (2), upon request, a court shall open for inspection by the requester the records of the court, other than reports under s. 938.295 or 938.33 or other records that deal with sensitive personal information of the juvenile and the juvenile's family, relating to a juvenile who has been alleged to be delinquent for committing a violation specified in s. 939.62 (2m) (a) 1., 2. or 3. or a violation of s. 948.30 (1) or for conspiracy under s. 939.31 to commit any violation 938.34 (4h) (a). The requester may further disclose the information to anyone.

352,112m Section 112m. 938.396 (5) of the statutes is created to read:

938.396 (5) (a) Any person who is denied access to a record under sub. (1), (1b), (1d), (1g), (1m), (1r) or (1t) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

1. The type of information sought.

2. The reason the information is being sought.

3. The basis for the petitioner's belief that the information is contained in the records.

4. The relevance of the information sought to the petitioner's reason for seeking the information.

5. The petitioner's efforts to obtain the information from other sources.

(b) The court shall notify the juvenile, the juvenile's counsel, the juvenile's parents and appropriate law enforcement agencies in writing of the petition. If any person notified objects to the disclosure, the court may hold a hearing to take evidence relating to the petitioner's need for the disclosure.

(c) The court shall make an inspection, which may be in camera, of the juvenile's records. If the court determines that the information sought is for good cause and that it cannot be obtained with reasonable effort from other sources, it shall then determine whether the petitioner's need for the information outweighs society's interest in protecting its confidentiality. In making this determination, the court shall balance the following private and societal interests:

1. The petitioner's interest in recovering for the injury, damage or loss he or she has suffered against the juvenile's interest in rehabilitation and in avoiding the stigma that might result from disclosure.

2. The public's interest in the redress of private wrongs through private litigation against the public's interest in protecting the integrity of the juvenile justice system.

(d) If the court determines that disclosure is warranted, it shall order the disclosure of only as much information as is necessary to meet the petitioner's need for the information.

(e) The court shall record the reasons for its decision to disclose or not to disclose the juvenile's records. All records related to a decision under this subsection are confidential.

352,112p Section 112p. 938.396 (6) of the statutes is created to read:

938.396 (6) Notwithstanding sub. (5), a victim of a juvenile's act or alleged act may, with the approval of the court, obtain the names of the juvenile and the juvenile's parents.

352,113 Section 113 . 938.396 (7) (c) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.396 (7) (c) No information from the juvenile's court records, other than information disclosed under par. (a), (b) or (bm), may be disclosed to the school board of the school district in which the juvenile is enrolled or the school board's designee except by order of the court. Any information provided under this subsection to the school board of the school district in which the juvenile is enrolled or the school board's designee shall be disclosed by the school board or designee to employes of the school district who work directly with the juvenile or who have been determined by the school board or designee to have legitimate educational or safety interests, including safety interests, in the information. A school district employe to whom information is disclosed under this paragraph shall not further disclose the information. A school board shall not use any information provided under this subsection as the sole basis for expelling or suspending a juvenile. A school board member or an employe of a school district may not be held personally liable for any damages caused by the nondisclosure of any information specified in this paragraph unless the member or employe acted with actual malice in failing to disclose the information. A school district may not be held liable for any damages caused by the nondisclosure of any information specified in this paragraph unless the school district or its agent acted with gross negligence or with reckless, wanton or intentional misconduct in failing to disclose the information.

352,114 Section 114. 938.396 (8) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.396 (8) Notwithstanding sub. (2), if a juvenile is adjudged delinquent for an act that would be a felony if committed by an adult, the court clerk shall notify the department of justice of that fact. No other information from the juvenile's court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose any information provided under this subsection only as part of a criminal history firearms restrictions record search under s. 175.35 (2g) (c).

352,114m Section 114m. 938.51 (1) (c) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.51 (1) (c) Notify, if the victim died as a result of the juvenile's delinquent act and if the criteria under par. (b) are met, an adult member of the victim's family or, if the victim is younger than 18 years old and if the criteria under par. (b) are met, the victim's parent or legal guardian of the juvenile's release.

352,115 Section 115 . 938.51 (1) (d) of the statutes is created to read:

938.51 (1) (d) Notify any witness who testified against the juvenile in any court proceeding involving the delinquent act of the juvenile's release if all of the following apply:

1. The witness can be found.

2. The witness has sent in a request card under sub. (2).

352,116 Section 116 . 938.51 (2) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.51 (2) The department shall design and prepare cards for victims specified in sub. (1) (b) and (c) any person specified in sub. (1) (b), (c) or (d) to send to the department or county department having supervision over the juvenile. The cards shall have space for these persons any such person to provide their names and addresses his or her name, telephone number and mailing address, the name of the applicable juvenile and any other information that the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to victims persons specified in sub. (1) (b) and (c) to (d). These persons may send completed cards to the department or county department having supervision over the juvenile.

352,117 Section 117 . 938.51 (4) of the statutes, as created by 1995 Wisconsin Act 77, is renumbered 938.51 (4) (intro.) and amended to read:

938.51 (4) (intro.) If a juvenile escapes in violation of s. 946.42 (3), as soon as possible after the department or county department having supervision over the juvenile discovers that escape, that department or county department shall make a reasonable effort to notify by telephone any all of the following persons:

(a) Any known victim of the act for which the juvenile was found delinquent, if the criteria under sub. (1) (b) are met; an adult member of the victim's family, if the victim died as a result of the juvenile's delinquent act and if the criteria under sub. (1) (b) are met; or the victim's parent or guardian, if the victim is younger than 18 years old and if the criteria under sub. (1) (b) are met.

352,118 Section 118 . 938.51 (4) (b) of the statutes is created to read:

938.51 (4) (b) Any witness who testified against the juvenile in any court proceeding involving the delinquent act, if the criteria under sub. (1) (d) are met.

352,119 Section 119 . 938.538 (5) (a) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.538 (5) (a) The parole commission juvenile offender review program in the division of juvenile corrections in the department may grant release a participant parole under s. 304.06 to aftercare supervision under s. 301.03 (10) (d) at any time after the participant has completed 2 years of participation in the serious juvenile offender program. Parole Aftercare supervision of the participant shall be provided by the department.

352,120 Section 120 . 938.539 of the statutes is created to read:

938.539 Type 2 status. (1) A juvenile who is placed in a Type 2 child caring institution under s. 938.34 (4d) or who, having been so placed, is replaced in a less restrictive placement under s. 938.357 (4) (c) is under the supervision and control of the county department, is subject to the rules and discipline of the county department and is considered to be in custody, as defined in s. 946.42 (1) (a).

(2) A juvenile who is placed in a Type 2 secured correctional facility under s. 938.357 (4) (a) or who, having been so placed, is replaced in a less restrictive placement under s. 938.357 (4) (c) is under the supervision and control of the department, is subject to the rules and discipline of the department and is considered to be in custody, as defined in s. 946.42 (1) (a).

(3) Notwithstanding ss. 938.19 to 938.21, if a juvenile placed in a Type 2 child caring institution under s. 938.34 (4d) or 938.357 (4) (c) or in a Type 2 secured correctional facility under s. 938.357 (4) (a) or (c) violates a condition of his or her placement in the Type 2 child caring institution or Type 2 secured correctional facility, the juvenile may be placed in a Type 1 secured correctional facility as provided in s. 938.357 (4) (b).

(4) Any intentional failure of a juvenile placed in a Type 2 child caring institution under s. 938.34 (4d) or 938.357 (4) (c) or in a Type 2 secured correctional facility under s. 938.357 (4) (a) or (c) to remain within the extended limits of his or her placement or to return within the time prescribed by the administrator of the Type 2 child caring institution or Type 2 secured correctional facility is considered an escape under s. 946.42 (3) (c).

(5) With respect to a juvenile who is placed in a child caring institution or a secured child caring institution under s. 938.34 (4d) or 938.357 (4) (a) or in a less restrictive placement under s. 938.357 (4) (c), the child welfare agency operating the child caring institution or secured child caring institution in which the juvenile is placed, and the person operating any less restrictive placement in which the juvenile is placed, shall operate that child caring institution, secured child caring institution or less restrictive placement as a Type 2 child caring institution or a Type 2 secured correctional facility. This subsection does not preclude a child welfare agency or other person from placing in a child caring institution, secured child caring institution or less restrictive placement in which a juvenile is placed under s. 938.34 (4d) or 938.357 (4) (a) or (c) a juvenile who is not placed under s. 938.34 (4d) or 938.357 (4) (a) or (c).

(6) The department shall promulgate rules to implement this section.

352,121 Section 121 . 938.59 (1) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.59 (1) The county department shall investigate the personal and family history and environment of any juvenile transferred to its legal custody or placed under its supervision under s. 938.34 (4d) or (4n) and make any physical or mental examinations of the juvenile considered necessary to determine the type of care necessary for the juvenile. The county department shall screen a juvenile who is examined under this subsection to determine whether the juvenile is in need of special treatment or care because of alcohol or other drug abuse, mental illness or severe emotional disturbance. The county department shall keep a complete record of the information received from the court, the date of reception, all available data on the personal and family history of the juvenile, the results of all tests and examinations given the juvenile and a complete history of all placements of the juvenile while in the legal custody or under the supervision of the county department.

352,122 Section 122 . 938.595 of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.595 Duration of control of county departments over delinquents. Except as provided in s. 48.366, a juvenile who has been adjudged delinquent and placed under the supervision of a county department under s. 938.34 (4d) or (4n) shall be discharged as soon as the county department determines that there is a reasonable probability that it is no longer necessary either for the rehabilitation and treatment of the juvenile or for the protection of the public that the county department retain supervision.

352,123 Section 123 . 938.78 (2) (ag) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.78 (2) (ag) Paragraph (a) does not prohibit an agency from making available for inspection or disclosing the contents of a record, upon the request of the parent, guardian or legal custodian of the juvenile who is the subject of the record or upon the request of the juvenile, if 14 years of age or over, to the parent, guardian, legal custodian or juvenile, unless the agency finds that inspection of those records by the juvenile, parent, guardian or legal custodian would result in imminent danger to anyone.

352,124 Section 124 . 938.78 (2) (am) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.78 (2) (am) Paragraph (a) does not prohibit an agency from making available for inspection or disclosing the contents of a record, upon the written permission of the parent, guardian or legal custodian of the juvenile who is the subject of the record or upon the written permission of the juvenile, if 14 years of age or over, to the person named in the permission if the parent, guardian, legal custodian or juvenile specifically identifies the record in the written permission, unless the agency determines that inspection of those records by the person named in the permission would result in imminent danger to anyone.

352,125 Section 125 . 938.78 (2) (d) (intro.) of the statutes, as created by 1995 Wisconsin Act 77, is amended to read:

938.78 (2) (d) (intro.) Paragraph (a) does not prohibit the department of health and social services or a county department from disclosing information about an individual formerly in the legal custody or under the supervision of that department under s. 48.34 (4m), 1993 stats., or formerly under the supervision of that department or county department under s. 48.34 (4n), 1993 stats., or s. 938.34 (4d) or (4n) to the department of corrections, if the individual is at the time of disclosure any of the following:

352,126 Section 126 . Subchapter XVIII (title) of chapter 938 [precedes 938.795] of the statutes is created to read:

Chapter 938

Subchapter XVIII
Community services

352,127 Section 127 . Subchapter XX (title) of chapter 938 [precedes 938.983] of the statutes is created to read:

Chapter 938

Subchapter XX
Miscellaneous provisions

352,128 Section 128 . 946.42 (1) (a) of the statutes, as affected by 1995 Wisconsin Act 77, section 639, and 1995 Wisconsin Act .... (Senate Bill 72), is repealed and recreated to read:

946.42 (1) (a) “Custody" includes without limitation actual custody of an institution, including a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), a secure detention facility, as defined in s. 938.02 (16), a Type 2 child caring institution, as defined in s. 938.02 (19r), or a juvenile portion of a county jail, or of a peace officer or institution guard and constructive custody of prisoners and juveniles subject to an order under s. 48.366, 938.183, 938.34 (4d), (4h) or (4m) or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise. Under s. 303.08 (6) it means, without limitation, that of the sheriff of the county to which the prisoner was transferred after conviction. It does not include the custody of a probationer or parolee by the department of corrections or a probation or parole officer or the custody of a person who has been released to aftercare supervision under ch. 938 unless the person is in actual custody or is subject to a confinement order under s. 973.09 (4).

352,129 Section 129 . 946.42 (3) (c) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

946.42 (3) (c) Subject to a disposition under s. 938.34 (4d), (4h) or (4m), to a placement under s. 938.357 (4) or to aftercare revocation under s. 938.357 (5) (e).

352,130 Section 130 . 946.44 (2) (c) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

946.44 (2) (c) “Institution" includes a secured juvenile correctional facility and, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), and a Type 2 child caring institution, as defined in s. 938.02 (19r).

352,131 Section 131 . 946.44 (2) (d) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

946.44 (2) (d) “Prisoner" includes a person who is under the supervision of the department of corrections under s. 938.34 (4h) or placed in a secured correctional facility or secured child caring institution under s. 938.34 (4m) or 938.357 (4) or (5) (e) or placed in a Type 2 child caring institution under s. 938.34 (4d) or who is subject to an order under s. 48.366.

352,132 Section 132 . 946.45 (2) (c) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

946.45 (2) (c) “Institution" includes a secured juvenile correctional facility and, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), and a Type 2 child caring institution, as defined in s. 938.02 (19r).

352,133 Section 133 . 946.45 (2) (d) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

946.45 (2) (d) “Prisoner" includes a person who is under the supervision of the department of corrections under s. 938.34 (4h) or placed in a secured correctional facility or secured child caring institution under s. 938.34 (4m) or 938.357 (4) or (5) (e) or placed in a Type 2 child caring institution under s. 938.34 (4d) or who is subject to an order under s. 48.366.

352,134 Section 134 . 970.032 (2) (intro.) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

970.032 (2) (intro.) If the court finds probable cause as specified in sub. (1), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938. The court shall retain jurisdiction unless the court finds child proves by a preponderance of the evidence all of the following:

352,134d Section 134d. 971.31 (13) of the statutes is created to read:

971.31 (13) (a) A child over whom the court has jurisdiction under s. 938.183 (1) (b) or (c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938. The motion may allege that the child did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c), whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:

1. If convicted, the child could not receive adequate treatment in the criminal justice system.

2. Transferring jurisdiction to the court assigned to exercise jurisdiction under chs. 48 and 938 would not depreciate the seriousness of the offense.

3. Retaining jurisdiction is not necessary to deter the child or other children from committing the violation of which the child is accused under the circumstances specified in s. 938.183 (1) (b) or (c), whichever is applicable.

(b) The court shall retain jurisdiction unless the child proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in s. 938.183 (1) (b) or (c) or that transfer would be appropriate because all of the factors specified in par. (a) 1., 2. and 3. are met.

352,134g Section 134g. 977.076 (2) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

977.076 (2) The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (1) (2) (a), 757.66, 938.275 (1) (2) (a) or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection.

352,134m Section 134m. 990.01 (3) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

990.01 (3) Adult. “Adult" means a person who has attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult" means a person who has attained the age of 17 years.

352,134p Section 134p. 990.01 (20) of the statutes, as affected by 1995 Wisconsin Act 77, is amended to read:

990.01 (20) Minor. “Minor" means a person who has not attained the age of 18 years, except that for purposes of investigating or prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “minor" does not include a person who has attained the age of 17 years.

352,134v Section 134v. 1995 Wisconsin Act 77, section 9310 (1t) is created to read:

[1995 Wisconsin Act 77] Section 9310 (1t) Judgments and dispositions in adult court. The treatment of sections 906.08 (2), 906.09 (title), (1), (2), (3), (4) and (5), 938.35 (1) (cm) and 969.01 (4) of the statutes first applies to proceedings in a court of civil or criminal jurisdiction held on the effective date of this subsection, but does not preclude the use of a disposition entered by, or a record of evidence given in, a court assigned to exercise jurisdiction under chapter 48 of the statutes before the effective date of this subsection for the purpose of setting bail or impeaching a witness.

352,135 Section 135 . Nonstatutory provisions; corrections.

(1)  Rule-making deadline. The department of corrections shall submit the proposed rules required under sections 938.22 (2) (a), 938.357 (5) (g), 938.38 (6), 938.48 (13), 938.533 (2), 938.534 (2), 938.538 (7) and 938.78 (3) of the statutes, as created by 1995 Wisconsin Act 77, section 938.539 (6) of the statutes, as created by this act, and section 938.993 of the statutes, as affected by 1995 Wisconsin Act 77 to the legislative council staff for review under section 227.15 (1) of the statutes by no later than July 1, 1997.