SB193: Bill Text

SB193,4,20 (a) At the time of the alleged delinquent act the juvenile was under an order of a tribe's court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB193,5,3 (b) At the time of the alleged delinquent act the juvenile was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of a tribal court order under par. (a), including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB193,5,5 (c) A petition relating to the delinquent act has been filed in a tribal court that has jurisdiction over the juvenile.

Note: Eliminates the court of the county where an American Indian juvenile resides as the venue for a delinquency proceeding or JIPS delinquency proceeding (unless it is either the county where the juvenile is present or the county where the violation occurred), if the specified circumstances exist.

SB193, s. 6 Section 6. 938.24 (2r) of the statutes is created to read:

SB193,5,12 938.24 (2r) (a) If the intake worker determines as a result of the intake inquiry that the juvenile is an American Indian who has allegedly committed a delinquent act and that all of the following circumstances apply, the intake worker shall promptly notify the clerk of the tribal court under subd. 1., a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under those circumstances:

SB193,5,15 1. At the time of the delinquent act the juvenile was under an order of a tribe's court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB193,5,21 2. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of a tribal court order under subd. 1., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB193,6,9 (b) If the intake worker is notified by an official of the tribe that a petition relating to the delinquent act has been or may be filed in tribal court, the intake worker shall consult with tribal officials, unless the intake worker determines under sub. (4) that the case should be closed. After the consultation, the intake worker shall determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker shall close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker shall proceed under sub. (3) or (4).

Note: Under current law, if a juvenile is alleged to have committed a delinquent act, information is referred to an intake worker who must conduct an intake inquiry to determine whether the available facts establish on their face that the juvenile court has jurisdiction and also to determine the best interests of the juvenile and of the public with regard to any action to be taken. An intake worker must do one of the following: (a) request that the district attorney file a delinquency petition or, for juveniles under 10 years of age, request that the district attorney (or the corporation counsel, if designated by the county board of supervisors to handle JIPS delinquency cases) file a JIPS delinquency petition; (b) enter into a deferred prosecution agreement requiring the juvenile to undertake various actions; or (c) close the case. This generally must occur within 40 days of receipt of the referral information. An intake worker must perform his or her responsibilities under general written policies formulated by the circuit judges for the county, subject to approval of the chief judge of the judicial administrative district.

Under current law, if an intake worker decides to close a delinquency or JIPS delinquency case, the intake worker must provide written notice to the district attorney (or corporation counsel if the juvenile is under 10 years of age and the county board has designated the corporation counsel to handle JIPS delinquency cases) and must attempt to provide written notice to all victims of the juvenile's act that the case is being closed. Even if the intake worker has closed the case, the district attorney may initiate a delinquency proceeding and the district attorney or the corporation counsel may initiate a JIPS delinquency proceeding if the juvenile is under 10 years of age. Except in certain circumstances, the petition must be filed within 20 days after the district attorney or corporation counsel has been notified that the case has been closed by the intake worker.

This bill provides that if the intake worker determines as a result of the intake inquiry that the juvenile is an American Indian and that, at the time of an alleged delinquent act, the juvenile was under an order of a tribal court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship, and was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of the tribal court order, the intake worker must promptly notify the clerk of the tribal court, a person who serves as the tribal juvenile intake worker, or a tribal prosecuting attorney that the juvenile has allegedly committed a delinquent act under the specified circumstances. If the intake worker is notified by a tribal official that a petition related to the delinquency has been or may be filed in tribal court, the intake worker must consult with tribal officials.

After the consultation, the intake worker must determine whether the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court. If the intake worker determines that the best interests of the juvenile and of the public would be served by having the matter proceed solely in tribal court, the intake worker must close the case. If the intake worker determines that the best interests of the juvenile and of the public would not be served by having the matter proceed solely in tribal court, the intake worker must, as under current law, enter into a deferred prosecution agreement, request that a delinquency petition or JIPS delinquency petition be filed, or close the case. The bill specifies that the intake worker may close a case without consultation with tribal officials.

The bill does not eliminate the duty of the intake worker to inform the district attorney or corporation counsel that the case has been closed or the authority of the district attorney or corporation counsel to initiate a delinquency proceeding or JIPS delinquency proceeding even though the intake worker has closed the case. The bill also does not eliminate the intake worker's duty to notify the victim of the delinquent act.

SB193, s. 7 Section 7. 938.25 (2g) of the statutes is created to read:

SB193,7,10 938.25 (2g) If the circumstances described in s. 938.24 (2r) (a) apply, before filing a petition under s. 938.12 or 938.13 (12) the district attorney or corporation counsel shall determine whether the intake worker has received notification under s. 938.24 (2r) (b) from a tribal official that a petition relating to the alleged delinquent act has been or may be filed in tribal court. If the intake worker has received that notification or if a tribal official has provided that notification directly to the district attorney or corporation counsel, the district attorney or corporation counsel shall attempt to consult with appropriate tribal officials before filing a petition under s. 938.12 or 938.13 (12).

Note: Requires the district attorney or corporation counsel to attempt to consult with appropriate tribal officials before filing a delinquency petition or JIPS delinquency petition under the specified circumstances.

SB193, s. 8 Section 8. 938.255 (1) (cr) of the statutes is created to read:

SB193,7,13 938.255 (1) (cr) 1. If the petition is initiating proceedings under s. 938.12 or 938.13 (12) and all of the following circumstances apply, a statement to that effect:

SB193,7,14 a. The juvenile is an American Indian.

SB193,8,3 b. At the time of the alleged delinquent act, the juvenile was under an order of a tribe's court, other than a tribal court order relating to adoption, physical placement or visitation with the juvenile's parent, or permanent guardianship.

SB193,8,9 c. At the time of the delinquent act the juvenile was physically outside the boundaries of that tribe's reservation and any off-reservation trust land of either that tribe or a member of that tribe as a direct consequence of a tribal court order under subd. 1. b., including a tribal court order placing the juvenile in the home of a relative of the juvenile who on or after the date of the tribal court order resides physically outside the boundaries of a reservation and off-reservation trust land.

SB193,8,13 2. If the statement under subd. 1. is included in the petition and if the intake worker, district attorney, or corporation counsel has been notified by an official of the tribe that a petition relating to the delinquent act has been or may be filed in tribal court with respect to the alleged delinquent act, a statement to that effect.

Note: Requires that a delinquency petition or JIPS delinquency petition filed with respect to an American Indian juvenile include specific information if the specified circumstances exist.

SB193, s. 9 Section 9. 938.255 (2) of the statutes is amended to read:

SB193,8,16 938.255 (2) If any of the facts in sub. (1) (a) to (cm) (cr) and (f) are not known or cannot be ascertained by the petitioner, the petition shall so state.

SB193, s. 10 Section 10. 938.299 (9) of the statutes is created to read:

SB193,9,2 938.299 (9) (a) If a petition under s. 938.12 or 938.13 (12) includes the statement in s. 938.255 (1) (cr) 2. or if the court is informed during a proceeding under s. 938.12 or 938.13 (12) that a petition relating to the delinquent act has been filed in a tribe's court with respect to a juvenile to whom the circumstances specified in s. 938.255 (1) (cr) 1. apply, the court shall stay the proceeding and communicate with the tribal court in which the other proceeding is or may be pending to discuss which court may be the more appropriate forum.

SB193,9,7 (b) If the court and tribal court either mutually agree or agree under the terms of an established judicial protocol applicable to the court that the tribal court would be the more appropriate forum, the court shall dismiss the petition without prejudice or stay the proceeding. The court's decision shall be based on the best interests of the juvenile and of the public.

SB193,9,15 (c) If a stay is ordered under par. (b), jurisdiction of the court continues over the juvenile until one year has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the juvenile, the court may, on motion and notice to the parties, subsequently lift the stay order and take any further action in the proceeding as the interests of the juvenile and of the public require. When jurisdiction of the court over the juvenile terminates by reason of the lapse of the one year following the last order affecting the stay, the clerk of the court shall, without notice, enter an order dismissing the petition.

Note: Includes provisions relating to juvenile court procedure when a delinquency or JIPS delinquency case involves an American Indian juvenile and the specified circumstances exist.

The bill does not include details as to how the communication between the courts is to be conducted, for example, on or off the record, after a hearing, or with or without the parties present.

SB193, s. 11 Section 11. 938.315 (1) (i) of the statutes is created to read:

SB193,9,18 938.315 (1) (i) Any period of delay resulting from consultation under s. 938.24 (2r) or 938.25 (2g).

Note: Provides that any period of delay resulting from consultation by an intake worker, district attorney, or corporation counsel with tribal officials is not counted in computing time periods under ch. 938, stats. (the Juvenile Justice Code).

SB193, s. 12 Section 12. Initial applicability.

SB193,10,2 (1) This act first applies to delinquent acts committed on the effective date of this subsection.

Note: Provides that the bill first applies to delinquent acts committed on the effective date of the bill.

SB193,10,3 (End)