from an order of the circuit court for Waukesha County No.
2015JV164: WILLIAM DOMINA, Judge. Reversed and cause
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
This appeal presents the question of whether a juvenile court
has the authority to order a consent decree over the
objection of the district attorney. We conclude that a
juvenile court does not have the statutory authority to do so
The specific facts are not relevant to this appeal.
Sixteen-year-old C.G.B. came to the attention of police on
May 21, 2015, and a referral was made to the county intake
worker on July 1, 2015, for an "intake inquiry."
See Wis. Stat. § 938.24(1). Per the statute, an
intake worker is required to do one of the following within
forty days after receipt of a referral: (1) request that a
petition be filed, (2) enter into a deferred prosecution
agreement (DPA), or (3) close the case. Sec. 938.24(3)-(5).
In the case of C.G.B., the intake worker chose to enter into
a DPA and gave requisite notice to the district attorney.
See § 938.24(5). By statute, a district
attorney has twenty days to file a delinquency petition to
override the DPA,  and in this case, the district attorney
exercised its authority to file a delinquency petition
C.G.B. thereafter filed a motion requesting that the court
enter an order either dismissing the delinquency petition and
referring the case back for a DPA or placing him on a consent
decree pursuant to Wis.Stat. § 938.21(7). Section
938.21(7) provides that "[i]f the court determines that
the best interests of the juvenile and the public are served,
the court may enter a consent decree under [Wis. Stat.
§] 938.32 or dismiss the petition and refer the matter
to the intake worker for deferred prosecution in accordance
with [Wis. Stat. §] 938.245." C.G.B. argued that
our supreme court's decision in State v. Lindsey
A.F., 2003 WI 63, ¶35, 262 Wis.2d 200, 663 N.W.2d
757, authorizing the court to exercise its discretion to
dismiss a delinquency petition and refer the matter for a DPA
over the objection of the district attorney, was equally
applicable to the court entering into a consent decree with
the juvenile over the district attorney's objection. The
State objected to C.G.B.'s motion, acknowledging that the
court could dismiss the case and send it back for a DPA under
Lindsey A.F., but disagreeing that the court could
enter into a consent decree without approval from the
district attorney under § 938.32.
The circuit court held a hearing and issued a written
decision. The court found that a DPA was not appropriate for
C.G.B. given the facts of the case, but it concluded that it
did have the authority to enter a consent decree over the
objection of the district attorney, relying upon the
rationale set forth in Lindsey A.F. The district
attorney did not sign the consent decree entered by the court
and brought this appeal.
In Lindsey A.F., a unanimous supreme court held that
a juvenile court has the authority under Wis.Stat. §
938.21(7) to dismiss a juvenile delinquency petition and
refer the matter for deferred prosecution over the objection
of the district attorney. Lindsey A.F., 262 Wis.2d
200, ¶¶34-35. The State responded that it could
nevertheless terminate the deferred prosecution agreement by
filing a second delinquency petition pursuant to Wis.Stat.
§ 938.245(6). Lindsey A.F., 262 Wis.2d 200,
¶26. Relying on the plain language of § 938.245,
the court rejected this argument. It noted that the district
attorney's authority to terminate a deferred prosecution
agreement was only triggered by "receipt of notice of
the deferred prosecution agreement under [Wis. Stat. §]
938.24(5)." Lindsey A.F., 262 Wis.2d 200,
¶¶26, 33. However, no notice is required for a
court-ordered deferred prosecution under § 938.21(7) as
a referral to the intake worker must be in accordance with
§ 938.245, which effectively skips over the twenty-day
notice requirement of § 938.24(5). Lindsey
A.F., 262 Wis.2d 200, ¶¶32-33. Thus, the court
concluded that without the trigger-notice-a district attorney
cannot terminate a court-ordered referral for a deferred
prosecution agreement by filing a second delinquency
petition. Id., ¶¶33-35. Stated simply,
§ 938.245(6) authorizes a district attorney to override
a determination made by an intake worker within twenty days
after notice of the DPA, but the statute does not authorize a
district attorney to override a court-ordered referral for a
DPA made by the circuit court under § 938.21(7).
Lindsey A.F., 262 Wis.2d 200, ¶34.
The resolution of this case rests on a matter of statutory
interpretation, which we review de novo. Id.,
¶8. The juvenile court opined that a district attorney
does not have authority to override a court's decision
under Wis.Stat. § 938.21(7) to "enter a consent
decree under [Wis. Stat. §] 938.32." We disagree,
as a consent decree statutorily requires the consent,
approval, and participation of the district attorney
"under" § 938.32.
Under Wis.Stat. § 938.245, a DPA may be entered into
"with all parties" if the intake worker determines
that neither the interests of the public nor the juvenile
require the filing of a delinquency petition; that the intake
worker determines that the jurisdiction of the court would
exist if a petition was sought; and the juvenile, parent,
guardian, and legal custodian consent to the DPA. Sec.
938.245(1)(a)-(c). "Parties" under § 938.245
does not include either the district attorney or the court as
a participant in the process. See id. A DPA differs
from a consent decree in that a DPA may not include any form
of "out-of-home placement" and may not exceed one
year. Compare § 938.245(2)(b), with
Wis. Stat. § 938.32(1)(c), (2).
In contrast, a consent decree authorized under Wis.Stat.
§ 938.32 "must be agreed to by the juvenile; the
parent, guardian, or legal custodian; and the person filing
the petition, " i.e., the district attorney. Sec.
938.32(1)(a). Statutorily, a consent decree may place a
juvenile outside of the juvenile's home, may be extended
beyond one year, and the district attorney is obligated to
offer victims the opportunity to confer with him or her
regarding the proposed consent decree. Sec. 938.32(1)(c),
(1)(am), (2). Unlike in Lindsey A.F., the procedure
authorizing a consent decree is not statutorily the same as a
DPA. Wisconsin Stat. § 938.21(7) grants the circuit
court the authority to enter a consent decree if "the
best interests of the juvenile and the public are served,
" but it must do so "under" the confines of
§ 938.32, which mandates that all parties, including the
district attorney, must agree before a valid consent decree
may be entered.
Lindsey A.F. was not a broad statement of judicial
authority that massaged or otherwise disregarded statutory
language. Section 938.21(7) requires that referral for a DPA
must be "in accordance with [Wis. Stat. §]
938.245"; Lindsey A.F. purported to do no more
than interpret § 938.245. Similarly, the statute
requires that the court may order a consent decree
"under Wis.Stat. § 938.32." We hold that a
juvenile court does not have the authority to enter a consent
decree under Wis.Stat. § 938.21(7) over the objection of
the district attorney.
Reversed and remanded for proceedings ...