PUBLISHED OPINION
Case No.: 95-1379-CR
†Petition
for review filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH HAZEN,†
Defendant-Appellant.
Submitted on Briefs: October 17, 1995
Oral Argument:
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: November 14, 1995
Opinion Filed: November
14, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Lincoln
(If "Special", JUDGE: J. Michael Nolan
so indicate)
JUDGES: Cane,
P.J., LaRocque and Myse, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
defendant-appellant, the cause was submitted on the briefs of Keith F.
Ellison of Patterson, Richards, Hessert, Wendorff & Ellison of
Wausau.
Respondent
ATTORNEYSOn behalf of
plaintiff-respondent, the cause was submitted on the brief of James E. Doyle,
attorney general, and Gregory Posner-Weber, assistant attorney general,
of Madison.
|
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 14, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1379-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JOSEPH HAZEN,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Lincoln County:
J. MICHAEL NOLAN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Joseph Hazen, a juvenile, appeals his
judgment of conviction in adult criminal court for assault and battery of a
prison guard. Hazen claims that §§
48.183 and 970.032, Stats.,
violate the procedural due process clause by placing him in criminal court
without a hearing.[1] Section 48.183 automatically places a
juvenile in criminal court if the juvenile has committed an assault or battery
in a juvenile detention facility.[2] Under § 970.032(2), Stats., the criminal court holds a
"reverse waiver" hearing to determine whether it should retain
jurisdiction or transfer jurisdiction to the juvenile court.[3] The circuit court upheld the
constitutionality of the statutes.
Because a reverse waiver hearing does not deprive Hazen of a
constitutionally protected right to life, liberty or property, we affirm.
Hazen was charged with
attacking an employee of Lincoln Hills School, a secured correctional facility
for juveniles, contrary to §§ 940.20(1) and 946.43(1), Stats.
Hazen was confined at Lincoln Hills at the time of the battery. The circuit court assumed jurisdiction of
Hazen's criminal case pursuant to § 48.183, Stats.
Hazen moved to have the
courtroom closed to the public and press until the reverse waiver hearing. Hazen contended that identification by the
public and press violated his rights under the juvenile code. The circuit court denied the motions on the
basis that Hazen was presumed to be an adult under § 48.183, Stats., so the rules of criminal court,
not juvenile court, applied.
At the reverse waiver
hearing, Hazen claimed that §§ 48.183 and 970.032, Stats., violated his due process and equal protection rights
by revealing his identity to the public and press. The circuit court held that the challenged statutes did not
violate either the equal protection clause or Hazen's due process rights. Hazen subsequently pled guilty to all
counts, but filed a notice to pursue postconviction relief based on the
constitutionality issue. In light of State
v. Martin, 191 Wis.2d 647, 530 N.W.2d 420 (Ct. App. 1995), we now
address his appeal only with respect to the issue of procedural due process.
The constitutionality of
a statute is a question of law the appellate court decides without deference to
the circuit court. State v.
Migliorino, 150 Wis.2d 513, 524, 442 N.W.2d 36, 41 (1989). The Wisconsin and United States
Constitutions prohibit governmental actions that would deprive any person of
life, liberty or property without due process of law.[4] "'In procedural due process claims, the
deprivation by state action of a constitutionally protected interest in 'life,
liberty, or property' is not in itself unconstitutional; what is
unconstitutional is the deprivation of such an interest without due process
of law.'" Casteel v.
McCaughtry, 176 Wis.2d 571, 579, 500 N.W.2d 277, 281 (1993) (quoting Zinermon
v. Burch, 494 U.S. 113, 125 (1990)).
When a plaintiff claims
a procedural due process violation, the first question is whether the state has
deprived the plaintiff of a constitutionally protected interest in life,
liberty or property. Id.
at 579, 500 N.W.2d at 281. If such a
deprivation occurred, we determine whether the process provided before the
deprivation was constitutionally adequate. Id.
The due process clause
protects interests in life, liberty and property, and state laws can create
additional interests protected by the due process clause. Kentucky Dept. of Correcs. v. Thompson,
490 U.S. 454, 460 (1989). Hazen claims
that §§ 48.183 and 970.032, Stats.,
create a constitutionally protected liberty interest for juveniles to be free
from the loss of confidentiality in a criminal court until the criminal court
holds a reverse waiver hearing.
We conclude that §§
48.183 and 970.032, Stats., do
not create a protected liberty interest because the statutes do not mandatorily
direct the criminal court to hold a reverse waiver hearing before releasing the
identity of the juvenile and because Hazen's reputational interest is not a
sufficient substantive right to invoke constitutional protection.
Until recently, the test
to determine whether a statute created a protected liberty interest was whether
the statute mandatorily directed a government official to reach a decision
based on substantive predicates. Hewitt
v. Helms, 459 U.S. 460, 471-72 (1983).
In Sandin v. Conner, 115 S.Ct. 2293 (1995), the Court
abandoned the Hewitt methodology in the context of prisoner
rights cases. The Court adopted a test
that looks to the substance of the right being asserted, not the language of
the statute creating the right. Sandin,
115 S.Ct. at 2300.[5]
Although we have grave
doubts about the vitality of the Hewitt methodology in
nonprisoner contexts, "[i]t is impossible to know whether the philosophy
of Sandin will extend to determinations of liberty and property
interests in areas other than prison discipline." Jones v. Dane County, 195
Wis.2d 892, 963, 537 N.W.2d 74, 100 (Ct. App. 1995) (Sundby, J., dissenting).[6] We need not determine which test to use in
this case because §§ 48.183 and 970.032, Stats.,
do not create a constitutionally protected liberty interest under either test.
The sections do not
deprive Hazen of a constitutionally protected interest under Sandin's
substantive analysis test. Hazen's
substantive right is the right to protect his reputation by keeping the
proceedings closed to the press and public before the reverse waiver hearing. The United States Supreme Court has held
that state actions that injure a person's reputation alone do not constitute a
deprivation of life, liberty or property necessary to invoke the protection of
the due process clause. Paul v.
Davis, 424 U.S. 693, 701 (1976).
In Paul, the Court stated that reputation can only rise to
the level of a constitutionally protected interest when some more tangible
interest accompanies the loss of reputation.
Id. at 701. Hazen
does not claim that placement in criminal court deprives him of any
constitutional interest other than confidentiality.
Hazen also fails to
establish that §§ 48.183 and 970.032, Stats.,
create a liberty interest under Hewitt's methodology. Hazen argues that the statutes at issue
"employ mandatory language, requiring that certain procedures be employed
before the challenged action (in this case, criminal jurisdiction over a minor)
will occur."
We conclude that no
governmental decision based on substantive predicates need be made before a
criminal court assumes jurisdiction under § 48.183, Stats. That statute
automatically grants the criminal court jurisdiction in certain
circumstances. See supra
note 2. The only decision the criminal
court makes is whether to retain jurisdiction under § 970.032, Stats.[7] Even if the criminal court decides not to
retain jurisdiction, the juvenile's name will still be released to the public
by virtue of the criminal court's original jurisdiction. Because the court does not make a decision
to assume jurisdiction based on substantive predicates, the statutes do not
create a constitutionally protected right under Hewitt.
We conclude that §§
48.183 and 970.032, Stats., do
not deprive Hazen of his right to life, liberty or property; therefore, we need
not address his due process claim further.
See Casteel, 176 Wis.2d at 568, 484 N.W.2d
281. Accordingly, we affirm the
judgment.
By the Court.—Judgment
affirmed.
[1] Hazen also initially raised constitutional challenges against these statutory sections under the equal protection and substantive due process clauses. However, State v. Martin, 191 Wis.2d 647, 530 N.W.2d 420 (Ct. App. 1995), resolved those issues against him.
[2]
Section 48.183, Stats.,
provides:
Notwithstanding ss. 48.12 (1) and 48.18, courts of criminal jurisdiction have exclusive original jurisdiction over a child who is alleged to have violated s. 940.20 (1) or 946.43 [statutory sections prohibiting battery by prisoners and assaults by prisoners, respectively] while placed in a secured correctional facility. Notwithstanding subchs. IV to VI, a child who is alleged to have violated s. 940.20 (1) or 946.43 while placed in a secured correctional facility is subject to the procedures specified in chs. 967 to 979 and the criminal penalties provided for those crimes, unless a court of criminal jurisdiction transfers jurisdiction under s. 970.032 to a court assigned to exercise jurisdiction under this chapter.
[3]
Section 970.032(2), Stats.,
provides:
(2) 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 ch. 48. The
court shall retain jurisdiction unless the court finds all of the following:
(a) That, if convicted, the
child could not receive adequate treatment in the criminal justice system.
(b) That transferring
jurisdiction to the court assigned to exercise jurisdiction under ch. 48 would
not depreciate the seriousness of the offense.
(c) That retaining jurisdiction is not necessary to deter the child or other children from committing violations of s. 940.20 (1) or 946.43 or other similar offenses while placed in a secured correctional facility, as defined in s. 48.02 (15m).
[4] The due process clause is contained in the Fifth and Fourteenth Amendments to the United States Constitution and article 1, § 8 of the Wisconsin Constitution.
[5]
In Sandin v. Conner, 115 S.Ct. 2293 (1995), the United
States Supreme Court stated that when a state law creates a liberty interest in
prisoners' rights cases:
[T]hese interests will be
generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force ... nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.
Id. at 2300 (citations omitted).
[6] In Jones v. Dane County, 195 Wis.2d 892, 537 N.W.2d 74 (Ct. App. 1995), the majority did not reach the issue whether Sandin v. Conner, 115 S.Ct. 2293 (1995), abandoned the Hewitt v. Helms, 459 U.S. 460 (1983), methodology for nonprisoner cases. However, the majority did comment "[t]hat violations of most prison rules may no longer be the basis of § 1983 prisoner suits does not necessarily imply dramatic change in nonprisoner § 1983 jurisprudence." Jones 195 Wis.2d at 916, 537 N.W.2d at 81.