COURT OF APPEALS
DATED AND FILED
January 25, 2011
A. John Voelker
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF APPEALS
Honorable Mark J. McGinnis,
¶1 PETERSON, J. Mario Jimenez appeals an order sanctioning him for failing to comply with conditions imposed after he was found to have violated a municipal truancy ordinance. See Wis. Stat. § 938.55(6m)(ag). Jimenez argues the circuit court did not have authority to sanction him under § 938.355(6m)(ag) because that statute does not apply to persons who are seventeen years of age or older, and he was seventeen. The Honorable Mark J. McGinnis concedes that Jimenez is correct. However, Judge McGinnis argues the sanctions can be upheld based on the court’s inherent contempt authority. We disagree and reverse.
¶2 Jimenez was cited for violating a municipal ordinance that
prohibits a person under age eighteen from being a truant. See
¶3 Judge McGinnis subsequently filed a motion for sanctions,
alleging Jimenez had violated the order to attend school. The circuit court, the Honorable Mitchell J.
Metropulos presiding, heard Judge McGinnis’s motion against Jimenez. Jimenez’s counsel objected to the court’s
jurisdiction, arguing the court did not have authority to sanction Jimenez, a
seventeen-year-old, under Wis. Stat. ch.
938. The court rejected Jimenez’s
argument, stating, “[T]he ordinance specifically talks about children under the
age of 18 who are found to be truant .…”
The court noted that, while seventeen-year-olds are adults for purposes
of the criminal code, “numerous other provisions of the
¶4 Wisconsin Stat. § 938.355(6m)(ag) permits a court to sanction a “juvenile” who has violated a dispositional order involving a municipal truancy ordinance. However, in Wis. Stat. ch. 938, “for purposes of investigating or prosecuting a person who is alleged to have violated … any civil law or municipal ordinance,” the term “juvenile” does not include a person who has attained seventeen years of age. Wis. Stat. § 938.02(10m). At the time the initial truancy citation was issued, Jimenez was seventeen years old. Thus, Jimenez was not a “juvenile,” and the court had no authority to sanction him pursuant to § 938.355(6m)(ag).
¶5 Judge McGinnis concedes on appeal that the court could not
sanction Jimenez under Wis. Stat. ch.
938, but he argues the court could nevertheless impose sanctions pursuant to its
inherent contempt power. We agree with
Judge McGinnis that a court has inherent power to hold in contempt a person who
disobeys its lawful orders. See D.L.D.
v. Circuit Court, 110
¶6 More importantly, even if it were possible to characterize the
sanctions proceeding against Jimenez as a contempt proceeding, the circuit
court did not follow the statutory procedures governing contempt.
¶7 There are two types of contempt: punitive and remedial. See
Wis. Stat. §§ 785.01(2),
(3). Punitive sanctions are imposed “to punish a past contempt of court for the purpose of
upholding the authority of the court,” § 785.01(2), and punishing the
contemnor. Christensen v. Sullivan,
2009 WI 87, ¶53, 320
¶8 The sanctions proceeding against Jimenez was initiated by a motion for sanctions, not a criminal complaint. The motion was filed by a judge, not a district attorney, attorney general, or special prosecutor. The motion hearing was not conducted according to the rules of criminal procedure. For instance, Jimenez did not enter a plea, he had no right to a jury trial, and no formal order of proof was made. Thus, even if construed as a contempt proceeding, the sanctions proceeding against Jimenez did not comply with the statutory requirements for punitive contempt.
¶9 Nor did the
sanctions proceeding comply with the requirements for remedial contempt. A remedial sanction is imposed “for the
purpose of terminating a continuing contempt of court.” Wis.
Stat. § 785.01(3). Because a
remedial contempt order is designed to terminate ongoing contempt, the sanction
must be purgeable by the contemnor. Benn
v. Benn, 230
¶10 Here, the sanctions proceeding against Jimenez was not initiated by an aggrieved person, as required by Wis. Stat. § 785.03(1)(a). Instead, it was initiated by the circuit court judge who imposed the original order Jimenez allegedly violated. Moreover, the sanction order did not contain a purge condition. The court ordered Jimenez to serve thirty days in home detention with electronic monitoring, but it did not provide a way for him to avoid or reduce the sanction by complying with the original order or fulfilling some other condition. Thus, even if characterized as a remedial contempt proceeding, the sanction proceeding against Jimenez would fall short.
¶11 Judge McGinnis
cites D.L.D., where our supreme court held that a circuit court may hold
a juvenile in contempt for violating a court order regarding truancy. See
¶12 Jimenez’s case is
quite similar to B.L.P. There, the
circuit court commenced contempt proceedings on its own motion against a
juvenile who had allegedly violated a dispositional order requiring her to
held that, even in a juvenile case, a circuit court may not exercise its
inherent contempt power without following the procedures prescribed by Wis. Stat. ch. 785.
By the Court.—Order reversed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
 This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
 There is actually a third type: summary contempt. This procedure allows a presiding judge to impose a sanction upon a person who commits a contempt of court in the actual presence of the court. See Wis. Stat. § 785.03(2). Neither party contends this summary procedure is applicable in Jimenez’s case.