Overview
A Wisconsin court of appeals has held a criminal procedure statute facially unconstitutional because of what the Legislature left out of it. On September 8 the Wisconsin Supreme Court heard the State’s challenge.1
The defendant was ten years old when he killed his mother, an age at which Wisconsin gives adult court original jurisdiction over a first-degree intentional homicide charge. His route back to juvenile court runs through the reverse waiver statute, Wis. Stat. § 970.032(2), which the court of appeals held unconstitutional to the extent it does not require a circuit court to consider the distinctive attributes of youth.2 The question is whether that omission is a constitutional defect or a policy choice belonging to the Legislature.
What You Should Know
Four things to carry into the decision
- Section 970.032(2) requires the child to establish three things: that he cannot receive adequate treatment in the criminal justice system, that transfer would not depreciate the seriousness of the offense, and that retaining adult jurisdiction is not necessary to deter him or others.
- Four physicians examined Mann-Tate and could not agree on a diagnosis or on his treatment needs. The circuit court retained adult jurisdiction, finding those needs could not then be determined and that treatment would be identical in either system until he turned eighteen.
- The State asked for three things: reversal in full; a statement that State v. Fitzgerald did not excuse the circuit court from performing the constitutional analysis put to it; and a holding that no magic words are required before a court retains jurisdiction.3
- Compare the statutes. Section 938.18(5), governing waiver into adult court, enumerates personality, mental illness, and developmental and physical maturity. Section 970.032, governing the return trip, says nothing about age.
Two Routes to the Same Repair
Almost everyone at the argument agreed youth should bear on the analysis. The fight is over which instrument does the work.
Kleser already encompasses youth
If the attributes of youth are already within the three statutory criteria, the statute needs no repair and the circuit court either applied it correctly or did not. The Court writes interpretive gloss requiring youth to be addressed on the record.
Procedural due process requires it
The court of appeals held the omission a constitutional defect and identified six considerations a circuit court must now address.
What Happened
Almost the entire hour belonged to one ruling in Milwaukee County rather than to the constitutional theory. Click any step for detail.
Ten years old
Mann-Tate was ten when he killed his mother — an age at which Wisconsin gives adult court original jurisdiction over a first-degree intentional homicide charge.
Judge Carroll retains adult jurisdiction
Four physicians had examined Mann-Tate and could not agree on a diagnosis or on his treatment needs. The court said his treatment needs could not be determined at that point, that the doctors could not agree, and that none of them had addressed what underlay the offense. It also found that his treatment would be the same in either system until he turned eighteen.
Court of appeals reverses
Holding § 970.032(2) unconstitutional as a matter of procedural due process because it does not require a circuit court to consider the distinctive characteristics of youth, and identifying six considerations a circuit court must now address.
The State’s position throughout was that juvenile court is a creature of legislative grace rather than constitutional right, that State v. Kleser makes the attributes of youth relevant evidence bearing on the three existing criteria rather than a fourth criterion, and that a facial challenge requires a showing that the statute cannot be constitutionally applied in any circumstance.
Legal Background
Original adult court jurisdiction over a ten-year-old charged with first-degree intentional homicide is a legislative judgment, and reverse waiver is the safety valve the same Legislature built.
The two waiver statutes are not drafted alike. Section 938.18(5) gives a circuit court a detailed catalogue when it moves a child from juvenile court into adult court. Section 970.032(2) gives three criteria, no enumerated considerations, and no reference to age, when the child asks to go the other way. A justice put that asymmetry to the State directly and asked whether the Court could supply the missing guidance.
Kleser is the hinge. If the attributes of youth are already encompassed within the three statutory criteria, the statute needs no repair and the circuit court either applied it correctly or did not. If they are not, something is missing — and the remaining question is whether the missing piece is constitutionally required or merely desirable.3
Key Exchanges
Summarized from the argument rather than quoted. Speakers are identified as the argument record identifies them.
Pressed the circularity directly: if the circuit court found that treatment would be identical in either system until the child turns eighteen, it is unclear how he could ever prove that he cannot receive adequate treatment in the criminal justice system.
Called the court of appeals’ approach breathtaking and novel as constitutional jurisprudence, and said the argument sounds in substantive rather than procedural due process — asking the Court to incorporate standards the Legislature did not put in the statute because fairness is said to demand them.
Observed that the younger the juvenile, the harder it becomes to show treatment needs and therefore to prevail on reverse waiver, and questioned whether that can have been the Legislature’s intent.
Acknowledged the discomfort of prosecuting a ten-year-old in adult court but placed the question with the Legislature, arguing that constitutionalizing it removes the policy choice from the elected branch.
Zoom In
Justice Hagedorn engaged the doctrinal frame directly, and his objection is the strongest in the case: a court that reads substantive criteria into a statute because fairness demands them is not enforcing procedural due process, it is legislating under a procedural caption.
Justices Taylor, Crawford, and Protasiewicz returned to the treatment criterion and to what the circuit court believed it was permitted to weigh. Chief Justice Karofsky pressed the same ground as a question of discretion.
That division points toward the likeliest disposition. A court that wishes to repair § 970.032 without striking it writes interpretive gloss, holding that the attributes of youth are already encompassed by the three criteria and must be addressed on the record.
On rebuttal it agreed with Justice Crawford that age, maturity, and brain development bear on the seriousness of the offense and on treatment needs, and conceded the circuit court was wrong to the extent it concluded otherwise.
Its only objection was doctrinal: constitutional avoidance does not apply where a published decision has already held the statute facially unconstitutional.5
Having agreed that youth bears on two of the three criteria, the State is left arguing about the label on the remedy rather than its content.
That is a strong position on the facial holding and a weak one on the disposition below.
What’s Next
Watch three things.
Is Kleser a rule of relevance or a duty?
Whether the attributes of youth are merely relevant, or must be addressed on the record. That is the holding every circuit judge in the state will read.
Reverse the facial holding but remand anyway?
A disposition that gives each side something. If it remands, watch what a circuit court is supposed to do with a defendant now around fourteen applying criteria to a ten-year-old’s offense — a wrinkle raised from the bench and left unresolved.
Does equal protection surface in a concurrence?
No justice named the doctrine, but Justice Crawford’s comparison of the ten-year-old’s prospects with the sixteen-year-old’s is an equal protection argument in due process clothing, and a concurrence engaging it would map the next petition.
Endnotes & Authorities · 5 citations
- State v. Noah Q. Mann-Tate, No. 2024AP2585-CR, argued September 8, 2026. On review from State v. Mann-Tate, 2026 WI App 17 (Geenen, J., joined by White, C.J., and Donald, J.) (filed Feb. 3, 2026), reversing the Milwaukee County Circuit Court (Carroll, J.).
- Wis. Stat. § 970.032(2) (reverse waiver criteria); § 938.183(1) (original adult court jurisdiction); § 938.18(5) (waiver from juvenile court into adult court).
- State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165; State v. Kleser, 2010 WI 88, ¶¶ 77–84, 328 Wis. 2d 42, 786 N.W.2d 144.
- Counsel as identified in the argument record.
- Gabler v. Crime Victims Rts. Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384, as cited by the State from the podium for the limits of constitutional avoidance.