State v. Noah Q. Mann-Tate

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 3, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2585-CR Cir. Ct. No. 2022CF4573

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NOAH Q. MANN-TATE,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
JANE VINOPAL CARROLL, Judge. Reversed and cause remanded for further
proceedings.

Before White, C.J., Donald, and Geenen, JJ.

¶1 GEENEN, J. Noah Q. Mann-Tate, a juvenile defendant under adult
criminal court jurisdiction for a charged crime committed when he was ten years
old, appeals from nonfinal orders of the circuit court denying his motion for
No. 2024AP2585-CR

reverse waiver to transfer jurisdiction to juvenile court under WIS. STAT.
§ 970.032(2) (2023-24),1 or alternatively, to declare those reverse waiver
provisions unconstitutional. “Reverse waiver” is the procedure by which an adult
criminal court transfers a case against a juvenile offender to juvenile court, and
§ 970.032(2) sets forth three factors2 that the juvenile must prove by a
preponderance of evidence before the circuit court is permitted to grant reverse
waiver. Mann-Tate argues that the statutory factors set forth in § 970.032(2) are
unconstitutionally incomplete and violate due process because they do not require
the circuit court to consider the unique attributes of youth identified by the United
States Supreme Court3 before deciding whether to transfer jurisdiction to juvenile
court.

¶2 We agree with Mann-Tate. We conclude that the standard set forth
in WIS. STAT. § 970.032(2) for determining whether reverse waiver is appropriate
is unconstitutional to the extent it does not require circuit courts to consider the
unique attributes of youth identified by the United States Supreme Court.
Accordingly, we reverse the circuit court’s orders and remand the cause to the
circuit court to consider the reverse waiver issue anew applying the correct
standard of law.

1
This court granted leave to appeal the order. See WIS. STAT. RULE 809.50(3). All
references to the Wisconsin Statutes are to the 2023-24 version unless otherwise noted.
2
WISCONSIN STAT. § 970.032(2)(a)-(c) states that the court shall retain jurisdiction
unless the juvenile proves, by a preponderance of the evidence, that “if convicted, the juvenile
could not receive adequate treatment in the criminal justice system”; that transferring jurisdiction
to juvenile court would not “depreciate the seriousness of the offense”; and that retaining
jurisdiction is unnecessary in order to deter the juvenile, or other juveniles, from committing the
same offense.
3
See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48
(2010); Roper v. Simmons, 543 U.S. 551 (2005).

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BACKGROUND

¶3 On January 19, 2023, the State filed a criminal complaint alleging
that ten-year-old Mann-Tate committed first-degree intentional homicide. See
WIS. STAT. § 940.01(1)(a). According to the complaint, on November 21, 2022,
police responded to a report of a shooting at Mann-Tate’s residence and found
Mann-Tate’s mother deceased. Police interviewed Mann-Tate, who said that his
mother woke him up at 6:00 a.m. Mann-Tate told police that he went to his
mother’s bedroom, got her gun, and then went down to the basement where she
was grabbing some laundry. He originally described twirling the gun around on
his finger and then it “accidentally went off.” Mann-Tate then woke up his sister,
who discovered their mother was deceased, and called 911. Police spoke with the
medical examiner, who said that Mann-Tate’s mother died from a gunshot wound
to the head at close range. After being interviewed, Mann-Tate was allowed to
remain with family.

¶4 Mann-Tate’s family contacted the police department the next
morning, and two detectives returned to speak with them. Mann-Tate’s older
sister told police that Mann-Tate had “rage issues” and acted out. She said that
about six months earlier, Mann-Tate filled a balloon with flammable liquid and set
it on fire, causing it to explode and set their couch and carpet on fire and that,
when his mother asked him why he would do something like that, Mann-Tate said
that his sisters told him to do it. Further questioning4 led Mann-Tate to explain
that he has five imaginary people who talk to him: two sisters, one old lady, one

4
It is unclear in the record whether the questioning was done by Mann-Tate’s mother
after the fire balloon incident or by police during their investigation of Mann-Tate’s mother’s
death.

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guy, and lastly, someone who Mann-Tate does not like speaking to because that
person is mean to him. Mann-Tate’s sister told police that Mann-Tate was seeing
a therapist, and she reported seeing paperwork from the therapist “who gave him a
concerning diagnosis.” His sister also reported that Mann-Tate logged into their
mother’s Amazon account and ordered a virtual reality headset on November 22,
2022, the morning after their mother’s death.

¶5 Mann-Tate’s maternal aunt told police about previous concerning
incidents involving Mann-Tate. She said that when Mann-Tate was four years old,
he picked up his puppy and swung it around by the tail. She also told detectives
that Mann-Tate had attacked her son to the point that she had to pull Mann-Tate
off of him.5

¶6 The complaint also alleges that Mann-Tate made untruthful
statements to police. He originally told police he was not mad at his mother, but
then admitted that he was mad that she woke him up half an hour early; he initially
told police he pried open the gun safe, but he later admitted that he got the keys
the night before and hid them in his nightstand, then got the gun from the gun safe
the next morning when his mother woke him up; he first said he asked his mother
whether the gun was real, but he later admitted he did not say anything to his
mother but that she walked toward him and told him to put the gun down; he
originally told police that he had been twirling the gun around his finger when the
gun “accidentally went off,” but he later admitted that he had not been twirling the
gun; that when a cousin told him he could go to jail for a long time, he tried to

5
In a later interview with a defense investigator, Mann-Tate’s aunt said that the
statement in the complaint about Mann-Tate’s attack on her son was not true and that it was not a
physical attack requiring her to pull Mann-Tate off of her son.

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No. 2024AP2585-CR

come up with different stories, and that he was nervous and did not know what to
do when the bullet hit his mother, so he tried to fake that he was innocent; and that
he was not truthful when he said that his mother ordered the virtual reality headset.

¶7 Based on the charge and Mann-Tate’s age, the adult criminal court
had original jurisdiction under WIS. STAT. § 938.183(1)(am). Mann-Tate’s
attorneys requested a competency evaluation, and a contested competency hearing
was held over two days. Following testimony and party arguments, the circuit
court found that Mann-Tate, then-eleven years old, with average-to-below-average
intelligence for an eleven-year-old, was competent to proceed as an adult in adult
court.

¶8 The circuit court held a preliminary hearing at which a detective
testified consistently with the facts alleged in the complaint. Based on this
testimony, the court found there was probable cause to believe that Mann-Tate
committed first-degree intentional homicide. The case then proceeded to a reverse
waiver hearing. Doctors and social workers testified regarding Mann-Tate’s
medical and mental health history, his likelihood of responding favorably to
treatment and his treatment needs, and the services available to juveniles in both
the juvenile court and adult criminal court systems, including the extensive waitlist
of over 10,000 individuals for cognitive behavioral programming in the adult court
system. The court also heard testimony and accepted letters from family members
to assist with its determination of whether reverse waiver would depreciate the
seriousness of the offense.

¶9 Mann-Tate filed a motion to dismiss original adult court jurisdiction,
challenging the constitutionality of the reverse waiver statutes. After hearing
arguments, the circuit court denied the motion. It explained:

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No. 2024AP2585-CR

This court is bound by Wisconsin precedent but
recognizes the uphill battle faced by defendants seeking to
prove the elements of [WIS. STAT.] § 970.032(2),
particularly with a young defendant and at this point in the
proceedings. In addressing the seriousness of the offense,
only preliminary hearing testimony has been heard, and the
defendant is presumed innocent. He retains his right to
challenge the admissibility of evidence against him,
cross[-]examine witnesses and to proffer a defense.
Particularly in a homicide prosecution, there are often
lesser included offenses involving intent v[ersus]
recklessness. In addressing treatment in the adult system,
again there are many unknown elements at this stage, the
first of which is the treatment needs of the defendant. The
younger the defendant, the more their treatment needs will
change over time. A 10 to 12-year-old defendant has not
even gone through puberty. Just like the conviction is
unknown, the sentence is also unknown and will ultimately
require the court to consider a variety of factors. If given
an adult sentence, an offender remains in the custody of
juvenile corrections until age 17; so the treatment in the
adult system, in the case of a 10-year-old defendant, begins
seven years into the future. Just as treatment needs are not
static, treatment services available are not constant, either.
There is no reason to assume that the treatment services
available in the adult system today will be the same as the
ones available when a juvenile defendant enters it at some
future date.[6] Finally, the third element that a juvenile
must prove involves either specific or general deterrence.
The effect of one case on general deterrence is simply
impossible to know or measure but is likely negligible in
almost all cases. The question of whether the juvenile will
commit another homicide in the future is, again,
complicated by their young age. They haven’t lived long
enough to establish a pattern of behavior, their brains and
personalities are still in development, and their mental
health is subject to change as well.

6
We observe the irony of the circuit court’s reasoning that the younger a juvenile
offender is, the less likely it will be that the juvenile can prove that he or she will not receive
adequate treatment in the adult criminal justice system because the younger the juvenile is, the
longer it will be before that juvenile is transferred to the adult corrections system, and the
available treatment services in the adult system could change during that time.

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No. 2024AP2585-CR

¶10 After denying Mann-Tate’s motion to dismiss, the circuit court
denied Mann-Tate’s reverse waiver motion. Regarding the first statutory factor of
WIS. STAT. § 970.032(2), that Mann-Tate could not receive adequate treatment in
the adult criminal justice system, the court noted that “[t]he difficulty with proving
that is first identifying what needs does this defendant have and what needs will he
have when he enters the adult system. It’s complicated even more by his age
being ten years old.” The court found that there was no diagnosis that would
allow it to determine what Mann-Tate’s needs are, and that it was unknown
whether Mann-Tate would need mental health treatment in the adult system. The
court concluded that, because Mann-Tate’s needs were unknown, “the defendant
has not proven that, if convicted, he could not receive adequate treatment in the
criminal justice system.”

¶11 With respect to the second factor, the court noted that “[t]his offense
is a first-degree intentional homicide. It is very aggravated.” The court stated that
it was required to make the determination of whether transferring jurisdiction
would depreciate the seriousness of the offense based on preliminary hearing
testimony, which indicated that there was preplanning, that Mann-Tate took the
keys to the gun safe, then went downstairs to confront his mother, and shot her at
close range. The court also considered the impact on the victims, noting that the
family supported Mann-Tate but did not agree on whether Mann-Tate should be in
juvenile or adult court. The court concluded that it is an “extremely aggravated
offense, and it has not been proven on this record that transfer to juvenile court
would not depreciate the seriousness of the offense.” Finally, while considering
the third factor of deterrence, the court explained that the State had conceded, and
the court agreed, that there is nothing that one court does in one case that affects
general deterrence.

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No. 2024AP2585-CR

¶12 The court found that the most compelling reason to keep Mann-Tate
in the juvenile system was his age. The court explained that it did not believe ten-
year-old children belong in the adult system, but that the court was required to
consider only the statutory factors listed in WIS. STAT. § 970.032(2). It explained:

What is extremely—the factor in this case that is the most
compelling for keeping this youth in the juvenile system is
his age. He was ten years old at the time that he committed
this offense. He is now twelve years old. And our feeling
that if ten-year-olds do not belong in the adult system, and,
as a juvenile court judge, that I would agree with that
statement. But that’s not my job. That is a legislative
determination.

The legislature has clearly indicated that ten-year-
olds who are charged with first-degree intention[al]
homicide do belong in the adult system, unless those
statutory factors are all proven by a preponderance of the
evidence with the burden being on the defendant.

…

So I am concluding that the defense has not met
their burden in proving that [Mann-Tate] could not receive
adequate treatment in the adult system, that transferring
jurisdiction to the juvenile court would not depreciate the
seriousness of the offense, and the motion to reverse waive
him into the juvenile court is denied.

¶13 Mann-Tate filed a petition for leave to appeal the circuit court’s
nonfinal orders denying the motions to dismiss original jurisdiction on
constitutional grounds, and for reverse waiver. We granted Mann-Tate’s petition.

DISCUSSION

¶14 Mann-Tate’s constitutional argument focuses on a juvenile’s right to
due process at the reverse waiver hearing. Mann-Tate argues that by creating the
reverse waiver procedure, the legislature created a liberty interest that triggers due
process protections. Specifically, Mann-Tate asserts that several United States

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No. 2024AP2585-CR

Supreme Court cases have emphasized the difference between adults and juveniles
in the criminal justice system, and because the reverse waiver statute does not
require the circuit court to consider the distinctive attributes of youth identified in
these cases, the statute no longer provides the required due process protection to
children whose cases originate in the adult criminal system.

¶15 The constitutionality of a statute is a question of law that we review
de novo. State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328.
Statutes are presumed constitutional, and a party challenging the constitutionality
of a statute bears the “heavy burden” of proving beyond a reasonable doubt that
the statute is unconstitutional. Id., ¶11.

¶16 For the reasons detailed below, we agree with Mann-Tate. We
conclude that the standard set forth in WIS. STAT. § 970.032(2) for determining
whether reverse waiver is appropriate is unconstitutional to the extent it does not
require circuit courts to consider the unique attributes of youth identified by the
United States Supreme Court. Our analysis is organized as follows: First, we
discuss the history of the statutes establishing original adult court jurisdiction and
the reverse waiver procedure. Second, we summarize the unique attributes of
youth identified by the United States Supreme Court, and we conclude that due
process requires consideration of those attributes by the circuit court before
determining whether to grant reverse waiver. Third, and finally, we summarize
and reject the State’s arguments.

I. History of original adult criminal jurisdiction and reverse waiver
statutes.

¶17 The legislature first provided the adult criminal court with
jurisdiction over certain children in 1993. 1993 WIS. ACT 98. Under the new

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statutes, the criminal court was granted exclusive original jurisdiction over any
child with a previous adjudication who was alleged to have committed battery or
aggravated assault while placed in a secured juvenile facility, unless the court
transferred jurisdiction to the children’s court through the reverse waiver process.
WIS. STAT. § 48.183 (1993-94).

¶18 Under the new reverse waiver procedure, once the court found
probable cause to believe that the child committed one of those offenses, the court
was required to retain jurisdiction unless it found all of the following: (1) that, if
convicted, the child would not receive adequate treatment in the criminal justice
system; (2) that transferring jurisdiction to children’s court would not depreciate
the seriousness of the offense; and (3) that retaining jurisdiction was not necessary
to deter the child or other children from committing battery, aggravated assault, or
other similar offenses while placed in a secure correctional facility. WIS. STAT.
§ 970.032 (1993-94). If the child remained in criminal court and was convicted of
one of the adult jurisdiction offenses, the court was required to sentence the child
to a presumptive minimum prison sentence unless the court determined that
placing the child on probation or imposing a lesser sentence would not depreciate
the seriousness of the offense or was not necessary for purposes of deterrence.
WIS. STAT. § 939.635 (1993-94).

¶19 In 1995, the Juvenile Justice Study Committee was created to study
the effectiveness of the Children’s Code and state and county resources in
providing “responses to delinquent behavior by children that promote public
safety, accountability and rehabilitation.” 1993 WIS. ACT 377. In its report
Juvenile Justice: A Wisconsin Blueprint for Change, the Committee recommended
sweeping reforms that the legislature subsequently adopted. It removed the

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delinquency provisions from WIS. STAT. ch. 48 and created WIS. STAT. ch. 938,
the Juvenile Justice Code.7

¶20 Among other changes, ch. 938 lowered the age of delinquency from
twelve years old to ten years old, compare WIS. STAT. § 48.12(1) (1993-94) with
WIS. STAT. § 938.12 (1995-96), and original adult court jurisdiction was expanded
to include homicides or attempted homicides committed by children who were at
least ten years old, § 938.183 (1995-96). The criteria regarding deterrence now
required the court to determine whether retaining jurisdiction was not necessary to
deter the child or other children from committing the offense for which the child
was now under original adult court jurisdiction. 1995 WIS. ACT 77 § 669. The
legislature later changed the language of WIS. STAT. § 970.032(2) to place the
burden on the child to prove the three criteria for transferring adult jurisdiction by
a preponderance of the evidence, rather than having the court make findings
regarding the three criteria. 1995 WIS. ACT 352 § 134.

¶21 Thus, under the current version of the statutes, the adult criminal
court has exclusive original jurisdiction over juveniles who are alleged to have
committed certain offenses, including first-degree intentional homicide. Although
the criminal court has exclusive original jurisdiction, WIS. STAT. § 970.032(2)
allows the accused juvenile to seek transfer of his or her case to juvenile court
through the reverse waiver procedure. First, the criminal court must find probable

7
In explaining the need for a separate Juvenile Justice Code, the Committee stated that
the term “children” was “misleading when it is applied to law violators who often are physically
and mentally mature and who have demonstrated a willingness to engage in serious and even
heinous acts.” Juvenile Justice: A Wisconsin Blueprint for Change at 13, Juvenile Justice Study
Committee, (January 1995), https://files.eric.ed.gov/fulltext/ED384129.pdf. It continued: “The
words ‘child’ and ‘children’ are inappropriate when applied to such individuals.” Id.

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cause to believe that the juvenile has committed the violation that provided the
court with original jurisdiction. Sec. 970.032(1). If it does, the criminal court
proceeds to a reverse waiver hearing. The criminal court must retain jurisdiction
unless the juvenile proves each of the following criteria by a preponderance of the
evidence: (1) that the juvenile, if convicted, could not receive adequate treatment
in the criminal justice system; (2) that transferring jurisdiction to the juvenile court
would not depreciate the seriousness of the offense; and (3) that retaining
jurisdiction is not necessary to deter the juvenile or other juveniles from
committing the same violation as the accused. Sec. 970.032(2).

II. Unique attributes of youth identified by the United States Supreme
Court and their application to reverse waiver proceedings.

¶22 Approximately ten years after the creation of Wisconsin’s reverse
waiver statute, the United States Supreme Court fundamentally altered the way in
which juveniles are treated in the criminal justice system. In particular, the
Supreme Court decided several cases, grounded in the Eighth Amendment’s
prohibition against cruel and unusual punishment, distinguishing juveniles and
adults for purposes of sentencing. Mann-Tate argues that although the Court
identified these distinctions in the context of resolving Eighth Amendment issues,
the Court did not limit the relevancy of these distinctions to Eighth Amendment
issues. We agree with Mann-Tate.

¶23 In Roper v. Simmons, 543 U.S. 551, 570-71 (2005), the Supreme
Court concluded that imposing the death penalty on an individual for crimes
committed before the age of 18 constitutes cruel and unusual punishment because
juveniles as a class are less culpable than adults. The Court supported its decision
with both common sense and scientific studies, highlighting three general
differences between juveniles and adults which “demonstrate that juvenile

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offenders cannot with reliability be classified among the worst offenders.” Id. at
569.

¶24 First, the Court explained that a “‘lack of maturity and an
underdeveloped sense of responsibility’” are more frequently found in juveniles
than in adults, often resulting in “‘impetuous and ill-considered actions and
decisions.’” Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Second,
the Court recognized that “juveniles are more vulnerable or susceptible to negative
influences and outside pressures, including peer pressure” because “juveniles have
less control, or less experience with control, over their own environment.” Roper,
543 U.S. at 569. “The third broad difference is that the character of a juvenile is
not as well formed as that of an adult. The personality traits of juveniles are more
transitory, less fixed.” Id. at 570. For these reasons, the Court concluded that the
Eighth Amendment prohibited the imposition of the death penalty on juveniles
under 18:

These differences render suspect any conclusion
that a juvenile falls among the worst offenders. The
susceptibility of juveniles to immature and irresponsible
behavior means their irresponsible conduct is not as
morally reprehensible as that of an adult. Their own
vulnerability and comparative lack of control over their
immediate surroundings mean juveniles have a greater
claim than adults to be forgiven for failing to escape
negative influences in their whole environment. The reality
that juveniles still struggle to define their identity means it
is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably
depraved character. From a moral standpoint it would be
misguided to equate the failings of a minor with those of an
adult, for a greater possibility exists that a minor’s
character deficiencies will be reformed. Indeed, the
relevance of youth as a mitigating factor derives from the
fact that the signature qualities of youth are transient; as
individuals mature, the impetuousness and recklessness that
may dominate in younger years can subside.

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Id. (citation modified).

¶25 Five years later, in Graham v. Florida, 560 U.S. 48, 74 (2010), the
Supreme Court held that sentences of life in prison without the possibility of
parole for juveniles convicted of crimes other than homicide constitutes cruel and
unusual punishment. After summarizing the distinctions Roper drew between
juveniles and adults, the Court concluded that there was no reason to reconsider
those distinctions. In fact, “developments in psychology and brain science
continue to show fundamental differences between juvenile and adult minds.”
Graham, 560 U.S. at 68. The Court explained that, in light of the unique
characteristics of youth, “none of the goals of penal sanctions that have been
recognized as legitimate—retribution, deterrence, incapacitation, and
rehabilitation—provides an adequate justification” for sentencing non-homicide
juvenile offenders to life in prison without parole. Id. at 71 (citation modified). It
stated that “criminal procedure laws that fail to take defendants’ youthfulness into
account at all would be flawed.” Id. at 76.

¶26 The Graham Court also discussed the “special difficulties
encountered by counsel in juvenile representation.” Id. at 78. It explained:

[T]he features that distinguish juveniles from adults also
put them at a significant disadvantage in criminal
proceedings. Juveniles mistrust adults and have limited
understandings of the criminal justice system and the roles
of the institutional actors within it. They are less likely
than adults to work effectively with their lawyers to aid in
their defense. Difficulty in weighing long-term
consequences; a corresponding impulsiveness; and
reluctance to trust defense counsel, seen as part of the adult
world a rebellious youth rejects, all can lead to poor
decisions by one charged with a juvenile offense. These
factors are likely to impair the quality of a juvenile
defendant’s representation.

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Id. (citations omitted).

¶27 In Miller v. Alabama, 567 U.S. 472, 479 (2012), the Supreme Court
held that a mandatory sentence of life in prison without the possibility of parole
for a homicide committed by a juvenile constitutes cruel and unusual punishment.
While reaffirming the differences between juvenile and adult offenders, the Court
observed that in the years since Roper and Graham were decided, “the science
and social science supporting” those decisions “have become even stronger.”
Miller, 567 U.S. at 472 n.5. The Court quoted the amicus brief filed by the
American Psychological Association, stating that “[i]t is increasingly clear that
adolescent brains are not yet fully mature in regions and systems related to higher-
order executive functions such as impulse control, planning ahead, and risk
avoidance.” Id. It concluded that mandatory sentences of life without parole
imposed upon juveniles violates the Eighth Amendment because the mandatory
nature of the sentence precludes the sentencer from considering the unique
characteristics of youth in determining a proportional sentence for the crimes
committed. Id. at 473-74.

¶28 Moreover, the Court considered and rejected the argument that the
discretion available to a judge at waiver and reverse waiver hearings allowed
states to subject some juveniles to a possible mandatory life sentence for
homicide. Id. at 487-89. Alabama argued that a categorical ban on mandatory life
sentences without parole for juveniles was unnecessary because “individualized
circumstances come into play in deciding whether to try a juvenile offender as an
adult” or transfer the matter to juvenile court. Id. at 480. The Court concluded
that “[e]ven when States give transfer-stage discretion to judges, it has limited
utility.” Id. at 488. It explained that “the decisionmaker typically will have only
partial information at this early, pretrial stage about either the child or the

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circumstances of his [or her] offense.” Id. “The key moment for the exercise of
discretion is the transfer,” and at that point, “the judge often does not know then
what [he or] she will learn, about the offender or the offense, over the course of
the proceedings.”8 Id.

¶29 Mann-Tate argues that although these cases dealt with Eighth
Amendment claims, the relevance of the distinctions between juveniles and adults
is not limited to Eighth Amendment claims. That is, the distinctive attributes of
youth identified by the Court are not constitutionally irrelevant before sentencing;
instead, these attributes inform what process is due to juveniles whose cases
originate in the adult criminal justice system.

¶30 An individual’s due process rights are rooted in the Fourteenth
Amendment to the United States Constitution and article I, sections 1 and 8 of the
Wisconsin Constitution. “[D]ue process is a fundamental requirement in both the
criminal and juvenile courts[.]” State v. Tawanna H., 223 Wis. 2d 572, 579, 590
N.W.2d 276 (Ct. App. 1998). “[T]he concern of due process is fundamental
fairness.” State ex rel. Lyons v. De Valk, 47 Wis. 2d 200, 205, 177 N.W.2d 106
(1970). “[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

¶31 It is well settled that legislatures can create statutorily protected
liberty interests that implicate due process protections. Kent v. United States, 383
U.S. 541, 557, 562 (1966). Once the right to be treated as a juvenile is provided

8
We observe that the juvenile offenders in Roper, Graham, and Miller were all
substantially older at the time of their alleged offenses than was Mann-Tate at the time of his
alleged offense.

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No. 2024AP2585-CR

by statute, due process demands that a court conduct a “meaningful review” prior
to waiving a juvenile into adult court. Id. at 561-62. Due process requires that the
waiver proceeding include an adversarial hearing, effective assistance of counsel,
and a statement of reasons for the court’s decision. Id. at 560-62. The Court in
Kent determined that a waiver decision requires the due process protections of
meaningful review because it is a “critically important” proceeding determining
“vitally important statutory rights of the juvenile.” Id. at 556, 560. Although Kent
did not dictate what exact criteria a court must consider in determining whether to
waive juvenile jurisdiction, it suggested factors that many states, including
Wisconsin, incorporated into their waiver statutes. See WIS. STAT. § 938.18(5);
Kent, 383 U.S. at 566-67. These factors include the juvenile’s mental maturity
and apparent potential for responding to future treatment. Sec. 938.18(5)(a); Kent,
383 U.S. at 567 (including “[t]he sophistication and maturity of the juvenile as
determined by consideration of his [or her] home, environmental situation,
emotional attitude and pattern of living” as one of several “determinative factors”
in the decision to waive juvenile court jurisdiction).

¶32 It is likewise well settled that the distinctions drawn between
juveniles and adults in Roper, Graham, and Miller have application in areas other
than criminal sentencing. For example, in J.D.B. v. North Carolina, 564 U.S.
261, 272, 277 (2011), the Court concluded that age is an important factor for
purposes of Miranda custody analysis and that children should not be held to the
same standard as adults. The Court observed that police officers and judges
“simply need the common sense to know that a 7-year-old is not a 13-year-old and
neither is an adult.” J.D.B., 564 U.S. at 279-80. Thus, it is not true that a
juvenile’s age is constitutionally relevant only during sentencing in adult criminal
court. A juvenile’s age is “more than a chronological fact,” and the Court had no

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trouble concluding that the impact of a juvenile’s youthfulness carries
constitutional significance in other contexts of the criminal justice process.9 Id. at
272 (citation omitted).

¶33 The Supreme Court’s jurisprudence with respect to how children are
treated when they are suspected of having committed a crime has been driven by
the science of adolescent10 brain development. Because children’s characters are
not well formed, and because children are more capable of change, “a greater
possibility exists that a minor’s character deficiencies will be reformed.” Roper,
543 U.S. at 570.

¶34 The problem, then, is that WIS. STAT. § 970.032(2) does not require
consideration of the impacts of the juvenile’s youth before determining whether
the juvenile is tried as an adult. Without consideration of these characteristics of
youth, children for whom the juvenile system is more appropriate may remain in
the adult system because the three reverse waiver criteria do not require the court
to consider information that is fundamental to determining whether a juvenile
should remain in criminal court or be waived to juvenile court, including the

9
The State points out that J.D.B. v. North Carolina is not a constitutionally based
decision because it is an extension of Miranda v. Arizona, and “Miranda is a prophylactic rule
not required by the Constitution but designed to prevent defendants from being compelled to
incriminate themselves in the inherently coercive environment of questioning while in police
custody.” While this is a correct characterization of Miranda, the State misses the broader point,
which is that the impact of a juvenile’s youthfulness is a constitutionally relevant factor that must
be considered in other critical stages of the criminal justice process and is not limited in
application to only adult criminal court sentencing of juvenile offenders.
10
It is unclear whether Mann-Tate was an “adolescent” as of the date of his alleged
crime (i.e., ten years old) or the date the circuit court denied his reverse waiver motion (i.e.,
twelve years old). Notably, however, the circuit court concluded that at the time it denied Mann-
Tate’s reverse waiver motion, Mann-Tate had not even started puberty. The science of adolescent
brain development that drove the outcomes in Roper, Graham, and Miller may therefore carry
increased weight when the juvenile is not, biologically, an adolescent and is still a child.

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No. 2024AP2585-CR

juvenile’s capacity for reform and rehabilitation. Section 970.032(2), in its current
form, violates due process because it does not provide a meaningful opportunity
for a juvenile to prove that he or she is not one of the “rare and unfortunate cases”
that warrant treating the juvenile as having the same culpability as an adult. See
Graham, 560 U.S. at 109 (Thomas, J. dissenting).

¶35 In particular, the criterion of whether waiver would depreciate the
seriousness of the offense fails to consider how the unique characteristics of youth
impact the seriousness of any given offense. The Supreme Court decisions
described above require courts to acknowledge that a youth who commits an
offense is less culpable than an adult who commits the same offense. The reverse
waiver procedure is rendered functionally meaningless if courts are not required to
consider that children’s “‘lack of maturity and … underdeveloped sense of
responsibility’” leads them to poor decision making. Roper, 543 U.S. at 569
(citation omitted). This concept is so fundamental that the Supreme Court
described it as something “any parent knows[.]” Id.

¶36 In Miller, the Court provided six characteristics that should be
considered during sentencing in light of the differences between adults and
children: (1) the juvenile’s chronological age related to immaturity, impetuosity,
and failure to appreciate risks and consequences; (2) the juvenile’s family and
home environment that surrounds him or her; (3) the circumstances of the offense,
including the extent of participation in the criminal conduct; (4) the impact of
familiar and peer pressures; (5) the effect of the offender’s youth on his or her
ability to navigate the criminal justice process; and (6) the possibility of
rehabilitation. Miller, 567 U.S. at 477-78. These factors mirror the factors used
during a waiver hearing (i.e., from juvenile to adult court), and they ensure due
process for the juvenile whose case is subject to original juvenile court

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No. 2024AP2585-CR

jurisdiction. WIS. STAT. § 938.18(5). In our view, the reverse waiver statute, WIS.
STAT. § 970.032(2), is constitutionally incomplete without consideration of these
factors.11 Moreover, the Supreme Court explained that not all juveniles are
equally impacted by these unique attributes of youth; common sense recognizes
that “a 7-year-old is not a 13-year-old and neither is an adult.” J.D.B., 564 U.S. at
279-80. Accordingly, these factors may take on more or less significance based
on the juvenile offender’s chronological age.

III. The State’s arguments supporting the constitutionality of WIS.
STAT. § 970.032(2) are not persuasive.

¶37 The State makes several arguments supporting the constitutionality
of WIS. STAT. § 970.032(2). We address each of these arguments in turn, but we
are not persuaded by any.12

¶38 First, we address the State’s framing of the standard of review
applicable to our analysis. In its brief, the State discusses what level of scrutiny
applies to WIS. STAT. § 970.032(2) (e.g., rational basis review or strict scrutiny).
In our view, identification of an applicable level of scrutiny is unnecessary in this

11
We reject the assertion that the Supreme Court cases described above have no
applicability outside of criminal sentencing of a juvenile in the adult court system. In a practical
sense, the reverse waiver procedure is quasi-sentencing in nature. Indeed, the three reverse
waiver factors set forth in WIS. STAT. § 970.032(2) are themselves sentencing factors. See
State v. Gallion, 2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197; State v. Odom, 2006 WI
App 145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695; State v. Ziegler, 2006 WI App 49, ¶23, 289
Wis. 2d 594, 712 N.W.2d 76. In our view, it is erroneous to conclude that the unique attributes of
youth identified by the Supreme Court and applied at other critical stages of the criminal justice
process can be ignored during the reverse waiver process when the reverse waiver process itself
requires the adult criminal court to consider three specific sentencing factors to determine
whether it must retain jurisdiction over the juvenile.
12
The State argues that Mann-Tate’s constitutional argument is undeveloped. We
disagree. We have no trouble discerning the arguments Mann-Tate makes in his briefs, and those
arguments are well supported by applicable case law.

20
No. 2024AP2585-CR

case. In State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165, our
supreme court faced a problem similar to the one presented in this case. In
Fitzgerald, the court held that Wisconsin’s involuntary medication statute was
unconstitutional to the extent it allowed the administration of involuntary
medication without consideration of the factors set forth in Sell v. United States,
539 U.S. 166 (2003). Fitzgerald, 387 Wis. 2d 384, ¶2. The court in Fitzgerald
never discussed or applied any level of scrutiny in its analysis.

¶39 We view this case as similar to Fitzgerald because Mann-Tate’s
argument is that a state statute—i.e., WIS. STAT. § 970.032(2)—is constitutionally
incomplete because it allows a juvenile to remain under adult court jurisdiction
without requiring the circuit court to consider constitutionally relevant criteria set
forth by the Supreme Court cases described above. The question is whether those
Supreme Court cases require courts to consider the unique impact of the juvenile’s
youthfulness when deciding whether to transfer jurisdiction to juvenile court, and
if so, whether § 970.032(2) already requires consideration of those factors. No
reference to or analysis of the different degrees of scrutiny is necessary to resolve
that question.

¶40 The State argues that the statutory factors set forth in WIS. STAT.
§ 970.032(2) already account for the impact of the juvenile’s youthfulness. In
particular, the State says that “[i]t would not make any sense for a court not to
consider the ‘impact of youthfulness’ when determining whether the juvenile
could receive adequate treatment in the criminal justice system and whether a
juvenile disposition would depreciate the seriousness of the offense.” The
problem with the State’s argument is two-fold. First, as Mann-Tate highlights, the
text of § 970.032(2) does not support the State’s argument. In contrast to WIS.
STAT. § 938.18(5), the text of § 970.032(2) does not require consideration of

21
No. 2024AP2585-CR

“[t]he personality of the juvenile,” “the juvenile’s physical and mental maturity,”
or “the juvenile’s pattern of living[.]” While the Juvenile Justice Code is designed
to consider the unique attributes of a juvenile offender’s youth, these are not
required considerations under the criminal code, where the reverse waiver statute
is housed.

¶41 Second, in its brief, the State relies on State v. Kleser, 2010 WI 88,
¶¶77-84, 328 Wis. 2d 42, 786 N.W.2d 144, to support its argument that the factors
set forth in WIS. STAT. § 970.032(2) encompass the factors set forth in WIS. STAT.
§ 938.18(5). However, the circuit court specifically asked the parties whether they
believed it was required under Kleser to consider the waiver factors under
§ 938.18(5), and the State took the position that the court cannot import factors
from § 938.18(5) into § 970.032(2). Moreover, Kleser does not support the
argument that courts must consider factors set forth in § 938.18(5) during a reverse
waiver proceeding under § 970.032.

¶42 The State argues that Mann-Tate’s rights are not implicated in this
case because the legislature was not required to provide a juvenile court substitute
for the adult criminal justice system at all, for any juvenile. Moreover, because
Mann-Tate is alleged to have committed an original adult jurisdiction crime, he
never had the statutory right to have his case heard in juvenile court. However, in
our view, the State misidentifies the right at issue. It is true that the legislature did
not have to create an alternative criminal justice court for juveniles, but it did, and
within that structure, the legislature created a procedure by which juveniles like
Mann-Tate could have their cases transferred to juvenile court if they prove the
statutory criteria by a preponderance of the evidence. In other words, Mann-Tate
has a statutory right to the reverse waiver procedure, and Kent requires a
meaningful hearing that comports with due process.

22
No. 2024AP2585-CR

¶43 The State argues that Mann-Tate has no substantive due process
right to participate in the juvenile court system. The State claims that prior
binding decisions have already rejected the heart of Mann-Tate’s argument that he
has a fundamental liberty interest in individualized treatment in the reverse waiver
procedure. For example, in State v. Martin, 191 Wis. 2d 646, 655-56, 530
N.W.2d 420 (Ct. App. 1995), we stated that “[t]he kind and nature of
considerations adherent to waiver and sentencing are historically for the legislature
to determine.” Thus, there is “no fundamental right to individualized sentencing
and, by extension, to waiver hearings[.]” Id. at 656. The State also relies on State
v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138 (1992), where our supreme
court stated that “there exists no fundamental right to be treated as a juvenile nor is
there a fundamental right not [to] be incarcerated for criminal behavior.” The
State’s reliance on these cases is misplaced. These cases analyze substantive due
process rights, whereas here, Mann-Tate’s arguments are based on procedural due
process. Moreover, both of these cases predate the United States Supreme Court’s
cases described above establishing the important and fundamental differences
between juveniles and adults, and we are bound to follow the United States
Supreme Court’s decisions interpreting the United States Constitution. See State
v. Halverson, 2021 WI 7, ¶21, 395 Wis. 2d 385, 953 N.W.2d 847.

¶44 The State argues that “every State court to consider the argument
Mann-Tate now makes has rejected it,” citing numerous decisions from other
jurisdictions. However, in each of the cases relied upon by the State, the statutory
scheme was fundamentally different than Wisconsin law, and the arguments made
by the juveniles in those cases were not the same as the arguments being made by
Mann-Tate in this case. For example, in Zaragoza v. State, No. 0844, 2021 WL
5296889, slip op. at 7 (Md. Ct. Spec. App. Nov. 15, 2021), the Maryland court

23
No. 2024AP2585-CR

concluded that Maryland’s juvenile court statutory scheme did not violate due
process where the juvenile was not statutorily entitled to a reverse waiver hearing
because the crime the juvenile committed was excluded in the statutes granting
reverse waiver for only certain offenses. In other words, “because the circuit court
was statutorily prohibited from transferring its jurisdiction over Zaragoza to the
juvenile court, whether for trial or for sentencing, the juvenile court could never
have acquired jurisdiction over his case.” Id. The statutory scheme at issue in
several other cases cited by the State mirror Zaragoza.13 Although Mann-Tate,
like the juveniles in those cases, was subject to original adult court jurisdiction,
Mann-Tate is not statutorily prohibited from having his case heard in juvenile
court like the juveniles were in these non-Wisconsin cases. That is, none of these
cases deal with a juvenile who has a statutory right to a reverse waiver proceeding.

¶45 Finally, the State argues that Mann-Tate may still receive a juvenile
disposition if he is convicted of a lesser included offense that does not qualify as
an adult original jurisdiction crime. While this assertion is true, it does not solve
the problem, because Mann-Tate will still have been denied a meaningful reverse
13
See, e.g., State v. Watkins, 423 P.3d 830, ¶16 (Wash. 2018); State v. B.T.D., 296 So.
3d 343, 358 (Ala. Crim. App. 2019); State v. McKinney, 46 N.E.3d 179, ¶17 (Ohio Ct. App.
2015); People v. Patterson, 25 N.E.3d 526, ¶94 (Ill. 2014); State v. Jensen, 385 P.3d 5, 10-11
(Idaho Ct. App. 2016); State v. Fussell, 286 So. 3d 1011, 1015-16 (La. 2019); see also State v.
Crooks, 911 N.W.2d 153, 163-65 (Iowa 2018) (stating that the statute allowing juvenile court to
waive jurisdiction and allow a juvenile to be prosecuted in adult criminal court as a “youth
offender” did not constitute “punishment” under the Eighth Amendment); Jones v. State, 889
S.E.2d 590, 597-98 (S.C. 2023) (holding that the statute excluding certain youth from the
definition of “juvenile,” and thus, subjecting those youths to adult sentencing, did not violate the
Eighth Amendment). Importantly, all but two of these cases involved offenders who were at least
sixteen years old at the time they committed the crimes for which they were convicted. One case
involved a thirteen-year-old, Crooks, 911 N.W.2d at 156, while the other involved a fifteen-year-
old, Patterson, 25 N.E.3d 526, ¶1. The statute at issue in Patterson was later amended to
increase the minimum age for mandatory adult court jurisdiction from fifteen to sixteen.
Compare 705 ILL. COMP. STAT. 405/5-130 (2008) and Patterson, 25 N.E.3d 526, ¶1 with 705
ILL. COMP. STAT. 405/5-130 (2016).

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No. 2024AP2585-CR

waiver proceeding. This would be true even if Mann-Tate is not convicted of any
crime and is instead acquitted at trial. In other words, the State again misidentifies
the right at issue in this case. Mann-Tate does not argue that he is entitled to a
juvenile disposition. He argues that he is entitled to a meaningful reverse waiver
hearing wherein the unique attributes of his youth are considered in the waiver
analysis.

CONCLUSION

¶46 For the foregoing reasons, we conclude that the standard set forth in
WIS. STAT. § 970.032(2) for determining whether reverse waiver is appropriate, is
unconstitutional to the extent it does not require circuit courts to consider the
unique attributes of youth identified by the United States Supreme Court. These
attributes include: (1) the juvenile’s chronological age related to immaturity,
impetuosity, and failure to appreciate risks and consequences; (2) the juvenile’s
family and home environment that surrounds him or her; (3) the circumstances of
the offense, including the extent of participation in the criminal conduct; (4) the
impact of familiar and peer pressures; (5) the effect of the offender’s youth on his
or her ability to navigate the criminal justice process; and (6) the possibility of
rehabilitation. Miller, 567 U.S. at 477-78. These factors may take on more or less
significance based on the juvenile offender’s chronological age, in recognition of
the fact that not all juveniles are equally impacted by these unique attributes of
youth. See J.D.B., 564 U.S. at 279-80.¶

¶47 Although the circuit court concluded that Mann-Tate’s age was “the
most compelling” factor in favor of transferring jurisdiction to juvenile court, it
explicitly disclaimed any reliance on Mann-Tate’s age or the impact of his
youthfulness on its decision to deny reverse waiver. Accordingly, we reverse the

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No. 2024AP2585-CR

circuit court’s orders and remand the cause to the circuit court to consider the
reverse waiver issue anew applying the correct standard of law.

By the Court.—Orders reversed and cause remanded for further
proceedings.

Recommended for publication in the official reports.

26