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    Circuit courts must retain court records and files for 75 years in guardianship and mental health cases in which a firearm restriction is ordered, under a newly adopted Wisconsin Supreme Court Rule. However, circuit courts can destroy paper records sooner if electronically stored.

    Joe Forward

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    Courts Must Hold Court Records for 75 Years to Address Firearm Restrictions 

    Nov. 21, 2012 – Like many other states, Wisconsin expanded gun restriction laws after a mentally ill gunman killed 32 people on the campus of Virginia Tech in 2007. Recently, the Wisconsin Supreme Court adopted record retention rules relating to those changes.

    Effective Jan. 1, 2013, circuit courts must retain guardianship, mental health, and juvenile court records and files for up to 75 years if a firearm restriction was ordered in the case.

    Currently, Supreme Court Rules (SCR) only require circuit courts to keep court records and files for seven years after termination of a guardianship or involuntary commitment.

    “It is necessary for the courts to retain the files for a longer period of time because DOJ will rely on the court records to resolve any discrepancies when conducting firearms checks,” Director of State Courts John Voelker wrote in a supporting memo to petition 12-05.

    At the same time, amendments ease the burden of storing those records by allowing circuit courts to destroy paper files 48 hours after electronically or optically storing them. Previously, courts could not destroy files stored electronically until a year after entry of a final order.

    Expansion of Gun Restriction Law

    Wisconsin restricts individuals from possessing firearms under Wis. Stat. section 941.29.

    In 2010, Wisconsin enacted laws that require circuit courts to determine whether individuals are prohibited from possessing firearms under federal law in guardianship and protective placement cases, in addition to involuntary commitments for treatment.1

    Under federal law, individuals declared “mentally defective” are prohibited from possessing firearms.2 Someone is considered mentally defective if a court determines that, as a result of a mental illness or other condition, the individual poses a danger to himself or others, “lacks the capacity to contract or manage his own affairs,” or is otherwise insane or incompetent.3

    Wisconsin circuit courts previously imposed firearm restrictions in commitment cases based on the “substantial probability” that the individual would use a firearm to cause harm.4 Courts were not required to make this determination in guardianship or protective placement cases.5

    The FBI maintains a national database to identify individuals who are prohibited from possessing firearms, and federally licensed firearm dealers must conduct background checks before transferring firearms to ensure the individual is not prohibited from possessing them.6

    However, the reporting of mental health information to the FBI’s National Instant Criminal Background Check System (NICS) is voluntary by the states.7 State law determines whether mental health information is transferred to NICS, and the extent of information transferred.

    The NICS Improvement Act of 2007 created financial incentives for states to transmit information to NCIS, noting the Virginia Tech shooting. “In spite of a proven history of mental illness, the shooter was able to purchase the two firearms used in the shooting. Improved coordination between State and Federal authorities could have ensured that the shooter’s disqualifying mental health information was available to NICS,” the act stated.

    Currently, Wisconsin and 37 other states authorize state agencies to report mental health information to NCIS.8 Under Wisconsin law, circuit court clerks are required to notify the Wisconsin Department of Justice (DOJ) if a firearm restriction is ordered in guardianship, involuntary commitment, or protective placement cases.9

    In turn, DOJ must report those restrictions to NCIS “in a timely manner.”10 DOJ must also report to NCIS when a person’s firearm restriction is lifted after notification from circuit courts.

    The Wisconsin Supreme Court has now finalized rules to ensure court records are available to address discrepancies that may arise after courts restrict persons from possessing firearms.

    Attorney Amber Peterson, circuit court policy and procedure advisor to the Wisconsin Director of State Courts, says discrepancies could arise based on an individual’s ability to request a cancellation of firearms restrictions imposed by circuit courts in Wisconsin.

    “For example, a firearm restriction could be imposed for an involuntary commitment that lasts only a year,” Peterson said. “The individual could apply for a concealed carry license long after the commitment terminates. Court records would resolve whether that person is eligible to obtain a concealed carry license.”

    Record Retention for Firearm Restrictions

    Currently, pursuant to Supreme Court Rule 72.01(32)-(34), courts are required to retain case files and court and minute records for seven years after termination of a guardianship in proceedings under Wis. Stat ch. 54 (guardianships) and ch. 55 (protective services).

    • An amendment extends the record and file retention period to 75 years after termination of a guardianship if there was a firearm restriction ordered in the case. The retention period is seven years after “death of the ward.”

    In involuntary commitment cases under Wis. Stat. ch. 51 (state alcohol, drug abuse, developmental disabilities, and mental health act), courts are required to retain mental health case files and records for seven years after a final order is entered under SCR 72.01(38)-(40).

    • An amendment requires courts to retain those files for 75 years after termination of commitment if a firearm restriction was ordered.

    SCR 72.01(42m)-(44) requires courts to retain records for proceedings commenced under Wis. Stat. ch. 48 (children’s code) for four years after a child’s or juvenile’s 18th birthday or 75 years after adjudication for acts that would be punishable as felonies if committed by an adult.

    • An amendment adds a 75-year record retention period after adjudication of acts that would be considered misdemeanors if committed by an adult and there was a firearm restriction imposed or the juvenile or child is required to register as a sex offender.

    Retention of Exhibits and Statutory liens

    Currently, criminal and juvenile delinquency case exhibits must be retained for one year after the time for appeal has expired under current SCR 72.01(46).

    • An amendment requires retention of exhibits for 20 years after entry of final judgment or until every person in custody as a result of the action or proceeding has reached his or her discharge date.

    SCR 72.01(6) currently requires courts to retain records relating to statutory liens filed for services performed or materials provided until satisfaction or expiration of the lien or entry of judgment, whichever occurs first.

    • An amendment will only require courts to hold such records for 30 years after the date the lien is filed. In the petition, Voelker said this change is “consistent with other retention rules that specify an exact number of years that records must be kept.”

    Conclusion

    Circuit courts must retain court records and files in guardianship, juvenile, involuntary commitment, and protective placement cases in which a firearm restriction is ordered for 75 years after final orders or terminations are entered. Courts may destroy paper records after 48 hours if the record is stored optically or electronically.

     

    Joe Forward is the legal writer for the State Bar of Wisconsin.

     

    Endnotes

    1 2009 Wisconsin Act 258.

    2 18 USC § 922(g)(4).

    3 27 CFR § 478.11.

    4 Wisconsin Legislative Council Act Memo, 2009 Wisconsin Act 258, Firearms.

    5 Id.

    6 18 USC § 922 (t).

    7 28 CFR § 25.4.

    8 Law Center to Prevent Gun Violence, Mental Health Reporting Policy Summary (May 21, 2012), available at http://smartgunlaws.org/mental-health-reporting-policy-summary.

    9 2009 Wisconsin Act 258.

    10 Wis. Stat. § 175.35(2g)(d)1.