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  • April 20, 2016

    Supreme Court Revives Petition on Expunction, Record Retention Issues

    In 2009, the State Bar of Wisconsin filed a petition seeking stronger court rules to protect individuals with court records on the court system’s website. After seven years with no legislative changes, the Wisconsin Supreme Court may consider it again.

    Joe Forward

    locked recordApril 20, 2016 – The Wisconsin Supreme Court has revived a seven-year-old petition dealing with expunction and record retention, issues that impact citizens with publicly accessible court records on the Wisconsin Circuit Court Access (WCCA) website.

    Part of the Consolidated Court Automation Programs (CCAP), the WCCA website provides access to circuit court case information. From felonies to ordinance violations, the court record remains in CCAP regardless of the outcome of the case.

    Those court records cannot be removed (or sealed) unless “expunged,” and there are limited circumstances in which a person can receive “expunction” (aka expungement).

    The State Bar of Wisconsin filed its original petition (09-07) in 2009, with unanimous support from the State Bar's Board of Governors, noting that information on the WCCA, including information that a person was arrested but never convicted, can be used for discriminatory and other unlawful purposes.

    The petition requests revised rules on record retention and maintenance, under Supreme Court Rule (SCR) 72.01, to allow more people, in certain circumstances, to petition for removal of court records from public access, including through WCCA.

    As the justices noted in an open administrative conference April 13, the court deferred the petition back in 2010, waiting for legislative resolutions that never came. And this session’s expunction bills, discussed below, are dead as the session is essentially over.

    Most of the justices seemed to agree that the petition may contain “substantive” issues on expunction that must be decided by the Wisconsin Legislature. But they also agreed that the court work toward other changes that are within its authority to change.

    Expunction and Record Retention in Wisconsin

    Under current SCR 72.06, court clerks must expunge a court record “when required by statute or court order.” Wis. Stat. section 973.015 expressly allows circuit courts to order expungements for individuals who were under age 25 when they committed a felony or misdemeanor that does not carry a maximum prison term of more than six years.1

    Courts, at the time of sentencing, “may order that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.” Traffic dispositions cannot be expunged.

    Expunction is only available if there are no subsequent offenses and probation (if it applies) was not revoked. If the individual was detained or satisfied the conditions of probation, the detaining or probationary authority must send a “certificate of discharge” to the court of record upon successful completion of the sentence. At that point, the record must be expunged. The individual does not need to take any other action.

    However, for individuals (under age 25) who were never detained or never on probation, expunction is not automatic. Those people must petition for expunction by court order.

    Also, to have a record “expunged,” there must be a conviction. A person cannot file for expunction of a court record that shows the case was dismissed or the person was acquitted. There is currently no law allowing someone to do that. And, according to a 2014 appeals court decision, expunction is not available for civil forfeitures.

    Back in 2009, when the State Bar filed the petition, it noted that the information contained on the WCCA website “is regularly misused” and allowing continued access posed the risk that a court record could be used for improper purposes.

    The State Bar noted one study concluding that “mere contact with the criminal justice system can have significant repercussions, with records of ‘arrest,’ ‘conviction,’ and ‘incarceration’ conveying a stigma differing in degree but not in kind.”

    The State Bar argued that the supreme court has “supervisory power over its own records and files” and should use it to limit access in the appropriate circumstances.

    That is, the proposed rule would allow circuit courts to expressly order that records be sealed (not accessible on WCCA) when a case is dismissed or someone is acquitted.

    In addition, the petition would allow circuit courts to order expunctions after the “minimum retention period” for the type of case represented by the final disposition.

    Currently, felony case files and records must be retained for 50 years after entry of final judgment (75 years for Class A felonies).2 For misdemeanors, it’s 20 years after final judgment. If the record is not removed, a petitioner could ask that it be removed.

    The petition requests a clarification that retention time periods “apply to the type of case at the time of the final disposition” and not the type of case when filed. This would account for people convicted for lesser crimes than originally charged.

    Justices Want to Do Something

    At its open administrative conference April 13, the court discussed at length what should be done with petition 09-07, which is now seven years old. 

    A motion to dismiss the petition (and encourage a new filing) failed. Thus, the court may now consider it again, but comments from the justices suggested the court would focus on “procedural” rule changes that are firmly within its authority to change.

    Justice Michael Gableman, in particular, indicated a desire to give people notice if they are eligible for an expunction hearing. He said expunction is a “very important tool,” and the 1975 legislature, in passing expunction laws, recognized that “young people do stupid things, they commit stupid acts, but it shouldn’t necessarily haunt them for the rest of their lives.” 

    But Justice Gableman also said many Wisconsin citizens are probably not benefitting from laws that allow their court records to be expunged.

    “I’m going to bet that there were thousands of defendants who were advised at the time of their plea, since 1975, that the judge made them eligible for expungement,” he said.

    However, he noted the possibility that in many of those cases, no one ever told the defendant that it was their responsibility to seek expunction, especially those who were unrepresented or were not among those who could receive a certificate of discharge.

    “No one told them that the duty was incumbent upon them to furnish the appropriate documentation to show that they’ve completed the expungement period,” he said.

    Justice Gableman inquired whether clerks of circuit courts in Wisconsin “have a uniform method for identifying and/or segregating expungement files.” If they do, they could identify persons who are eligible for expungement and send them notice.

    In a telephone interview with the State Bar, Melissa Pingel, clerk of court for Winnebago County, said her office does not use a special code for expungement-eligible files.

    “From what I understand, if the people do not apply, then we would not know if they are eligible until we pull the file and looked at the verbiage that was used at sentencing,” said Pingel, noting that any coding that may be available through CCAP is not used in her county. “It’s always been on the defendant to apply to us, to say this is eligible.”

    Andrea Olsen, who works for the Wisconsin Court System, said CCAP does allow court clerks to flag expunction eligible files through special coding. But clerks are not required to use the code.

    Chief Justice Patience Roggensack agreed that the court could work on some of the issues raised, but suggested a new petition should be filed to remove “substantive” parts that the court has no power to change. She moved to dismiss the petition.

    Justice Annette Ziegler said the petition improperly conflates “expunction” with “record retention” issues and could not be saved. But the court split 3-3 (Justice Rebecca Bradley abstained from voting) on that motion. Justice Gableman, after raising his concerns, also voted to dismiss. Justice David Prosser, voting against dismissal, said he did not want to send the wrong message.

    “In a sense, we do need to start from scratch. On the other hand, dismissing the petition seems to be sending a message that all of the testimony and all of the concerns voiced were ignored by the court,” said Justice Prosser.

    Justices Shirley Abrahamson and Ann Walsh Bradley joined Prosser to vote against dismissal. Justice Bradley said CCAP is an instrument to be proud of, but the court must address the misery that such information can bring to people’s lives.

    That means the petition will likely be part of future agendas that work towards resolution of “procedural” elements on court record retention. But changes to substantive expunction laws must be dealt with legislatively, members of the court suggested.

    Expunction Bills that Died This Legislative Session

    AB 1005, introduced in March by Rep. Nick Milroy (D-South Range) at the request of the Director of State Courts, would have allowed individuals to petition for expungement if the charges were dismissed or the person was acquitted, regardless of age. Certain felonies or offenders were excluded, and traffic tickets could not be expunged.

    The bill also allowed a person who committed a civil violation (not including traffic violations) while under the age of 25 to petition for expungement. The petition may be filed after the individual satisfies the judgment and pays all fines, fees, and costs.

    This provision addresses the issue in Kenosha County v. Frett, 2014 WI App 127. In that case, the state appeals court ruled that a young woman could not obtain an expunction after pleading guilty to a littering charge, noting the legislature “provided no mechanism for expunction of a record following payment of a civil forfeiture.”

    AB 1005 did not include language that would allow someone, regardless of age, to obtain expunction if the minimum retention period for that case has expired. That was an additional expunction layer the State Bar sought through its petition.

    Another bill, AB 1004, would have required the director of state courts “to remove a case or charge involving a civil forfeiture or a crime from the Wisconsin Circuit Court Access Internet site within 90 days after being notified that the case or charge has been dismissed, that the defendant has been found not guilty of all the charges in the case, or that the case or charge has been overturned on appeal and dismissed.”

    AB 1008 would clarify that sentencing courts would not make expungement decisions at the time of sentencing. Expungement decisions would be made upon petition, after a petitioner successfully completes the sentencing, including all conditions that applied.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    In State v. Matasek, 2014 WI 27, a unanimous supreme court ruled that expungement decisions must be made “at the time of sentencing,” per the statute. The court rejected the argument that sentencing courts could hold that decision to a later date.

    AB 1008 would have abrogated the Matasek decision, as well as State v. Hemp. In Hemp, the sentencing judge made the expungement decision at the time of sentencing, ordering that the defendant’s record be expunged upon the successful completion of the sentence. When that time came, though, the record was not automatically expunged.

    By the time Hemp’s lawyer filed an expunction petition a year later, the defendant had incurred new charges. He argued that his expungement should have been automatic because the sentencing court already ordered it. He said he did not have to file a petition.

    The Wisconsin Supreme Court agreed, concluding the expungement should have been automatic once a discharge certificate was issued by his probation agent.

    Another bill, AB 1009, presents a slight variation from AB 1008. Under AB 1009, sentencing courts could still make an expungement decision “at the time of sentencing.”

    However, if no expungement decision was made at that point, a defendant (who committed the crime while under age 25) could petition for expungement at any time within 10 years of successfully completing the sentence. Again, the court would weigh the public benefit or harm, and subsequent convictions would bar expungement.

    Conclusion

    Look for future coverage of petition 09-07 as the court begins new work on changes to rules that impact people with records that are publicly accessible.​

    Endnotes

    1 A law enacted in 2013, section 973.015(2m), also allows expunctions for victims of sex trafficking, regardless of age, who incurred convictions for prostitution.

    2 Wisconsin Supreme Court Rule (SCR) 72.01 (Retention and Maintenance of Court Records).​​

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