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  • WisBar News
    June 08, 2017

    Supreme Court: DOJ Must Correct Inaccurate Criminal History Reports

    Joe Forward

    Supreme Court chamber in Wisconsin State Capitol

    June 8, 2017 – Dennis Teague never committed a crime. But employers or others might think he did when looking at criminal history reports issued by the Wisconsin Department of Justice (DOJ), because a criminal once used his name as an alias.

    In Teague v. Schimel, 2017 WI 56 (June 8, 2017), the Wisconsin Supreme Court ruled that DOJ must stop issuing inaccurate criminal history reports about Dennis Teague and two other citizens who identified the same problem with the DOJ’s practices.

    Six justices ruled that DOJ issued inaccurate criminal history reports in this case, and six justices agreed that plaintiffs must receive prospective relief that will protect them in the future. But the justices differed on how prospective relief should be achieved.

    That is, a majority could not agree on the precise remedy for providing prospective relief to the plaintiffs and other citizens who may be impacted by DOJ’s practices. But four justices agreed to remand the case to the circuit court to make that determination.

    Crime Database

    The DOJ maintains a criminal history database that incorporates criminal information on more than one million people. The public can obtain criminal background reports by paying nominal fees. Requestors can obtain records based on fingerprint or name.

    Name-based searches, which include any alias name that an individual has used, are less reliable because they are not completely unique. Thus, name-based searches can prompt criminal histories on people who are not the subject of the request.

    Like David Teague. He says his cousin (ATP) stole his identity and committed crimes using his name. Now, whenever someone conducts a criminal background check on “David Teague,” his cousin’s criminal rap sheet is delivered with no clarification.

    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.

    Under Wis. Stat. section 19.70, people like Teague can challenge the accuracy of a record containing personally identifiable information that is released in criminal history records. Teague used this to obtain “innocence letters.” He submitted fingerprints and DOJ returned letters confirming he has no criminal record as of the letter’s date.

    The problem, of course, is that Teague will never know when someone, like his cousin, will pick up new charges that will require him to obtain a new “innocence letter.”

    Thus, Teague sued the attorney general and other DOJ officials, claiming they violate constitutional and statutory provisions each time they process and release a criminal history report tied to criminals who use “Dennis Teague” as an alias.

    Court Decisions

    The circuit and appeals courts dismissed Teague’s claims, concluding section 19.356 precludes judicial review of the government’s decision to release public records.

    But the Wisconsin Supreme Court reversed. Six justices agreed that DOJ violates Wis. Stat. section 19.70 when it knowingly issues a criminal history report that indicates criminal activity by persons with alias names mirroring names of crime-free individuals.

    “[T]he DOJ has known ATP’s criminal history report does not relate to Mr. Teague ever since it issued Mr. Teague’s innocence letter,” wrote Justice Daniel Kelly.

    “It necessarily follows that, by continuing to produce that report in response to an inquiry into whether Mr. Teague has a criminal history, it is providing inaccurate information.”

    Justice Kelly, who wrote a lead opinion, noted that “innocence letters” do not remedy the problem because corrections are “retroactive” after the report is released.

    Thus, by failing to provide prospective relief, Justice Kelly explored whether DOJ’s policy and practice violate Teague’s constitutional due process rights, concluding Teague is deprived of a liberty interest with a government-imposed stigma.

    “The stigma created by the DOJ’s Criminal History Search report has altered Mr. Teague’s status, and so has deprived him of a liberty interest protected by the Fourteenth Amendment to the United States Constitution,” Justice Kelly wrote.

    Justice Kelly concluded that Teague and others are entitled to prospective relief to address the unconstitutional deprivation of liberty that is occurring, but said the record is not sufficiently developed to determine the form of relief that should be provided.

    Justice Shirley Abrahamson wrote separately, joined by Justice Ann Walsh Bradley. They agreed that DOJ unlawfully released inaccurate criminal histories responsive to the subject plaintiffs, under section 19.70, who don’t have criminal records.

    But those two justices would have ended the case by issuing a declaratory judgment, declaring that DOJ must comply with the requirements under section 19.70.

    “The means of compliance are initially for the Department to determine,” wrote Justice Abrahamson, noting the DOJ has the expertise to devise a solution, and if those efforts fall short, the petitioners can seek further supplementary judicial relief.

    Justice Michael Gableman wrote a concurring opinion, joined by Chief Justice Patience Roggensack. They agreed that the criminal history reports at issue were inaccurate as a matter of law under section 19.70, and DOJ must correct them.

    But Justice Gableman did not join Justice Kelly’s lead opinion, “to the extent that it also purports to resolve the petitioners’ constitutional claims.” He said Teague already has a remedy under the statute: DOJ must “correct the information.”

    “In Teague’s case, if the action DOJ ultimately takes to correct the criminal history reports under § 19.70 is insufficient to remedy Teague’s injury, then Teague may seek judicial review under Wis. Stat § 227.52,” Justice Gableman wrote.

    Justice Annette Ziegler was the lone dissenter. She said the information in the database was correct, and thus the DOJ did not release inaccurate information.

    “It is unfortunate that Teague’s name has been used as an alias,” she wrote. "Nonetheless, Teague’s procedural due process claim must fail. This court should not insert itself further into a dispute that is best resolved, if need be, by the legislature.”

    Related Article

    Expungement Bill Gives Young Offenders More Opportunity for Second ChancesInsideTrack (June 7, 2017).

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