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    Wisconsin Lawyer
    July 24, 2017

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Records

    Wisconsin Department of Justice – Erroneous Criminal History Reports – Wis. Stat. Section 19.70

    Teague v. Schimel, 2017 WI 56 (filed 8 June 2017)

    HOLDINGS: There was no majority opinion in this case. The split votes of the justices, some of which produced majority agreement on certain issues, are summarized in the digest of this case below.

    SUMMARY: The Wisconsin Department of Justice (DOJ) maintains a massive criminal history database, which among other things assists members of the public in discovering whether a given individual has a criminal history. The database may be accessed simply by providing the subject’s first and last names and his or her date of birth (hereinafter “criminal history search”); it can also be accessed by providing a set of fingerprints for the subject about whom the requester is interested. Each record in the database contains a “master name,” which is the name the person gave on first contact with the criminal justice system. Any name thereafter associated with that person is listed as an alias in the record (¶ 3).

    This litigation was begun by Teague and two intervening plaintiffs who do not have criminal histories but for whom a criminal history search indicates that they do. Plaintiff Teague’s situation illustrates how this problem arises. According to Teague, his cousin ATP stole his identity. As a result, Teague’s name was added to ATP’s record in the database as an alias. Since then, anyone using Teague’s name and date of birth to request a criminal history search will receive ATP’s criminal history report in response (see ¶ 12). Recognizing this problem, the DOJ provided Teague with what is known as an “innocence letter” certifying that he has no criminal history; however, DOJ does not provide the “innocence letter” to those inquiring about Teague’s criminal history in DOJ’s database.

    The plaintiffs brought this action asserting various statutory and constitutional claims, including one under what is now Wis. Stat. section 19.70. Pursuant to this statute, when a challenge is made to the accuracy of a record containing personally identifiable information, the DOJ must either 1) concur with the rec- ord subject’s challenge and correct the information; or 2) deny the challenge, notify the record subject of the reasons for the denial, and allow the subject to file a statement setting forth the reasons for the subject’s disagreement with the disputed portion of the record.

    The circuit court dismissed some of the plaintiffs’ claims on summary judgment and dismissed the remainder following a bench trial. In a published opinion, the court of appeals affirmed the circuit court. See 2016 WI App 20.

    The supreme court reversed the court of appeals. However, there is no majority opinion for the court. Justice Kelly wrote the lead opinion in which Justice Rebecca G. Bradley joined. Justice Abrahamson, joined by Justice Ann Walsh Bradley, wrote separately. So did Justice Gableman, whose concurring opinion was joined by Chief Justice Roggensack. Justice Ziegler filed a dissent.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    There was agreement by various majorities of the court with respect to certain issues. According to the lead opinion, six justices (all but Justice Ziegler) agreed that Teague’s criminal history report is inaccurate and in need of correction under Wis. Stat. section 19.70. As for Teague’s remedy, the same six justices concluded that the decision of the court of appeals should be reversed and that Teague is entitled to prospective relief sufficient to protect his rights. As for the latter, there was a split among the six justices, which is summarized in footnote 39 of the lead opinion as follows:

    “[Justice Kelly] (joined by Justice Rebecca G. Bradley) would remand to the circuit court to determine …what manner of procedural safeguards are sufficient to satisfy Mr. Teague’s right to due process of law. Justice Shirley S. Abrahamson (joined by Justice Ann Walsh Bradley) concludes that the supreme court should issue a declaratory judgment that the Department of Justice ‘must comply with the mandatory requirements of [Wis. Stat. section] 19.70 and must hereafter issue correct criminal history records pertaining to these petitioners,’ that the Department of Justice is enjoined ‘from refusing to comply with the mandatory requirements of [Wis. Stat. section] 19.70,’ and that ‘the petitioners may seek further supplementary relief in the Dane County Circuit Court based on the declaratory judgment “whenever necessary or proper” pursuant to [Wis. Stat. section] 806.04(8)’” (n.39) (citations omitted).

    “Justice Michael J. Gableman (joined by Chief Justice Patience D. Roggensack) concludes: ‘In Teague’s case, if the action DOJ ultimately takes to correct the criminal history reports under [Wis. Stat. section] 19.70 is insufficient to remedy Teague’s injury, then Teague may seek judicial review under Wis. Stat. § 227.52.… [R]esolving Teague’s statutory claim under Wis. Stat. § 19.70 is sufficient to resolve this appeal’” (id.) (citations omitted).

    According to the lead opinion, “[n]o proposed form of remedy garnered a majority of the justices’ votes, but neither has a majority of the court foreclosed any particular form of remedy. On remand, therefore, the circuit court will conduct further proceedings to determine the nature and extent of prospective relief that will be sufficient to protect the petitioners’ rights under Wis. Stat. § 19.70” (id.).

    Mental Health Law

    Involuntary Commitments – Rehabilitation

    Waukesha Cty. v. J.W.J., 2017 WI 57 (filed 8 June 2017)

    HOLDING: The circuit court properly extended the petitioner’s involuntary commitment and treatment orders.

    SUMMARY: The petitioner, J.W.J., has a long history of paranoid schizophrenia. The circuit court extended his involuntary commitment and treatment orders for the sixth time based on his past conduct, including his failure to take medications unless ordered. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed the court of appeals in an opinion, authored by Justice Kelly, that revisits the criteria set forth in Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179, which concerned the continuing commitment of a person with Alzheimer’s disease.

    Essentially, J.W.J. contended that the commitment should not have been extended because the earlier treatment and orders “have brought him as much rehabilitation as they are capable of bringing” (¶ 16). Put differently, “[i]f he cannot be rehabilitated, he cannot be a proper subject of treatment or an involuntary commitment order” (¶ 22).

    The opinion discusses the concepts of “rehabilitation” and “habilitation” as well as distinctions between “symptoms” and “activities” in construing Helen E.F. The court held that it was unnecessary to modify the Helen E.F. framework because J.W.J. has “rehabilitative potential,” unlike the person with Alzheimer’s disease in Helen E.F. (¶ 40). It emphasized that there must be “an inquiry into each individual’s condition and potential for rehabilitation” (¶ 46). Finally, clear and convincing evidence supported the circuit court’s decision to extend the orders.

    Justice Abrahamson, joined by Justice Ann Walsh Bradley, wrote separately to underscore that Helen E.F. “set forth a confusing and unpredictable test” that may be magnified by the majority opinion in this case (¶ 50). The opinion further suggests that the legislature revisit the distinctions between Wis. Stat. chapter 51 and chapter 55 mental commitments.

    Real Property

    Zoning – Permits – “Frac” Mining

    AllEnergy Corp. v. Trempealeau Cty. Env’t & Land Use Comm., 2017 WI 52 (filed 31 May 2017)

    HOLDING: A county land use committee properly denied a conditional use permit for frac sand mining.

    SUMMARY: The Trempealeau County Environmental and Land Use Committee denied a company’s application to run a frac sand mine operation. The circuit court and the court of appeals upheld the committee’s determination on certiorari review.

    The supreme court affirmed in a lead opinion authored by Justice Abrahamson, which Justice Ann Walsh Bradley joined. There is no majority opinion. The lead opinion concluded that the committee kept within its jurisdiction and that substantial evidence supported the permit’s denial (see ¶ 49). The lead opinion expressly considered and rejected the company’s contention that the court should adopt a new doctrine that essentially entitles an applicant to a conditional use permit if it shows that it has met, or will comply with, the conditions set forth in an underlying ordinance. Justice Abrahamson and Justice Ann Walsh Bradley said the committee properly rejected the application as not in the public’s interest regardless of whether the company did or could comply with the conditions (see ¶ 129).

    Justice Ziegler, joined by Chief Justice Roggensack, concurred in the mandate but wrote separately. They found that under controlling legal standards the committee’s decision was valid (see
    ¶ 136). They declined to join the lead opinion on grounds it ranged too broadly into other issues (see ¶ 137).

    Justice Kelly dissented, joined by Justice Gableman and Justice Rebecca G. Bradley. The dissent concluded that the committee exceeded its jurisdiction when it determined that the sand mine was not a proper use of the property even though the conditional use ordinance permits such uses (see ¶ 146).

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