Friday, February 26, 2010

Supreme Court to continue studying record retention and removal petition - STATE BAR OF WISCONSIN

By Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Feb. 26, 2010 – The Wisconsin Supreme Court will continue studying a proposal by the State Bar of Wisconsin to provide guidance to circuit court judges when ordering certain case files expunged, removed from an online database or otherwise sealed.

At an all-day public hearing on Feb. 24, almost two dozen individuals testified in favor of the proposal. After the hearing, a majority of the justices appeared willing to continue exploring ways to provide limited relief to individuals harmed by the online presence of cases that have either been dismissed or that ended in outright acquittal.

The vast majority of those who testified favored the proposal, describing how their personal lives or professional careers had been adversely affected by the online posting of court cases. In most of the situations described at the hearing, the cases had either been dismissed, overturned on appeal or had ended in outright acquittal after a jury trial.

“There are so many compelling stories here,” said Justice David Prosser during the court’s open administrative conference following the public hearing. “There are stories of people who are truly innocent. They didn’t do anything wrong. They have been totally victimized.”

“It seems to me that whatever problem we have has been incredibly exacerbated by CCAP and the Internet,” Justice Prosser added. “I don’t think you necessarily have to attack the entire problem if you can attack part of the problem.”

Stating he was not prepared to vote immediately on the petition but did not want the court to stop working on the issue, Justice Prosser said, “The case for redress is much too compelling to just let this die. It does need additional study.”

Justice Pat Roggensack suggested one option the court could consider is simply redacting the names of individuals in the online CCAP posting corresponding to dismissals and acquittals, without doing anything to foreclose public access to the original paper court file.

“That simple little fix, changing the name, does that have the same consequences as what was proposed here?” Justice Roggensack suggested. “People come in, nothing happens, the judge dismisses the charges, and often they are not represented. If the name simply were changed, for the CCAP problem where most of the people seemed to find their heartache, [it might] provide some relief.”

State Bar petition would clarify courts’ authority over their own records

The State Bar’s petition proposes three separate changes to current Supreme Court rules governing record retention.

The petition would provide that in any case that has been dismissed or in any case in which a person was acquitted, circuit court judges could order the record expunged if the court believes expunction is necessary and appropriate: (a) in the interest of justice, and (b) the court finds, either at the time of the dismissal of the case or within a reasonable period of time thereafter, that a party to the case would benefit and society would not be harmed by expunction.

It was this proposed change that appeared to garner a consensus among the justices that a problem existed and the court needed to do something to address it.

“Maybe it does leave some room for dealing with what we hear the most about today, what people are most aggrieved with -- dismissals and acquittals,” said Justice Annette Ziegler. “As a trial court judge, [in regard to] sealing the record and redaction, trial courts have fairly broad authority. So that’s somewhat appealing to me too.”

“Is there a way to deal with these more egregious situations yet keep public access and create an accurate record?” Justice Ziegler asked her colleagues. “I do think there are inherent powers in respect to sealing and redaction.”

Another change the petition proposes would adjust the mandatory retention time periods for certain cases to reflect their status at disposition rather than at filing.

Currently, SCR 72.01 sets forth a schedule of mandatory record retention periods, after which clerks of court may destroy court records and remove the information from the Wisconsin Circuit Court Access program and the Consolidated Court Automation Project (CCAP). Current retention periods vary from five years for ordinance and forfeiture cases to 20 years for misdemeanors and 50 years for most felonies. Under the current rule, retention periods are determined by a case’s status at the time of filing. The State Bar petition would provide that for felony, misdemeanor, forfeiture and ordinance cases, the retention period for a case would be determined by its status at final disposition.

As an example of how this proposed change would apply, a case with one count that was originally filed as a felony but was concluded as a misdemeanor would be retained for 20 years under the State Bar’s proposal rather than 50 years as under the current SCR 72.01. The State Bar’s proposal provides that for cases with multiple counts, the count with the longest retention period would govern the retention time for that entire case.

A third change proposed by the State Bar’s petition would permit any person to petition the circuit court for expunction of a record when the applicable retention time under SCR 72.01 has run but the clerk of court has not yet destroyed the record or removed it from CCAP.

It was this proposed change that seemed to encounter the most skepticism from the justices.

Currently, court records are destroyed and removed from CCAP according to the existing retention schedule under SCR 72.01. However, some justices expressed concern that the legislature may have preempted the field of expunction by enacting Wis. Stat. section 973.015, which provides a limited avenue for expunction to those under the age of 25 when convicted of misdemeanors and certain felonies.

“I’m very hesitant to use the term expunction when that term is used in 973.015 and has a particular definition and parameters that apply,” Justice Ziegler stated. “That seems to potentially conflict with the statute. That deals with a convicted person. I think 973.015 deals with those and we’re going to have a tougher time trying to tether that to retention of record time periods when the legislature has spoken on that score.”

Despite this reservation, most of the justices appeared to acknowledge that the court had the power to at least order limited changes to how CCAP is managed, particularly regarding the online posting of dismissed cases and acquittals.

“That doesn’t seem to be dealt with by 973.015,” Justice Ziegler said. “Maybe there is room for improvement. Maybe it could read ‘State v. Jane Doe or ‘State v. John Doe.’”

Justice Pat Crooks noted that dismissals and even acquittals are sometimes considered by judges when sentencing defendants on other cases.

“I don’t think we should destroy the record so that a judge couldn’t look at it, but I don’t see any reason why [dismissals and acquittals] should continue to be on CCAP and stigmatize and cause grave concern for people,” Justice Crooks said. “All I’m suggesting is, let’s go slowly.”

Justice Prosser agreed, saying “I do think we ought to have a very clear idea of how to implement this. Is there a court hearing? What exactly has to be shown at the hearing?”

“It may be that you could have something automatic in terms of a removal from CCAP after you had a dismissal of charges or an acquittal,” Justice Crooks said. “You could allow for a reasonable period of time, and automatically that matter would be removed from CCAP. Not from the court records, considering open government and open records.”

At the conclusion of the administrative conference on the petition, the justices decided to take the petition up again at a future meeting. The justices want to consult with the court’s technology staff regarding ways to take dismissals and acquittals off of the online CCAP database without disturbing the paper record on file with the court.

Madison attorney Erik Guenther and former State Bar president Gerry Mowris presented the petition to the court on behalf of the State bar. The State Bar’s Board of Governors unanimously approved filing the petition in June 2009, acting upon the recommendations of the State Bar’s Criminal Law Section and the Individual Rights and Responsibilities Section.

Under Wis. Stat. section 751.12 and Supreme Court Internal Operating Procedures II.B.5. and III, any person may file a petition to change Supreme Court rules, pleading, practice, procedural statutes and administrative matters

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