E.C., In Interest of

• Decision Date: 16 May 1986
• Docket Number: 84-2257 and 84-2258,Nos. 84-1937,s. 84-1937
• Citation: 130 Wis.2d 376,387 N.W.2d 72
• Parties: In the Interest of E.C., a child under eighteen years of age: Harold A. BREIER, Police Chief, City of Milwaukee, Appellant, v. E.C., Respondent. In the Interest of J.W., a child under eighteen years of age: CITY OF MILWAUKEE POLICE CHIEF, Appellant, v. J.W., Respondent. In the Interest of D.P., a child under eighteen years of age: CITY OF MILWAUKEE POLICE CHIEF, Appellant, v. D.P., Respondent.
• Court: Wisconsin Supreme Court

Page 72

387 N.W.2d 72

130 Wis.2d 376

In the Interest of E.C., a child under eighteen years of age:

Harold A. BREIER, Police Chief, City of Milwaukee, Appellant, v. E.C., Respondent.

In the Interest of J.W., a child under eighteen years of age:

CITY OF MILWAUKEE POLICE CHIEF, Appellant, v. J.W., Respondent.

In the Interest of D.P., a child under eighteen years of age:

CITY OF MILWAUKEE POLICE CHIEF, Appellant, v. D.P., Respondent.

Nos. 84-1937, 84-2257 and 84-2258.

Supreme Court of Wisconsin.

Argued April 2, 1986.

Opinion Filed May 16, 1986.

Scott G. Thomas, Asst. City Atty., argued, with whom on briefs was Grant F. Langley, City Atty., for appellant.

Donna L. Hintze, Asst. State Public Defender, for respondents, E.C. and J.W.

Robert H. Blondis (argued) and Bangert & Blondis, S.C., Milwaukee, for respondent, D.P.

STEINMETZ, Justice.

The issue in all three cases is whether a circuit court judge in Wisconsin has the inherent or equitable authority to order the expunction of juvenile police records when the delinquency petition resulting from the juvenile's arrest is subsequently dismissed. We conclude that circuit courts lack such authority to expunge police records.

This issue comes before us on certification from the court of appeals. The consolidated appeal derives from ancillary proceedings seeking the expunction of juvenile records, following the conclusion of juvenile delinquency actions.

In In the Interest of E.C., E.C. moved the circuit court on January 18, 1984, for the following remedy:

"[A]n order expunging any and all records which were generated by the arrest of the above-named juvenile by Milwaukee County Police officers on or about June 14, 1983 and delinquency petition dated July 13, 1983, including without any limitation: records of this arrest and prosecution kept by the District Attorney's Office; records of this arrest and prosecution kept by the Milwaukee County Probation Department; computer records of this arrest and prosecution kept by the Children's Court Center; and all police reports and medical records including but not limited to fingerprints, photographs, and all police reports kept by the Milwaukee Police Department, such order extended to all record custodians who received reports from the Milwaukee Police Department."

On June 8, 1984, the circuit court orally ruled that it had the inherent authority to order that the records in question be expunged. A written order to this effect was filed July 16, 1984. The City of Milwaukee Police Chief has appealed from that order.

In the case of In the Interest of J.W., J.W. filed a motion in the circuit court on April 26, 1984, requesting the same relief as E.C. On October 5, 1984, the circuit court entered a written order expunging the records. The City of Milwaukee Police Chief also has appealed from that order.

In the case of In the Interest of D.P., D.P. filed a motion in the circuit court on June 1, 1984, also requesting the same relief as E.C. and J.W. On October 15, 1984, the circuit court entered an order expunging the records. The City of Milwaukee Police Chief also has appealed from that order.

In the case of In the Interest of E.C., E.C. was taken into custody on June 14, 1983, for a burglary which occurred sometime between June 10, 1983, and June 13, 1983. E.C. was charged in a juvenile petition with burglary. On September 22, 1983, the assistant district attorney moved to dismiss the petition because the complainant stated he did not believe E.C. committed the burglary.

In the case of In the Interest of J.W., J.W. was charged in a juvenile petition with reckless use of a weapon on February 10, 1984. This charge was later dismissed.

In the case of In the Interest of D.P., a child in need of protection or service petition was issued on April 2, 1984, charging D.P. with second-degree sexual assault and battery. The sexual assault charge was later dismissed when D.P. pled guilty to the battery charge.

This appeal only questions the circuit courts' authority to order the expunction of juvenile records maintained by the Milwaukee Police Department. The Milwaukee Police Chief does not challenge the circuit courts' authority to regulate records maintained by the court.

Expunction, the act of expunging, as that term is used in this case means that the information regarding the charges against the juveniles would be placed in a sealed envelope which would be kept in a separate, private location and could not be viewed by anyone except on the order of a court. Also, the names of the juveniles would be deleted from police records that cannot be segregated. Expunction does not require the destruction of the juvenile records.

We consider three separate sources which might provide a basis for the circuit court's authority to expunge a juvenile's police record: (1) statutes, (2) inherent judicial authority, and (3) equitable judicial authority. The parties agree that no Wisconsin appellate decision has considered the issue raised in this case. The question of judicial authority is an issue of law which we may decide without deference to the circuit court. Ball v. District No. 4, Area Board, 117 Wis.2d 529, 537, 345 N.W.2d 389 (1984). We therefore consider de novo whether circuit courts may expunge juvenile police records. Our analysis begins with a consideration of the statutory basis for judicial control of juvenile police records.

Section 62.50(23), Stats., ¹ designates and charges the Chief of Police of the City of Milwaukee to "maintain and have custody of all property" of his department. This authority is over all books and records maintained by the police department.

Section 48.396(1), Stats., ² requires that records of children kept by peace officers, including the chief of police, be kept separate from records of persons 18 or older. These records are not open to public inspection and their contents cannot be disclosed except by order of the court or according to sec. 48.293. Section 48.293 ³ declares that the separate records of juveniles shall be made available to counsel or guardian ad litems representing juveniles prior to a plea hearing.

The only exception in 48.396(1), Stats., is that it does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting the news. This exception is not unlimited in use and does not permit disclosure of a juvenile's identity. Section 48.396(1) also permits police departments to confidentially exchange information with other law enforcement agencies, social welfare agencies and the school attended by the juvenile.

The only legislative directive regarding the expunction of records is found in secs. 973.015(1) ⁴ and 165.84(1), Stats., ⁵ neither of which applies to juvenile police records. In sec. 973.015(1), the legislature has determined that the only records which may be expunged are court records resulting from a misdemeanor conviction when the person was under the age of 21 at the time of the commission of the offense. In this situation, the court may expunge only the court records, and then, only if the court determines that the person will benefit and society will not be harmed by this disposition.

Section 165.84(1), Stats., authorizes the return of fingerprint records of an individual arrested or taken into custody and subsequently released without charge or cleared of the offense through court proceedings. The statute does not authorize the expunction of police records other than fingerprints.

We construe the relevant statutes to not provide express or implied authority for circuit courts to expunge juvenile police records. We are particularly influenced by the fact that sec. 48.396(1), Stats., specifically provides for confidentiality of police records, subject to court order, without allocating the authority to expunge such records. Also, sec. 973.015(1) only provides authority to expunge conviction records in limited circumstances.

We next consider whether the power to expunge juvenile police records is a necessary part of a circuit court's inherent power. The doctrine of inherent power derives from this state's separation of governmental power between three branches of government. In State v. Braunsdorf, 98 Wis.2d 569, 578-"80, 297 N.W.2d 808 (1980), we stated:

" 'This court has previously discussed the scope of the inherent powers of the courts of this state, but not directly in relation to the imposition of jury impaneling costs. In State v. Cannon, 196 Wis. 534, 536-"37, 221 N.W. 603 (1928) this court summarized the nature of the powers inherent to the courts as follows

" ' "In order that any human agency may accomplish its purposes, it is necessary that it possess power. The executive must have power to direct and control his business. The superintendent of the works must have power to direct his men. In order to accomplish the purposes for which they are created, courts must also possess powers. From time immemorial, certain powers have been conceded to courts because they are courts. Such powers have been conceded because without them they could neither maintain their dignity, transact their business, nor accomplish the purposes of their existence. These powers are called inherent powers. In In re Court Room, 148 Wis. 109, 121, 134 N.W. 490, it was said:

" ' "The authorities, in so far as any can be found on the subject, are to the effect that a constitutional court of general jurisdiction has inherent power to protect itself against any action that would unreasonably curtail its powers or materially impair its efficiency. A county board has no power to even attempt to impede the functions of such a court, and no such power could be conferred upon it."

" ' "In In re Bruen, 102 Wash. 472, 172 Pac. 1152, the supreme court of Washington said:

" ' "The inherent power of the court is the power to protect itself; the power to administer justice whether any previous form of...