Hall v. Wis. Dep't of Justice

Citation941 N.W.2d 825,2020 WI App 12,391 Wis.2d 378
Decision Date26 February 2020
Docket NumberAppeal No. 2018AP2274
Parties Demonta Antonio HALL, Petitioner-Respondent, v. WISCONSIN DEPARTMENT OF JUSTICE, Respondent-Appellant.
CourtCourt of Appeals of Wisconsin

On behalf of the respondent-appellant, the cause was submitted on the briefs of Anthony D. Russomanno, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Kori L. Ashley of Legal Action of Wisconsin, Milwaukee.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

REILLY, P.J.

¶1 Demonta Antonio Hall was arrested on September 21, 2015, for possession of an electronic weapon and on January 11, 2017, for second-degree sexual assault. In both instances, the state, within two days of arrest, decided not to charge Hall. Wisconsin law provides that if a person is arrested but then not charged or cleared of the offense that person has the right to have the record of his or her arrest expunged1 from the state’s crime database. WIS. STAT. § 165.84(1). Hall requested that his arrests from September 21, 2015, and January 11, 2017, be expunged. The Department of Justice (DOJ) refused.

¶2 DOJ admits that while standing alone the arrests would be expunged, it could not do so because DOJ had administratively appended ("cycled") some earlier ordinance violations to those arrests. The circuit court ordered expungement of the September 21, 2015 and January 11, 2017 arrest records, and we affirm as a plain reading of WIS. STAT. § 165.84(1) so requires.

BACKGROUND
DOJ’s Crime Database

¶3 DOJ is required to maintain a database of persons arrested or taken into custody.2 WIS. STAT. § 165.83(2) ; see also WIS. STAT. § 165.84(1). All arrest records received from local law enforcement become part of the database and are fingerprint based. See § 165.84(1). As DOJ explains, the fingerprint record received from local law enforcement is a "10-digit fingerprint card with the person’s name, arrest tracking number, arresting officer and agency, and a list of the specific offenses for which the person was arrested." The records of arrest become part of the database, but the legislature has created a mechanism by which an individual who was arrested may request expungement of his or her fingerprint record pursuant to § 165.84(1).

¶4 "The Database has many uses critical to the security of Wisconsin’s residents, one of which is assisting members of the public in discovering whether a given individual has a criminal history." Teague v. Schimel , 2017 WI 56, ¶4, 375 Wis. 2d 458, 896 N.W.2d 286. The information in the database is a public record (subject to a few exceptions); therefore, a person’s prospective employer or landlord has the right to request and examine records within the database, referred to as a Wisconsin criminal history report, related to that person.3

¶5 DOJ organizes the crime database by creating "cycles." Problematically, DOJ has created a "cycle" format in which arrests that have no relation or nexus to one another are included together as one "arrest event." For example, as in this case, DOJ included minor ordinance offenses that predated the current arrest event by months/years. DOJ argues that it may not expunge an arrest record "unless the arrested person is released without charge or is cleared of all offenses" in the cycle, which it calls the "arrest event"—an all or nothing procedure. DOJ argues that as Hall pled guilty to two municipal offenses that were unrelated in time or course of conduct to the two felonies at issue, the two felonies, despite never being charged, must remain in the database and a part of Hall’s public criminal history report.

¶6 The United States Supreme Court has indicated that the value of an arrest record is questionable at best:

The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.

Schware v. Board of Bar Exam'rs , 353 U.S. 232, 241, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) (footnote omitted). Further, the negative consequences of an arrest record are well known. United States v. Dionisio , 410 U.S. 1, 10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (explaining that an arrest record "results in a record involving social stigma" (citation omitted)); Menard v. Mitchell , 430 F.2d 486, 490 & n.17 (D.C. Cir. 1970) (describing numerous "serious difficulties" an individual with a known arrest record may be subject to); Davidson v. Dill , 180 Colo. 123, 503 P.2d 157, 159 (1972) ("[I]t is common knowledge that a man with an arrest record is much more apt to be subject to police scrutiny .... Prosecutors use arrest records in determining whether or not to formally charge an accused or even whether or not to allow a person to sit as a juror." (citations omitted)); see also Teague , 375 Wis. 2d 458, ¶¶53, 57, 68, 896 N.W.2d 286 ("[S]tigma caused by the DOJ’s Criminal History Search report imposes a tangible burden on Mr. Teague’s ability to obtain or exercise a variety of rights and opportunities recognized by state law ... and so [he] has been deprived of a liberty interest."); Joan Uda, Comment, Privacy, Law Enforcement, and Public Interest: Computerized Criminal Records , 36 MONT. L. REV. 60, 66 (1975). It goes without saying that if DOJ publishes information about a person that it should not under the law, that information is highly prejudicial to a person’s employment and housing opportunities as well as the person’s reputation.

Facts of this Case

¶7 Hall was arrested on September 21, 2015, for possession of an electronic weapon.

At the time he was arrested, Hall had an outstanding bench warrant for a traffic citation for operating while suspended (OWS) from October 13, 2014. Police had not filed any record with DOJ for Hall’s OWS in October 2014 as a record for an ordinance violation is not statutorily required. See WIS. STAT. § 165.83(2)(a). Despite the OWS having no relation to Hall’s arrest for possession of an electronic weapon (and not in the same course of conduct), DOJ included the OWS as part of Hall’s "arrest event" (Cycle 6). Two days later, the state decided not to prosecute the possession of an electronic weapon charge. On that same date, Hall appeared in Milwaukee Municipal Court on the outstanding bench warrant for the OWS where he pled guilty and received a fine.

¶8 Hall was arrested on January 11, 2017, on an allegation of second-degree sexual assault with use of force. When arrested, he again had an outstanding bench warrant for failing to appear for an ordinance violation (disorderly conduct). Like the OWS, the disorderly conduct charge had not been filed with DOJ at the time of its occurrence as it was not an offense that required filing. Despite the disorderly conduct having no relation to Hall’s arrest for sexual assault (and not in the same course of conduct), DOJ included the disorderly conduct as part of Hall’s "arrest event" (Cycle 7). Two days later, the state decided not to prosecute the second-degree sexual assault with use of force. The disorderly conduct, like the OWS, was addressed in municipal court where Hall received a fine.

¶9 Hall requested expungement of the records of his arrests for possession of an electronic weapon and second-degree sexual assault. DOJ refused on the grounds that

[t]he arrest event is not eligible for expungement pursuant to [ WIS. STAT. §] 165.84(1) because the final disposition did not result in being released without charge or cleared of the offense through court proceedings. All charges on a given fingerprint card must be released or cleared of the offense to qualify for an expungement.

(Emphasis added.) Administratively, the refusal to expunge was upheld, and Hall filed this WIS. STAT. ch. 227 petition for judicial review. See WIS. STAT. § 227.52. Upon review, the circuit court reversed the administrative decision of DOJ. DOJ appeals.

DISCUSSION

¶10 This is an appeal under WIS. STAT. § 227.58 involving an agency decision, and therefore we review the decision of the agency, not the decision of the circuit court. Myers v. DNR , 2019 WI 5, ¶17, 385 Wis. 2d 176, 922 N.W.2d 47. We no longer defer to an administrative agency’s conclusions of law. Tetra Tech EC, Inc. v. DOR , 2018 WI 75, ¶3, 382 Wis. 2d 496, 914 N.W.2d 21 ; see also WIS. STAT. § 227.57(11).

¶11 Our de novo review begins with the language of the statute.

State ex rel. Kalal v. Circuit Court for Dane Cty. , 2004 WI 58, ¶¶44-45, 271 Wis. 2d 633, 681 N.W.2d 110. "If the statutory language yields a ‘plain, clear statutory meaning, then there is no ambiguity,’ and there is no need to consult extrinsic sources of interpretation." Myers , 385 Wis. 2d 176, ¶18, 922 N.W.2d 47 (quoting Kalal , 271 Wis. 2d 633, ¶46, 681 N.W.2d 110 ).

¶12 At issue is the final sentence of WIS. STAT. § 165.84(1) : "Any person arrested or taken into custody and subsequently released without charge, or cleared of the offense through court proceedings, shall have any fingerprint record taken in connection therewith returned upon request." DOJ argues that it may not expunge an arrest record under § 165.84(1), "unless the arrested person is released without charge or is cleared of all offenses" contained in what DOJ, in its discretion, has determined to be within an "arrest event." (Emphasis added.) Hall, in contrast, argues that § 165.84(1) "distinguishes between people who are arrested and fingerprinted as part of that arrest and then ‘subsequently’ convicted for the conduct for which they were arrested and people who are arrested and who are ‘subsequently’ not charged or cleared through court proceed...

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