Supreme Court reviews expunction petition

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A petition filed by the State Bar of Wisconsin and reviewed by the Supreme Court on Feb. 24 would amend state law to give people who are charged, but never convicted of a criminal offense the chance to have their records expunged by a trial court judge.

After nearly six hours of presentations, the justices briefly debated the petition in open conference and elected to defer a decision until a later date.

Under current law, only those convicted, after a specified period of time depending on the crime and their age, can seek a court order for expunction of a record.

“There is no [statutory] procedure under Wisconsin law for deleting records for people not convicted of a crime,” attorney Gerald W. Mowris told the court.

Mowris helped develop the bar’s proposal. He said in some instances he has had to explain to clients they have to be convicted to seek expunction and there is no legal recourse for removing their names from the Consolidated Court Automation Programs (CCAP) Web site if they are innocent.

In some counties, if a prosecutor offers a deferred prosecution and a client accepts, his or her name will still appear on the CCAP site.

Mowris said that can put clients in a difficult position.

“People … have a very difficult choice to make,” he said. Should they accept a deferred prosecution with no ability to expunge their record?

“If we ask for expungement, you have to be convicted. Clients say, ‘how can I be convicted, I didn’t do it?’” Mowris said.

Attorney Erik R. Guenther, who co-wrote the petition, agreed that in some cases, someone who has never been convicted “is in a worse position” than someone who has.

The current statute, SCR 72.06, provides that some lower level felonies and misdemeanor changes are eligible to be expunged if the convicted individual is under 25.

Guenther said the purpose of the proposed change is to provide some uniformity throughout the circuit courts and have the Supreme Court recognize its inherent authority to go beyond the statute.

“The petition is premised on the idea that the court has the inherent and equitable authority when the statutory remedy isn’t sufficient,” he said.

But several justices questioned the court’s ability to supersede the current statute and essentially rewrite the law.

Justice Michael J. Gableman suggested that the court “explore the legal tension implicated by the separation of powers,” as it related to the petition.

Justice Annette K. Ziegler shared that concern, and suggested that the court research the possibility of modifying the CCAP site to keep those cleared of charges anonymous.

For example, the names of such individuals could be set to read “Jane” or “John Doe” on the site.

“When a charge is dismissed or there is an acquittal, maybe there is room for improvement,” Ziegler said. “I’d want some more information with respect to that.”

Guether said he suspected that the bar would favor the anonymity option.