Dear Council members and supporters,
This is to make you aware of developments regarding access to online court records, especially an open rules conference this morning (May 12) before the Wisconsin Supreme Court.
The court voted 5-2 to dismiss a rules petition from the State Bar of Wisconsin from 2009. But it did so with the understanding that the petition would be refiled, giving it a fresh opportunity to take this issue up again. Chief Justice Roggensack and Justices Prosser, Ziegler, Gableman and Rebecca Bradley voted in favor of dismissal, to pave the way for a fresh petition. Justices Abrahamson and Ann Walsh Bradley voted against.
That 2009 petition called on the court to significantly increase the availability of expungement of criminal cases, including the removal of information from WCCA, the state court's online records system.
Earlier this year, the court deadlocked 3-3 on a similar motion, with Justice Prosser voting against dismissal and Justice R. Bradley not participating . But Justice Prosser brought a motion for reconsideration and this time voted to dismiss, joined by R. Bradley, who said she had since been able to review petition-related materials.
The Council has long supported public access to online court records and fought against efforts to remove information. I need not recount the various arguments in favor of openness, which have also been sounded by business groups and the state Department of Justice, as in this filing. What is troubling about today's proceeding is the extent to which the justices, despite their differences, which at times were scarcely coherent, seemed to agree on the need for changes to remove certain information from the system.
Several justices spoke about the parade of citizens who came before the court in 2010 to attest to the various ways that WCCA, which everyone calls CCAP, has ruined their lives. None of these claims were subjected to even the most rudimentary investigation to determine their credibility, and, as I have reported in the past (as in here and here), at least some of these claims have been shown to be untrue.
The justices demonstrated a wholesale willingness to believe these unproven claims, as when Prosser said that repercussions to people on WCCA occur "often in situations where they were not involved and are found not guilty." That the records system would provide clear and irrefutable confirmation of a not guilty verdict apparently was not deemed relevant.
Rebecca Bradley noted that the actions called for in the petition seemed "quite legislative in nature," which would be a big no-no for a court dominated by people who vow to never legislate from the bench. But she voted to dismiss to entertain a new petition.
Even the two justices who voted no seemed open to restricting access. Ann Walsh Bradley said she opposed the motion to dismiss because "it is our responsibility to solve this problem."
In addition to the court's interest in revisiting this issue, possible restrictions to records access are being presented on three other fronts:
- The director of state courts is now pulling together a new WCCA oversight committee, to work out issues related to moving to all-electronic records-keeping in the state circuit court system. This committee was mentioned during today's hearing as another way in which perceived problems stemming from access to court records might be addressed. I have been asked to serve on this committee but do not know to what extent advocates for open records will be otherwise represented.
- A Legislative Council committee chaired by Sen. Alberta Darling will look at ways to reduce recidivism and remove impediments to ex-offender employment, which will likely include calls to shield online court records. The membership of this committee has not been announced.
- Finally, a bill to expand expunction introduced late in the current legislature session will almost certainly be reintroduced in 2017-18. The bill, AB 1005 in its current incarnation, would allow any person on the receiving end of a criminal charge that was dismissed or which led to a finding of not guilty, or was overturned on appeal, to petition a judge for expunction, including records removal. This would pertain to past cases without limits on when the charge was filed or the age of the person. O.J. Simpson would be eligible if he had been tried in this state.
So that's what's happening with regard to online court records. Current levels of access are very much at risk. Continued vigilance by advocates for open government is essential.