This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Grace Gall.
“How do you spell their last name?”—That is often the question my mother used to ask me when I was a kid and asked to spend the night at a new friend’s house. Like many Wisconsin parents or employers, my mother often would use the public record cite called CCAP to search criminal and civil records of individuals. As a child, I simply got used to my mother’s question and as I grew older and started working in the legal field myself, I became more and more acquainted with CCAP. Recently this year, I heard about changes being made to the CCAP record system. The Director of State Courts voted in March of this year to change the time limits for dismissed or acquitted cases to have them removed from the public record site after two years from the final order.
Records of Wisconsin circuit court cases were first electronically stored beginning in the early 1990s through the Consolidated Court Automation Programs, now commonly known as CCAP. CCAP creates a record for each case that records the names of all parties, filings, proceedings, orders, and the final judgment or disposition of cases. Records from CCAP are not only available for court staff but are also accessible to the general public on the Wisconsin Circuit Court Access, or WCCA. WCCA is used on a daily basis and averages about a million page views per day.
For the past several years, the discussion of changes to the CCAP and WCCA site has been brought to the Director of State Courts’ Committee. The original petition to amend the time limits for records on CCAP was first proposed in 2009. The petition was finally heard in 2016 and was voted on by the Committee this past year. The petition had support from the WCCA Oversight Committee, which is made up of judges, court clerks, law enforcement, prosecutors, defense attorneys, legislators, and administrators. The Oversight Committee studied the WCCA issues for several years and released its recommendations in a final report in 2017. The new changes to the record site would include displaying dismissed or acquitted misdemeanor and felony cases on CCAP for only two years. After the two years, the case record would be removed from the public site. Both small claims cases that are dismissed, such as evictions, and injunction petitions would also have a two-year display period. Jefferson County Circuit Court Judge Randy Koschnick, who currently serves as the Director of State Courts, spoke in favor of the Committee’s changes and stated, “We need to keep up with new requirements and expectations, as well as privacy concerns and consider those factors properly.” Judge Koschnick also noted that “[t]he world of information technology is constantly evolving.” These changes are expected to be fully implemented as of this month and will apply retroactively to older cases listed on CCAP.
When I first heard of these changes, I was for the most part happy to hear that dismissed small claims cases involving evictions were included in the new time limits. As an intern at Legal Aid last summer, I had personally seen the difficulties that tenants faced when trying to get an eviction removed from the public record site or when simply trying to find new housing with the eviction on their record. The WCCA Oversight Committee’s report noted that individuals are subject to discriminatory or otherwise adverse treatment by potential employers or landlords because the listing of a case on CCAP.
But I do have some concerns regarding the dismissed criminal cases and for the dismissed/denied domestic abuse and harassment injunctions. As a volunteer for Marquette’s Pro Bono DV Injunction Hearing program, I have had the experience of interviewing petitioners seeking restraining orders from domestic partners. As a part of my duties, I also am responsible for gathering evidence that can be used during the injunction hearing, such as police reports and criminal records of the parties involved. Domestic abuse cases are in many ways different than other types of cases. In the WCCA Oversight Committee’s final report, it noted that injunctions may be “dismissed or abandoned for reasons other than a lack of merit, including victim intimidation, a reluctance to force a firearm restriction, and myriad issues surrounding domestic abuses.” Ultimately, while the Committee considered a different time limit for dismissed domestic abuse cases, the overall change to a two-year limit for dismissed cases will also include domestic abuse cases and injunctions. As a volunteer, I often look not only for the resolved criminal cases involving both the petitioner and respondent, but also any dismissed or denied cases. My main concern with the new changes to CCAP would be that these types of cases would now only be available for two years. Yes, prosecutors and other attorneys may have access to these dismissed cases via systems like PROTECT, but what about the non-legal volunteers who help petitioners or even the petitioners who don’t qualify for assistance through the Sojourner Family Peace Center and have to take their cases on their own? How will they find that same information?
The changes to the Wisconsin CCAP site speak to the growing privacy social concerns that individuals may feel in a time where technology continues to grow and be a part of our everyday lives. Personally, I think that the changes to CCAP’s time limits for dismissed or acquitted cases should be a helpful change for many individuals who have had difficulties seeking employment or housing because of old cases remaining available to the public. I do still have concerns for the access of dismissed or acquitted cases in matters such as DV injunction hearings or even for prosecutors trying a few cases in other counties. I hope that in the future, Director of State Courts’ Committee considers other improvements to the CCAP and PROTECT systems to address some of the remaining issues. I am interested in hearing any thoughts others may have regarding these changes.
It seemed like the report focused on the four main areas (domestic abuse, child abuse, harassment, and individual at risk) where there were more privacy claims and I think that that is a fundamental reason why the Committee took the actions that it did.
I understand the desire to balance the right of the general public to online access to public records, against the potential for harm to individuals, who could for example experience employment discrimination or housing discrimination. Indeed, the Committee notes in the report that the “individuals who were subjected to meritless civil lawsuits are stigmatized when their cases are viewable on WCCA.” But isn’t there a prominent disclosure that warns that the use of such information in certain ways could subject them to a lawsuit.
The warning States:
Notice to employers: It may be a violation of state law to discriminate against a job applicant because of an arrest or conviction record. Generally speaking, an employer may refuse to hire an applicant on the basis of a conviction only if the circumstances of the conviction substantially relate to the particular job. For more information, see Wisconsin Statute 111.335 and the Department of Workforce Development’s publication, Arrest and Conviction Records under the Law.
Notice to users regarding multiple entries: If a party to an action uses an alias or a different version of his or her name, including a middle name or initial, there will be an entry on the WCCA website for each version of the party’s name. Users should note the case number of each entry, as a single case involving the party may have multiple entries for this reason; each entry does not necessarily indicate a separate case involving the party.
Publication of court information on other websites: WCCA is not responsible for court case information that is published on other websites. Any business or website offering to remove court case information for payment is not connected to WCCA or to any circuit court. Wisconsin circuit courts do not accept payment to remove court case information from the website. Payment to another organization will not cause court case information to be removed from the WCCA website.
Accuracy: The official recordkeepers for the circuit courts are the clerk of circuit court, the register in probate, and the juvenile court clerk in each county. The information contained on the WCCA website has been entered by the official recordkeepers in each county. If you believe data displayed on this website is incorrect, you may request a correction. Please see FAQ 4 for instructions on how to request an error correction.
This warning must not be sufficient if the committee insists on going to greater lengths such as shortening the period in which that the cases are viewable. The committee also discussed that jurors may access CCAP before, during, and after being selected for jury duty. But isn’t there the protection of voir dire and the courts instruction beginning, during and after the close of the evidence that specifically instructs them to not do this? It would be interesting to know the statistics on how many cases are brought that allege the claim of discrimination based on a WI CCAP record.
I think another compelling reason to keep the records for longer are in regard to the rise of DNA evidence and the amount of cases that are being overturned. Those records should remain visible for longer than 2 years as long as the case history or order finding the person who was once a convicted defendant is overruled. One could argue that once the judgement is entered overruling the conviction based on DNA evidence, the whole case should go away as if it never happened. At an even lesser length though, one could argue that this information should be available as a cross-reference tool because it may still appear in background checks. For example, many background checks pull up the conviction, date, county, and disposition of the case. I’m not sure if there is any way to know how and when information is obtained for the purposes of background checks. It would depend on what is more accurate. As I understand CCAP is updated as promptly. Then again, there still is a possibility that Employers or Property owners may make conclusions as soon as they see something on the list without abiding by relevant laws and doing due diligence in looking into the case.
People who look at eviction and small claims judgements, as opposed to the domestic abuse order and injunctions, are often property owners or financial institutions who have a legitimate interest in gauging creditworthiness. Thus, they want to know if a particular person or business has the ability to pay. Additionally, it is useful to see past behavior in efforts to protect themselves. They may also use this to attempt to predict the future of the prospective relationship with the person or entity which is understandable, but they should be compliant with the law and nevertheless heed the warning of the courts.
I disagree however with the determination that case documents that are filed should not be publicized. I understand that there may be an administrative burden on the clerk of courts if certain information is not redacted. They may then have to do this. The clerk of court already has many things they must check for before accepting the documents and putting it on the court calendar. A possible solution is that the clerk could refuse the filing (as they often do) and specify that certain information must be redacted. This could also cause issues because, pro se litigants in particular, do not know the rules on redacting. This may lead to an even bigger influx of pro se litigants who find themselves seeking free legal advice form the Marquette Volunteer Legal Clinic. As I understand it to be, there is already high demand and not enough people to help.
Opinions on mentally ill inmates awaiting trial for too long??