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SCOW scolds DOJ for releasing erroneous criminal history reports, but justices don’t agree on remedy

Dennis A. Teague v. Brad A. Schimel, 2017 WI 56, 6/8/17, reversing a published court of appeals decision; case activity (including briefs)

Dennis Teague has no criminal record, but if you ask DOJ to run a criminal background check on him DOJ will hand over a lengthy rap sheet showing someone else’s criminal history. Why? Because that someone else once used Teague’s name as an alias. The good news is the supreme court holds DOJ is wrong to give out someone else’s history in response to an inquiry about Teague. The bad new is the court can’t agree on the remedy for Teague and others in his situation.

This is another in a line of fractured decisions and, true to form, it means a long (92 page) decision with multiple “writings” from different groups of justices. After a review of the basic background and a statement of the holding that garnered a majority of justices, this post will provide a quick overview of the various opinions regarding remedy. If you’re representing a person who, like Teague, is seeking to have DOJ provide their correct criminal history record you’ll have to read the decision carefully to discern how to use it to support your client’s cause.

Basic background

DOJ’s criminal record database can be searched in two ways: by submitting a set of fingerprints; or by submitting a name and date of birth. Name-based searches are less reliable than fingerprint searches and may turn up a criminal record that doesn’t belong to the subject of the search. That’s what happens with Teague (and two others). If a requester—say, a potential landlord or employer—submits Teague’s name and birth date, DOJ provides the criminal history of his cousin, A.T.P., who stole Teague’s identity by using his name as an alias. Teague obtained an “innocence letter” from DOJ by submitting fingerprints so DOJ could do a more accurate search, but DOJ doesn’t provide that letter when responding to background checks; instead, the onus is on Teague to get the letter to anyone who requested a background check of him. (¶¶2-15).

Majority holding

Six justices agree that DOJ’s provision of a criminal history is a “record” subject to correction under § 19.70 and that a criminal history of A.T.P. is an inaccurate record when it is provided in response to a background check on Teague. (¶¶26-35 (Kelly and R.G. Bradley); ¶¶93-116 (Abrahamson and A.W. Bradley); ¶¶137-38 (Gableman and Roggensack). The majority rejects DOJ’s argument (and the court of appeals’ holding) that there is nothing to correct because providing A.T.P.’s record accurately reflects the fact that in DOJ’s records, information in A.T.P.’s record matches the information provided by the background check requester.

¶31     The DOJ misunderstands the question asked by someone requesting a Criminal History Search. It says “[r]equesters are getting exactly what they search for: they are asking whether any criminal records match the information they have.” But that is not what requesters are asking. The DOJ’s characterization suggests a merely idle curiosity about whether a specific name happens to appear in the Database. What they are actually asking is whether the people whose names they submit have criminal histories.

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¶34     In this case, the DOJ has known ATP’s criminal history report does not relate to Mr. Teague ever since it issued Mr. Teague’s innocence letter. It necessarily follows that, by continuing to produce that report in response to an inquiry into whether Mr. Teague has a criminal history, it is providing inaccurate information. The DOJ’s briefing admits as much, stating that “[t]he record DOJ returns in response to a search for ‘Dennis Teague’ is a report that contains the name as an alias for ATP, but the record itself does not ‘pertain[]’ to Teague.” Indeed, it does not. And because it does not, providing ATP’s criminal history in response to a Criminal History Search on Mr. Teague makes the report an inaccurate record by the DOJ’s own admission.

Ziegler dissents, concluding that the circuit court was not clearly erroneous in finding that DOJ’s criminal history responses “are not literally false and … do not convey a false and defamatory meaning” and that “the information in the database is correct.” (¶¶147-65).

Remedy

While a majority agrees DOJ’s response is inaccurate and in need of correction, they don’t agree on what happens next, beyond the fact that the court of appeals is reversed.

  • Kelly and R.G. Bradley believe the remedy under § 19.70 isn’t enough because it provides no prospective relief that would avoid inaccurate responses in the future, but only retrospective correction of erroneous responses already provided. (¶35 & n. 22). Therefore, Teague’s procedural due process rights have been violated, and the case should be remanded to the circuit court to fashion the appropriate procedure for Teague to use to get the record corrected. (¶¶36-78).
  • Abrahamson and A.W. Bradley conclude the supreme court should issue a declaratory judgment that DOJ must comply with § 19.70 and issue correct criminal history records pertaining to Teague; that DOJ is enjoined from refusing to comply with § 19.70; and that Teague may seek supplementary relief in circuit court “whenever necessary or proper” under § 806.04(8). (¶¶87-90).
  • Gableman and Roggensack conclude that resolving Teague’s statutory claim under § 19.70 is sufficient to resolve the case; if DOJ’s correction of criminal history reports under § 19.70 is insufficient to remedy Teague’s injury he may seek judicial review under § 227.52. (¶¶139-44).

It’s true that “[n]o proposed form of remedy garnered a majority of the justices’ votes, but neither has a majority of the court foreclosed any particular form of remedy.” (Mandate n. 39 (Kelly and R.G. Bradley)). But it goes too far to say there are “four votes to remand this matter to the circuit court to develop prospective relief sufficient to safeguard the petitioners’ rights….” (Id.). Four justices believe Teague is entitled to prospective relief under § 19.70, but two of those (Gableman and Roggensack) contemplate circuit court litigation only if Teague seeks judicial review. (¶¶142-43). Thus, it seems more correct to say that it is “not certain from the writings that four justices indisputably conclude that the matter is to be remanded to the circuit court at this time.” (¶82 n. 1).

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