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SCOW says circuit courts lack inherent authority to order destruction of inaccurate PSI

State v. Melton, 2013 WI 65, reversing published court of appeals decision; case activity; opinion by Justice Prosser; concurrence by Justice Ziegler and joined by Chief Justice Abrahamson and Justice Bradley

Authored by J. Prosser

Melton pled guilty to 2 felonies, and the court ordered a PSI for sentencing.  Turns out the PSI contained errors (info re uncharged offenses), so the court ordered a 2nd PSI and the destruction of the 1st PSI.  A new judge took over the case and held that the court lacked the inherent authority to order destruction of any PSI and thus allowed the 1st PSI to be sealed only.  So the issue is:  Do the circuit courts have any authority to order the destruction of a PSI?

Answer:  No.  They don’t have express or implied statutory authority to do so.  The PSI statute, §972.15, directs that the PSI be kept confidential; it doesn’t expressly or impliedly authorize destruction.  Likewise, the administrative code authorizes the DOC to prepare a PSI and maintain it in the client’s file; it says nothing about destroying one.  Wis. Admin Code § §328.27, 328.28, 328.30.  Furthermore, the Supreme Court Rules direct circuit courts to preserve paper records for 75 years for class A felonies and 50 years for other felonies.  SCR 72.01(15).  Those records, the majority says, include PSIs.  See Slip op. at ¶¶15-20.

SCOW also held that circuit courts also lack the inherent authority to order destruction of a PSI.  They have inherent authority only in three general areas:

(1) guarding against actions that would unreasonably curtail the powers or materially impair the efficacy of the courts or judicial system”; (2) regulating judges and attorneys; and (3) ensuring that courts function efficiently and effectively to provide the fair administration of justice.  Slip op. ¶51.

Allowing circuit courts to authorize the destruction of inaccurate PSIs so that there aren’t multiple, inconsistent copies in the court record would seem to promote the fair administration of justice.  But the decision says sealing and properly labeling the inaccurate PSI is just as efficient and effective as destroying the PSI.  Slip op. ¶63.  It also outlines options available to the circuit court when dealing with erroneous PSIs (e.g. strike or redact the inaccurate parts). Slip op. ¶80.

In general, circuit courts seem to have a fair amount of inherent authority to conduct their business.  City of Sun Prairie v. Davis, 226 Wis. 2d 738, 595 N.W.2d 635 (1999) examines the issue in depth and notes that circuit courts may, among other things, appoint counsel for indigent parties, vacate void judgments, assess certain costs, order dismissal of a case and so forth. Id., ¶19.  But that breadth of power doesn’t seem to extend to the destruction or expunction of records.  See Id.,  Breier v. E.C., 130 Wis. 2d 376, 387 N.W.2d 72 (1986)(no inherent authority to expunge juvenile record held by police), and 70 Op. Atty Gen. 115 (1981)(no authority to expunge conviction records not covered by §973.015).  Perhaps sensing this limitation, the concurring justices make a point of defending the circuit courts’ broad inherent authority and stressing that in this case less aggressive measures would get the job done.


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