Court Website to Remove Certain Case Information

In “Dismissed Criminal, Eviction, Other Cases No Longer Displayed On Court Website After Two Years” (WisBar InsideTrack, Feb. 21, 2018), Joe Forward reported one of the first major actions that Randy Koschnick will take as newly appointed Director of State Courts is implementing recommendations on the length of time certain case information is publicly available online, even if a case is dismissed.

Koschnick oversees the court system’s Consolidated Court Automation Programs (CCAP), which includes administrative authority over basic case information displayed online through the Wisconsin Circuit Court Access (WCCA) website.

A WCCA Oversight Committee studied WCCA issues for two years and released recommendations in a final report last year. Koschnick recently released an action plan to implement many of them.

Under the plan, misdemeanor and felony cases will display on the WCCA website for two years if the case was dismissed or the defendant was acquitted. That is, after two years from the date of disposition, the WCCA record will be removed.

Readers quickly posted comments.

Reader: Randy Koschnick previously proselytized for the mandatory e-filing system. (So efficient it costs more!^SM) Now he is helping soft-on-crime prosecutors and judges hide their handiwork. Facts are facts. Court cases are court cases. Hiding them does not promote anything but ignorance.

John Gallo
Houseman & Feind LLP, Grafton

Reader: I am a member of the WCCA Oversight Committee that carefully considered, debated, and voted on modest, necessary reforms regarding record retention. First, former Judge Koschnick did not participate in the meetings and debate, as he was not yet state courts director. Take it from me, as I was there.

As can be readily seen from the list of people who made up this committee, at the end of the InsideTrack article, the committee membership covered the waterfront. There were no “soft-on-crime” legislators, judges, or prosecutors on the committee. I brought the perspective of a criminal and civil practitioner, who has been in the trenches for 40 years and was vocal on many topics before the committee. So, too, were many of the other members. The media’s and other stakeholders’ concerns were ably presented and taken into account.

The committee’s recommendations are well-thought out, very necessary, and modest reforms. Court director Koschnick carefully considered and approved many of these recommendations. That is how government should work, and I commend him for his action.

Should any bar members want to review the minutes of the committee meetings, its recommendations, or other documents pertaining to this, I encourage them to obtain such from the Wisconsin Supreme Court website, www.wicourts.gov.

Raymond M. Dall’Osto
Gimbel Reilly Guerin & Brown LLP, Milwaukee

Reader: I think this was a good move, but more needs to be done. Cops can write a ticket for no reason at all, and the defendant has all future employers look at it. I have seen many such tickets; for example, a man got a ticket for a concealed weapon when the knife was on his dash and the cop could see it from outside the car! He could not afford to fight it, so there it stands on CCAP.

James C. Ritland
James C. Ritland Law Office, Black River Falls

Reader: Unfortunately, I did not know about this plan until it was published here. I believe it is too unbalanced. Dismissals and acquittals do not necessarily equal innocence. Court cases are dismissed for many reasons having nothing to do with true guilt or innocence of the defendant. There could be unwilling witnesses (domestic violence, threats) or destroyed evidence (such as emails). What if a case against a pedophile is dismissed because the child is too young or too fragile to testify?

This plan to deny workable access to these court records would leave employers and others in the dark about information that may be relevant to their decision making. You say this information is still available in the local county clerks’ files. This is an unworkable alternative. How are we supposed to search for the existence of potentially relevant court cases if we don’t know which county or clerk has these files?

Maybe WCCA could at least provide a link for a page it would create listing the deleted acquittals and dismissals, current and future, by name, county, and case number. The main page could include a statement saying that any case older than two years that was dismissed or resulted in an acquittal can be found “here.” This is just an example. The bottom line is to serve the public’s right to know by making this information easily accessible in some manner.

Mary A. Klaver
Milwaukee

Reader: I am very glad to read of these modifications. I am very much aware of abusive reliance upon very stale records regarding eviction cases. Far too frequently landlords will deny housing to otherwise qualified applicants simply because many years ago a landlord filed an eviction claim against them. This two-year period will allow recent, currently applicable, events to be available online, but will wisely remove them after a reasonable period. I applaud the committee’s actions.

David R. Sparer
Herrick & Kasdorf LLP, Madison

Change Needed to Board of Bar Examiners Admission Questions

In June 2015, I was elated to finally be admitted to the Wisconsin bar. However, during the Board of Bar Examiners (BBE) character and fitness investigation, I was required to describe my three mental disorders – social anxiety, clinical depression, and complex post-traumatic stress disorder – and how they had been treated, simply because I had been diagnosed with these disorders in the past, and without due regard to how my treated disorders currently affected my ability to practice law competently and professionally. The silver lining was that my experience inspired me to take concrete action to effectuate positive change.

As a third-year law student, I wrote an op-ed in the Badger Herald arguing that the BBE’s overly broad mental health questions violated the Americans with Disabilities Act (ADA) and its accompanying regulations, citing the 2014 U.S. Department of Justice (DOJ) settlement with the Louisiana Supreme Court and its state bar examiners regarding similar mental health questions.

Even after being admitted to the Wisconsin bar, I still thought about how Wisconsin mental health questions violate the ADA. I thought about how, as the DOJ noted in its letter to the Louisiana Supreme Court, requiring bar applicants to answer intrusive questions – such as Wisconsin’s – about their mental health and then requiring them to also give state bar examiners broad access to their mental health records, on the sole basis of having a treated mental disorder, discourages law students (that is, future bar applicants) from seeking mental health treatment.

I also thought about how Wisconsin’s questions reinforce the stigma against those with mental disorders, including myself, by sending the following message: solely because you have a history of having an untreated mental disorder, you are potentially dangerous or incompetent; it matters not whether your mental disorder is currently treated.

When those questions remained unchanged a year later, I wrote an editorial article “Applying to the Bar: Fit to Practice?” (Wisconsin Lawyer, Feb. 2016), discussing whether those questions violate the ADA and its accompanying regulations.

Again, the questions remained unchanged. So, in September 2017, I wrote the BBE and asked it to seriously reconsider using its mental health questions, arguing that “[t]he rights – and dignity – of those with mental disorders depends on it.” The BBE indicated that no change was forthcoming.

As a result, prospective lawyers with mental disorders who wish to be admitted to the Wisconsin bar must continue to endure impermissible and unlawful discrimination on the basis of having a mental disorder. This must stop now.

I have learned that writing alone is not enough. Therefore, I have submitted Rule Petition 17-10 to the Wisconsin Supreme Court to amend the BBE’s rules regulating admissions to the bar. This petition is currently pending before the court, and the BBE has requested the court dismiss it. If this petition is granted, it will bring Wisconsin’s character and fitness investigations into compliance with the ADA.

[Editor’s Note: Rule Petition 17-10, and all other petitions, can be found on the Wisconsin Supreme Court website, www.wicourts.gov/scrules/pending.htm. A violation of the ADA has not been found but is alleged in the petition.]

Aaron Loudenslager
Madison

Gender Disparity in the Profession: Time for Change

Thank you for addressing the abuse and harassment of women in the legal industry – for using your privilege as the president of the State Bar of Wisconsin – and a man – to raise awareness about this issue. (See Paul G. Swanson, “Unacceptable Behavior: Sexual Abuse and Harassment of Women,” Wisconsin Lawyer, Jan. 2018).

We hope that your message begins a long-overdue conversation throughout the profession about how to create a more equitable and safe working environment for women lawyers in Wisconsin. In that spirit, we write to highlight some assumptions and implications in your message that seem not to fully appreciate the difficult and deliberate work required to end the abuse and harassment of women.

First, let us be clear that the established norms in the legal workplace have not, in fact, led to women being treated with openness, respect, acceptance, and fairness. It is precisely these established norms that created and maintained unequal and hostile workplaces for women. These norms, including how an attorney is expected to speak, look, and dress, contribute to a culture where one’s knowledge and experience matter less than one’s connections, where men make partner more often than women, and where men earn more than their female counterparts. These norms dismiss and demean women. They should be repudiated and changed.

Second, recent events have emphasized that we cannot trust our instincts and intelligence alone. Some of our most respected leaders have failed women, despite their instincts and intelligence. Our instincts and intelligence developed in this sexist culture. We need to work to develop an awareness of our implicit bias and increase our cultural intelligence.

We must not oversimplify gender discrimination the way Chief Justice John Roberts oversimplified race discrimination – a subject that we cannot ignore when discussing disparities in the legal field: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” His logic ignores the entrenched consequences of centuries of racism. As Justice Sonia Sotomayor argued in response, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” Her words apply equally to gender discrimination. We need to reform norms of the legal industry with eyes open to the unfortunate effects of centuries of discrimination against women.

Finally, let us declare decisively that our profession is worse (not better) for its male domination. In taking your oath as State Bar president, you vowed to make the bar more inclusive and diverse so that it reflects the demographics of the population. We hope you continue your work in this vein and recognize that gender disparity exists because of the long history of denying women equal rights. Justice Ruth Bader Ginsburg has said there will be enough women on the Court when there are nine: “For most of the country’s history there were nine, and they were all men. Nobody thought that was strange.”

Sofia Ascorbe, Monica Cail, Chris Donahoe, Caitlin Noonan & Roberta Rieck
Attorneys at Legal Action of Wisconsin Inc., Milwaukee