Wisconsin Supreme Court Adopts Landlords' position on Eviction Record Retention

NOTE: The below blog post which was posted on June 18, 2024, is reproduced from the Rental Property Association of Wisconsin's blog and was written by Atty. Heiner Giese, attorney for the RPA.

Since the Journal Sentinel and the other local news agencies won't report on this, I thought it was important for people to know.

T

The Wisconsin Supreme Court today [06.18.24] issued it’s long-awaited ruling (Rule Petition 22-03) on how long eviction case records should remain available to public view via online access to court records.

The Court rejected the petition of Legal Action of Wisconsin for only a one-year retention and accepted the proposal of the Rental Property Association of Wisconsin and other landlords: 2 years retention if no money judgment entered and 10 years if a writ of restitution was granted.

The dissent by Justice Hagedorn (joined by CJ Ziegler and J. Rebecca Bradley) says a change to open records should have first been vetted by the Court's own CCAP committee and there should have been more consideration as to how restricting access to eviction filings is going to affect the business practices of landlords -- who are entitled to know the prior rental history of tenant applicants and will pass on the costs of more difficult screening to other tenants (J. Hagedorn does not say it, but an example of this is landlords requiring a double security deposit because they can't be sure if an applicant had prior evictions and is thus not a good risk).

The Order's effective date is delayed for one year to July 1, 2025 but the current law found in Wisconsin statute section 758.20 -- which requires no less than a 2 year retention for evictions where no money judgment was docketed and 10 years if a writ of restitution was issued -- was acknowledged by the Supreme Court and should continue to apply. Legal Action of Wisconsin had urged the court to overrule that statute and make its own rules but the court specifically declined to do so.

By Atty Heiner Giese

Wisconsin Supreme Court Rules on CCAP Eviction Records

Breaking News from the Rental Property Association of Wisconsin's website and Blog:

Wisconsin Supreme Court rules on CCAP eviction records

04/16/2024 11:30 AM

The Wisconsin Supreme Court rejected Legal Action’s bid to make eviction judgments disappear in one year instead of the statutory 10-year retention period.

The industry and good renters owe a large thank you to Attorney Heiner Giese, Rick Van Der Leest of the Green Bay and Appleton Associations, and Chris Mokler of the Wisconsin Apartment Association for making this happen. Rick and Heiner received mention by the Court at the hearing today.

Heiner’s comments:

Follow the statute: if no money judgment is docketed, then the case goes off CCAP after two years; if a writ was issued then the record is searchable for 10 years. Our goal has always been to encourage nonpaying tenants to move voluntarily, so landlords can dismiss a case without the trauma (for both parties) of having the sheriff do a forced moveout.

Add comment

Comments

• 04/17/2024 10:57 AM| Mike Cottrell (Administrator)

  I want to personally thank our legislative team and housing coalition group for the outstanding effort they put into being the watchdog for the industry.
  
  Tim Ballering, Heiner Giese, Joe Murray, Mark Kvetkovskiy,
  Rick Van Der Leest, Gary Goyke, & Chris Mokler.
  
  Mike Cottrell
  RPA | President
  

CCAP Is Under Attack Once Again

A panel tasked with providing guidance to the Director of State Courts has recommended that certain information on Wisconsin's Circuit Court Access site (often referred to as CCAP) should be removed in certain situations. The recommendations made include:

• Any felony charges brought against a person which were later dismissed or where the defendant was acquitted of the charges would be removed from CCAP after 1-2 years.
• Any misdemeanor charges brought against a person which were later dismissed or where the defendant was acquitted of the charges would be removed from CCAP after half of the time prescribed for felonies.
• Any record of a dismissed or denied domestic abuse, child abuse, individual at risk, or harassment injunctions would be removed after 2-4 years.

BUT most importantly for landlords is the following proposal:

• Any stipulated dismissal of a small claims lawsuit, including evictions, would be removed after 2 years.

Interestingly, these changes would only affect the posting of the information on CCAP, not the actual physical file. The actual physical records would still be available for viewing and photocopying in the courthouse. As one commentator stated, "So the real effect of this proposal is to make it more difficult to access these records."

Of particular concern to landlords would be the proposal that any stipulated dismissal in an eviction action would be removed after 2 years.

If an eviction is dismissed outright, that is one thing, as the landlord either failed to appear in court, failed to meet his or her burden of proof, or made a technical or procedural mistake resulting in the eviction being dismissed. However, stipulated dismissals are much different. A landlord may choose to enter into a stipulated dismissal of his or her eviction action for many reasons, but the fact of the matter is that the tenant still breached his or her lease and then refused to vacate which necessitated the filing of the eviction.

The removal of stipulated dismissals from CCAP will affect a landlord vetting a potential tenant during the screening process. Specifically, if the proposed recommendations are followed, a landlord will not be able to find any CCAP record of any eviction action being filed against a rental applicant that the landlord is screening even if that person did have an eviction or evictions filed against them, as long as the eviction/s were resolved via a stipulated dismissal and two years have passed.

If you are not in favor of these proposed changes to CCAP you should contact your elected officials. To find state legislators only you can go to Find Your Legislator This site allows you to simply click a button to use your current location to find those reps.

If you want local officials as well as available social media contacts for all your elected officials, then I recommend Who Are My Representatives. This site does not list Milwaukee Aldermen, however.

New CCAP Bill Introduced

A new CCAP bill (Senate Bill 526) was introduced on January 30, 2014 by Senators Grothman, Taylor, Schultz, Harris, and Risser. A public hearing has already been held.

Current law allows for any criminal charge to remain on CCAP even if the charge was dismissed.

This new bill, if passed, would require the Director of CCAP to remove a case involving a misdemeanor or felony from CCAP within 120 days after being notified that the case or charge has been dismissed (and not read into the record for the purposes of sentencing the defendant), the defendant was found not guilty, or the case was overturned on appeal and dismissed.

I am a fan of open records and not removing information about open records that are on CCAP. While I personally do not have a problem with a criminal charge being removed if the defendant was found not guilty or the case was overturned on appeal and dismissed, I still believe that doing so still interferes with open records, but I can bite my tongue nonethless.

On the other hand, I have a huge problem (and concern) with a criminal case being removed from CCAP solely because it was dismissed.

Many people unfamiliar with the criminal justice system assume that if a case was dismissed that that means that it was filed in error. While that certainly does occur, that is not the typical situation in which a case is dismissed. The majority of criminal cases are dismissed, not becasue they were impropely filed, but rather because the victim witness did not appear at trial to testify against the defendant and therefore the State could not prove their case. This happens quite often especially in crimes involving domestic violence.

When I was younger (and stupider) I used to do some criminal defense work. I finally quit being a criminal defense attorney after I represented a young man that was charged for the 8th time with Domestic Violence - Battery. It was alleged that he beat up his girlfriend. All 8 times it was alleged that he beat up his girlfriend. I attempted to meet with my client to prepare for trial. He refused, just smiled, and told me that it was not necessary. I told him that I could not represent him properly if we didnt prepare. He told me again not to worry and that there would not be a trial. I reminded him that there was a "no contact" order in place and that he was not allowed to contact the alleged victim so how would he know if she was or was not going to appear in court to testify against him. He smiled and said he would never do anything against the law.

The trial date came and the victim did not show. As a result the District Attorney was forced to dismiss the charge against my client as without the victim the DA could not meet their burden. My client smiled at me and said "See, I told you you didnt need to worry - no trial." He then walked out of the court room.

Even though I was young and stupid, I was not naive. I knew very well that this individual most likley had talked to the victim and either threatened to harm her if she came to court to testify against him or he actually did harm her to make sure she understood. The same thing probably happened the prior 7 occassions as well.

I would not want to rent to this person.

Under this new CCAP bill, those 8 criminal charges for DV-Battery against my client would be removed from CCAP and a future landlord would not even know they had been filed or that s/he would be renting to a person that felt it was acceptable to beat up his girlfriend whenever he couldn't control his anger management issues.

If you have similar examples from propspective rental applicants that you have screened recently, please forward the details to me directly at tpettit@petriepettit.com. Let's make sure the politicians are aware that this type of behavior does actually occur and how it may hurt our industry, if such a law is passed.

Thanks

T

CCAP Is Under Attack Again

When Senator Marlin Schneider lost re-election a few years ago, I thought that the attacks against Wisconsin's Consolidated Court Automation Programs (CCAP) would disappear. Well they did -- for a while. But Senator Lena Taylor along with Representatives Goyke, Sargent, Kessler, Hebl and Pope haven taken up the torch and are trying to prevent the public from accessing CCAP once again via Senate Bill 234/Assembly Bill 253.

These two bills were introduced on July 31, 2013, and if passed will negatively affect access to "open records" in the following ways:

1. Two separate CCAP databases would be created. One for a privileged few and another with less information for the general public. The current CCAP database would only be available for judges, court commissioners, other court, state, local, agency employees, law enforcement and law enforcement employees, lawyers, journalists, licensed debt collectors, employees for financial institutions, and realtors --- and landlords (see below correction note). A second more restrictive database would be available for everyone else.

2. The more restrictive database accessible by the general public would only provide case information after a court has done one of the following: (1) made a finding that a person is guilty of a criminal charge, (2) made a finding that a person is liable in a civil matter, (3) ordered a judgement of eviction, or (4) issued a restraining order or injunction. If one of those 4 things did not yet happen --- the general public will not even be able to access that information.

3. All information related to a criminal or civil case in which a finding or order related to the case or charge is reopened, vacated, set aside, or overturned on appeal, would be removed from the more restrictive CCAP database.

4. If a user searches for a person's name on CCAP and then denies that person employment, housing, or another public accommodation, the user must inform the person that a CCAP search was performed on them. Failure to tell the person could result in a $1,000 fine.

5. Upon receipt of a written request, the Director of State Courts must remove from the general public database, any information relating to a case if there was no finding of criminal guilt or civil liability, order of eviction, or issuance of a restraining order, or if the finding or order was subsequently reopened, vacated, set aside, or overturned.

What does this mean to landlords and property managers? --------------- See correction note at end of post.

Short Answer: You will have a much more difficult time screening any prospective tenants. And as a result of being able to review only select information you may end up renting to someone that you otherwise would not have, resulting in increased costs to you such as eviction costs, damage to your property, lost rent.

Long Answer:

You will be unable to learn about any pending criminal cases, eviction cases, money judgment cases, restraining orders, that an applicant might have pending until the case is concluded and has resulted in a judgment or conviction.

So if the person that has applied to live in your rental property is currently charged with a drug crime, you will have no way of knowing that -- lucky you. Nor would you be aware that the reason an applicant is applying to rent your unit is because their current landlord is currently evicting them. You would also be unable to learn that an applicant is currently being sued by their landlord for damaging the rental property they just left. You also would be unable to learn that the applicant is being sued for not paying other bills. Essentially, you would lose access to information that would be very helpful in determining if this applicant would be a successful tenant with you.

If the applicant that wants to rent your property has been evicted in the past and a motion to reopen the judgment of eviction has been filed when you are evaluating the applicant's application --- that information would be off limits to you. If the applicant ever had an eviction judgment or money judgment case reopened and vacated -- regardless of the reason -- you also would not be able to learn that information. Believe it or not, some courts have been known to grant a motion to reopen/reconsider and vacate a judgment of eviction, solely because the tenant already vacated the unit at the time they filed to motion to reopen/reconsider. If this bill were to be signed into law, and that was to occur, you the landlord, would never even have the chance to learn that there was an eviction judgment against the applicant you are screening.

If you use CCAP as part of your screening process (is there any landlord in Wisconsin who doesn't?) you must advise the tenant (in writing to CYA) that you performed a CCAP search on them if you end up not renting to them. Failing to so so could end up costing you $1,000.

A person could write the Director of State Courts and ask them to remove any information on CCAP regarding any criminal case ever filed against them if it did not result in a conviction. So the individual that I represented 17 years ago when I was a young lawyer trying to decide is I wanted to be a criminal defense lawyer, who had been charged with 8 domestic violence -battery misdemeanor counts over the course of 3 years for beating his girlfriend --- never to be convicted of any of them because the victim was too scared to appear in court to testify --- would be able to remove any mention of being charged with those crimes. Do you think he would be a good tenant?

In the case of a civil matter -- such as an eviction or money judgment -- if there was no finding of liability or an eviction judgment entered than any reference to that case would be removed from CCAP, upon receipt of a request to do so by the person. So if the person applying to rent your unit has had prior evictions filed against them in which the landlord decided to not proceed because the tenant moved out before the court date, that information could be removed. Remember all those stipulated dismissals that you entered into with a tenant to vacate, so that you could avoid a trial? If this bill passes, none of those would show up in the general population CCAP database because they were dismissals.

I guess "public records" are really not so "public" after all. Hopefully this bill will not see the light of day and will die a quick death.

CORRECTION 08/05/13 ---- I received a t/c from Rep. Evan Goyke, one of the authors of the bill, and he pointed out that under his bill "landlords" would be able to access the full version of CCAP as they would be included in the group of "chosen few" who would still be able to access CCAP as we currently know it. See proposed sec. 758.20(3)(a)(8). I appreciate him calling me to point that out and I apologize for inadvertantly posting incorrect information about the bill

Top 10 Pitfalls That Landlords Should Avoid

Those of you that missed the last AASEW membership meeting on Monday, April 15, 2013, missed a great meeting and a great presentation. The featured presenter was John "Dr. Rent" Fischer, a Wausau-area landlord and rental property manager, who spoke to a packed house that Monday. John's presentation was dynamic, educational and at times pretty darn funny.

With John's permission, I am providing you with a link to John's handout from the meeting which was entitled "Top Ten Pitfalls That Landlords Should Avoid."

Like any good Top 10 list (a la David Letterman), John presented these pitfalls in reverse oreder based on importance. The pitfalls to avoid included:

10. Mailing the 5 Day Notice

9. Digging The Hole Too Deep

8. Incomplete Applications

7. Not Asking The Right People (about your rental applicant)

6. Auto-Renewing A Lease

5. 14 Day Notice (or NOT)

4. "Do-It-Yourself" Leases or Rental Forms

3. Misuse of CCAP

2. Carpet Cleaning

1. That Lease is HOW LONG?

As John stated during his presentation, there are a lot of things that are beyond our control that make life as a landlord very difficult at times. As such, we certainly do not want to make life more difficult for ourselves based on a lack of knowledge of landlord-tenant laws . . . unless we are masochists, that is.

The AASEW has another great meeting scheduled for May 20, 2013 at 7 pm at the Best Western Midway in Brookfield about "How To Finance Real Estate Transactions In The Current Economy."

CCAP Committee's Recommendation To Change Wisconsin's Expungment Laws Shot Down

Last year Wisconsin's Joint Legislative Council created a Special Committee On The Review of Records Access of Circuit Court Documents – what I affectionately referred

to as the CCAP Committee. Landlords were very fortunate that in the end the committee made no recommendations to change or alter information on CCAP or limit its access by landlords or any other group. The committee's sole recommendation was to call for the liberalization of Wisconsin's criminal expungement statute.

The proposed bill, if passed would have done the following:

1. Defined what is meant for a court to expunge a court record (and yes, this did include removing any reference to the conviction from CCAP)

2. Clarified that an expunged record may not be considered for employment or housing matters.

3. Stated that a person may petition the circuit court at any time to expunge the following:

- any court record of a person who was under the age of 25 at the time the crime was committed and who was found guilty of a forfeiture, misdemeanor, and certain (lessor) felonies, that are punishable by up to 6 years in prison.

- any court record of a person charged with an offense punishable by a forfeiture, misdemeanor, or felony in which all charges were dismissed or for which the defendant was acquitted AND the court determines that the person will benefit by the expungement and that society will not be harmed by the expungement.

So as you can see, the proposed bill would have negatively affected landlords in the screening process and if passed would mean that a landlord would find no record of the applicant having ever been charged and convicted of crime x, y or z (or charged and acquitted or charged and the later dismissal of the case), if the applicant had applied for and received an expungement.

It also would have meant that even if the landlord somehow learned of the conviction (or acquittal or dismissal) and the later expungement, that the landlord could not use that information when making a decision on whether or not to rent to that individual.

Furthermore, it would have meant that a landlord would be precluded from inquiring as to the existence of any expunged record from a rental applicant whether that question

be on the rental application itself or verbally when talking to the applicant.

Thankfully we do not have to worry about this proposed bill being passed as it never even got introduced. In a notice dated January 20, 2012, the Director of the committee wrote to the members of the committee to inform them that their recommended bill was not approved for introduction by the Joint Legislative Council by a vote of 13 to 6. While a petition can be circulated to have the matter reconsidered, I have not heard of that happening.

CCAP Might Be Affected by Governor's Proposed Budget

Just when we thought CCAP would be left alone for awhile (after the dismantling of the CCAP Comittee) word comes of another potential attack on CCAP --- this time it is financial. The Wisconsin Law Journal recently published a post by Jason Smathers of the Associated Press indicating that court officials are concerned that CCAP may be affected if the governor's proposed budget breaks up its funding.

The Governor's proposed budget apparently would end a dedicated funding source for CCAP along with other state data management systems. Currently CCAP receives $6 out of every $21.50 charged as part of the Justice Information Systems Surcharge included in most court filing fees, says the recent article. Under the Governeor's proposed budget, all fee revenue would go to the Department of Administration, which could decide how to allocate the money, thus ending any dedicated monies to CCAP.

The article explains that if the budget as written is passed, that CCAP may not be updated as frequently as it currently is. Others, including the Chief Justice of the Wisconsin Supreme Court, worry that the changes could result in CCAP being jeopardized.

The article indicates that the spokesperson for CCAP, feels that CCAP would have to consolidate or cut back on non-essential services and that CCAP would be on a short-list of cuts, if the budget goes through as written. A spokesperson for the Governor says that a 10% cut is all that CCAP will face and that such a cut is the same type that all departments will face in order to balance the budget. According to the article, the CCAP spokeperson indicated that no decision has been made with regard to making cuts to CCAP but that as a result of the proposed budget, there are no new plans for any expansion to CCAP.

CCAP averages 2- 3 million hits per day according to the article -- with that type of popularity -- this is one user that hopes CCAP is left alone.

Make sure and read the full article here.

CCAP Committee Disbands Without Any Major Changes Negatively Affecting Landlords

On March 9, 2011, State Rep. Ed Brooks, the newly appointed Chair of the State of Wisconsin's, Joint Legislative Council's Special Committee on Review of Records Access of Circuit Court Documents (CCAP Committee) sent a memo to all members of the committee indicating that he had decided not to reconvene the committee for any additional meetings.

For the most part, landlords came out unscathed by the reccomendations of the CCAP committee. While the committee considered many issues --- the most troublesome being limiting access to CCAP and removing records of evictions that resulted in a dismissal --- the only issue that the committee is pursuing has to do with the ability of person to seek expungement of certain criminal records under certain situations.

It should be noted that while the committee voted to require that all persons whose CCAP records were accessed during a rental application check or or credit check be notified of this, the chairman of the CCAP committee rejected that suggestion and chose not to include it in the draft bill that was produced as a result of the committee's work.

The proposed bill that was drafted as a result of the CCAP committee's reccomendation, proposed or clarifies the following:

1. Defines what is means for a court to expunge a court record (i.e. yes, this does include removing any reference to the crime from CCAP)

2. Clarifies that an expunged record may not be considered for employment or housing matters.

3. States that a person may petition the circuit court at any time to expunge the following:

- any court record of a person who was under the age of 25 at the time the crime was committeed and who was found guilty of a forfeiture, misdemeanor, and certain (lessor) felonies, that are punishable by up to 6 years in prison.

- any court record of a person charged with an offense punishable by a forfeiture, misdemeanor, or felony in which all charges were dismissed or for which the defendant was acquitted AND the court determines that the person will benefit by the expungement and that society will not be harmed by the expungement.

So if this proposed bill is eventually passed, an individual who was convicted of a crime, and who meets the criteria for expungement, could have his/her criminal record expunged including its removal from CCAP. What does this mean for a landlord conducting a background check on that specific rental applicant? It means several things:

1. It means that the landlord would find no record of the applicant having ever been charged and convicted of crime x, y or z (or charged and acquitted or charged and the later dismissal of the case).

2. It means that even if the landlord somehow learned of the conviction (or acquitall or dismissal) and th elater expungement, the landlord could not use that information when making a decision on whether or not to rent to that individual.

3. It means that a landlord is precluded from inquiring as to the existence of any expunged record from a rental applicant whether tht be on the rental application itself or verbally when talking to the applicant.

So while the proposed bill, if passed as written, will make screening certain rental applicants more problematic, considering all of the items/issues that were up for discussion by the CCAP committee, landlords remained relatively unscathed. Now let's hope that the Wisconsin Supreme Court stays out of the fray . . .

CCAP Committee Speaks Out About Clerks Removing Dismissed Charges From CCAP

I recently posted about the fact that some counties in Wisconsin were unilaterally deciding on their own to remove certain information on CCAP. Specifically, a few counties were opting to remove charges that were dismissed or dropped as a result of plea deals in criminal cases from CCAP.

This practice concerned the committee that was covened to discuss issues related to CCAP in Madison. The Wisconsin Law Journal's blog reported on this issue as did the Associated Press' Todd Richmond.

Essentially the CCAP comittee decided that all Wisconsin court clerks must post all dismissed charges on CCAP and keep them there regardless of whether or not the charges were amended or dismissed.

A state court advisor, Sara Ward-Cassady, explained that the problem regarding some courts removing dismissed or amended criminal charges and others not removing the information, resulted from the state court system's policies on how to handle new charges in a case. She explained that if a disctrict attorney filed amended criminal charges in writing, that in that situation a clerk would renumber the new charges on CCAP and delete old charges from public view. However in situations in which a district attorney would amend charges against a defendant orally, the clerks would not renumber the charges and the orginal charges would be kept.

Whether or not the above is/was the sole reason for the discrepency between counties with regard to removal of certain criminal charges on CCAP is not known. I have a difficult time believing that this would be the only reason especially since only some counties were involved in this practice ---- but that's just my initial thoughts and I do not have all of the necessary facts.

Nonethless, the CCAP committee voted unanimously to include (and keep) all criminal charges on CCAP in the future.

This decision bodes well for landlords should the courts ever attempt to remove stipulated dismissals in eviction cases from CCAP in the future. Following the same reasoning as the CCAP committee did regarding dismissed criminal charges above, one would think that the committee would feel the same regarding the removal of stipulated dismissals in civil cases from CCAP if that issue ever arises..

State Rep. Marlin Schneider Loses Re-Election - What Does This Mean for CCAP?

State. Rep. Marlin Schneider lost his bid for re-election last week to Scott Krug for the 72nd Assembly District. As many of you know I am not a big fan of "Snarlin Marlin." Besides being voted one of the worst legislators in Wisconsin byMilwaukee Magazine, he also was a persistent thorn in the side of landlords due to his wishes to either restrict information that appeared on CCAP or to restrict who could access such information. I have blogged about Schneider more times than I care to admit, but each term he kept proposing new legislation to restrict CCAP. He was like the Energizer Bunny --- he just kept on going . . . and going. The rabbit's batteries have finally been drained.

With Schneider gone from Madison, what does this mean for CCAP? Will this valuable database of information finally be left alone? Not a chance. While Schneider was the loudest proponent for restricting CCAP there were other politicians in Madison that seemed to always jump on Schneider's bandwagon.

In fact there is already a committee fromed to debate the subect. Called the Special Committee on Review of Records Access of Circuit Court Documents, this committee has already held meetings about CCAP restriction issues. There is not one representative from the rental industry on this committee. When the AASEW and other rental organizations attempted to be included on the committee they were told that there was no room. When we asked to speak at an upcoming meeting of the committee to give our two cents, we were told that all speaker slots were filled. Thus, the rental industry was relegated to submitting a written comment to the committee.

Retired Milwaukee County Assistant District Attorney Nancy Ettenheim wrote a very well argued opinion piece in the Journal Sentinel against the restriction of and/or the elimination of information on CCAP. NOTE: It takes a long time for this link to load but it is worth the wait -- all jsonline pages take forever for me to download.

Opponents of CCAP often argue that landlords use the information on CCAP to discriminate against potential tenants. Such comments upset me because -- at least in Milwaukee -- individuals that have been evicted or who have been sued for eviction even if the case was later dismissed, are not members of a protected class, and thus a landlord is legally entitled to refuse to rent to that person. One cannot be discriminated against in a legal sense if they are not members of a protected class.

Ms. Ettenheim cogently addresses this argument in her opinion piece by pointing out that "informed decisions" do not constitute discrimination. Making a decision to not rent to someone based on their behavioral history is legitimate information upon which to base a decision. Ms. Ettenheim was much more artful in her wording than I was and I will most likley be reiterating her statement on this issues as long as this debate continues.

The State Supreme Court has also weighed in on the topic of CCAP recently. Wisconsin State Supreme Court Justice David Prosser has indicated that he thinks CCAP should be restricted to the public.

Here is another recent article about CCAP in which the author states that some counties are unilaterally removing data regarding criminal charges if those charges were dismissed as part of a plea deal. Milwaukee is not one of the counties doing this.

So while Marlin Schneider is no longer around to propose new laws trying to keep public records out of the hands of the public, that does not mean that CCAP will be left alone. With Schneider's friends on the new special committee mentioned above, the Wisconsin Supreme Court jumping into the fray, and some counties deciding to unilaterally remove information regarding some criminal charges, we will continue to hear about attempts to curtail CCAP in the future.

The Topic of CCAP Restriction Is Back!

As the followers of my blog well know, many of my posts have centered on State. Rep. Marlin Schneider's attempts to restrict CCAP access to the public. Restriction of CCAP will greatly affect landlords as CCAP is one of the best avenues to conduct background checks on prospective tenants. Here is a link to my prior posts on this topic.

Well, Rep. Schneider and his Special Commottee On Review of Records Access of Circuit Court Documents, have resurfaced. On September 8, 2010 a notice of this special committee's upcoming meeting was circulated. The meeting will be held on September 15th and will address several topics, including Proposals Limiting Access to Consolidated Court Automation Programs Information Considered During 2009 Legislative Session, and several other topics intimately related to CCAP.

Here is a copy of the Notice that was circulated.

If you would like to read the actual reports and memos referenced in the above Notice click here and you will be directed to a page with all the necessary links.

Looks like we will have to prepare for another year of battling for our continued access to CCAP and the Open Records law in general.

State Supreme Court To Jump Into The Debate Over Restricting Information on CCAP

The Journal Sentinel published an article on Saturday, March 13, 2010 entitled "Supreme Court Considers Limits To Online Court Records." It appears that while landlords have pretty much quashed Rep. Schneiders attempts to pass legislation on the restriction of infromation posted on CCAP, that the State Supreme Court will be reviewing the issue in the near future.

Patrick Marley's article states that Rep. Schneider did not believe his CCAP bill would come up for a vote this spring. However, Marley states that in an administrative meeting last month, the Wisconsin Supreme Court agreed that they should study limiting what is posted on CCAP. Justice Prosser was quoted as saying that "whatever problems we have has been incredibly exacerbated by CCAP and the Internet. The case for redress is much too compelling to just let it die."

The State Bar of Wisconsin has also asked the Supreme Court to make it easier to remove CCAP records and filed a request with the Supreme Court to make it easier to expunge records, both online and at the courthouse.

So while the legislative attempt to restrict CCAP may be over the overall fight appears to be continuing. Be sure and read the comments to Marley's article for a lively discussion for and against restrictions on CCAP.

CCAP Bill Amended to Allow Landlords Full Access; Possibly Going to Assembly for Vote

As many of you know who have been following my updates on the ever evolving attempts by Marlin Schneider to restrict access to CCAP - Mr. Schneider has again amended his proposed bill. The bill is now called Assembly Bill 663 but it is practically the same as the amended AB 340. Why the change in the bill number I have not a clue.

AB 663 was voted on by the State Affairs and Homeland Security Committee on Wednesday, February 3, 2010.

Prior to voting on the bill, several amendments were made. The major amendment was to was to include real estate brokers and salespeople, bankers and other financial agents, landlords, and those working in the title industry, to the list of the "select few" who would be able to access CCAP in its entirety. Everyone else would still be limited to the restricted version of CCAP which would exclude information on pending cases and cases in which the defendant was acquitted or the lawsuit was dismissed.

Even with this major changes, AB 663 barely made it out of committee. The committee was deadlocked at 3 to 3. Voting for the bill was Rep Fred Kessler (D-Milwaukee), Rep. Leon Black (D-Milwaukee) and Rep. Kelda Helen Roys (D-Madison). Voting against the proposed bill was Rep. Spencer Black (D-Madison), Rep. Joel Kleefisch (R-Oconomnowac) and Rep. Danield Knodl (R-Germantown). Two members of the committee were on vacation and therefore did not participate in the vote. The Chairperson of the committe, and bill c0-sponsor, Fred Kessler advanced the bill, without reccomendation, to the Assembly leaders who will now determine whether or not the Assembly as a whole will vote on it.

While it is great that landlords have now been added to the"chosen few" who are deemed worthy to have access to all open records in Wisconsin - this bill should still fail. Current President of the Wisconsin Apartment Association, John H. Fischer (also known as Dr. Rent, gave his personal opinion on the AASEWAdvisors list serv, earlier.

He stated, in part:

It is nice that the bill on CCAP was amended to include people like landlords and employers… but to be completely honest, now it has just gotten silly. He [Rep. MArlin Schneider] wanted this bill so landlords and employers didn’t use the CCAP records in a method that was illegal, but then he modifies the bill to include us…. So what exactly will it accomplish now? It has been watered down so far to have no real impact, so why even have it at all. In addition, how are they going to determine who is a landlord, who is an employer? Are we going to have to register? (Gee a statewide registration system for landlords, won't that make licensing something easy to do in the future).

In my personal opinion, the stance of the WAA should be similar to that of the Newspapers. Even though they were allowed full access under the original proposal, they still objected to it because there is something inherently wrong with making public records difficult for the public to have access to.

. . .

I think we still need to be opposed because once limitations are put in place, what is stopping from them from expanding those limitations in a future session. They can take away all of our rights at one time, or they can chip away piece by piece until they are all gone. Either way, the end game is the same.

My two cents….

I agree with John 100%.

This bill is barely holding on. It is on life support -- we need to put it out of its misery. Patrick Marley of the Journal Sentinel in his recent article on the topic indicates that Kessler himself, one of the bill's sponsors, said that it has a "slim" chance of passing. I would like to change that to NO chance of passing.

This is a very critical time. We must all contact our representatives in the state legislature and let them know that this bill should be defeated.

If you do not know the contact information for your representatives you can find that information here.

Oh yeah, and here is an article stating that Rep. Schneider is lying in an attempt to push his legislation limiting CCAP through the system. Good thing the AP caught him.

Rep. Marlin Schneider Amends AB-340 (CCAP Bill)

On December 2, 2009, Rep. Marlin Schneider (D-Wisconsin Rapids) made an amendment to AB-340. Referred to as Assembly Substitute Amendment 1 to 2009 AB 340, this revised bill essentially would create two versions of the CCAP database. Schneider's amendment appears to be -- based on its timing at least -- a partial response to the Apartment Association of SE Wisconsin's critical response to a memo that Schneider sent to other members of the Wisconsin legislature and staff on November 20, 2009. The problem with Rep. Schneider's amendment, if it is indeed a response to the AASEW's criticisms, is that it ignores everything that the AASEW attempted to explain to him.

The original AB 340 can be read in its entirety at www.DefeatAB340.org. This site also contains background information on the sponsors of AB 340, responses from across Wisconsin to Schneider's bill, and Schneider's earlier attempts to restrict CCAP and prevent landlords from legally screening rental applicants.

Version #1

Under the amended AB 340, the first version of CCAP would remain exactly as we now know it. It would continue to provide data on pending cases and completed cases that were resolved by stipulated dismissal, acquittal, or motion. It would also continue to provide information as to all original criminal charges filed even if those charges were later reduced or dismissed.

However, this fully transparent version of CCAP would be restricted to only a "chosen few," namely:

1. Justices, judges, magistrates, court commissioners, and other employees of state, federal, or municipal courts and agencies who require access to court documents and records during the course of their employement.

2. Law enforcement officers.

3. Attorneys and their employees.

4. Members of the Wisconsin Newspaper Assoc., the Wisconsin Broadcaster's Assoc., and any other Wisconsin media organization designated by the director of state courts.

5. A debt collector licensed under Sec. 218.04, Wis. Stats.

Version #2

The second version of CCAP would be a redacted version (just as was set forth in the original AB 340) and would exclude any and all information about any civil or criminal case that had not yet been resolved by: (1) a finding of guilt, (2) a finding of liability, (3) an order of eviction, or (4) the issuance of a restraining order or injunction.

Under the revised AB 340, a person would still be able to request that the director of state courts remove all CCAP information relating to that individual's case if it did not result in a finding of guilt, liability, eviction judgment, or TRO/Injunction, or if it was reopened, vacated, set aside or overturned on appeal. Thus, even the "chosen few" detailed above would still not have access to this information if an affected individual made a request to remove it from CCAP.

The revised AB 340 appears to have eliminated the requirement that all users must register with the Director of State Courts and pay a $10 fee. However, still intact in the amended bill is the requirement that a person who has been denied employment, housing, or a public accomodation, be informed that said decision was made after reviewing information contained on CCAP. The intentional failure to comply with this section could result in a $1,000 fine.

The revised AB 340 is not an improvement over its predecessor. Yes, I guess it does allow a select few to access most of the information currently contained on CCAP but what about those individuals who are not included? Landlords, employers, moms and dads, and everyone else excluded from accessing the info on the "real CCAP" are still being prevented from using CCAP to obtain information that falls under Wisconsn's open records law.

I wonder just how much time Rep. Schneider and his staff spent drafting the revised AB 340? Since the revised version still ignores Wisconsin's open records law and still hinders a landlord's ability to properly - and legally - screen a prospective renter, I hope that they didn't spend too much time on it because I still don't think it will pass.

What are your thoughts about this revised version of AB 340? Let me know your thoughts by sending a "comment."

UPDATE ON AB-340 (CCAP BILL)

As many of you know a public hearing was held on AB340 - the proposed bill by Rep. Marlin Schneider that would restrict who can use CCAP and what information would be contained on CCAP -- at the State Capitol in Madison last week.

Several board members from the AASEW (Dave Ohrmundt and Richard Bishop) and the head of Milwaukee RING (Brian Fleming) attended the hearing to make sure that landlords' voices were heard. We appreciate you guys taking the time out of your busy schedules to attend.

A fellow landlord-tenant law blogger from the Wausau area (Dr. Rent a/k/a John Fischer) also attended the public hearing and even testified wrote a recent blog post on the bill and the hearing that gives you his views on the proposed bill and what his thoughts are regarding if it will succeed. Dr. Rent writes a great blog and if you enjoy my blog you should also sign up for his blog.

Arguments were presented both for and against the propsoed legislation. On a practical level I thought it was very telling the the director of state courts (who under the proposed bill would be in charge of registering CCAP users and monitoring their searches) felt that the cost and time involved would be a huge undertaking. It might have been a good idea for the bills' sponsors to have spoken with the director of state courts and attempted to get him on their side prior to the public hearing.

Two recent articles written about the hearing and AB340 in general were published. The Milwaukee Journal Sentinel wrote an article on the hearing and the Racine Journal Times also had a good piece on the proposed legislation. Columnist, Patrick McIlheran, of the Journal Sentinel also wrote a recent piece on Schneider's proposed CCAP bill.

The Wisconsin State Journal also published an editorial regarding AB-340.

I was also interviewed for an article by the Wisconsin Law Journal about the proposed CCAP legislation. This article does not focus on how AB340 will affect landlords but rather how it might affect lawyers ability to screen their own clients and related issues.

Public Hearing on AB 340 (Proposal to Restrict CCAP Access and Information) to Be Held on October 1, 2009 in Madison

For those of you following my blog, you are well aware of my thoughts on State Rep. Marlin Schneider's new legislative proposal to restrict access to and limiting information contained on CCAP (Consolidated Cort Automation Programs). Schneider's proposed legislation is referred to as AB (Assembly Bill) 340.

In fact, Patrick McIlheran of the Milwaukee Jornal Sentinel just wrote an article that addressed how AB 340 will hurt landlords.

AB 340 is currently in the Committee on Criminal Justice and that committee has just announced that a public hearing on AB 340 will be held on Thursday, October 1, 2009, at 10:15 am at 328 Northwest of the State Capitol Building in Madison.

If you can attend this hearing please consider doing so. If you are unable to attend then please be sure and voice your opinion on this proposal to your state representative and/or senator and the members of the Committe on Criminal Justice.

We landlords will be at a great loss if we lose our access to CCAP or are only able to receive certain information from CCAP.

WTMJ News Radio Discusses Proposed Legislation That Will Restrict Access To and Limit Information Contained on CCAP on Charlie Sykes Radio Show

Thursday, September 17, 2009 was quite a good PR day for landlords. Not only did the Milwaukee Journal Sentinel commentator Pat McIlheran publish a very good article criticizing the state and the city of Milwaukee for not treating landlords like second class citizens but later that same morning Charlie Sykes spent a good amount of time discussing something near and dear to a landlord's heart -- CCAP

Sykes spent a large portion of his final hour discussing State. Rep. Marlin's Schneider's latest attempt to restrict access to CCAP and to limit the information contained on CCAP.

If you would like to listen to or download the podcast of Sykes' discussion of this topic click here and then click on the entry entitled "Sykes Show part 3 - Thursday 9/17/09"

"Landlords Feel The Loathing" - Accurate Article On Landlords' Plight Published in Milwaukee Journal-Sentinel Today

Several weeks ago I received a telephone call from Journal Sentinel reporter Patrick McIlheran. Mr. McIlheran told me that someone had referred him to my blog and after reading some of the posts that he wanted to speak with me as he was in the process of putting together a piece about how the state and the city seem to make the business of landlording more and more difficult. I was more than happy to assist Mr. McIlheran as this topic comes up regularly during my interactions with clients, and at the the Apartment Association of Southeastern Wisconsin meeting. Truth be told, most business - not just rental property owners - wonder why the city makes doing business here so difficult and unappealing.

After speaking with Mr. McIlheran, I referred him to a colleague of mine, Tim Ballering, owner of Affordable Rental Associates, LLC and past president of the AASEW. Tim owns and manages hundreds of units in Milwaukee and has been a landlord almost as long as I have been alive (just kidding Tim ; ). It goes without saying that Tim could give Mr. McIlheran some necessary background and perspective that I could not.

Mr. McIlheran's piece entitled "Landlords Feel The Loating" was published in today's paper. You can also read it online at JSOnline.

It is a very good article. Please be sure to take the time to read the article and to email or call Mr. McIlheran and thank him for taking the time to present an accurate story on landlord's present plight. In light of the soon to be proposed Milwaukee ordinance that will require landlords to submit to mandatory inspections of the interior of their rental units, Ms. McIlheran's article could not be more timely.

AASEW's Response to Rep. Schneider's CCAP Legislation Can Be Found at www.DefeatAB340.org

For those of you that have been following my blog, you are well aware that State Rep. Marlin Schneider (D-Wisconsin Rapids) has introduced yet another bill attempting to restrict the public's access to CCAP. This new bill also will remove certain information from even being included on CCAP. My prior blogs on this topic can be read here, here and here.

The Apartment Association of Southeastern Wisconsin (AASEW), a collection of landlords and rental property managers, are strongly opposed to Schenider's new bill which is entitled AB 340, and have decided to do something about it. The AASEW has created a web page that can be found at www.DefeatAB340.org or by clicking here, which contains links to the actual bill as well as links to your state senators and representative so that you can contact them and convey your displeasure with this bill.

Please visit the AASEW's web page and consider contacting your elected officials to express your views as to AB 340. You should also forward the link to anyone and everyone you know that may be affected by this legislation.

If passed, this bill will affect more than just landlords. Parents, employers, day care providers and more, will be unable to use CCAP without paying an annual fee and having their CCAP searches recorded by the state. Additionally, you will be unable to learn whether a person has been charged with a crime, found liable in a civil lawsuit, or had an eviction action filed against them - until after the case has been resolved, which is often months or years after the action was filed.

The bill will also allow a person who has information contained on CCAP but which did not result in a convictions or judgment (even if this was the result of a stipulated dismissal) to remove all reference to that information from CCAP. The concept of open records will be hurt severly should AB 340 pass.

Please do your part to insure that AB340 fails.