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Expunction changes up for debate

The Wisconsin Supreme Court has agreed to take up expunction in certain criminal cases – a topic at least one legislator has sought to address in the current session.

The court in December voted to take up State v. Matasek, which asks whether a judge can defer a decision to expunge a defendant’s criminal record until after that defendant has successfully completed his or her probation.

The case centers on Andrew Matasek, who was sentenced in January 2012 to three years of probation after pleading no contest in Ozaukee County to the manufacturing or delivery of marijuana. His lawyer, Steven Kohn of Kohn Smith Roth, Milwaukee, asked then Circuit Judge Tom Wolfgram to defer the expunction decision. The judge denied the request.

The Court of Appeals upheld Wolfgram’s decision in April, saying “the core of his complaint is actually that it would be better public policy” instead of a sound legal argument, and that “Matasek should direct his policy arguments to the legislature, not to this court.”

The Wisconsin Legislature last took up the issue in 2009, when it expanded expunction options for defendants age 25 and under to include those who committed misdemeanors or certain felonies.

Jeffrey Guerard of Ahmad & Guerard LLP in Milwaukee who represents Mataske for the appeal, said “in a purely policy sense, [allowing judges to decide expunction after the defendant’s sentence is complete] puts circuit courts in much a better position to determine whether [expunction] is appropriate.”

“A lot of circuit courts say ‘I’m not ready to do this. Wait until we come back,’” Guerard added.

Oral arguments before the state Supreme Court are set for Feb. 20. Guerard filed his brief Dec. 23.

This is not the first time the state’s high court has considered changes to the expunction process. The justices heard arguments in February 2010 on a rule petition that sought to make it clear to judges how and when they can order records to be expunged; including when charges are dropped or a defendant is not convicted. But that rule petition never was approved.

David Schultz, a criminal law professor at the University of Wisconsin Law School and a member of the Wisconsin Judicial Council, said he did not know why the court decided to take up this recent case. But he said the case comes at a time where many judges say they want to make an expunction decision after sentencing, instead of before.

“You can put yourself in that position of the judge,” Schultz said. “In some cases, I suppose it’s clear someone deserves this benefit at the beginning, but in a large number of cases you want to see what happens.”

The court’s decision to take up this case comes at a time when at least one legislator intends to introduce a bill that would essentially do the same thing. The bill, sponsored by state Reps. Evan Goyke, D-Milwaukee, and Nick Milroy, D-South Range, is expected to be introduced in January.

Goyke earlier this year proposed limiting public access to the Wisconsin Circuit Court Access website – commonly referred to as CCAP, or Consolidated Court Automation Programs – and creating a separate database for certain professionals. That proposal stalled, though, among concerns over how much it would cost and public records issues. The legislator’s new proposal was designed as a replacement option.

“I want to show [the court] that the Legislature cares about this,” Goyke said. “That this is an issue our constituents are talking about.”

He said there has been a change in the tide as far as how both parties view the criminal justice system and how to deal with the expense of keeping someone in prison. That was evidenced, Goyke said, when the state increased money allocated for alternative treatment programs in the most recent budget.

That change may help his bill get support from Republicans, he said.

About Eric Heisig

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