Court: Criminal history checks led to defamation (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court ruled Thursday that the state Department of Justice has been defaming a Milwaukee man by linking him to his cousin’s criminal history in a database used for background checks.

The court found that the agency knows its policy and procedures consistently and inaccurately suggest that Dennis Teague is a criminal. It said the harm Teague faces is difficult to measure, saying the confusion could disqualify Teague for a wide range of jobs and a concealed carry permit.

“Mr. Teague finds himself in a position no Wisconsin citizen ought to occupy,” Justice Dan Kelly wrote for the majority. “This is an entirely unwarranted defamation of someone with no criminal history at all. He and the DOJ both know the DOJ’s Criminal History Search report is going to defame him. Worse, he does not know when and where it will happen, just that it will.”

The justices didn’t offer any guidance on what should be done, instead leaving it to a lower court to find a solution.

DOJ spokesman Johnny Koremenos said in an email that the agency is constantly working to improve the database and has been “evaluating future improvements that will address the concerns announced in today’s fractured decision.” He did not address the merits of the case.

Teague’s attorney, Jeff Myer, told The Associated Press that Teague was able to find a job as a security guard because the background check was based on fingerprints. Still, he called the decision “a huge win” for innocent people in Wisconsin.

“We think innocent people … have earned the right to a clean report. If the department can’t figure out how to do that, then the department needs to stop sending (checks) out until they can fix it. There are going to be huge changes in the way the department sells its criminal history reports.”

The DOJ keeps a database of criminal records on nearly 1.5 million people. Each record is tied to a fingerprint but is also searchable by name. The public can request background checks on people through the database for $7 per request. The DOJ includes disclaimers on its background request website, however, stating the agency can’t guarantee accuracy without fingerprints.

Teague filed a lawsuit in Madison in 2010 arguing that his cousin stole his identity. As a result, background checks on Teague routinely include the cousin’s name as an alias and the cousin’s criminal history.

The DOJ has supplied so-called “innocence letters” to about 400 people, including Teague, stating that they’re not criminals. But Teague argued that the agency has violated his rights to equal protection and due process.

Dane County Circuit Judge Juan Colas dismissed the case and a state appellate court upheld his decision last year.

The Supreme Court, however, ruled 6-1 in Teague’s favor. Providing the cousin’s history in response to a background request on Teague amounts to defamation, with a range of potential harm so vast it’s difficult to quantify, Kelly wrote.

DOJ officials are well aware of the unreliability of background checks conducted only by searching by name, he added. The background check request website is replete with disclaimers warning requestors that unless they can submit fingerprints a name search can be unreliable given aliases, shared names and typos. The innocence letters aren’t sufficient because recipients don’t know where to send them since they don’t know who’s checking on them and the letters can become outdated, the court said.

Teague has asked the DOJ to not send out his cousin’s criminal history when someone requests a background check on Teague or to include his innocence letter with any information on him it releases.

The Supreme Court didn’t order the DOJ to do anything, though, instead sending the case back to Dane County Circuit Court to find a solution. The court’s opinion stated in a footnote that a majority of the justices couldn’t agree on a remedy.

Justices Shirley Abrahamson and Ann Walsh Bradley, the only two liberal-leaning justices on the court, wrote separately, saying the court should order the DOJ to take steps immediately to fix the problem. They said they would leave the solution up to the agency.

Justice Annette Ziegler, the lone dissenter, wrote that she feels sorry for Teague but that declaring the DOJ is defaming him is an overstatement. She doesn’t believe the circuit court wrongly dismissed the case.

She also warned that the ruling could have a chilling effect on the state’s popular public court database, commonly known as CCAP. The system has been dogged by complaints about people misusing the information.