Archive for category CCAP

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@petriestocking.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

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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

 

 

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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.”

 

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CCAP Committee’s Recomendation 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.

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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.

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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 . . .

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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..

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