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Teague v. Schimel

Supreme Court of Wisconsin

June 8, 2017

Dennis A. Teague, Plaintiff-Appellant-Petitioner,
v.
Brad D. Schimel, Walt Neverman, Dennis Fortunato and Brian O'Keefe, Defendants-Respondents. Linda Colvin and Curtis Williams, Intervening Plaintiffs-Appellants-Petitioners,

          Submitted on Briefs: November 9, 2016

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 367 Wis.2d 547, 877 N.W.2d 379');">877 N.W.2d 379 PDC No: 2016 WI.App. 20 - Published

         REVIEW of a decision of the Court of Appeals. Reversed.

         Circuit Court Dane County L.C. No. 2010CV2306 Juan B. Colas Justices Judge

          For the plaintiffs-appellants-petitioners, there were briefs by Jeffery R. Myer, Sheila Sullivan, and Legal Action of Wisconsin, Inc., Milwaukee, and an oral argument by Jeffery R. Myer.

          For the defendants-respondents, there was a brief filed by and an oral argument by Daniel P. Lennington, deputy solicitor general, with whom on the brief was Misha Tseytlin, solicitor general, and Brad D. Schimel, attorney general.

          ABRAHAMSON, J. writes separately, joined by A.W. BRADLEY, J. GABLEMAN, J. concurs, joined by ROGGENSACK, C.J. ZIEGLER, J. dissents

          DANIEL KELLY, J.

         ¶1 The Wisconsin Department of Justice ("DOJ") has a policy and practice of creating and disseminating criminal history reports in a manner that, at times, indicates that some individuals who are wholly innocent of any criminal activity have a criminal history. The DOJ is aware its policy and practice can have this effect. There is, however, no procedure by which an affected individual can stop the creation and dissemination of these reports. Petitioners say this occurs because the DOJ does not, before releasing the reports, balance the public's interest in disclosure against the public interest in nondisclosure.[1] They also say the DOJ refuses to correct its records pursuant to Wis.Stat. § 19.70 (2015-16), [2] which results in the deprivation of their constitutionally-protected due process rights, as well as their right to the equal protection of the laws.[3]

         I. Background

         A. The DOJ Database

         ¶2 The DOJ maintains a massive, and growing, centralized criminal history database that contains and tracks information about people who have come into contact with Wisconsin's criminal justice system (the "Database"). According to the DOJ's website, the Database "contains detailed information of arrests, arrest charges, prosecution, court findings, sentences, and state correctional system admissions and releases."[4] The Database "is an accumulation of information submitted by Wisconsin law enforcement agencies, prosecutors, courts, and the Wisconsin Department of Corrections as required by applicable statutes." The DOJ has a statutory mandate to gather, store, and curate this information: "[The DOJ] shall: (a) Obtain and file fingerprints, descriptions, photographs and any other available identifying data on persons who have been arrested or taken into custody in this state . . . ." Wis.Stat. § 165.83(2).

         ¶3 As of July 11, 2016, the Database contained criminal records on almost 1.5 million people. Each record is keyed to an individual's fingerprint. The record also contains a "master name, " which is the name the person gave upon his or her first contact with the criminal justice system. Any name thereafter associated with that person is listed as an alias on the record. The record may also contain a picture of the individual, a physical description, any birth dates supplied by the subject, and known residences. We will refer to all the information associated with a record as the "Personal Information."

         ¶4 The Database has many uses critical to the security of Wisconsin's residents, one of which is assisting members of the public in discovering whether a given individual has a criminal history. Such knowledge can be valuable to, for example, employers, organizations serving children (or other vulnerable populations), landlords, and others.[5] To determine whether an individual has such a history, a person submits a request for a criminal history record search to the DOJ, which can be done by mail or online through the Wisconsin Online Record Check System ("WORCS").

         ¶5 The DOJ's records system can perform two types of searches for criminal histories. The first is fingerprint-based and requires submission of a full set of fingerprints for the subject in whom the requester is interested. The second type is name-based and requires only the subject's first and last name and date of birth (although additional Personal Information can be submitted as well). The DOJ's website describes name-based searches as "quicker, cheaper, and easier than fingerprint-based searches . . . ."[6]

         ¶6 Although a person may request a criminal history check online, the process is not entirely automated. The DOJ's computer system compares the information provided by the requester against the nearly 1.5 million records in the Database. With respect to name-based searches, the system employs a sophisticated algorithm to score how closely the provided information relates to the records in the Database. If the score falls below a certain threshold, the DOJ sends the requester a "no record" response, indicating the Database contains no information about the subject of the inquiry. If the score is sufficiently high, the identified records are automatically sent to the requester. If the score falls in between, then one of nineteen DOJ employees must make a judgment as to whether the search has identified information potentially responsive to the request. We will refer to the DOJ's named-based record search process as the "Criminal History Search."

         ¶7 The information the DOJ provides to the requester in response to a Criminal History Search request is unreliable, something the DOJ readily admits. Its website warns that "[b]ecause name-based searches are based on non-unique identifying data, such as name and date of birth, they are less reliable than fingerprint-based checks." In the webpage entitled "Background Check & Criminal History Information, " the DOJ acknowledges that "[i]n some cases, a name-based check may pull up a criminal record that does not belong to the subject of the search."

         ¶8 The WORCS training material also notes the unreliability of a Criminal History Search. Part of that material illustrates how to request a Criminal History Search with a series of captured screen images. Towards the end of a typical transaction, after the person has entered information related to the subject and paid the required fee, a screen appears with certain disclaimers displayed in a small font, amongst which is the following:

Printed below these explanations is a Wisconsin arrest record that has been identified as a possible match to the identifying data you provided.
A [sic] arrest search based only on name, date of birth, and other identifying data that is not unique to a particular person (like "sex" or "race") may result in:
1. Identification of arrest records for multiple persons as potential matches for the identifying data submitted, or
2. Identification of a [sic] arrest record belonging to a person whose identifying information is similar in some way to the identifying data that was submitted to be searched, but is not the same person whose identifying data was submitted for searching.
The Crime Information Bureau (CIB) therefore cannot guarantee that the arrest record below pertains to the person in whom you are interested.
* * *
The arrest reported below is linked by fingerprints to the name appearing directly after these explanatory sections, following the label "IDENTIFICATION." That name is the name that was provided by the fingerprinted person the first time his or her fingerprints were submitted to CIB; it may or may not be the real name of the fingerprinted person. That name is called the "Master Name" in these explanatory sections.[7]

         ¶9 The DOJ's instructions on how to read a criminal record also testify to the unreliability of the information returned by the search.[8] They admonish the requester "not just [to] assume that a criminal history record pertains to the person whose identifying information was submitted to be searched, " and encourage the requester to "carefully read the entire Wisconsin criminal history record response in order to determine whether the record returned pertains to the person whose identifying information was submitted to be searched." The instructions additionally state that if the subject's name is different from the "Master Name" on the record, then the record "may belong to someone other than the person whose name and other identifying data you submitted for searching." The instructions also say that even if the name submitted is the same as the "Master Name" on the record, the response "may belong to someone other than the person whose name and other identifying data you submitted for searching, " because the "'Master Name' is the name attached to the initial fingerprint submission to [the Crime Information Bureau] that is associated with the reported criminal history, and may have been an alias name."

         ¶10 Notwithstanding the oft-noted unreliability of Criminal History Search requests, the DOJ receives over 900, 000 such requests a year from individuals and organizations outside the law enforcement community. B. The Petitioners

         ¶11 This case is not, however, about any of the nearly 1.5 million people in the DOJ's Database. It is about those who are not. Most immediately, it is about Dennis A. Teague and two others who the Database and its algorithm suggest may have criminal histories. Happily, they do not. Unhappily, they have been unable to get the DOJ's Criminal History Search to stop indicating otherwise.

         ¶12 Mr. Teague's difficulties started when his cousin (an individual to whom we will refer as "ATP") stole his identity (according to Mr. Teague).[9] As a result, the name "Dennis Antonio Teague" was added to ATP's record in the Database as an alias. Since that time, anyone using Mr. Teague's name and birthdate to request a Criminal History Search will receive ATP's criminal history report in response. And this occurs even though the birthdate ATP gave for his "Dennis Antonio Teague" alias is different from Mr. Teague's.

         ¶13 The DOJ recognizes the entirely predictable adverse consequences that come from giving a requester a criminal history report belonging to someone other than the subject of the search. To address this problem, at least in part, the DOJ created a procedure by which individuals may petition for an "innocence letter." To obtain such a letter, a person must submit to the DOJ a challenge form and fingerprint card.[10] The DOJ then performs a fingerprint-based search of the Database and, if no matching records exist, it issues to the individual a notarized letter stating that he had no criminal history as of the date of the letter.[11] Mr. Teague, and more than 400 other people, have received such innocence letters to assist in ameliorating the harmful effects of the information disseminated by the DOJ.

         ¶14 Having successfully established that he is not a criminal, Mr. Teague may provide the innocence letter to potential employers, landlords, or others who he has reason to believe may have requested a Criminal History Search. The letters, of course, will grow stale over time. Every time the actual criminal causes a new entry on the record in the Database, people like Mr. Teague will once again have to establish their innocence by submitting another challenge form and set of fingerprints. There appears to be no mechanism, however, by which an innocent person can know when his criminal doppelgänger does something to make his letter moot. So Mr. Teague may learn his letter has lost its effectiveness through, for example, a denied housing application, a job offer that never comes, or the denial of any of a number of rights or opportunities provided or protected by statute.

         ¶15 The DOJ's current practice is to place the onus for distributing the innocence letters entirely on the innocent person. Although the DOJ creates and maintains the letters, it does not include them when producing criminal histories implicating the subjects of those letters.[12] Thus, when someone requests a criminal background check on Mr. Teague, the DOJ will provide ATP's criminal history (with Mr. Teague's name listed as an alias), but not the innocence letter.

         II. Procedural History

         ¶16 Mr. Teague's complaint[13] alleged that DOJ officials: (I) Failed to properly source and verify information about a record subject in violation of Wis.Stat. § 19.67; (II) Disseminated information about him without first conducting the common-law balancing test; (III) Failed to correct inaccuracies in the information provided to requesters pursuant to Wis.Stat. § 19.365 (now § 19.70); (IV) Violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 1, § 1 of the Wisconsin Constitution; (V) Violated his substantive due process rights under the Fourteenth Amendment to the United States Constitution and Article 1, § 1 of the Wisconsin Constitution; and (VI) Violated his procedural due process rights.

         ¶17 The parties filed opposing motions for summary judgment, following which the circuit court dismissed claims I through IV. The circuit court conducted a bench trial on the substantive and procedural due process claims (V & VI), after which it dismissed the remainder of the complaint.

         ¶18 Mr. Teague appealed the judgment of the circuit court, but presented arguments on only Claims II through VI. The court of appeals, in a published decision, affirmed the circuit court.[14] In doing so, it determined that Wis.Stat. § 19.356(1) prevents judicial review of the DOJ's provision of ATP's criminal history in response to a request for a Criminal History Search on Mr. Teague. The Petitioners timely sought review, and we now reverse.

         III. STANDARD OF REVIEW

         ¶19 The proper application of a statute to undisputed facts generally presents a question of law. Pawlowski v. Am. Family Mut. Ins. Co., 2009 WI 105, ¶16, 322 Wis.2d 21, 777 N.W.2d 67. We review such questions independently of the circuit court and court of appeals, although we benefit from their analyses. Id. Procedural due process challenges present a question of law, which we review de novo. In re Commitment of Sorenson, 2002 WI 78, ¶25, 254 Wis.2d 54, 646 N.W.2d 354.

         IV. ANALYSIS

         ¶20 Petitioners assert that Wis.Stat. § 19.70 requires the DOJ to correct or supplement its record production when it inaccurately ascribes a criminal history to an innocent person. Failure to correct or supplement, they say, violates their right to procedural and substantive due process, as well as their right to the equal protection of the laws.[15] We address the statutory claim first.

         A. Duty to Correct or Supplement

         ¶21 The subject of a public record containing personally identifiable information may, upon discovering an inaccuracy in that record, engage a statutory mechanism to have it corrected. The procedure for doing so is as follows:

(1) Except as provided under sub. (2), [16] an individual or person authorized by the individual may challenge the accuracy of a record containing personally identifiable information pertaining to the individual that is maintained by an authority if the individual is authorized to inspect the record under s. 19.35 (1) (a) or (am) and the individual notifies the authority, in writing, of the challenge. After receiving the notice, the authority shall do one of the following:
(a) Concur with the challenge and correct the information.
(b) Deny the challenge, notify the individual or person authorized by the individual of the denial and allow the individual or person authorized by the individual to file a concise statement setting forth the reasons for the individual's disagreement with the disputed portion of the record. A state authority that denies a challenge shall also notify the individual or person authorized by the individual of the reasons for the denial.

Wis. Stat. § 19.70.[17]

         1. Mr. Teague's requested correction

         ¶22 Mr. Teague wants the DOJ to correct its records, but has not been entirely clear about what form that correction ought to take. After obtaining his innocence letter, he wrote to the DOJ demanding relief under Wis.Stat. § 19.70 (then, Wis.Stat. § 19.365). According to the DOJ letter annexed to the complaint, Mr. Teague had asked the DOJ to remove his name as an alias from the record in the Database containing ATP's criminal history (as distinct from the record created pursuant to a Criminal History Search request).

         ¶23 The body of Mr. Teague's complaint does not clarify what it is he believes needs to be corrected. It alleges the DOJ "has failed to correct the information identified with Dennis A. Teague, " but says nothing about what, precisely, needed correction. The complaint's ad damnum clause demands, in relevant part: (1) a declaration that the DOJ knowingly failed to correct information about Mr. Teague before disseminating it; and (2) an order enjoining the DOJ from its continuing violation of its duty to correct its records. The complaint does not indicate whether Mr. Teague still believes the DOJ should remove his name from ATP's Database record.

         ¶24 In his opening brief here, Mr. Teague appears to modify the correction he is seeking. He says the DOJ can satisfy its obligation to correct the record by (1) not sending ATP's criminal history when someone requests a Criminal History Search on Mr. Teague, or (2) including his innocence letter with any information the DOJ produces in response to a request for a Criminal History Search on Mr. Teague. The brief also acknowledges that he "is not challenging the database or how DOJ keeps records; he challenges the correctness of the report made in response to a request for a criminal history report about him." In his reply brief, Mr. Teague asserts that "[t]he 'record' in § 19.70 is the report, not the database." He then appears to concede that the Database itself is accurate, making his original correction demand moot: "The electronic blips of the database can be accurate because NOT associated with Teague's identifiers, but the report, which makes the association, is inaccurate when printed with Teague's name . . . ." Having thus identified the report as the record in need of correction, as opposed to the information in the Database, he says the DOJ can fulfill its statutory duty to correct or supplement the record by: "(a) correct[ing] the record (the report) by breaking the association to Teague's personal identifiers, or (b) deny[ing] the challenge, inform[ing] the challenger, and allow[ing] supplementation with a 'concise statement setting forth the reasons for the individual's (Teague's) disagreement with the record (the report).'"

         ¶25 In our view, Mr. Teague has waived his initial demand that the DOJ remove his name from the Database's record of ATP's criminal history. That specific request for relief is only suggested in an exhibit to the complaint and appears nowhere in the briefing before this court.[18] The following analysis, therefore, assumes Mr. Teague is arguing that the record at issue in this case is the report created in response to a request for a Criminal History Search, and that the DOJ has a duty under Wis.Stat. § 19.70(1) to correct or supplement it.

         2. Applicability of Wis.Stat. § 19.70

         ¶26 The threshold question is whether the report containing ATP's criminal history is a "record" subject to correction pursuant to the terms of Wis.Stat. § 19.70 when produced in response to a request for a Criminal History Search on Mr. Teague. Our statutes say a "record" is "any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority." Wis.Stat. § 19.32(2) (emphasis added). An "authority" is "any of the following having custody of a record: a state or local . . . department . . . ." Wis.Stat. § 19.32(1).

         ¶27 Depending on how the requester submitted the request for a Criminal History Search, the response will be either "written" material or "electronically generated" information. Either way, the report is created by the DOJ, which is an "authority." And the report was in the DOJ's custody, at least until forwarded to the requester. Thus, ATP's criminal history report is a record.

         ¶28 Mr. Teague may therefore challenge the accuracy of the report if it "contain[s] personally identifiable information pertaining to [him] that is maintained by an authority if the individual is authorized to inspect the record under s. 19.35 (1) (a) or (am) . . . ." Wis.Stat. § 19.70(1). The DOJ maintains the information in the report, and Mr. Teague may inspect it as readily as those requesting the Criminal History Searches, [19] so the only real question is whether the report contains "personally identifiable information" pertaining to Mr. Teague. A name is a piece of personally identifiable information. Wis.Stat. § 19.62(5) ("'Personally identifiable information' means information that can be associated with a particular individual through one or more identifiers or other information or circumstances."). Thus, because the report lists Mr. Teague's name as an alias, it contains personally identifiable information pertaining to him.

         ¶29 If there were any doubt about this conclusion, the DOJ's own actions, if not its arguments, would remove it. The DOJ says ATP's criminal history report does not fall within the purview of Wis.Stat. § 19.70 because, even though it acknowledges the record contains Mr. Teague's name, "the record itself does not 'pertain' to Teague." That, of course, is not the standard. Section 19.70 merely requires that the record "contain" personally identifiable information pertaining to him. The entire record need not do so. Even if the entire record must pertain to Mr. Teague, the DOJ's actions demonstrate that it believes it does. This case exists only because, in providing ATP's record of criminal activity to someone requesting a Criminal History Search on Mr. Teague, the DOJ thought it was producing a record pertaining to Mr. Teague.[20]And that, as we describe below, is ultimately what makes the report inaccurate. 3. Inaccuracy of the Report

         ¶30 The DOJ says there is nothing to correct because the report it produces when a person requests a Criminal History Search on Mr. Teague is perfectly accurate: "[A] search for the name of 'Dennis Antonio Teague' along with a date of birth will accurately return a criminal record associated with that name." It also asserts that "DOJ's report is an accurate reflection of what information DOJ matched to the information provided by a requester." This is all true, as far as it goes. But it does not go far enough to account for the relationship between what a requester seeks when asking for a Criminal History Search, and the information the DOJ produces in response.

         ¶31 The DOJ misunderstands the question asked by someone requesting a Criminal History Search. It says "[r]equesters are getting exactly what they search for: they are asking whether any criminal records match the information they have." But that is not what requesters are asking. The DOJ's characterization suggests a merely idle curiosity about whether a specific name happens to appear in the Database. What they are actually asking is whether the people whose names they submit have criminal histories.

         ¶32 The DOJ must know this is what requesters are asking. Its own website, forms, and disclaimers indicate they do. For example, the WORCS website says it "is designed for individuals or organizations to submit criminal background checks and retrieve results online."[21] To request a criminal background check by mail, one fills out a form entitled "Wisconsin Criminal History Single Name Record Request." Wisconsin Criminal History Single Name Record Request, Wisconsin Department of Justice (July 2011), https://www.doj.state.wi.us/sites/default/files/ dles/cib-forms/record-check-unit/DJ-LE-250-single.pdf. The "General Instructions" attached to that form say Wisconsin's statutes "provide that any person or entity may request a criminal background check." Id. (emphasis added). They further say one should "[u]se form DJ-LE-250 to request a criminal background check on a single individual" and "form DJ-LE-250A to request background checks on multiple persons." Id. (emphases added). The requesters are, indubitably, asking whether the identified individuals have criminal backgrounds; they are not making abstract inquiries into whether the DOJ's "criminal records match the information they have."

         ¶33 If the DOJ's characterization of the requesters' inquiries were correct, none of its many disclaimers would be needed. The DOJ advises requesters not to "assume that a criminal history record pertains to the person whose identifying information was submitted to be searched." Background Check & Criminal History Information, Wisconsin Department of Justice (last accessed May 25, 2017), https://www.doj.state.wi.us/dles/cib/background-check-criminal-history-information. And it further advises that the record it produces "may belong to someone other than the person whose name and other identifying data you submitted for searching." Id. The website says the DOJ "cannot guarantee that the information furnished pertains to the individual you are interested in." And "[i]n some cases, a name-based check may pull up a criminal record that does not belong to the subject of the search." Id. None of this would be necessary if requesters were simply asking whether the information they submitted appears in the Database. But if the question is whether the identified individual has a criminal history, then these disclaimers make sense because the DOJ knows the information it produces might not relate to that person.

         ¶34 In this case, the DOJ has known ATP's criminal history report does not relate to Mr. Teague ever since it issued Mr. Teague's innocence letter. It necessarily follows that, by continuing to produce that report in response to an inquiry into whether Mr. Teague has a criminal history, it is providing inaccurate information. The DOJ's briefing admits as much, stating that "[t]he record DOJ returns in response to a search for 'Dennis Teague' is a report that contains the name as an alias for ATP, but the record itself does not 'pertain[]' to Teague." Indeed, it does not. And because it does not, providing ATP's criminal history in response to a Criminal History Search on Mr. Teague makes the report an inaccurate record by the DOJ's own admission.

         ¶35 It is not the information in ATP's criminal history report, however, that is inaccurate. The inaccuracy arises when the DOJ provides that report to someone asking whether Mr. Teague has a criminal history. It is the DOJ itself that is affirmatively creating the inaccuracy, and Mr. Teague has successfully demonstrated that Wis.Stat. § 19.70 entitles him to have this inaccuracy corrected. Because the genesis of the inaccuracy is the DOJ's provision of the record to the requester, corrections under § 19.70 will likely never have anything more than a retroactive effect. Consequently, we next address whether the DOJ's policy and practice violate Mr. Teague's due process rights, which holds out the possibility of prospective relief.[22]

         B. Procedural Due Process

         ¶36 Mr. Teague says the DOJ deprives him of his right to due process of law when it provides ATP's criminal history report in response to a Criminal History Search request on his name. The problem Mr. Teague identifies here is more than simply the inaccuracy the DOJ creates when it ascribes ATP's criminal history to him (however subject to caveats the ascription might be). It is that the DOJ has a policy and practice that it knows will predictably, consistently, and inaccurately suggest Mr. Teague has a criminal history, and there is no procedure by which he can stop this. Our constitutions, he argues, entitle him to at least some minimal quantum of process by which to contest the DOJ's policy and practice.

         ¶37 The United States Constitution provides, in relevant part, that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. We can trace the roots of the "due process" guarantee back to clause 39 of the Magna Carta, which proclaimed that "No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land." It is from the phrase "law of the land" that we derive the "due process" obligation: "The words, 'due process of law, ' were undoubtedly intended to convey the same meaning as the words, 'by the law of the land, ' in Magna Carta. Lord Coke, in his commentary on those words, says they mean due process of law." Murray's Lessee v. Hoboken Land & Imp. Co, 59 U.S. 272, 276 (1855) (citations omitted). We find the same in the Northwest Ordinance of 1787, which promises "[n]o man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land."[23] And we understand the Wisconsin Constitution as promising due process of law under this formulation: "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness." Wis. Const. art. I, § 1; Blake v. Jossart, 2016 WI 57, ¶28, 370 Wis.2d 1, 884 N.W.2d 484, cert denied, 2017 WL 69276 (U.S. Jan. 9, 2017) (We "treat[] these provisions of the United States and Wisconsin Constitutions as consistent with each other in their due process and equal protection guarantees.").

         ¶38 Yet not all governmental enactments or policies are the "law of the land" within the meaning of this concept:

[C]an a State make any thing due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of State legislation.

Davidson v. City of New Orleans, 96 U.S. 97, 102 (1877). It is not just legislative activity that is subject to due process/"law of the land" scrutiny. Executive and judicial functions must comport with that requirement as well. "The article [the due process clause] is a restraint on the legislative as well as on the executive and judicial powers of the government . . . ." Murray's Lessee, 59 U.S. at 276.

         ¶39 In its most basic sense, procedural due process is the requirement that the government provide notice and an opportunity to be heard when its actions will cause the loss of a protected interest. Simon v. Craft, 182 U.S. 427, 436 (1901) ("The essential elements of due process of law are notice and opportunity to defend."); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950) ("Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.").

         ¶40 The focus here is on procedural safeguards, not on whether the State has the authority to take the action under review: "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1990). This constitutional guarantee protects an individual from the erroneous exercise of the State's authority. "Procedural due process rules are meant to protect persons . . . from the mistaken or unjustified deprivation of life, liberty, or property." Carey v. Piphus, 435 U.S. 247, 259 (1978). "Such rules 'minimize substantively unfair or mistaken deprivations of' life, liberty, or property by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests." Id. at 259-60.

         ¶41 We use a two-step process in evaluating due process claims. First, we determine whether the claimant has identified an interest protected by the Due Process Clause (life, liberty, or property). Aicher v. Wis. Patients Comp. Fund, 2000 WI 98, ¶80, 237 Wis.2d 99, 613 N.W.2d 849. Second, we consider whether the procedural safeguards (if any) adequately protect the identified interest. Id.

         1. Protected Interest

         ¶42 Mr. Teague has asserted an interest in his good name and reputation. There is no doubt that these are assets of great value. And it is a welcome commonplace that people typically conduct their lives in a manner calculated to preserve those interests. Ascribing criminal activity to an innocent person, however, demeans those assets. Indeed, it is so clearly injurious that doing so constitutes libel per se. "This is elementary: Any malicious publication, by printing or writing, or by signs or pictures, which accuses a person of a crime, blackens his character, or tends to expose him to public ridicule, contempt or hatred, is libelous . . . ." Downer v. Tubbs, 152 Wis. 177, 180, 139 N.W. 820 (1913) (internal marks and citations omitted); Paul v. Davis, 424 U.S. 693, 697 (1976) ("Imputing criminal behavior to an individual is generally considered defamatory Per se, and actionable without proof of special damages."); Converters Equip. Corp. v. Condes Corp., 80 Wis.2d 257, 263, 258 N.W.2d 712 (1977) ("A statement is also defamatory if, in its natural and ordinary sense, it imputes to the person charged commission of a criminal act."); Scofield v. Milwaukee Free Press, 126 Wis. 81, 87-88, 105 N.W. 227 (1905) ("Written words which subject plaintiff to disgrace or ridicule are actionable per se.").[24]

         a. Defamation

         ¶43 Every time the DOJ provides ATP's criminal history in response to a Criminal History Search on Mr. Teague, it is inaccurately suggesting that Mr. Teague has a criminal history when, in fact, he does not. The impression this creates on the requester is open to debate. It may be that he arrives at a definite conclusion that Mr. Teague has a criminal history. Or he may simply presume that he does. The only conclusion the report does not foster is the accurate one: Mr. Teague has no criminal history. Thus, when the DOJ provides ATP's criminal history to those inquiring into Mr. Teague's background, it necessarily raises the specter of criminality in the requester's mind.

         ¶44 A contrary conclusion would be unreasonable. A requester seeks a background check from the DOJ because he believes he will receive useful information in response.[25] When he receives ATP's criminal history, listing Mr. Teague's name as an alias, there is nothing in the package that tells him the crimes were not committed by Mr. Teague. According to the DOJ, one cannot even tell from the report whether ATP is an alias used by Mr. Teague, or if Dennis Teague is an alias used by ATP.[26] Nor is there anything in the report to suggest they are two different people. So unless the requester knows Mr. Teague well enough to discount the information in the report, the DOJ has necessarily created a presumption that Mr. Teague has a criminal record.

         ¶45 In its discussion of the innocence letters, the DOJ essentially admits that its reports will create at least a presumption of criminality. In describing the utility of those documents, it says "[y]ou can use this letter to prove to prospective employers or others that the criminal history . . . does not belong to you." There would be no need to prove such a thing if the DOJ had not first created the presumption of criminality with its report.

         ¶46 The DOJ does not ameliorate in any meaningful sense the effect of this inaccurate suggestion of criminality by supplying disclaimers along with its imputation of criminal behavior, or by advising requesters that the report may not relate to the subject of the request. Such hedging does not negate the defamation:

It is true that the letters contained words such as "apparently" and "appear to be." This changes nothing. The authorities agree that communications are not made nondefamatory as a matter of law merely because they are phrased as opinions, suspicions or beliefs. As this court has held: "One may be libeled by implication and innuendo quite as easily as by direct affirmation."

Converters Equipment Corp., 80 Wis.2d 257, 263-64, 258 N.W.2d 712 (1977) (quoting Frinzi v. Hanson, 30 Wis.2d 271, 277, 140 N.W.2d 259 (1966)). Further, the DOJ provides these disclaimers with all criminal background reports. They are not keyed to the DOJ's level of confidence in the accuracy of the match between the report and the subject of the request. Thus, when the DOJ ascribes ATP's criminality to Mr. Teague, it provides the same disclaimers as it would if it were providing ATP's criminal history to someone requesting a Criminal History Search on ATP himself.[27] That is to say, the disclaimers are unrelated to the specific report the DOJ provides the requester. It is no wonder the disclaimers simply fade into the background, as one of Mr. Teague's witnesses testified.[28]

         ¶47 Further, a person requesting a Criminal History Search would quite reasonably interpret the DOJ's disclaimers in the context of its actions. Notwithstanding the caveats, the simple act of supplying a criminal history report in response to a Criminal History Search carries with it an expression of some level of confidence that the report is more than a random compilation of information in the Database. It is a representation that the DOJ believes the report it produces has some relation to the subject of the request. If it believed the report did not relate to Mr. Teague, presumably the DOJ would not produce it. It is not unreasonable for the requester, who may know no more about the subject of the request than the DOJ, and who has no access to the DOJ's search algorithm, to mirror the DOJ's belief.

         ¶48 The circuit court addressed the defamatory nature of the DOJ reports in a context slightly different from our analysis in its findings of facts and conclusions of law. It appears to have concentrated on the accuracy of the information in the report, without reaching the relationship between what the requester sought and the DOJ provided.[29] In that context, its conclusion was reasonable:

The criminal history responses issued by the Department in response to name-based queries using the plaintiff's names and dates of birth could be much improved but they are not defamatory. They are not literally false and when taken as a whole and fairly and reasonably read do not convey a false and defamatory meaning to their intended audience (the public making a records request).

         ¶49 However, requesters are not simply asking whether a certain name appears in the Database. They are asking whether the subject of the request has a criminal history. And when the DOJ produces a criminal history that belongs to someone other than the subject of the request, its response is literally false, and can be understood in no other way than to create the presumption that the subject is a criminal, when in fact he is not. Therefore, because the report falsely ascribes criminality to an innocent person, the response conveys a defamatory meaning to the intended audience. To the extent the circuit court's finding of fact is inconsistent with this conclusion, it was clearly erroneous.[30]

         b. "Stigma Plus"

         ¶50 Notwithstanding their undeniable intrinsic value, one's good name and reputation do not automatically receive procedural safeguards under the Due Process Clause. Governmental defamation triggers the Due Process Clause only when the defamation also harms a more tangible "liberty" or "property" interest.

         ¶51 Several decades ago, the United States Supreme Court considered whether a person labeled as a drunkard by her local police department was entitled to some process by which she might challenge the department's actions. Wisconsin v. Constantineau, 400 U.S. 433 (1971). While recognizing that not all governmental action will implicate the due process clause, the court recognized that "certainly where the State attaches 'a badge of infamy' to the citizen, due process comes into play." Id., 400 U.S. at 437. In such circumstances, "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. (emphasis added). Such procedural protections lie at the root of the rule of law: "It is significant that most of the provisions of the Bill of Rights are procedural, for it is procedure that marks much of the difference between rule by law and rule by fiat." Id. at 436.

         ¶52 Constantineau would seem to extend procedural due process protections to a person's reputation. However, within just a few years, the United States Supreme Court read Constantineau as primarily focused on the right affected by the government's defamation, not the defamation itself. Paul, 424 U.S. 693. In Constantineau, the police interfered with Ms. Constantineau's right to purchase alcoholic beverages by posting a notice prohibiting liquor stores from selling such beverages to her. Constantineau, the Paul Court said, required procedural safeguards because of her liberty interest in buying alcohol. Her reputation, alone, did not engage the procedural protections of the Due Process Clause:

While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause.

Paul, 424 U.S. at 701. We have followed suit. Weber v. City of Cedarburg, 129 Wis.2d 57, 73, 384 N.W.2d 333 (1986) (citing Paul, 424 U.S. at 701) ("Reputation by itself is neither liberty nor property within the meaning of the due process clause of the fourteenth amendment. Therefore, injury to reputation alone is not protected by the Constitution.").

         ¶53 Paul established what has come to be known as the "stigma-plus" test. This doctrine provides that a government-imposed "badge of infamy" must be accompanied by a more tangible interference with a "liberty" or "property" interest before it will implicate the Due Process Clause.

It is apparent from our decisions that there exists a variety of interests which are difficult of definition but are nevertheless comprehended within the meaning of either "liberty" or "property" as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law, and we have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status.

Paul, 424 U.S. at 710-11.

         ¶54 Not all consequences of government defamation receive consideration in the stigma-plus analysis. Those that are the natural result of a damaged reputation do not count towards the "plus" portion of the test for impaired liberty interests.

[T]he deleterious effects which flow directly from a sullied reputation would normally also be insufficient [to establish damage to a liberty interest]. These would normally include the impact that defamation might have on job prospects, or, for that matter, romantic aspirations, friendships, self-esteem, or any other typical consequence of a bad reputation. When the Supreme Court stated in Paul v. Davis that injury to reputation was not by itself a deprivation of a liberty interest, we presume that the Court included the normal repercussions of a poor reputation within that characterization.

Valmonte v. Bane, 8 F.3d 992');">18 F.3d 992, 1001 (2d Cir. 1994).

         ¶55 Thus, to establish a procedural due process violation relating to one's reputation, one must demonstrate (1) a stigma created by government action, and (2) "a right or status previously recognized by state law [that] was distinctly altered or extinguished." Paul, 424 U.S. at 711. Mr. Teague has been stigmatized, and remains at risk of further stigmatization, by the DOJ's policy and practice of providing ATP's criminal history to those who request a Criminal History Search on him. Whether Mr. Teague has a good due process claim depends, therefore, on whether the stigma altered or extinguished a right or status founded in state law.

         ¶56 The rights and statuses that rise to the level of "liberty" interests are not susceptible of exhaustive recitation, or easy definition.[31] "In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed." Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) . "Broad" is certainly an apt description, given how the United States Supreme Court once illustrated the liberty protected by the Due Process Clause:

Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

         ¶57 Because the DOJ will provide ATP's criminal history in response to, quite literally, anyone in the world who requests a Criminal History Search on Mr. Teague, the full scope of potential harm it creates in doing so is difficult to quantify. Certainly, employment and housing opportunities could be adversely impacted. But beyond the effect of inaccurate criminal history reports on the economic relationships between members of the public, our statutes and regulations either allow or require a Criminal History Search as a condition to accessing many benefits, rights, and opportunities. Thus, for example, a false criminal history report can burden or foreclose rights or opportunities for the following:

• Physicians. Wis.Stat. § 448.980 (criminal background check required by Interstate Medical Licensure Compact);
• Applicants for kinship care, kinship care relatives, and long-term kinship care relatives. Wis. Admin. Code. DCF § 58.04 (criminal background check required as condition to providing such services);
• All employees, including contractors, who work at private schools participating in the Special Needs Scholarship Program. Wis. Admin. Code. PI § 49.03 (criminal background check required as condition to providing such services);
• Qualified paraprofessionals in the insurance industry. Wis. Admin. Code. Ins. § 3.36 (criminal background check required as condition to providing such services);
• Anyone working in a "shelter care facility." Wis. Admin. Code. DCF § 59.04 (criminal background check required as condition to providing such services);
• Everyone working at "Mental Health Day Treatment Services for Children." Wis. Admin. Code. DHS § 40.06 (criminal background check required as condition to providing such services);
• All employees at "residential care apartment complexes." Wis. Admin. Code. DHS § 89.23 (criminal background check required as condition to ...

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