Wisconsin Supreme Court chambers. (Baylor Spears | Wisconsin Examiner)
The recently flipped Wisconsin Supreme Court met publicly for the first time Thursday, holding a hearing on a petition that would change court rules for how long evictions remain accessible on the state’s court access website.
Since August, the court has been embroiled in controversy as the presence of new Justice Janet Protasiewicz gave liberals a majority for the first time in 15 years. Liberal efforts to change internal rules and exercise control over court administration have resulted in sniping in the press and bitter appearances on right-wing talk radio by conservative justices while Republican lawmakers have threatened to impeach Protasiewicz if she doesn’t recuse herself from challenges to Wisconsin’s gerrymandered voting maps.
Yet on Thursday, as Protasiewicz took the bench for the first time, none of the animosity swirling around the Court was apparent during the hearing as the justices settled into the typical pattern of questioning attorneys presenting their case.
Appearing on the dais for the first time, seated at the far right of the bench next to Justice Brian Hagedorn, Protasiewicz weighed in a few times to ask technical questions about the presenters’ arguments.
The petition to change the rule was brought by Legal Action of Wisconsin, a non-profit law firm that offers civil legal services to low income residents. Under the current rules, the records of an eviction filing remain publicly accessible for 20 years after the case is closed — a length of time that Legal Action’s attorneys said is incredibly burdensome and harmful to renters trying to find housing after an eviction has been filed against them.
In the vast majority of Wisconsin eviction filings, the case is dropped before a court ordered eviction, according to data compiled by the Department of Administration, yet that record remains publicly available and is often used by landlords to refuse a prospective tenant.
The Legal Action petition would keep the records available for one year after the end of the case. This is the second time Legal Action has proposed a change to how long these records are retained. An attempt last year was denied because it would be overly burdensome on the clerks of court across the state who would be responsible for removing the records.
Attorneys for Legal Action and other housing advocates who testified at the hearing argued that landlords often use the court access website to check if a potential tenant has been previously evicted, yet those landlords often don’t distinguish between an eviction filing that has been dismissed by a judge and one that has been granted, or an eviction that occurred because the landlord died or sold the building. A record that continues to be available for 20 years can make it incredibly difficult for someone to access housing, they said, especially in a rental market as tight as Wisconsin’s has gotten in recent years.
Hagedorn asked why the proposed remedy to the harm renters face by having an eviction remain in the record is making court records secret when a prior eviction is “reasonable information” for a landlord to seek out when determining whether or not to rent their property to someone. Legal Action Attorney Korey Lundin said that landlords have other ways of accessing this information, through background checks and credit scores, that is often more informative than the existence of a case file on the court website.
Several other justices asked why the change is something the Court has the authority to do and not a change that must be made legislatively. Lundin said the Supreme Court, as administrator of the state circuit court system and all of its records, has the power to set its own rules for how those records are maintained, though some people testifying said they understood this one fix in the court system can’t fix all of Wisconsin’s housing issues.
“I recognize this body is not in the business of fixing our housing crisis,” said Kristin Slonski, director of advocacy at Wisconsin Judicare, which provides legal aid to residents of northern Wisconsin.
A number of landlords and attorneys representing property owners testified that if the rule change were made, it would actually be worse for renters because landlords would be forced to charge higher rents and security deposits to protect against the risk of not knowing if a tenant has a prior eviction.
Lundin said he didn’t believe that argument, noting it’s exactly the same argument landlords made when the country was passing fair housing laws that prohibited landlords from discriminating against renters based on race.
“It’s an argument the landed interests make every time there is a proposed change,” he said. “I reject the notion that adopting this will harm renters. And if the Court believes there would be some harm, it would be far outweighed by the harm of keeping eviction records for 20 years.”
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