Legal aid lawyers want most eviction court records removed after one year

By: - April 4, 2022 6:00 am
An eviction notice posted on a door as the lock is changed.

An eviction notice posted on a door as the lock is changed. (Stephen Zenner | Getty Images)

Lawyers who represent low-income Wisconsin residents are asking the state Supreme Court to remove most eviction cases from court records after one year.

Landlords use those records to exclude prospective tenants, says Korey Lundin, an attorney with Legal Action of Wisconsin. That happens even if the case is dropped without a court-ordered eviction, he says — which is what happens in more than four out of five cases that are filed, according to data compiled by the Wisconsin Department of Administration.

Legal Action, which provides legal aid in civil cases to low-income people who can’t afford to hire a lawyer, wants the court system to remove the records of those cases that end without a money judgment against the tenant. Cases that result in a court-ordered eviction and restitution would still remain on file for 20 years under the group’s proposal. 

Even though the majority of eviction cases never get that far, “under Wisconsin law it’s explicitly legal for landlords to refuse to rent to anybody if an eviction was filed against them,” Lundin says, regardless of how the case turned out. “Landlords will still use the [court] record to refuse to rent to somebody.”

Lundin and Legal Action have filed a rules petition with the state Supreme Court to revise the court’s current retention rules for court records. If adopted, the proposal would call for removing eviction court records “[one] year after entry of final order or judgment for all eviction cases in which no judgment for money is entered against any party, including contested cases, stipulated dismissals, and default judgments.”

The proposed rule is not directed at the court system’s online records display, but the records themselves. Simply removing a filing from the website display “is not adequate to address our concerns, because the actual court record remains for 20 years,” said Lundin.

“Any eviction record pushes families who rent into substandard housing with more tenuous rental terms because they are forced to choose between housing of last resort and homelessness,” the memo in support of the rule change petition says. 

The memo points to research showing that evictions are disproportionately filed against people of color: “In Wisconsin, the eviction filing rate against Black women is over two times the rate against white renters.” For the prospective tenant, “any whiff of an eviction record impairs a renter’s ability to secure safe and stable housing.”

An attorney representing a Milwaukee-area landlord association says his clients will oppose the proposed Legal Action rule change. “We do not want to see the record retention … reduced to only one year,” says Heiner Giese, the lawyer for the Apartment Association of Southeastern Wisconsin. 

Giese says the landlord’s group did its own one-month study of Milwaukee County eviction cases in December 2019, and its findings did not match the Department of Administration’s records. Out of 1,101 evictions that month, just under 51% of eviction cases were dismissed. More than 42%, however, resulted in a court order evicting the tenant. 

In addition, Giese says, cases in which a tenant did not owe rent when the eviction case was filed “are very, very rare.” Landlords, he says, should be able to know if a person has repeatedly been named in eviction filings, even if that person ultimately paid up, just as repeatedly failing to pay a credit card on time damages a person’s credit rating.

The Legal Action petition acknowledges that Wisconsin’s open records law prizes public access to information. But whether an eviction case is dismissed or results in an order without a money judgment, the public record’s harm to “a renter’s ability to find housing outweighs the arguments for the public having the right to access that court file for two decades,” the petition memo asserts.

Bill Lueders, president of the Wisconsin Freedom of Information Council, says the organization is aware of the petition and plans to discuss it at the organization’s quarterly meeting this month. 

Lueders calls removing court records — rather than just taking them down from the court system’s online portal — “a pretty big step” that had prompted some concern within the council. 

“We are taking this seriously and trying to be open to argument,” Lueders says. “There are legitimate public interests on both sides of this proposal.”

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Erik Gunn
Erik Gunn

Deputy Editor Erik Gunn reports and writes on work and the economy, health policy and related subjects, for the Wisconsin Examiner. He spent 24 years as a freelance writer for Milwaukee Magazine, Isthmus, The Progressive, BNA Inc., and other publications, winning awards for investigative reporting, feature writing, beat coverage, business writing, and commentary. An East Coast native, he previously covered labor for The Milwaukee Journal after reporting for newspapers in upstate New York and northern Illinois. He's a graduate of Beloit College (English Comp.) and the Columbia School of Journalism. Off hours he is the Examiner's resident Springsteen and Jackson Browne fanboy and model railroad nerd.