AASEW responds to Representative Schneider's memo on AB 340

On November 20th Representative Marlin D. Schneider sent the following memo on AB 340, his bill to restrict access to Wisconsin Court records.

His memo is published below in its entirety in black, along with our inline comments in blue

November 20, 2009

Dear Legislators and Staff,

In an effort to help everyone respond to the Apartment Association of Southeast Wisconsin and other landlords across the state regarding my Assembly AB340 I would like to clear up a few misconceptions. AB340 places all convictions out on WCCA, thus the accusation that “Criminals can hide in our Midst” is absolutely false. http://www.defeatab340.org/ Currently, when someone is charged, but not convicted of a crime, it is placed out on WCCA. Once the case has worked its way through the system, the final disposition (conviction) is then placed out on WCCA. Currently, even when a party is found not guilty; charges have been dismissed by the prosecutor; new evidence exonerates a party; or, there is no prosecution- the charge remains on WCCA.

What Mr. Schneider does not wish to understand is pending criminal trials and evictions are an important and legitimate part of screening.

If AB 340 becomes law a tenant who is being evicted can easily obtain new housing before the eviction case is finalized.

Additionally, at least in Milwaukee County, the Courts encourage "stipulated dismissals" rather than stayed writs in cases that the tenant asks for additional days to remain in the property. So even though the tenant "lost" the eviction case future landlords would never know this occurred under AB 340.

Under this bill someone who committed a serious crime could be accepted for housing prior to the conclusion of the criminal case, which can take years. What about applicants who have open criminal arrest warrants? These too would be hidden from the public

Doing some remodeling around your home? Wouldn't you want to know the contractor you were planning on hiring was awaiting trial on charges of theft by contractor or worse? Or the potential babysitter is facing child abuse/ child neglect charges?

So yes, unfortunately if this bill passes “Criminals can hide in our Midst”

AB340 changes the system so the charge is not placed on WCCA until there is a final guilty disposition, or a conviction. Those who are convicted will still have that conviction placed on WCCA. What this means is that people who are not guilty will not be publicly humiliated and discriminated against. It is illegal to use a “charge” that has not been convicted to determine public accommodations, housing, or employment. Yet our housing and employment laws are vague and weak enough that there is very little fear of being prosecuted.

People who have been arrested, charged, or convicted are not members of a protected housing class in Wisconsin, with the exception of Dane County. The Representative improperly states that is "illegal" to use pending criminal charges in determining the suitability of a prospective tenant. It is not. However employers may not use pending charges as part of pre-employment screening

Likewise, people that have had evictions actions filed against them, whether a judgment was taken, or not are also not members of a protected classes - so the use of the term "discriminatory" is incorrect, inflammatory and for the sole purpose of misleading people.

However Representative Schneider had attempted to make criminals a protected housing class statewide in AB 22, a bill he introduced earlier in this session. Would you want the landlord next door to you to be forced to accept a sexual predictor, gang member or drug dealer?

After the public hearing on AB340, my office offered to meet with many of the landlords that were in attendance that day. To date not one housing association member or landlord has come to my office. If the court system is not working for landlords we need to address that issue, however we should not provide a state system that employers and landlords can use to freely discriminate with no fear of prosecution.

The AASEW met with Representative Schneider's after the public hearing on the bill and were told that his office would be in contact with the Association.

Landlords are using WCCA to circumvent the court system. The landlord files an eviction motion and that charge of eviction is placed out on WCCA. The landlord does not want to wait for a court date, he simply wants to get this renter out and rent the property again. In order to avoid waiting for the court date, the landlord offers the party’s security deposit back in exchange for moving out. Then, the party moves out of the property, and the landlord rents the property again. However, the motion for eviction remains on WCCA. Many landlords use WCCA to determine eligibility for housing and equate the motion for eviction as a guilty disposition; refusing to rent to parties with a motion for eviction on WCCA. If the landlord chooses to settle the business privately, and is unwilling to wait the period of time to take the case to court to get a guilty disposition, the Wisconsin Court System should not be providing a state funded discriminatory website to help landlords circumvent the system.

This argument is illogical. "Cash for Keys" is a means some owners use to avoid paying the $135 it costs to file an eviction and have it served. Once you have incurred those costs, there is little motivation to offer the tenant money.

Would you rent to someone who was so bad their prior landlord had to pay to get them to leave?

It has been suggested in many articles that eviction cases that settle out of court will leave no public record under AB340. This is not true. Eviction actions typically have a first cause-the eviction itself-and a second or third cause-dealing with damages, back rent, and other financial issues. In many cases, the first cause of action, the eviction portion, is settled by agreement and dismissed, while the second and third causes of action result in money judgments. These second and third cases will not be deleted by AB340, and will appear on WCCA for everyone to view.

Many owners do not follow through with the second and third causes as collections are not probable with lower income tenants. Why waste another afternoon in court when the chance for recovery is nil?

In 2009, unemployment rates are the highest they have been since 1982. We continue to talk about helping people obtain and maintain jobs. Citizen after citizen got up in the public hearing on October 1, 2009, stating how they were being discriminated against by the Wisconsin Court System providing unfettered access to WCCA. Yet the only response has been that newspapers and landlords must continue to be provided free and easy access to every piece of personal information regarding court records. Every piece of information on every case is retained for a determined amount of time in courthouses across Wisconsin. Nowhere in our Constitution does it say that we must provide easy access to newspapers and landlords so they can make a profit.

The U.S. Constitution guarantees individuals a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures; a right against self-incrimination; and a right to speak and assemble. Like the right of access to public information, the right of privacy to personal information must always be balanced against other interests. I can’t find anything in our Constitution that says we should be able to balance our right to privacy against newspapers’ and landlords’ right to make a profit. Landlords have the ability to run credit checks and background checks. The landlords should be doing so if the claim of public safety is sincere. This is unfair and immoral strategic targeting of individuals in which the defense is unable to present sufficient evidence to prove the guilt of the party, while allowing the presumption of guilt on the electronic records for an indefinite period of time.

The Representative states "Landlords have the ability to run credit checks and background checks. The landlords should be doing so if the claim of public safety is sincere." This is exactly why we are opposed to AB 340, as it restricts our ability to thoroughly and properly run background checks.

It is the aggregate nature of the WCCA information which makes it valuable to newspapers and landlords. However, the aggregate nature of the WCCA is the same quality which makes its dissemination constitutionally dangerous. As technology continues to advance, vast amounts of personal information are being assembled with little to no accountability.

The Constitutional protections mentioned by the Representative are protections for the citizens from abuses of government. The mention of them here seem inconsistent with the arguments for or against the Bill

This bill doesn’t make Wisconsin progressive. We lag far behind many other states with and without on-line systems. I have attached a listing of other states and how they are handling dismissed and not prosecuted charges – cases in which the person has not been convicted of anything.

AB340 is not extreme, and it is not anti-landlord. What AB340 will do is move us into good company with other states and municipalities that are slowing the online dissemination of court records so that the public is not responding to incomplete and therefore misleading information.

Landlords and the press have failed to point out that citizens, who are guilty of nothing, should not have a state wide database that convicts them in the court of public opinion and haunts them forever. If we cannot stand up for innocent people and protect them from the ravages of these data systems because we are afraid of the press then we probably shouldn’t be here.

With vacancies at an all time high, owners clearly have a financial motivation to accept the first qualified applicant and applicants have a motivation to let the owner know that the circumstances of their case . However no landlord wants to accept a person who will not pay the rent, or worse cause criminal activity at or around their property, especially with the ever increasing application of nuisance ordinances around our state.

We could support the removal of civil records after a certain period of time. Credit information is reported by the bureaus for seven years. This seems reasonable as most owners use a look back period of three to five years.

Sincerely,

Marlin D. Schneider
72nd Assembly District

AASEW response by Tim Ballering with assistance from AASEW president Attorney Tristan Pettit

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