Dennis A. Teague v. Brad D. Schimel

2017 WI 56

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2360
COMPLETE TITLE: Dennis A. Teague,
Plaintiff-Appellant-Petitioner,
Linda Colvin and Curtis Williams,
Intervening
Plaintiffs-Appellants-Petitioners,
v.
Brad D. Schimel, Walt Neverman, Dennis Fortunato
and Brian O'Keefe,
Defendants-Respondents.

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

OPINION FILED: June 8, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 9, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Juan B. Colas

JUSTICES:
SEPARATE WRITING: ABRAHAMSON, J. writes separately, joined by A.W.
BRADLEY, J.
CONCURRED: GABLEMAN, J. concurs, joined by ROGGENSACK, C.J.
DISSENTED: ZIEGLER, J. dissents
NOT PARTICIPATING:

ATTORNEYS:

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.
 2017 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2360
(L.C. No. 2010CV2306)

STATE OF WISCONSIN : IN SUPREME COURT

Dennis A. Teague,

Plaintiff-Appellant-Petitioner,

Linda Colvin and Curtis Williams,

Intervening FILED
Plaintiffs-Appellants-Petitioners,
JUN 8, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Brad D. Schimel, Walt Neverman, Dennis
Fortunato and Brian O'Keefe,

Defendants-Respondents.

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

¶1 DANIEL KELLY, J. 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
 No. 2014AP2360

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,

1
See Wis. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls,
199 Wis. 2d 768, 786–88, 546 N.W.2d 143 (1996).
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3
This is a review of a published decision of the court of
appeals, Teague v. Van Hollen, 2016 WI App 20, 367 Wis. 2d 379,
877 N.W.2d 379, affirming the circuit court's dismissal of all
of Mr. Teague's claims, the Honorable Juan B. Colás presiding.

2
 No. 2014AP2360

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

4
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.

3
 No. 2014AP2360

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
5
There are, of course, limitations on how one may use
knowledge of a person's criminal history. See, e.g., Wis. Stat.
§ 111.31 (declaring the general policy of the state to prohibit
discrimination based upon many different factors including a
person's arrest or conviction record); Wis. Admin. Code NR
§ 51.968(2) (2017) (stating that counties receiving grants to
acquire property "may not discriminate against any person in the
use and enjoyment of the property on the basis
of . . . conviction record, arrest record . . . ."); Wis. Admin.
Code Adm § 2.04 (prohibiting discrimination against persons with
conviction or arrest records when using state office buildings
and facilities for government business, public meetings, or
civic activities).
6
Background Check & Criminal History Information (last
accessed May 25, 2017), https://www.doj.state.wi.us/dles/
cib/background-check-criminal-history-information.

4
 No. 2014AP2360

¶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 autom atically 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
5
 No. 2014AP2360

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

6
 No. 2014AP2360

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

7
The training material contains commentary on this step of
the transaction: "User checks the box on the legalese modal to
agree with the terms after the request is complete." As Dr. Sam
Racine (one of petitioners' experts) testified, this likely
receives about as much attention as most "legalese" standing
between the user and his purchase: "There's clearly a block of
information that is probably some kind of disclaimer. I'm going
to flip through that. I'm going to flip very quickly because I
want to get to the information that matters to me which is
what's in this criminal report."
8
Instructions on how to read a criminal record and a notice
to employers appear on a cover page accompanying each search
response generated and returned to requesters.

7
 No. 2014AP2360

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

9
We refer to ATP by his initials, and understand his
stealing as "alleged," because he apparently has not had an
opportunity to contest any representations made about him by the
parties to this case.

8
 No. 2014AP2360

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

10
Wisconsin Criminal History Challenge, Wisconsin
Department of Justice (June 2014),
https://www.doj.state.wi.us/sites/default/files/dles/cib-forms/
record-check-unit/DJ-LE-247-fw.pdf.
11
The DOJ website says it will provide further protections
in the future for people like Mr. Teague:

The Wisconsin Department of Justice will be
implementing the use of a Wisconsin Unique Personal
Identification Number (WiUPIN) that will be assigned
to individuals that have successfully challenged a
criminal history record existing in the Wisconsin
Criminal History Database. Once implemented, the
WiUPIN would be included in the search data provided
by a requestor and used in searching potential
matching records, so that any arrest and/or conviction
(continued)
9
 No. 2014AP2360

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

record successfully challenged would not be included
in a public response.

Background Check & Criminal History Information, Wisconsin
Department of Justice, https://www.doj.state.wi.us/dles/cib/
background-check-criminal-history-information.

10
 No. 2014AP2360

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 complaint13 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

12
In a recent development, the DOJ now adds the following
language (printed in red) to its standard set of disclaimers
when a person has been issued an innocence letter:
****RESPONSE CAVEAT****
The Wisconsin Department of Justice has received a
successful fingerprint based challenge to this record
from an individual whose name is similar to the record
or whose identity was stolen and used during an
arrest. Please ensure the identity of your applicant
to determine if they are the subject of this record or
an individual whose name is similar or whose identity
was stolen. If you have any questions regarding this
challenge process, please contact the Criminal History
Unit of the Crime Information Bureau . . . .
13
Linda Colvin and Curtis Williams intervened in the action
after Mr. Teague filed his complaint. They each present factual
circumstances that, as relevant here, are indistinguishable from
each other. Consequently, our references to Mr. Teague
encompass all the petitioners.

11
 No. 2014AP2360

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

14
Teague, 367 Wis. 2d 547.

12
 No. 2014AP2360

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

15
Petitioners also ask us to conclude that, with respect to
each Criminal History Search request, the DOJ must balance
the public's interest in disclosure of responsive material
against the public's interest in non-disclosure. The DOJ argues
that the policy it adopted on how to respond to such requests
satisfies the common-law balancing requirement, and so it need
not perform a separate evaluation each time it receives a
background check request. We need not reach this question
because of how we resolve this case.
16
The exceptions do not apply to the records in question.

13
 No. 2014AP2360

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).

17
"Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

14
 No. 2014AP2360

¶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
15
 No. 2014AP2360

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

18
We will not resolve an issue where the issue "has not
been adequately briefed, and the facts have not been adequately
developed to allow us to make a reasoned determination."
Shannon v. Shannon, 150 Wis. 2d 434, 446, 442 N.W.2d 25 (1989).

16
 No. 2014AP2360

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

17
 No. 2014AP2360

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

19
"Except as otherwise provided by law, any requester has a
right to inspect any record." Wis. Stat. § 19.35(1)(a).

18
 No. 2014AP2360

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

20
It is possible, given the DOJ's many disclaimers, that it
thought ATP's criminal history might pertain to Mr. Teague, but
was not sure. Whatever the level of its metaphysical certainty
on the question, when it came time to translate beliefs into
action it resolved its doubts in favor of pertinence.

19
 No. 2014AP2360

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."

21
Wisconsin Online Record Check System, Wisconsin
Department of Justice (last accessed May 25, 2017),
https://recordcheck.doj.wi.gov/ (emphasis added).

20
 No. 2014AP2360

¶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,
21
 No. 2014AP2360

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

22
Justice Gableman would not address the due process claim
because he believes Wis. Stat. § 19.70 creates not just a remedy
for correcting inaccurate records, but an affirmative obligation
to not create inaccuracies in the first place:
Complying with § 19.70(1)(a) requires "correct[ing]
the information," and in Teague's case, DOJ is
providing inaccurate information by incorrectly
presenting ATP's criminal history as Teague's when, in
fact, DOJ knows that Teague has no criminal history.
Merely retracting a single report amounts to no
(continued)
22
 No. 2014AP2360

correction at all, because the database will continue
to generate the same report with the same
inaccuracies. Therefore, under the facts here——where
DOJ knows its database is repeatedly producing the
same inaccuracy——I conclude that "correct[ing] the
information" under § 19.70(1)(a) requires ensuring
that ATP's criminal history will no longer be
inaccurately reported as Teague's.
Justice Gableman's concurrence, ¶139.
The problem with this solution is that § 19.70 does not
forbid the creation of inaccurate records——it requires only that
the agency correct inaccuracies previously created, a remedy
that is wholly retrospective. It's not just the terms of the
statute that say so, its entire structure forecloses the relief
Justice Gableman would supply. The statute has nothing to say
to an agency that is thinking about creating an inaccuracy, or
is even in the process of creating an inaccuracy. The statute
does not come into play until an aggrieved individual identifies
an inaccuracy and demands its correction. That, of course,
means the statute focuses exclusively on something the agency
had already done. Past perfect tense. It is enough that the
statute has purchase only on errors that have already occurred
to rule out Justice Gableman's proposal; the actual remedy
portion of the statute, however, makes this limitation
unmistakable. Upon demonstration that a record is inaccurate,
the agency's sole statutory obligation is to correct it. One
cannot correct what has not yet happened, so the statutory
language cannot support Justice Gableman's proposition that we
order the DOJ to prospectively "ensure that ATP's criminal
history will no longer be inaccurately reported as Teague's."

(continued)
23
 No. 2014AP2360

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.

Thus, the only way this statute could have prospective
effect is if the DOJ grew sufficiently weary of issuing
retractions that it changed its reporting system to eliminate
false positives. Failing that, Mr. Teague would have to engage
the procedure Justice Gableman described: Contest the report
under § 19.70, commence a chapter 227 review proceeding if the
DOJ does not retract the report, initiate a circuit court
lawsuit if the administrative review process does not provide
relief, and continue on and on until he gets relief or his
appellate options end. And he would have to pursue this
onerous, expensive, time-consuming process every time the DOJ
erroneously attributes ATP's criminal history to him. That is
why the statutory remedy almost certainly has no prospective
effect. It is also why we must proceed to Mr. Teague's
constitutional claim, because (as Justice Gableman elegantly put
it), "[m]erely retracting a single report amounts to no
correction at all . . . ." Quod erat demonstrandum.

24
 No. 2014AP2360

¶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

23
An Ordinance for the Government of the Territory of the
United States north-west of the river Ohio as adapted by An Act
to provide for the Government of the Territory North-west of the
river Ohio, art. II, 1 Stat. 50, 52 (1789).

25
 No. 2014AP2360

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

26
 No. 2014AP2360

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.

27
 No. 2014AP2360

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

24
The Restatement (Second) of Torts says that:

One who publishes a slander that imputes to another
conduct constituting a criminal offense is subject to
liability to the other without proof of special harm
(continued)
28
 No. 2014AP2360

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

if the offense imputed is of a type which, if
committed in the place of publication, would be

(a) punishable by imprisonment in a state or federal
institution . . . .

Restatement (Second) of Torts, § 571 (Am. Law Inst. 1977).
25
If it were otherwise, it would be unlikely the DOJ would
receive 900,000 background requests each year. It would be
irrational to spend the time and money on such requests unless
the requester assumed the DOJ would provide information related
to the subject of the request.

29
 No. 2014AP2360

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

26
The DOJ explains that the "master name" in the Database
is just the name given by the subject of the record upon first
contact with law enforcement——it may not be the person's actual
name at all. So if ATP's first contact with police was his
theft of Mr. Teague's identity, the master name on ATP's record
in the Database would be "Dennis Teague."

30
 No. 2014AP2360

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

27
The same, that is, with the possible exception that the
disclaimers accompanying a criminal history report based on
ATP's name may not include the "response caveat" addressed in
footnote 10. The DOJ's supplemental letter brief did not
indicate whether the "response caveat" disclaimer would appear
as a consequence of Mr. Teague's name appearing as an alias in
ATP's record.
28
See supra note 5.

31
 No. 2014AP2360

¶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:

29
The circuit court in its findings of fact and conclusions
of law said: "The department can only say that in its database
there is at least one occurrence of the first and last name and
that a person with whom that occurrence is associated is also
linked to an occurrence of the queried date of birth or one
close to it."

32
 No. 2014AP2360

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

33
 No. 2014AP2360

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

30
It is not altogether clear why the dissent believes the
criminal history report is not "literally false" when produced
in response to a Criminal History Search request on Mr. Teague.
Not even the DOJ was willing to take that position. It admitted
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."
If the record does not pertain to Mr. Teague, then as a
purported criminal history report it cannot be anything but
literally false. And yet the dissent says that, having received
the literally false report in response to a request for a
criminal background check on Mr. Teague, the requester would
only "accidentally conclude" that he has a criminal history.
Dissent, ¶155. If that is an accidental conclusion, it is the
same one made by the DOJ in supplying the literally false report
in the first place. The dissent does not explain how the
requester might be better equipped than the DOJ——with its
trained staff and sophisticated algorithms——to avoid that
accident.

34
 No. 2014AP2360

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

35
 No. 2014AP2360

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.

36
 No. 2014AP2360

[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, 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

31
"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." Paul v.
Davis, 424 U.S. 693, 710 (1976).

37
 No. 2014AP2360

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);

38
 No. 2014AP2360

 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 providing
such services);

 All volunteers, community resources, contract
providers, and members of religious groups who
provide religious services at jails. Wis. Admin.
Code. DOC §§ 350.31, 350.32 (criminal background
check required as condition to providing such
services);

 Everyone providing education on DNR-regulated
activities, such as operation of all-terrain
vehicles, boating, hunting, trapping, snowmobiling,
fishing, or aquatics. Wis. Admin. Code. NR § 19.30
(criminal background check required as condition to
providing such services).

 Respite foster care providers. Wis. Admin. Code.
DCF § 56.21 (criminal background check required as
condition to providing such services);

39
 No. 2014AP2360

 Individuals working in emergency mental health
services. Wis. Admin. Code. DHS § 34.21 (criminal
background check required as condition to providing
such services);

 Child-care workers. Wis. Stat. § 48.685(2)(am)1
(criminal background check required as condition to
providing such services);

 Handgun purchasers. Wis. Stat. § 175.35 (criminal
background check required as condition to purchasing
handgun);

 Applicants for concealed-carry permits. Wis. Stat.
§ 175.60 (criminal background check required as
condition to obtaining the permit);

 State employees whose positions involve fiduciary
responsibilities. Wis. Stat. § 230.17 (criminal
background check required as condition to obtaining
such a position);

 Burglar alarm installers. Wis. Stat. § 134.29
(criminal background checks not required, but
permitted);

 Drivers for ride-sharing services such as Uber and
Lyft. Wis. Stat. § 440.445 (criminal background
check required as condition to providing such
services);

 Anyone driving county-provided transportation for
seniors and those with disabilities. Wis. Stat.
§ 85.21 (criminal background check required as
condition to providing such services);

 Anyone driving school buses or other transportation
provided by school boards, counties, or private
schools. Wis. Stats. §§ 121.555 & 343.12 (criminal
background check required as condition to providing
such services);

 Elevator contractors, mechanics, and inspectors.
Wis. Stat. § 101.985 (criminal background check
required as condition to providing such services);

40
 No. 2014AP2360

 Travelling sales crews. Wis. Stat. § 103.34
(criminal background check required as condition to
providing such services);

 DOT employees and contractors with access to vehicle
or driver's license records. Wis. Admin. Code.
Trans. § 195.11 (criminal background check required
as condition to obtaining such positions); and

 Anyone having access to the Wisconsin Donor
Registry. Wis. Admin. Code. DHS § 137.07 (criminal
background check required as condition to obtaining
access to database).32
¶58 The amount of impairment to one of these rights or
statuses necessary to trigger procedural due process protections

is easy enough to state: It must be altered or extinguished.

Mr. Teague does not claim any such interest has been

extinguished, so we may proceed to determining whether Mr.

Teague will suffer any alteration of a right or status protected

by state law.

¶59 Because one's character and reputation are so

important in employment decisions, due process claims frequently

arise in that context following a government-imposed stigma.

For example, Smith ex rel. Smith v. Siegelman considered the

employment implications of the State designating an individual
as a child abuser without notice or a hearing. 322 F.3d 1290

(11th Cir. 2003). That court took note of Paul's admonition

that a person's reputational interest, "apart from some more

tangible interests such as employment," receives no due process

32
In none of these instances is the State agency required
to conduct a fingerprint-based, as opposed to a name-based,
criminal history inquiry.

41
 No. 2014AP2360

protection. Id. at 1296 (quoting Paul, 424 U.S. at 701). The

court concluded that even when the government-imposed stigma

impacts future employment opportunities, the Due Process Clause

calls for no procedural protections. "[D]eleterious effects

that flow directly from a sullied reputation, such as the

adverse impact on job prospects," the court said, "are normally

insufficient." Id. at 1298. In the employment context (at

least in the Eleventh Circuit), there is no "plus" unless the

stigma causes the actual loss of a job: "We do not think the

law of this Circuit has established that defamation occurring

other than in the course of dismissal from a job . . . will

suffice to constitute a deprivation [of liberty] sufficient to

state a claim under section 1983." Von Stein v. Brescher, 904

F.2d 572, 582 (11th Cir. 1990).

¶60 Such a narrow formulation appears to be at odds with

the Supreme Court's teaching. In Board of Regents v. Roth, the

Court addressed (at least tangentially) whether future

employment prospects could present a liberty interest sufficient
to engage due process requirements. 408 U.S. 564 (1972). As it

turned out, the State had not stigmatized Mr. Roth, but the

Court observed that if it had done so, "this would be a

different case" because "[t]here might be cases in which a State

refused to re-employ a person under such circumstances [such]

that interests in liberty would be implicated." Id. at 573.

Even Paul itself did not preclude the loss of future employment

opportunities from serving as the "plus": "Finally, it is to be
noted that this is not a case where government action has
42
 No. 2014AP2360

operated to bestow a badge of disloyalty or infamy, with an

attendant foreclosure from other employment opportunity." Paul,

424 U.S. at 705-06 (quoting Cafeteria Workers v. McElroy, 367

U.S. 886, 898 (1961)).33

¶61 Government-imposed stigmas can also potentially affect

liberty interests when the State requires a Criminal History

Search as a condition to government benefits, employment, or the

exercise of certain rights. Humphries v. County of Los Angeles

considered the due process implications of being listed on

California's Child Abuse Central Index ("CACI"). 554 F.3d 1170

(9th Cir. 2008) rev'd on other grounds sub nom Los Angeles v.

Humphries, 562 U.S. 29 (2010). The Humphries were arrested on

charges of child abuse and felony torture, which automatically

earned them a listing on the CACI. The charges were later

dismissed and, pursuant to two independent tribunals, the

Humphries were found to be "factually innocent" of the charges.

Notwithstanding these determinations, the California Department

of Justice refused to remove the Humphries from the CACI.
¶62 The Humphries court found that being listed on the

CACI not only defamed the Humphries, it also altered their

33
See also Zaccagnini v. Morris, 478 F. Supp. 1199, 1202
(D. Mass. 1979) ("The allegation that defendants, without
according plaintiff a name-clearing hearing, marked him so as to
endanger subsequent employment opportunities states a claim
under 42 U.S.C. § 1983 because it alleges that state action,
without the opportunity of a hearing, 'imposed on (plaintiff) a
stigma or other disability that foreclosed his freedom to take
advantage of other employment opportunities.'" (quoting Paul,
424 U.S. at 709–10)).

43
 No. 2014AP2360

rights. California's statutes (at least as they existed when the

case was decided) required certain state agencies to conduct

background searches as a precondition to several rights and

opportunities. For example, such searches were necessary before

"gaining approval to care for children in a day care center or

home, obtaining a license or employment in child care,

volunteering in a crisis nursery, receiving placement or custody

of a relative's child, or qualifying as a resource family." Id.

at 1187 (citations omitted). Access to the CACI was also

available to state agencies "overseeing employment positions

dealing with children, persons making pre-employment

investigations for peace officers, child care licensing or

employment, adoption, or child placement, individuals in the

Court Appointed Special Advocate program conducting background

investigations for potential Court Appointed Special Advocates,

and out-of-state agencies making foster care or adoptive

decisions." Id. at 1188 (citations and internal marks omitted).

¶63 With respect to the measurement of alteration, the
Humphries Court observed that termination of a right or status

is not necessary to implicate one's liberty interest: "We

recognize that being listed on the CACI may not fully extinguish

the Humphries' rights or status." Id. But one's liberty

interests are altered when the state-imposed stigma imposes a

"tangible burden on an individual's ability to obtain a right or

status recognized by state law . . . ." Id. The burden

Humphries identified was that California's laws "effectively
require[] agencies to check a stigmatizing list" and makes the
44
 No. 2014AP2360

agencies responsible for "drawing independent conclusions

regarding the quality of the evidence disclosed." Id. at 1188

(internal marks omitted).

¶64 The Second Circuit Court of Appeals adopted a similar

analysis. Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994). Ms.

Valmonte found herself listed on New York's Central Register of

Child Abuse and Maltreatment (the "Register") after slapping her

daughter for stealing. The child protective proceedings

initiated in response to that incident were subsequently

dismissed, but because there was "some credible evidence" of

mistreatment, the Department of Social Services refused to

remove her from the Register. Id. at 995.

¶65 After acknowledging that the natural consequences of a

stigmatized reputation do not, by themselves, justify due

process protections, Valmonte considered the impact of state law

on her ability to obtain future employment in the child-care

field. Id. at 1001. Employers in this field must consult the

Register before extending offers of employment. Id. If she is
in the Register, and the employer still wishes to hire her, it

would need to draft and maintain a written explanation of its

decision. Id. Inclusion in the Register, therefore, was not an

absolute bar to employment, but it imposed a significant

functional barrier: "Valmonte is not going to be refused

employment because of her reputation; she will be refused

employment simply because her inclusion on the list results in

an added burden on employers who will therefore be reluctant to
hire her." Id. (emphasis added). That consequence, the court
45
 No. 2014AP2360

said, altered Ms. Valmonte's status enough to implicate her

liberty interest: "In this case, we find that the requirement

that puts burdens on employers wishing to hire individuals on

the list results in a change of that individual's status

significant enough to satisfy the 'plus' requirement of the

'stigma plus' test." Id. at 1002.

¶66 The Seventh Circuit Court of Appeals agrees with the

Valmonte analysis:

Today, we are confronted with circumstances very
similar to those before the Second Circuit in
Valmonte. Illinois law requires prospective employers
to consult the central register before hiring an
individual and to notify [the Illinois Department of
Children and Family Services] in writing of its
decision to hire a person who has been indicated as a
perpetrator of child abuse or neglect.
Dupuy v. Samuels, 397 F.3d 493, 511 (7th Cir. 2005). Inclusion

on the register "places, by operation of law, a significant,

indeed almost insuperable, impediment on obtaining a position in

the entire field of child care." Id. The court reasoned that

"the imposition of this added legal impediment constitutes a

very tangible loss of employment opportunities due to the

46
 No. 2014AP2360

disclosure of the indicated report," thereby altering the

individual's status. Id.34

¶67 Other states have found that inclusion in a stigma-

inducing state database can work a deprivation of liberty

interests by burdening the exercise of a person's rights. In

North Carolina, the State will add a person to a state-

maintained registry (the "RIL") if he is identified as a person

responsible for child maltreatment. In re WBM, 690 S.E.2d 41

(N.C. Ct. App. 2010). That list is available to "child caring

institutions, child placing agencies, group home facilities, and

other providers of foster care, child care, or adoption services

that need to determine the fitness of individuals to care for or

adopt children." Id. at 43. The court concluded that

"inclusion on the RIL deprives an individual of the liberty

interests guaranteed under our State Constitution by inhibiting

the individual from using his faculties to adopt, foster, and

care for children, earning his livelihood in the childcare

field, or pursuing or securing employment in the childcare
field." Id. at 49; see also, Cavarretta v. Dep't of Children &

34
The Court ultimately ruled against the plaintiffs
because, it said, foster parenting (the plaintiffs' chosen
field) is not a "career" such that it can give rise to a liberty
interest. Depuy v. Samuels, 397 F.3d 493, 514–15 (7th Cir.
2005). See also, Behrens v. Regler, 422 F.3d 1255 (11th Cir.
2005) (holding that plaintiff, who was listed as a "verified"
child abuser on a state registry, and so experienced an added
burden in trying to adopt a child, did not suffer an impairment
of a liberty interest because not even those who are not on the
list are guaranteed the ability to adopt a child under Florida
law).

47
 No. 2014AP2360

Family Servs., 660 N.E.2d 250, 254 (Ill. App. Ct. 1996)

("[B]eing placed on the State register of suspected child

abusers implicates a Federal liberty interest. A subject of an

'indicated' report may be prohibited from working in certain

professions, such as child care and teaching." (internal

citations omitted)).

c. Mr. Teague's "plus"

¶68 We adopt the Humphries/Valmonte/Dupuy analysis and

hold that, because the stigma caused by the DOJ's Criminal

History Search report imposes a tangible burden on Mr. Teague's

ability to obtain or exercise a variety of rights and

opportunities recognized by state law, he has suffered an

alteration of status within the meaning of Paul v. Davis, and so

has been deprived of a liberty interest.

¶69 The DOJ's background check predictably and

consistently provides ATP's criminal history to people

requesting a Criminal History Search on Mr. Teague. This is

an entirely unwarranted defamation of someone with no criminal
history at all. But the injury Mr. Teague (and those similarly

situated) suffers does not end there. Wisconsin's statutory and

regulatory framework mean that the defamation now stands between

Mr. Teague and the acquisition or exercise of any of a number of

opportunities or rights.

¶70 Because of the defamation caused by the DOJ's Criminal

History Search report, Mr. Teague will experience a tangible

burden should he wish to work for, e.g., the State of Wisconsin
(in any position of fiduciary responsibility), the Department of
48
 No. 2014AP2360

Transportation (should he need access to vehicle or driver's

license records), a company in the insurance industry (as a

paraprofessional), a shelter care facility, a facility providing

mental health day treatment services for children, a school

participating in the Special Needs Scholarship Program, a

residential care apartment complex, an emergency mental health

service, an elevator company, a child-care company, or a ride-

sharing company like Uber or Lyft. He suffers a state-imposed

tangible burden if he wishes to install burglar alarms, drive

school buses, work in a travelling sales crew, become licensed

as a physician in Wisconsin, have access to the Wisconsin Donor

Registry, purchase a handgun, or obtain a concealed-carry

permit. He cannot, without laboring under the additional burden

created by the state-imposed stigma, provide kinship care,

respite foster care, religious services at jails, transportation

to seniors and those with disabilities, or education on DNR-

regulated activities such as fishing, hunting, trapping,

boating, or snowmobiling.
¶71 Mr. Teague finds himself in a position no Wisconsin

citizen ought to occupy. He and the DOJ both know the DOJ's

Criminal History Search report is going to defame him.

Worse, he does not know when and where it will happen, just that

it will. So Mr. Teague must constantly monitor his government's

activity in hopes he will catch each time the Criminal History

Search suggests he is a criminal. Worse yet, he can never be

certain he has caught them all. He also knows that even when he
espies a defamation, it means spending his time and resources
49
 No. 2014AP2360

trying to convince the person to whom he was defamed that he is

not really a criminal.

¶72 The stigma created by the DOJ's Criminal History

Search report has altered Mr. Teague's status, and so has

deprived him of a liberty interest protected by the Fourteenth

Amendment to the United States Constitution. This conclusion is

consistent with Paul, and does not implicate its concern that

every government agent's defamatory comment will give rise to a

due process claim. We address here a policy and practice that

consistently and predictably calumnizes innocent people, and

operates as a burden on their state-based rights. Mr. Teague is

entitled to due process in connection with this policy and

practice.35

35
The dissent says this case presents a dispute we should
leave to the legislature to settle: "I depart from Justice
Kelly's writing, however, because the legislature is the body to
weigh and consider the need for public access to this
information with the fact that some innocent bystanders might be
wronged by such access." Dissent, ¶151. While we must be
careful not to intrude on the legislature's prerogatives, we
must be equally careful not to cede our own. When an executive
agent of the state takes action that violates the statutory or
constitutional rights of "innocent bystanders," we do not leave
it to the legislature to "weigh and consider" that injury
against "the need for public access to this information." To do
so would be to abjure our core judicial function. See Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is
emphatically the province and duty of the judicial department to
say what the law is."). Mr. Teague brought us a quintessential
question of law, and it belongs nowhere else.

50
 No. 2014AP2360

2. Process due

¶73 The second step in our due process analysis is

determining whether the process available to Mr. Teague is

adequate when compared to the deprivation of his liberty

interest. "Due process, unlike some legal rules, is not a

technical conception with a fixed content unrelated to time,

place and circumstances. Due process is flexible and calls for

such procedural protections as the particular situation

demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976)

(internal marks and citations omitted). To determine what

procedural protections are due Mr. Teague, we consider three

factors:

First, the private interest that will be affected by
the official action;

[S]econd, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable
value, if any, of additional or substitute procedural
safeguards; and

[F]inally, the Government's interest, including the
function involved and the fiscal and administrative
burdens that the additional or substitute procedural
requirement would entail.
Id. at 335.

¶74 We see two potential sources of procedural safeguards

currently available to Mr. Teague. The first is the opportunity

to challenge the accuracy of the criminal history reports under

the auspices of Wis. Stat. § 19.70. We determined, supra, that

this statute provides an avenue to correct these reports.
However, it appears this procedure may provide only incomplete

51
 No. 2014AP2360

relief. Mr. Teague is still left in the position of cleaning up

defamations after they occur, and then only when they happen to

come to his attention.

¶75 The second potential procedural safeguard, the

availability of an "innocence letter," is little better (at

least as far as we can discern from the record). This gives Mr.

Teague a useful tool with which to counteract the DOJ's official

suggestion that he is a criminal. But the DOJ does not include

Mr. Teague's innocence letter with ATP's criminal history when

it responds to a Criminal History Search on Mr. Teague. So

Mr. Teague must still monitor and track each instance in which

a Criminal History Search report defames him so that he may

discover to whom he must forward the innocence letter.36

¶76 Further, his innocence letter has an unknowable shelf-

life. The letter warrants he is conviction-free as of a date

certain. But if ATP should commit another crime after that

date, Mr. Teague would need a new innocence letter. So not only

must Mr. Teague track the DOJ's Criminal History Search so he
knows each time he is defamed, he must also track ATP so he

36
The DOJ's new red-font "response caveat" makes for a
slightly more muscular disclaimer, but it is still just a
disclaimer. It is likely to have only marginally more impact on
those who do not take the time to read the rest of the lengthy
disclaimers the DOJ had already been providing. Nor does it
relieve Mr. Teague from the burden of having to monitor the DOJ
and ATP so that he can determine when, and to whom, he must
provide positive evidence that he is not the criminal suggested
by the criminal history report.

52
 No. 2014AP2360

knows when he must, once again, prove to his government that he

is not a criminal so that he may counter the defamation.

¶77 Finally, there is this. We must not forget that Mr.

Teague finds himself where he is because he is the victim of a

crime. His cousin stole his identity. And because of the way

the DOJ compiles and disseminates criminal history reports, it

keeps that injury alive day after day without end, even after

determining that ATP's criminal history has nothing to do with

Mr. Teague.

¶78 Based on the record before us, we conclude that the

Mathews factors indicate the Wis. Stat. § 19.70 and "innocence

letter" procedures are inadequate safeguards for Mr. Teague's

liberty interest. The DOJ has an admittedly important and

legitimate interest in making its records available to the

public. But it chose this method of doing so because it is

"quicker, cheaper, and easier than fingerprint-based

searches . . . ." As Mr. Teague demonstrates, however, quick,

cheap, and easy can be a recipe for unending governmental
defamations.

C. Remaining Arguments

1. Petitioners' Arguments

¶79 Mr. Teague presented a common-law challenge to the

DOJ's criminal background-check program, as well as

constitutional challenges founded on the Equal Protection Clause

and the so-called "substantive" component of the Due Process

Clause. Because we were able to resolve this case without
reference to those arguments, we will not address them. See,
53
 No. 2014AP2360

e.g., Hull v. State Farm Mut. Auto. Ins. Co., 222 Wis. 2d 627,

640 n.7, 586 N.W.2d 863 (1998) ("As a general rule, when our

resolution of one issue disposes of a case, we will not address

additional issues.").

2. Pre-Production Judicial Review

¶80 The DOJ argues that Wis. Stat. § 19.35637 bars the part

of Mr. Teague's claim alleging the DOJ failed to apply the

"common law balancing test" before providing ATP's criminal

history report to those who requested a background check on Mr.

Teague. It did not assert that bar with respect to Mr. Teague's

claims pursuant to Wis. Stat. § 19.70 or our constitutions.

Therefore, because we do not address the "common law balancing

test," we need not consider the applicability of this statute.

V. CONCLUSION

¶81 The DOJ's Criminal History Search reports violate

Mr. Teague's rights, and he is to be afforded prospective relief

sufficient to protect those rights. The record is not

sufficiently developed for us to determine the form that relief

37
This statute provides that:

Except as authorized in this section or as otherwise
provided by statute, no authority is required to
notify a record subject prior to providing to a
requester access to a record containing information
pertaining to that record subject, and no person is
entitled to judicial review of the decision of an
authority to provide a requester with access to a
record.

Wis. Stat. § 19.356(1).

54
 No. 2014AP2360

should take, so we remand to the circuit court for that

purpose.38

By the Court.—The decision of the court of appeals is

reversed and the cause is remanded to the circuit court for

further proceedings not inconsistent with this opinion.39

38
The dissent, perhaps inadvertently, leaves the impression
that our conclusion may be, in part, some form of judicial
catharsis: "The entire court feels sorry for Teague and those
like him," dissent, ¶150; "I can join these members of the court
in their pitying Teague for what ATP did to him and the
injustice that could occur if improper assumptions are made as
to Teague," id., ¶151; " Members of the court are not wrong to
wish that there was a remedy for Teague," id., ¶164. It is the
court's duty to set aside its "wishes," and emotions, and
instead render a true decision based on law and fact. We have
done that. The law, not desire, commands relief for Mr. Teague.
39
With respect to the violation of Mr. Teague's rights,
six justices agree Mr. Teague's criminal history report is
inaccurate and in need of correction under Wis. Stat. § 19.70.
See supra, ¶34 (joined by Justice Rebecca Grassl Bradley);
Justice Abrahamson's writing, ¶¶115-16 (joined by Justice Ann
Walsh Bradley); Justice Gableman's concurrence, ¶138 (joined by
Chief Justice Roggensack). One justice, Justice Ziegler,
writing in dissent, concludes (1) that the circuit court was not
clearly erroneous in stating that "'criminal history
responses . . . are not literally false and . . . do not convey
a false and defamatory meaning . . . .'" and (2) that "the
information in the database is correct." Dissent, ¶¶160, 164.

With respect to the remedy for the violation of Mr.
Teague's rights, six justices conclude the court of appeals must
be reversed and that Mr. Teague is entitled to prospective
relief sufficient to protect his rights:

This opinion (joined by Justice Rebecca G. Bradley)
would remand to the circuit court to determine, based on
the Mathews trilogy of considerations, what manner of
procedural safeguards are sufficient to satisfy Mr.
Teague's right to due process of law.

(continued)
55
 No. 2014AP2360

Justice Shirley S. Abrahamson (joined by Justice Ann
Walsh Bradley) concludes that the supreme court should
issue a declaratory judgment that the Department of Justice
"must comply with the mandatory requirements of § 19.70 and
must hereafter issue correct criminal history records
pertaining to these petitioners," that the Department of
Justice is enjoined "from refusing to comply with the
mandatory requirements of § 19.70," and that "the
petitioners may seek further supplementary relief in the
Dane County Circuit Court based on the declaratory judgment
'whenever necessary or proper' pursuant to § 806.04(8)."
Justice Abrahamson's writing, ¶¶87, 88, and 90.

Justice Michael J. Gableman (joined by Chief Justice
Patience D. Roggensack) concludes: "In Teague's case, if
the action DOJ ultimately takes to correct the criminal
history reports under § 19.70 is insufficient to remedy
Teague's injury, then Teague may seek judicial review under
Wis. Stat. § 227.52. . . . [R]esolving Teague's statutory
claim under Wis. Stat. § 19.70 is sufficient to resolve
this appeal." Justice Gableman's concurrence, ¶¶143, 144.

There are, therefore, four votes to remand this matter to
the circuit court to develop prospective relief sufficient to
safeguard the petitioners' rights (Justices Patience Drake
Roggensack, Michael J. Gableman, Rebecca Grassl Bradley, and
Daniel Kelly). Four justices conclude that the petitioners are
entitled to prospective relief based on the violation of Wis.
Stat. § 19.70, and that the relief should be sufficient to
prevent the release of inaccurate criminal history reports to
those who inquire about the petitioners (Justices Shirley S.
Abrahamson, Ann Walsh Bradley, Patience Drake Roggensack, and
Michael J. Gableman).

No proposed form of remedy garnered a majority of the
justices' votes, but neither has a majority of the court
foreclosed any particular form of remedy. On remand, therefore,
the circuit court will conduct further proceedings to determine
the nature and extent of prospective relief that will be
sufficient to protect the petitioners' rights under Wis. Stat.
§ 19.70.

56
 No. 2014AP2360.ssa

¶82 SHIRLEY S. ABRAHAMSON, J.1 The Department of Justice

released a lengthy criminal history record for each of the three

petitioners, Dennis Teague, Linda Colvin, and Curtis Williams,

in response to public criminal history search requests. The

1
Finally, in the last footnote of his opinion, Justice
Kelly points out the schisms on the court in the instant case
and their effect.

My separate writing would end the cause in this court. I
do not remand the cause to the circuit court for further
proceedings. I am not certain from the writings that four
justices indisputably conclude that the matter is to be remanded
to the circuit court at this time.

Because the court has not always been careful in the past
to explain the separate writings in a case and the effect
thereof, incorrect references have been made to the first
opinion as a lead opinion or to a majority opinion. Indeed, in
State v. Lynch, 2016 WI 66, 371 Wis. 2d 1, 885 N.W.2d 89, the
first opinion (that was referenced as the lead opinion) was a
dissent. For an explanation of the term "lead opinion," see
State v. Weber, 2016 WI 96, ¶83 n.1, 372 Wis. 2d 202, 887
N.W.2d 554 (Ann Walsh Bradley, J., dissenting).

Because the court has been significantly divided in recent
months and has issued numerous separate writings, we should be
very careful in each case to explain the effect of the separate
writings. For an analysis of this court's split decisions from
1996 to present, see Professor Alan Ball, A Spike in Fractured
Decisions, SCOWstats (May 30, 2017),
http://www.scowstats.com/2017/05/30/a-spike-in-fractured-
decisions/. See also Professor Alan Ball, Wisconsin Supreme
Court Statistics, 2015-16: Decisions Arranged by Vote Split,
SCOWstats (July 22, 2016), http://www.scowstats.com/wp-
content/uploads/2016/07/Decisions-by-Vote-Split-2015-16.pdf.

1
 No. 2014AP2360.ssa

Department of Justice concedes, however, that none of the

petitioners has a criminal record.2

¶83 Nevertheless, the Department of Justice repeatedly

characterizes the criminal history records pertaining to the

petitioners as accurate. This characterization is baseless, as

Justice Kelly's writing explains. See Justice Kelly's writing,

¶¶30-35.3

¶84 The Department of Justice repeatedly refuses to make

amends. The three petitioners have come to court seeking

forward-looking relief. They present a number of different

legal claims, and each claim may lead to a different form of

relief.

¶85 The relief that Justice Kelly's writing grants is a

remand to the circuit court for further judicial proceedings

under the petitioners' procedural due process claim.

2
Each petitioner's name probably came up because the
individual with a criminal history used some form of the
petitioner's name as an alias. This case involves what is known
as an alias search. See Justice Kelly's writing, ¶12. The
information the Department of Justice provides a requester when
the Department uses the alias search may be unreliable,
"something the [Department] readily admits." See Justice
Kelly's writing, ¶7.
3
I agree with Justice Kelly's writing that we must treat
the Department as having issued inaccurate criminal history
records pertaining to the petitioners. Any attempt voiced by
the Department to avoid this conclusion is unacceptable. Only
one conclusion is acceptable: The Department has been knowingly
releasing inaccurate criminal history records containing
personally identifiable information pertaining to the
petitioners.

2
 No. 2014AP2360.ssa

¶86 I would grant the petitioners forward-looking

prospective equitable remedy relief under Wis. Stat. § 19.70.4

¶87 I would have this court issue a declaratory judgment

pursuant to Wis. Stat. § 806.04, the Uniform Declaratory

Judgments Act. The declaratory judgment would be affirmative in

form and effect, declaring that the Department of Justice must

comply with the mandatory requirements of § 19.70 and must

hereafter issue correct criminal history records pertaining to

these petitioners. See Wis. Stat. § 806.04(1).

¶88 The declaratory judgment would also be negative in

form and effect. It would include an injunction forbidding the

Department from refusing to comply with the mandatory

requirements of § 19.70. See Wis. Stat. § 806.04(1).

¶89 There are numerous ways that the Department of Justice

can comply with such a declaratory judgment. The means of

compliance are initially for the Department to determine. The

legislature has delegated the creation and administration of the

criminal history database to the Department, and the Department
has the expertise and institutional capacity to comply with the

4
Judge Blanchard's writing in the court of appeals denying
the petitioners relief under Wis. Stat. § 19.70 was based on the
conclusion that the petitioners' request was a request to
correct or supplement the database. I agree with Justice
Kelly's writing that the petitioners' request was a request to
correct the criminal history record, not the database.

Judge Higginbotham and Judge Sherman, writing in the court
of appeals, concluded that the relief the petitioners seek under
Wis. Stat. § 19.70 is unavailable because the petitioners'
argument under § 19.70 for declaratory and injunctive relief was
undeveloped in the court of appeals.

3
 No. 2014AP2360.ssa

declaratory judgment and do justice for these petitioners. Such

a declaratory judgment enables the Department to work not only

with its staff and database experts but also with the

petitioners, requesters of criminal history records, and members

of the public interested in technology and privacy to devise

solutions.5

¶90 If the Department's efforts to correct the

inaccuracies in the petitioners' criminal history records fall

short, the petitioners may seek further supplementary relief in

the Dane County Circuit Court based on this court's declaratory

judgment "whenever necessary or proper," pursuant to

§ 806.04(8).6

¶91 The Department of Justice's refusal to acknowledge

that it is releasing inaccurate criminal history records

5
The Department's difficulty with issuing accurate criminal
history records apparently results from the algorithm employed
by the criminal history database. Justice Kelly's writing, ¶6.
The use of algorithms in the criminal justice system is being
debated. See State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881
N.W.2d 749, petition for cert. filed sub nom. Loomis v.
Wisconsin, No. 16-6387, 2017WL855946 (Mar. 6, 2017); Jason
Tashea, Calculating Crime: Attorneys Are Challenging the Use of
Algorithms to Help Determine Bail, Sentencing and Parole
Decisions, ABA Journal, Mar. 2017, at 54.
6
Wisconsin Stat. § 19.356(1), barring individuals from
seeking "judicial review," has been referenced and debated by
the parties. I do not read this provision as barring judicial
relief under § 19.70 regarding correcting or augmenting an
inaccurate criminal history record to which a requester is being
given access. Nothing about Wis. Stat. § 19.356 or § 19.70
leads a reader to examine § 19.356(1) in interpreting and
applying § 19.70. See Justice Kelly's discussion of § 19.356(1)
at ¶80.

4
 No. 2014AP2360.ssa

pertaining to the three petitioners and that it is required to

comply with Wis. Stat. § 19.70 stirs a sense of outrage. This

sense is evident in Judge Sherman's concurring opinion in the

court of appeals, in which he wrote: "[T]he only response of

[the Department of Justice] is that it will continue to [release

inaccurate records] because there is no law that compels it to

do otherwise. In essence, we are doing this to you because we

can. That is the response of a bully and not an appropriate

response of the government of a democracy."7

¶92 I shall first set forth the relevant statutes

applicable to the instant case. I will then interpret and apply

Wis. Stat. § 19.70 to the three petitioners. I conclude that

the Department has a judicially enforceable duty to correct the

criminal history records pertaining to the petitioners under

Wis. Stat. § 19.70. Lastly, I will consider other issues raised

by the Department of Justice's alias search policy, the release

of inaccurate criminal history records, and the plight of

individuals who may unknowingly be harmed by release to the
public of inaccurate criminal history records pertaining to

them.

I

¶93 I first set forth the relevant statutes applicable to

the facts in the instant case. The most important statutes to

my analysis are Wis. Stat. § 19.70 and the Open Records Law,

7
Teague v. Van Hollen, 2016 WI App 20, ¶85, 367
Wis. 2d 547, 877 N.W.2d 379 (Sherman, J., concurring) (emphasis
in original).

5
 No. 2014AP2360.ssa

§§ 19.32-.39. I also briefly summarize the statutes authorizing

the Department of Justice to compile, retain, and release

criminal history records to the public for a fee, to provide

context.

¶94 I begin with Wis. Stat. § 19.70.8 This statute is part

of Wis. Stat. §§ 19.62-.80, which make up subchapter IV,

entitled "Personal Information Practices," of Chapter 19,

entitled "General Duties of Public Officials."

¶95 Section 19.70 informs my analysis because it requires

the Department to correct inaccuracies in records containing

personally identifiable information.

¶96 When a challenge is made to the accuracy of a record

containing personally identifiable information, Wis. Stat.

§ 19.70, using the word "shall," requires the Department of

Justice to take the following action:

• It shall concur with the record subject's challenge

and correct the information (§ 19.70(1)(a)); or

• It shall deny the challenge, notify the record subject
of the reasons for denying the challenge, and allow

the record subject to file a concise statement setting

8
Wisconsin Stat. § 19.70 was previously numbered § 19.365
and was part of subchapter II, entitled "Public Records and
Property" (the Open Records Law), of Chapter 19. It was
recently renumbered § 19.70 and became part of subchapter IV,
entitled "Personal Information Practices," of Chapter 19. See
2013 Wis. Act 71.

6
 No. 2014AP2360.ssa

forth the individual's disagreement with the disputed

portion of the record (§ 19.70(1)(b)).9

¶97 Section 19.70 thus provides the means for correcting

an inaccurate criminal history record containing personally

identifiable information released by the Department of Justice.

¶98 Section 19.70 must be read in connection with Wis.

Stat. §§ 19.62-.80, the other provisions in subchapter IV,

entitled "Personal Information Practices," of Chapter 19.

¶99 Section 19.62(5) defines "personally identifiable

information."10 The criminal history records in the instant case

indisputably contain personally identifiable information

relating to the three petitioners.11

¶100 Section 19.67(1)(b) provides that when the Department

of Justice "maintains personally identifiable information that

may result in an adverse determination about any individual's

rights, benefits or privileges[, the Department] shall, to the

greatest extent practicable . . . [v]erify the

information . . . ."

9
For the text of Wis. Stat. § 19.70, see Justice Kelly's
writing, ¶21.
10
This same definition is used in the open records law.
See Wis. Stat. § 19.32(1r).
11
The Department's brief asserts that the criminal history
records it released in response to requests seeking the criminal
history records of the petitioners do not pertain to the three
petitioners. See Brief and Supplemental Appendix of Defendants-
Respondents at 41. I agree with Justice Kelly's writing at ¶29
that because the records list the petitioners' names, they
contain personally identifiable information pertaining to the
petitioners.

7
 No. 2014AP2360.ssa

¶101 I now turn to Wis. Stat. §19.35. This section also

resides in Chapter 19 but is in subchapter II, which is entitled

"Public Records and Property" and is popularly known as the Open

Records Law. Section 19.35 is referenced in § 19.70.

¶102 Section 19.70 grants an individual (empowered under

§ 19.35 (1)(a) and (am) of the Open Records Law to inspect any

record containing the individual's personally identifiable

information) the right to challenge the accuracy of a record

containing personally identifiable information pertaining to the

individual.12 The petitioners fall within § 19.70's reference to

§ 19.35.

¶103 Finally, I turn to Wis. Stat. §§ 165.82 and 165.83,

within Chapter 165, entitled "Department of Justice."

¶104 Wisconsin Stat. § 165.83 directs the Department of

Justice to maintain a criminal history database. The statute

dates back to 1971 and has been amended several times. Law

enforcement officers across the state are to provide information

to the Department of Justice for the maintenance of the
database.

¶105 The criminal history database is maintained for law

enforcement and non-law enforcement purposes. With regard to

the latter purposes, various state entities are directed by

12
Section 19.62 in "Personal Information Practices"
explicitly incorporates the definition of "authority" and
"records" that appear in § 19.32 of the Open Records Law. See
Justice Kelley's writing, ¶28 (discussing § 19.62). The
Department of Justice is an authority under Wis. Stat.
§§ 19.32(1) and 19.62(1).

8
 No. 2014AP2360.ssa

statute or regulation to consult criminal background information

on persons who apply for permits, licenses, or employment. See

Justice Kelly's writing, ¶57. Some statutes direct persons to

the Department of Justice for a criminal background

investigation;13 others do not.14

¶106 Criminal history records compiled under Chapter 165

are made available to the public under the Open Records Law

(which I discuss further below). Fees charged to acquire

criminal history records under the Open Records Law are governed

by Wis. Stat. § 165.82, which was enacted in 1987. This statute

provides that, in lieu of the fee imposed in Wis. Stat.

§ 19.35(3) (imposed on those who receive open records upon

request), the Department of Justice shall impose a fee for

criminal history searches for purposes unrelated to criminal

justice according to the following fee schedule: $7 for each

name-based record check; $15 for each fingerprint-based record

check; and a $5 surcharge if the person requests a paper copy of

the results of a criminal history requested.15
¶107 Implicit in the directive under Wis. Stat. § 165.83 to

the Department to maintain the criminal history database and

authority under § 165.82 to charge the public for access to this

13
See, e.g., Wis. Stat. § 101.985(4).
14
See, e.g., Wis. Stat. § 440.445(1)(b).
15
In 2015-16, the Department of Justice received $7,280,700
in fees collected under Wis. Stat. § 165.82. See Wisconsin
Legislative Fiscal Bureau, Informational Paper 58: State
Criminal Justice Functions at 10 (Jan. 2017).

9
 No. 2014AP2360.ssa

database and criminal history records derived therefrom is a

need for accuracy. If the need for accuracy did not exist, why

would the legislature require the Department to maintain the

database and charge users for access?

¶108 In sum, the statutes evidence a relationship between

the criminal history database, criminal history records derived

therefrom, personal information practices, and the Open Records

Law. The statutes provide that the Department of Justice

releases criminal history records that are compiled under

chapter 165 of the Statutes, containing personally identifiable

information governed by §§ 19.62-.80, reasoning that they are

"records" subject to the Open Records Law.

II

¶109 With this background of applicable, relevant statutory

provisions in mind, I interpret and apply Wis. Stat. § 19.70,

the key statute governing the rights of the petitioners. This

statute has not been interpreted by this court or the court of

appeals prior to the instant case. Thus the instant case is one
of first impression.

¶110 The three petitioners complied with the Department's

existing process for a record subject to challenge the accuracy

of a criminal history record. The process is described on the

Department of Justice's website.16 After each petitioner

16
See Wisconsin Department of Justice, Background Check &
Criminal History Information,
https://www.doj.state.wi.us/dles/cib/background-check-criminal-
history-information.

10
 No. 2014AP2360.ssa

submitted his or her fingerprints, the Department confirmed that

each petitioner had no criminal record and issued an "innocence

letter" to each petitioner.17

¶111 Nevertheless, the Department's position is that it

will continue to adhere to its alias search policy; that it will

release a criminal history record for each petitioner each time

it runs a new background check on the petitioner; that it will

not include in the criminal history record the "innocence

letter" or any correction or supplementary information provided

by a petitioner; and that it need not and will not inform the

requester that the real Teague, Colvin, and Williams have no

criminal history.18

17
During the pendency of this litigation, the Department of
Justice has developed what is, in essence, a "new and improved"
innocence letter——the Wisconsin Unique Personal Identification
Number (WiUPIN). The Department gives a WiUPIN to individuals
who have successfully challenged the accuracy of an entry in the
Department's criminal history database. Once an individual
receives a WiUPIN, the individual may furnish the WiUPIN to
whatever organization intends to request a criminal background
check on the individual. If the requester includes the WiUPIN,
it "will be used in searching potential matching records, so
that any arrest and/or conviction record successfully challenged
will not be included in a public response." The WiUPIN is
available to individuals who have a name similar to a criminal's
or have had their name used by a criminal during an arrest. See
Wisconsin Department of Justice, Background Check & Criminal
History Information,
https://www.doj.state.wi.us/dles/cib/background-check-criminal-
history-information.
18
The Department relies on its disclaimers to warn the
requester that the record subject may be innocent of any
criminal violation. I agree with Justice Kelly's writing that
the disclaimers are ineffectual and insufficient safeguards in
the instant case. See Justice Kelly's writing, ¶¶45-46.

11
 No. 2014AP2360.ssa

¶112 The statutes envision that accurate personally

identifiable information will be collected, retained, and

released by the Department. As explained previously, see ¶¶96-

97, supra, Wis. Stat. § 19.70 provides a means for providing

accurate personally identifiable information.

¶113 When a challenge is made to the accuracy of a record

containing personally identifiable information, Wis. Stat.

§ 19.70, using the word "shall," requires the Department of

Justice to take the following action:

• It shall concur with the record subject's challenge

and correct the information (§ 19.70(1)(a)); or

• It shall deny the challenge, notify the record subject

of the reasons for denying the challenge, and allow

the record subject to file a concise statement setting

forth the individual's disagreement with the disputed

portion of the record (§ 19.70(1)(b)).

¶114 Indeed, it appears that in future responses to records

requests about these three petitioners, the Department can
repair the inaccurate criminal history records with very little

difficulty or expense.

¶115 Still, the Department has, in effect, refused to

comply with Wis. Stat. § 19.70 even though it is fully aware of

the inaccuracies in criminal history records pertaining to these

petitioners. Indeed, the Department, even in this court, has

not explained why it cannot and will not repair any inaccurate

criminal history records it releases in the future pertaining to
the petitioners.

12
 No. 2014AP2360.ssa

¶116 I conclude, as does Justice Kelly's writing, that the

petitioners have successfully demonstrated that Wis. Stat.

§ 19.70 entitles them to have the inaccuracies corrected in the

criminal history records the Department releases in the future.

See Justice Kelly's writing, ¶35.

¶117 As I stated previously, I write separately because I

disagree with Justice Kelly's writing that relief under Wis.

Stat. § 19.70 "will likely never have anything more than a

retroactive effect." See Justice Kelly's writing, ¶35.

¶118 In contrast, I conclude that a prospective equitable

remedy is available to the three petitioners under Wis. Stat.

§ 19.70. Section 19.70 would be an ineffective, worthless

provision unless each of the three petitioners had a remedy

under the statute when the Department violated the statute.

¶119 The legislature could not have intended that the

Department could violate Wis. Stat. § 19.70 with no

consequences. Implicit in § 19.70 is the concept that if the

Department does not comply with § 19.70, a court may declare
rights under the statute and enjoin the Department from

violating the statute.

¶120 As I explained previously, I would have this court

issue a declaratory judgment pursuant to Wis. Stat. § 806.04,

the Uniform Declaratory Judgments Act. The declaratory judgment

would be affirmative in form and effect, declaring that the

Department of Justice must comply with the mandatory

requirements of § 19.70. See Wis. Stat. § 806.04(1).

13
 No. 2014AP2360.ssa

¶121 The declaratory judgment would also be negative in

form and effect enjoining the Department from refusing to comply

with the mandatory requirements of Wis. Stat. § 19.70. See Wis.

Stat. § 806.04(1).

¶122 To obtain injunctive relief, a party must generally

show: (1) sufficient probability that future conduct will

violate a right and cause injury; (2) that the injury will be

irreparable; and (3) that no adequate remedy exists at law for

the injury.19

¶123 The requirements for injunctive relief are satisfied

in the instant case. First, there is a sufficient probability

that the Department will not change its conduct of its own

accord to correct the inaccuracies that have harmed the

petitioners. The petitioners' woes will begin anew whenever the

Department releases criminal history records pertaining to these

petitioners. The petitioners' names, absent the injunctive

relief that I conclude this court should order, will continue to

be inaccurately associated with a criminal history.
¶124 Second, the injury to the petitioners is irreparable.

Every time the Department releases an inaccurate criminal

history record, "it is inaccurately suggesting that the [record

subject] has a criminal history when, in fact, he does not."

See Justice Kelly's writing, ¶43. The imposition of such a

"specter of criminality" damages the individual's reputation and

increases the odds that the individual will lose innumerable

19
See Pure Milk Prods. Co-op. v. Nat'l Farmers Org., 90
Wis. 2d 781, 280 N.W.2d 691 (1979).

14
 No. 2014AP2360.ssa

opportunities. See Justice Kelly's writing, ¶43. Such an

injury has the likelihood of being extremely widespread. The

"Wisconsin Criminal History Single Name Record Request" form

imposes no limits on who may request a criminal background

record, and anyone in the "General Public" may request a

background check for "General Information."20 In 2015, the

Department processed about 900,000 "public criminal background

check requests." The potential for widespread injury cannot

readily be rectified.

¶125 Third, no adequate remedy exists at law. Money

damages for past or future injury would not curtail the

Department's future violations of Wis. Stat. § 19.70 or remedy

the injury. Only injunctive relief will prevent the Department

from hereafter releasing inaccurate criminal history records

pertaining to the petitioners.

¶126 In sum, I would have this court issue a declaratory

judgment as I have described.

III
¶127 I briefly discuss other issues raised by the

Department of Justice's alias search policy, the release of

inaccurate criminal history records, and the plight of

individuals who may unknowingly be harmed by release to the

20
This form and instructions are available on the
Department of Justice's website,
https://www.doj.state.wi.us/sites/default/files/dles/cib-
forms/record-check-unit/DJ-LE-250-single.pdf.

15
 No. 2014AP2360.ssa

public of inaccurate criminal history records pertaining to

them.

¶128 The relief that I would have the court grant in the

instant case would be precedent and would be available to all

individuals similarly situated to the petitioners. But not all

individuals affected by release of criminal history records will

be situated similarly to the petitioners.

¶129 In the instant case, the three petitioners were aware

of the release of inaccurate criminal history records pertaining

to them, obtained innocence letters, and requested the

Department to correct criminal history records released

pertaining to them.

¶130 Many individuals, however, may not be aware that they

are the victims of the Department of Justice's release of

inaccurate criminal history records. These individuals have no

opportunity to obtain an innocence letter or to challenge

inaccurate criminal history records released to requesters

searching their names and birthdates.21 These individuals would
not fall within the relief granted in the instant case.

¶131 Neither Wis. Stat. § 19.70, an innocence letter, nor

the Wisconsin Unique Personal Identification Number (WiUPIN),

each of which puts the onus on the record subject to challenge

21
The Department requires a name and birthdate to comply
with a request for a criminal history record. Although the
requester for Teague's criminal history record inaccurately
advised the Department of Teague's birth date, the Department
nevertheless released the records using Teague as an alias
because the Department uses a range of acceptable birthdates.

16
 No. 2014AP2360.ssa

the criminal history record, aids an individual who does not

know of the inaccurate criminal history record pertaining to him

or her.

¶132 A challenge may very well arise in the future to the

Department of Justice's alias search policy in compiling and

releasing criminal history records. There is a significant

likelihood that as a result of this policy the Department will

release an inaccurate criminal history record pertaining to an

individual without giving the record subject an opportunity to

correct or supplement the record.

¶133 The interpretation and application of the statutes

relating to the criminal history database, criminal history

records, and personally identifiable information may benefit

from further attention by the Department of Justice. Further

legislative attention may also be needed. See Wis. Stat.

§ 13.92(2)(j).

¶134 For the reasons set forth, I write separately.

¶135 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.

17
 No. 2014AP2360.mjg

¶136 MICHAEL J. GABLEMAN, J. (concurring). I agree with

the lead opinion that the criminal history reports that are at

issue in this case are inaccurate as a matter of law under Wis.

Stat. § 19.70. I further agree that DOJ is required to correct

the inaccurate information. I therefore join part of the lead

opinion1 and concur in the mandate of the court. I part ways

with the lead opinion, however, to the extent that it also

purports to resolve the petitioners' constitutional claims, and

for that reason I write separately.

¶137 Wisconsin Stat. § 19.70 provides that a person may

challenge, in writing, the accuracy of a public record

maintained by a government authority when that document contains

personally identifiable information pertaining to that person.

Wis. Stat. § 19.70(1). In response to a challenge under

§ 19.70, the authority must make a decision: it shall either

"correct the information" if it concurs with the challenge, or

it shall issue a written denial if it denies the challenge.

§ 19.70(1)(a)-(b). If it denies the challenge, it shall also
afford the challenger an opportunity to file a concise written

statement setting forth the challenger's reasons for disputing

the accuracy of the record. § 19.70(1)(b).

¶138 The lead opinion concludes, and I agree, that "the

record at issue in this case is the report created in response

1
More specifically, I join Parts I, II, III, IV.A, IV.C,
and V of the lead opinion, but I do not join Part IV.B or the
last two sentences of Part IV.A. I also note that I agree with
footnote 39 in the lead opinion, describing the effect that this
court's mandate should have on remand to the circuit court.

1
 No. 2014AP2360.mjg

to a request for a Criminal History Search," lead op., ¶25, and

that Wis. Stat. § 19.70 applies to the reports because they

contain personally identifiable information pertaining to Teague

and the other petitioners, id., ¶¶28-29. I further agree that,

because "DOJ has known ATP's criminal history report does not

relate to Mr. Teague ever since it issued Mr. Teague's innocence

letter . . . by continuing to produce that report in response to

an inquiry into whether Mr. Teague has a criminal history, [DOJ]

is providing inaccurate information." Id., ¶34. Not only has

this inaccuracy occurred in past reports, but it will continue

to recur unless DOJ makes corrections. "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." Id., ¶35.

¶139 However, I do not conclude, as the lead opinion does,

that "corrections under § 19.70 will likely never have anything
more than a retroactive effect." Id. Rather, I interpret Wis.

Stat. § 19.70(1)(a) to require that, at a minimum, DOJ must make

corrections sufficient to prevent the same inaccuracy from

recurring the next time someone requests Teague's criminal

history report. Complying with § 19.70(1)(a) requires

"correct[ing] the information," and in Teague's case, DOJ is

providing inaccurate information by incorrectly presenting ATP's

criminal history as Teague's when, in fact, DOJ knows that
Teague has no criminal history. Merely retracting a single

2
 No. 2014AP2360.mjg

report amounts to no correction at all, because the database

will continue to generate the same report with the same

inaccuracies. Therefore, under the facts here——where DOJ knows

its database is repeatedly producing the same inaccuracy——I

conclude that "correct[ing] the information" under § 19.70(1)(a)

requires ensuring that ATP's criminal history will no longer be

inaccurately reported as Teague's. I agree with Justice

Abrahamson that § 19.70 "would be an ineffective, worthless

provision" if Teague did not have a remedy under the statute.

Justice Abrahamson's opinion, ¶118.

¶140 Holding that Teague and the other petitioners are

entitled to this remedy under Wis. Stat. § 19.70 is enough to

resolve this appeal.2 Consequently, there is no need to address

the constitutional arguments presented. It is well established

that we construe statutes to avoid constitutional infirmities.

"A court should avoid interpreting a statute in such a way that

would render it unconstitutional when a reasonable

interpretation exists that would render the legislation
constitutional." Am. Family Mut. Ins. v. DOR, 222 Wis. 2d 650,

667, 586 N.W.2d 872 (1998). Similarly, "[t]his court has

frequently concluded that it need not address a claim of

constitutional error if the claim can be resolved on statutory

2
DOJ argues that Wis. Stat. § 19.70 has no application to
this case because the petitioners never challenged the
"accuracy" of any record. I join a majority of justices in
rejecting that argument, and I conclude that § 19.70 entitles
the petitioners to have the inaccuracies corrected. In my
opinion, the task of crafting an appropriate order is best left
to the circuit court.

3
 No. 2014AP2360.mjg

or common law grounds." State v. Dyess, 124 Wis. 2d 525, 533,

370 N.W.2d 222 (1985); see State v. Bobby G., 2007 WI 77, ¶3,

301 Wis. 2d 531, 734 N.W.2d 81 ("Because we can resolve the case

on statutory grounds, we decline to address the constitutional

issues presented . . . .").

¶141 Nevertheless, despite its holding that Wis. Stat.

§ 19.70 "entitles [Teague] to have this inaccuracy corrected,"

lead op., ¶35, the lead opinion concludes that the § 19.70

"procedures are inadequate safeguards for Mr. Teague's liberty

interest," id., ¶78. The lead opinion speculates that "it

appears this procedure may provide only incomplete relief."

Id., ¶74. This speculation is an inadequate basis upon which to

resolve matters of constitutional magnitude.

¶142 If the lead opinion's speculation turns out to be

correct, the statutes already provide an avenue for relief.

Petitioners may seek judicial review of DOJ's final decision

under Wis. Stat. § 19.70. I conclude——and DOJ acknowledged at

oral argument——that chapter 227 of the statutes permits judicial
review of § 19.70 decisions. Chapter 227 provides for judicial

review of "[a]dministrative decisions which adversely affect the

substantial interests of any person, whether by action or

inaction, whether affirmative or negative in form." Wis. Stat.

§ 227.52. If DOJ's final decision under § 19.70 adversely

affects Teague's "substantial interests," then § 227.52 applies

and Teague would have standing if he could "demonstrate both

that [he] sustained [an] alleged injury due to the agency
decision, and that the injury is to an interest which the law

4
 No. 2014AP2360.mjg

recognizes or seeks to regulate or protect." Waste Mgmt. of

Wis., Inc. v. DNR, 144 Wis. 2d 499, 505, 424 N.W.2d 685 (1988).

¶143 Here, the interest protected by Wis. Stat. § 19.70 is

the interest in having inaccurate information corrected. As the

lead opinion aptly describes it, § 19.70 provides a process by

which the subject of a public record "may, upon discovering an

inaccuracy in that record, engage a statutory mechanism to have

it corrected." Lead op., ¶21. This mechanism requires DOJ to

respond to the challenge by issuing a decision and either

concurring with the challenge or denying the challenge. See

§ 19.70(1)(a)-(b). In Teague's case, if the action DOJ

ultimately takes to correct the criminal history reports under

§ 19.70 is insufficient to remedy Teague's injury, then Teague

may seek judicial review under Wis. Stat. § 227.52.

¶144 Because the statutes provide the petitioners with a

remedy, I see no need to decide the constitutional issues

presented. Accordingly, I join Parts I, II, III, IV.A, IV.C,

and V of the lead opinion, but I do not join Part IV.B or the
last two sentences of Part IV.A. I write separately to explain

my view that resolving Teague's statutory claim under Wis. Stat.

§ 19.70 is sufficient to resolve this appeal.

¶145 For the foregoing reasons, I respectfully concur.

¶146 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK joins this concurrence.

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 No. 2014AP2360.akz

¶147 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). No one

disputes, for purposes of this appeal, that Dennis Teague's

("Teague") cousin, ATP, used the name "Dennis Antonio Teague" as

an alias and that ATP, not Teague, has a criminal history. As

to ATP, then, the Wisconsin Department of Justice's ("DOJ")

criminal history database is absolutely correct. The database

reflects that ATP used the name "Dennis Antonio Teague" as an

alias. The database correctly reflects dates of birth not

shared by Teague, an image that is not Teague's image, ATP's

name as well as the alias names attributed to him, and ATP's

criminal history. It is important, and seemingly accurate, to

have that information available in the database as concerns ATP.

The only common information between ATP and Teague is the name.

¶148 The problem occurs when Teague's name is searched,

even with Teague's own date of birth (which is different than

ATP's date of birth); ATP's record (with dates of birth

attributed to ATP) appears, and ATP's record reflects that he

used the name "Dennis Antonio Teague" as an alias. Teague wants
this court to remedy the wrong that occurs to him when people

might question whether it is he who has the criminal history.

Teague is not without recourse. Teague and some members of this

court want more. I do not blame them, but I cannot join this

constitutional journey in search of a remedy, particularly when

other relief has been made available, but is, according to

Teague, unsatisfactory. The court leaves the circuit court with

no guidance regarding an appropriate remedy. In addition, the

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issue of remedy might even be rendered moot given the DOJ's

implementation of a new search system.

¶149 In reporting accurate facts as to ATP in its criminal

history database, the DOJ provides a valuable service to those

employers, businesses, and members of the general public who may

want to know more about ATP or the alias he may be using at the

moment. It is valuable information, for example, if ATP is

posing to be Teague with ATP's date of birth, for those who

search to be able to know that ATP, posing as Teague, has this

criminal history. And if Teague were trying to prove that ATP

has used his name as an alias, he would want that information to

be available as well. The information in the database is not

illegitimate.

¶150 The difficulty arises under these facts because Teague

wants his good name to reflect just that. He apparently is not

presently in need of proving that ATP has in fact used his name

as an alias. In fact, if he found himself in that position, he

would presumably want to use the database as proof that ATP has
used his good name as an alias. While this database reflects

accurate information as to ATP's alias, it is less than clear as

to Teague's lack of criminal history, particularly if one does

not heed the warnings in the database. In other words, if not

read thoroughly, as the database warns to do, it could cause

some to question whether Teague might have a criminal history.

Teague finds unsatisfactory that those who are aggrieved by the

results of a database search may obtain relief in the form of an
official letter to demonstrate that it is not they who possess a

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criminal record. Teague did, in fact, receive such a letter but

he nonetheless fears that it is not enough to exculpate him in

the eyes of others. I feel sorry for him and for those who find

themselves in his position. The entire court feels sorry for

Teague and those like him.

¶151 I depart from Justice Kelly's writing,1 however,

because the legislature is the body to weigh and consider the

need for public access to this information with the fact that

some innocent bystanders might be wronged by such access. Our

own court has repeatedly faced similar difficult challenges to

our own website by those who have been wronged by the

information that is available. Our court has not seen fit to

create the kind of remedies for those individuals that certain

members of the court would create for Teague today. I can join

these members of the court in their pitying Teague for what ATP

did to him and the injustice that could occur if improper

assumptions are made as to Teague. I, however, cannot join

Justice Kelly's writing with its construction of a
constitutional violation where none exists in order to avoid a

bad outcome and its conclusion that the DOJ's publication of

truthful, valuable information as to ATP deprives Teague of

liberty under the state and federal constitutions.

¶152 As a preliminary, but fundamental, legal matter, the

circuit court below, acting as factfinder, found that the

"criminal history responses issued by the [DOJ] in response to

1
Given the votes of my colleagues, I refer to the writing's
author specifically in order to provide clarity.

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name-based queries using the plaintiff[s'] names and dates of

birth . . . 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."2 We owe

deference to that determination. Unlike Justice Kelly's

writing, I am unable to conclude that the circuit court's

finding is clearly erroneous. Without such a conclusion,

Teague's procedural due process claim fails from the outset.

Accordingly, I respectfully dissent.3

2
Although the term "defamation" has been used in Justice
Kelly's writing, I note that the term has a unique definition
under the law. See, e.g., Wis JI-Civil 2500. Although I will
use this terminology, I do not necessarily mean to conclude that
this is indeed a defamation claim.
3
Like Justice Kelly's writing and the court of appeals, I
address only Teague's circumstances, not those of the
intervening plaintiffs. While the petitioners do not face
identical scenarios, the reasoning in this writing applies
equally to each of them. For instance, the criminal history
report of the individual who apparently stole petitioner L.C.'s
name lists a birth date that in fact corresponds to L.C.'s birth
date. But numerous other aspects of the criminal history report
make clear that the report does not belong to L.C.

In addition to Teague's procedural due process claim,
Justice Kelly's writing also discusses the application of Wis.
Stat. § 19.70 to this case. However, the writing ultimately
appears to reject this statute as the primary avenue of relief.
The circuit court below concluded both that Teague could not
challenge the information in the database because it pertained
to ATP rather than Teague and that even if the criminal history
report at issue is a record, it is not kept by the authority and
thus is "not a record that Teague can challenge or with which
his challenge can be filed." The court of appeals below
rejected the matter as undeveloped. See Teague v. Van Hollen,
2016 WI App 20, ¶¶71-76, 367 Wis. 2d 547, 877 N.W.2d 379
(Higginbotham, J., concurring); id., ¶79 (Sherman, J.,
concurring).

(continued)
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 No. 2014AP2360.akz

I

¶153 "Procedural due process under the Fourteenth Amendment

to the United States Constitution and Article I, Section 1 of

the Wisconsin Constitution protect[s] against government actions

that deprive an individual of life, liberty, or property without

due process of the law." Adams v. Northland Equip. Co., 2014 WI

79, ¶64, 356 Wis. 2d 529, 850 N.W.2d 272. The procedural due

process claim in this case requires the court to "determine

first whether there exists a liberty interest of which [Teague]

has been deprived, and if so, whether the procedures used to

deprive that liberty interest were constitutionally sufficient."

State v. Alger, 2015 WI 3, ¶39 n.15, 360 Wis. 2d 193, 858

N.W.2d 346 (quoting State v. West, 2011 WI 83, ¶83, 336

Wis. 2d 578, 800 N.W.2d 929).

¶154 Also as a fundamental legal principle, "A plaintiff

may prove a deprivation of a liberty interest by showing damage

to her 'good name, reputation, honor, or integrity,' Wisconsin

v. Constantineau, 400 U.S. 433, 437 (1971), but any stigmatic
harm must take concrete forms and extend beyond mere

reputational interests." Omosegbon v. Wells, 335 F.3d 668, 675

(7th Cir. 2003) (citing Paul v. Davis, 424 U.S. 693, 711-12

(1976)). Put differently, "[e]ssentially, a plaintiff claiming

a deprivation based on defamation by the government must

Even my colleagues who would grant relief under Wis. Stat.
§ 19.70 do not agree on what that relief should be and who
should provide it. As a result, I need not address the issue.
I also decline to address the other claims Teague has raised.

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 No. 2014AP2360.akz

establish the fact of the defamation 'plus' the violation of

some more tangible interest before the plaintiff is entitled to

invoke the procedural protections of the Due Process Clause."

Cannon v. City of West Palm Beach, 250 F.3d 1299, 1302 (11th

Cir. 2001) (citing Paul, 424 U.S. at 701-02). In this case it

is unnecessary to inquire into the existence of damage to "some

more tangible interest" possessed by Teague because Teague has

not even established the fact of reputational injury. I cannot

ignore this important and jugular deficit.

¶155 I recognize that with regard to the issue of

reputational injury, there is in fact little to be gained in

attempting to refute much of the reasoning in Justice Kelly's

writing. Justice Kelly's writing may be quite right that if one

ignores certain purposes a requester might have for entering

Teague's information into the criminal history database, ignores

the DOJ's thorough explanation, in the reports it provides, of

the information it is actually providing, ignores details

demonstrating that the record returned in response to a request
is not Teague's own record (such as a name, image, and/or

birthdate that do not correspond to Teague's own name, image,

and/or birthdate), and instead focuses entirely, blinders on,

upon the single fact that a name corresponding to Teague's own

name appears somewhere in the criminal history report provided,

then one might indeed accidentally conclude that Teague

possesses a criminal history.

¶156 But that, obviously, is not how these criminal history
reports are to be analyzed. See, e.g., Leuch v. Berger, 161

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 No. 2014AP2360.akz

Wis. 564, 571, 155 N.W. 148 (1915) ("The words used must be

construed in the plain and popular sense in which they would

naturally be understood. And the words claimed to be libelous

must be read in the light of the entire article." (citation

omitted)). Begin with the requester's purpose. In one entirely

conceivable scenario, a requester receives personal information

from an individual and wishes to verify, through the criminal

history database, whether that individual possesses a criminal

history. If the individual is, for example, ATP using

information stolen from Teague, the criminal history database

will accurately notify the requester that the name the requester

received has been used as an alias by the individual. The

criminal history database has served its purpose.

¶157 Under other circumstances, the individual who provided

the personal information will be the individual himself——Teague,

for example. But despite this eventuality, and for

understandable public protection reasons, the DOJ may wish to

maintain in its database the fact that ATP stole Teague's name.
The DOJ therefore fully and carefully explains the nature of the

results it provides to requesters. The following are just a few

excerpts of the explanation the DOJ provides that are directly

relevant to the facts of this case (emphases are in the

original):

IMPORTANT EXPLANATION ABOUT HOW TO UNDERSTAND THIS
RESPONSE

. . . .

Read these sections carefully to understand how this
response relates to the identifying data you provided.

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 No. 2014AP2360.akz

. . . .

You must carefully read the entire Wisconsin criminal
history record below in order to determine whether the
record pertains to the person in whom you are
interested.

Do not just assume that the criminal history record
below pertains to the person in whom you are
interested.

. . . .

It is not uncommon for criminal offenders to use alias
or fraudulent names and false dates of birth,
sometimes known as "identity theft."

If the name you submitted to be searched is DIFFERENT
from the "Master Name" [a term defined elsewhere]
below, the Wisconsin criminal history record below may
belong to someone other than the person whose name and
other identifying data you submitted for searching.
If an alias or fraudulent name used by the person who
is the "Master Name" is similar to the name you
submitted for searching, that does not mean that the
person whose name you submitted for search has a
criminal history. It means that the person associated
by fingerprints with the Wisconsin criminal history
below has used a name similar to the name you
submitted for searching.

. . . .

To determine whether the Wisconsin criminal history
below actually belongs to the person whose name and
other identifying information you submitted for
searching, compare the information reported below to
the other information you have obtained about that
person. Inconsistencies may indicate that the
criminal history reported below does not belong to the
person whose name and other identifying information
you submitted for searching.
¶158 This is not "legalese." It is clear, unembellished

English. And if a requester entering Teague's information reads

and follows these unambiguous instructions, that person will
know, for instance, to "compare the information reported" in

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ATP's criminal history "to the other information" the requester

has "obtained about" Teague. The person will discover

inconsistent names, birthdates, and perhaps even images. The

criminal history database may not have proven very helpful to

the requester, but it should not have harmed Teague.

¶159 In sum, it is a bit of an overstatement to conclude,

in light of the foregoing, that the DOJ's "policy and

practice . . . consistently and predictably calumnizes innocent

people." Justice Kelly's writing, ¶73. In fact, that

conclusion is not really one for members of this court to make

because first, we are not a fact-finding court and second, the

factfinder below reached the opposite conclusion. In other

words, one might argue that despite the explanation the DOJ

provides, and even considering the context in which a criminal

history report is requested, a requester may still read one of

the DOJ's criminal history reports to ascribe a criminal

background to an individual who does not possess one. This is

precisely why the question of the defamatory nature or not of
the criminal history reports at issue was submitted to a

factfinder below.

¶160 Specifically, the circuit court concluded, in its

findings of fact, that the "criminal history responses issued by

the [DOJ] in response to name-based queries using the

plaintiff[s'] names and dates of birth . . . 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." That finding is not clearly erroneous, and Teague's

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procedural due process claim therefore fails. The DOJ has not

defamed Teague. It reports, for the benefit of the public and

others, the truthful (for purpose of this appeal) fact that ATP

has used the name "Dennis Antonio Teague" as an alias. At

bottom, the analysis in Justice Kelly's writing rests on fears

that requesters are either unable or unwilling to follow the

basic instructions the DOJ gives them in the reports it

provides. However, the factfinder considered this possibility

and rejected it. I would not upset the circuit court's

findings. Moreover, Justice Kelly's writing leaves the circuit

court to create a remedy and provides it with no guidance

whatsoever as to what that might be. Additionally, the other

litigants have separate concerns but Justice Kelly's writing

similarly provides the circuit court with absolutely no guidance

as to what their remedies may be. The DOJ has referenced a new

system that will be or has now been implemented. Perhaps that

will provide the process that members of this court now believe

is due.
II

¶161 This case is all the more concerning because of how it

may be used in the future. Justice Kelly's writing casts doubt

on the validity of a host of government-run databases similar to

the one at issue here. A good example is the Wisconsin Circuit

Court Access ("WCCA") system, a database that "provides access

to certain public records of the Wisconsin circuit courts."4 One

4
Wisconsin Circuit Court Access, https://wcca.wicourts.gov
(last visited March 19, 2017).

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 No. 2014AP2360.akz

need provide only a name to gain access to court-related

information potentially associated with that name, including

records of criminal convictions.

¶162 This court has been less than receptive to requests of

individuals who have claimed to be victimized by the way WCCA

information is maintained. The court has fallen far short of

finding a due process violation. On June 30, 2009, the Board of

Governors of the State Bar of Wisconsin submitted a petition to

modify the Supreme Court Rules, explaining:

As this Court is aware, [WCCA] can be reviewed by
anyone with internet access and the information
contained on the website is regularly misused. [WCCA]
publishes the original criminal case information
regardless of the outcome of the case. . . . To allow
continued access to such easily misunderstood
information, especially in cases in which the case was
dismissed or there was a judgment of acquittal, poses
the risk that such a record could be "a vehicle for
improper purposes," whether intentional or not.
In re Petition of the State Bar of Wisconsin to Modify Chapter

72 of the Supreme Court Rules, Petition 09-07 at 11-12 (quoting

Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)),
https://www.wicourts.gov/supreme/docs/0907petition.pdf. Although

the court's own website has produced its own victims, the court

does not even provide a letter as relief to those aggrieved. On

July 19, 2016, this court dismissed the petition. S. Ct. Order

09-07 (issued Jul. 19, 2016),

https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=

pdf&seqNo=172234.

¶163 It seems, then, that members of this court are holding
the DOJ to a stricter standard when it comes to the maintenance

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of the type of information at issue than it does the Wisconsin

Court System. One wonders how WCCA, and other databases like

it, might fare given the constitutional relief Justice Kelly's

writing seeks to provide today.

III

¶164 Members of the court are not wrong to wish that there

was a remedy for Teague that could address all possible

scenarios, but Justice Kelly's writing unfortunately errs in

concluding that the DOJ unconstitutionally deprived Teague of

liberty. I would uphold the finding of the circuit court below

and conclude that Teague has not established that the DOJ

defamed him. The information in the database is correct. It is

unfortunate that Teague's name has been used as an alias.

Nonetheless, Teague's procedural due process claim must fail.

This court should not insert itself further into a dispute that

is best resolved, if need be, by the legislature.

¶165 For the foregoing reasons, I respectfully dissent.

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1