                                                             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.




                                            5
                                                                      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



                                               1
                                                 No.   2014AP2360.akz


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

                                2
                                                                      No.   2014AP2360.akz


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.


                                            3
                                                                    No.       2014AP2360.akz


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)
                                          4
                                                                      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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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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                                                                   No.   2014AP2360.akz


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

                                          9
                                                                     No.   2014AP2360.akz


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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                                                               No.      2014AP2360.akz


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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