Opinion
No. 2014AP1520–CR.
2014-12-4
STATE of Wisconsin, Plaintiff–Respondent, v. Andrew R. GEURTS, Defendant–Appellant.
Appeal from an order of the circuit court for Dodge County: Steven G. Bauer, Judge. Affirmed.
¶ 1 BLANCHARD, P.J.
This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(f) (2011–12). All references to the Wisconsin Statutes are to the 2011–12 version unless otherwise noted.
Andrew Geurts appeals an order of the circuit court dismissing his postjudgment motion requesting that the circuit court expunge from court records all references to a case in which Geurts entered a plea of no contest to disorderly conduct, after Geurts successfully fulfilled his obligations under a deferred prosecution agreement with the State to resolve the charge. The State fulfilled its side of the bargain by dismissing the disorderly conduct charge, but court records reflecting the charge, the no contest plea, and resolution of the case remain publicly available. The circuit court did not reach the question of whether the court would exercise its discretion to expunge Geurts's record, because the court concluded that Geurts was not eligible for expunction under the expunction statute, Wis. Stat. § 973.015, and that the court lacked inherent or equitable authority to expunge his record under the facts here. Geurts appeals. For the following reasons, I affirm.
¶ 12 Geurts acknowledges that (1) under a plain language interpretation of the terms of Wis. Stat. § 973.015(1)(a), when considered alone, expunction is not available to any person who has not “been found guilty,” and (2) he was never found guilty. This would appear to settle the question.
¶ 13 However, Geurts argues that the language of Wis. Stat. § 973.015(1)(a) becomes ambiguous when read in the context of Wis. Stat. § 971.37, which governs aspects of certain deferred prosecution programs, at least as this court has interpreted § 971.37 in State v. Daley, 2006 WI App 81, 292 Wis.2d 517, 716 N.W.2d 146. Geurts argues that the only reasonable interpretation of the expunction statute, when read in light of § 971.37 as interpreted in Daley, is that a circuit court has discretion to expunge the record of a person who has successfully completed a deferred prosecution program contemplated in § 971.37.
¶ 14 This argument is meritless for reasons that include at least the following. First, Geurts fails to explain why I should conclude that the legislature intended to modify or define the phrase “for which the person has been found guilty” in Wis. Stat . § 973.015(1)(a) through the use of any term in Wis. Stat. § 971.37. Second, the holding in Daley referred to by Geurts has nothing remotely to do with expunction. Discussion in that case involves the requirements the State can attach to a deferred prosecution agreement and plea withdrawal standards in the context of a deferred prosecution. Id., ¶¶ 6–18. In Daley, this court was narrowly focused on two questions: (1) whether the State can require a plea as part of a deferred prosecution agreement; and (2) when “sentencing” occurs in a case involving a deferred prosecution agreement for purposes of setting the standard for evaluating a motion to withdraw a plea agreement. Id. Without reference to any expunction concept, the court determined that a deferred prosecution agreement can include a requirement that the defendant enter a plea and that, in the deferred prosecution-plea withdrawal context, “ ‘sentencing’ ... encompasses the initial disposition of the case after the parties enter the agreement and the agreement is ratified by the trial court .” Id., ¶¶ 6–13, 16.
Geurts cites to an unpublished opinion of one judge of this court, State v. Melody P.M., No.2009AP2994, unpublished slip op. (WI App June 10, 2010). However, in an opinion recommended for publication this court has rejected the basis for the holding in Melody P.M. See Kenosha Co. v. Frett, No.2014AP6, recommended for publication (WI App Nov. 19, 2014). If anything, the logic of Frett undermines the argument now advanced by Geurts, which effectively invites me to insert into the expunction statute a mechanism for expunction despite the absence of a finding of guilt. See id., ¶ 7 (noting that the legislature “provided no mechanism for expunction” of a civil forfeiture, where “neither detention nor probation could have been ordered”).
¶ 15 Geurts argues that interpreting Wis. Stat. § 973.015(1)(a) to allow expunction for persons who have been found guilty of crimes, but not persons who have complied with all of the obligations contained in deferred prosecution agreements, is “unreasonable.” However, absent a claim of a constitutional violation, which Geurts does not make, the legislature is free to pick among options that prosecutors and defendants may use in resolving potential criminal liability through negotiations, with each available option presumably resulting from a weighing of potential social benefits and costs. Geurts's view as to how “reasonable” the options are does not constitute a legal argument. I observe that the record here does not reflect whether the parties' negotiation at any point included an alternative route that would have included the expunction option, but it does reflect that the State opposed expunction based on the agreement that was struck. Geurts was presumably not prevented from at least seeking an alternative settlement that would have left the door open to expunction, if that was his strong preference.
II. Inherent or Equitable Authority to Expunge
¶ 16 Turning to the circuit court's inherent or equitable authority to expunge court records, Geurts argues that the court improperly concluded that it lacked either authority on the facts here. The question of judicial authority is an issue of law reviewed de novo. Breier v. E.C., 130 Wis.2d 376, 381, 387 N.W.2d 72 (1986).
A. Inherent Authority
¶ 17 An inherent power “ ‘is one without which a court cannot properly function.’ “ Id. at 387, 387 N.W.2d 72 (quoted source omitted). A circuit court may use its inherent power “to limit public access to judicial records when the administration of justice requires it.” State ex rel. Bilder v. Township of Delavan, 112 Wis.2d 539, 556, 334 N.W.2d 252 (1983). However, “the party seeking to close court records bears the burden of demonstrating, with particularity, that the administration of justice requires that the court records be closed.” Id. at 556–57, 334 N.W.2d 252.
¶ 18 Geurts's argument regarding the court's inherent authority to expunge is entirely undeveloped, and I reject it on that basis. See State v. Pettit, 171 Wis.2d 627, 646–47, 492 N.W.2d 633 (Ct.App.1992). He cites Breier and State ex rel. Bilder, but he does not explain how those cases apply to the potential expunction of his record or of records of the type at issue here, nor why the “administration of justice” requires expunction here. Instead, he speaks in general terms about the damage that typically results to a person's reputation from being accused of a crime.
¶ 19 Geurts also cites a petition from the Wisconsin State Bar seeking modification of Chapter 72 of the Supreme Court Rules to, as Geurts explains, “codify the inherent authority of Wisconsin courts to manage their own files and determine when they ought be made public.” See State Bar of Wisconsin, Amended Petition to Modify Chapter 72 of the Wisconsin Supreme Court Rules (Oct. 27, 2009). However, as Geurts concedes, the modification to Chapter 72 sought by this petition was referred to the Legislative Committee of the Wisconsin Judicial Conference for legislative action, but it has not been implemented at this time. See SCR 72.06; see also State v. Matasek, 2014 WI 27, ¶ 6 n. 4, 353 Wis.2d 601, 846 N.W.2d 811.
B. Equitable Authority
¶ 20 As to equitable authority, a court has the authority to “grant equitable remedies to private litigants in situations in which there is no explicit statutory authority or in which the available legal remedy is inadequate to do complete justice.” Breier, 130 Wis.2d at 388, 387 N.W.2d 72. However, a court's authority to grant equitable relief “must be in response to the invasion of legally protected rights.” Id. at 389, 387 N.W.2d 72.
¶ 21 Geurts apparently intends to argue that the circuit court had “equitable expunction” authority because a legally protected right of his—to a reputation free of court record references to the disorderly conduct charge—has been invaded. Geurts now argues that “[t]here is a legal interest in protecting someone's reputation” and that “[t]he defendant has the right to restore his reputation upon successful completion of” the defendant's obligations under a deferred prosecution agreement. However, as the State points out Geurts has forfeited this argument. Before the circuit court, Geurts did not point to any legally protected right that had been invaded, and the circuit court concluded that it did not have the authority to expunge Geurts's record due to this failure. Geurts has forfeited his right to present an argument related to reputational harm on appeal by failing to raise it in front of the circuit court, and I reject it on that basis. See State v. Huebner, 2000 WI 59, ¶ 10, 235 Wis.2d 486, 611 N.W.2d 727 (“Issues that are not preserved at the circuit court, even alleged constitutional errors, generally will not be considered on appeal.”). Geurts does not present me with a compelling reason to ignore this forfeiture, when engagement on this issue before the circuit court might have developed the record in meaningful ways.
CONCLUSION
¶ 22 For these reasons, I affirm the order of the circuit court dismissing Geurts's motion for expunction.
Order affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)4.