Kenosha County v. Blaire A. Frett, 2014Â WI App 127; case activity
State v. Melody P.M., 2009 AP2991 (WI App June 10, 2009), a 1-judge opinion, held that Wis. Stat. § 973.015 permits circuit courts to expunge civil forfeiture violations. Here, the court of appeals explicitly overrules  Melody P.M. and holds that civil forfeiture violations may not be expunged.
The court of appeals has zig zagged on this issue.  Almost 30 years ago, a 3-judge panel issued State v. Michaels, 142 Wis. 2d 172, 417 N.W.2d 415 (Ct. App. 1987), which held that the version of §973.015 then in effect did not permit expungement of civil forfeitures.  That version was titled “misdemeanors, special disposition.” The court explained that expungement was available only for offenses for which the maximum term of imprisonment was 1 year or less in the county jail. A misdemeanor meets that definition. An offense punishable by forfeiture, rather then a period of imprisonment, does not. Id., 142 Wis. 2d at 176.
In 2009, the legislature amended §973.015 by changing the title from “misdemeanors, special disposition” to just “special disposition” and by broadening the statute to include certain felonies. Melody P.M. held that, due to these amendments, §973.015 is no longer limited to misdemeanors and thus may extend to civil forfeiture violations.
The court of appeals here rejects Melody P.M.‘s logic and essentially reverts to Michael‘s reasoning. It holds that the 2009 changes (including the title change) were aimed solely at including certain felonies and that the expungement statute applies only to offenses that would result in a period of imprisonment. Frett, ¶6.
Which is it? The purpose of §973.015 is to give young offenders who have a made a mistake a chance to start over with a clean slate. If Frett is correct, then only offenders whose conduct rises to the level a misdemeanor or specified felonies get breaks. Young people who commit less egregious offenses don’t.  Does that make sense?
Appellate Practitioners may wonder about the court of appeals’ ability to overrule one of its prior decisions. It may not overrule a prior published decision. Apparently, it may overrule an unpublished opinion. See Wis. Stat. Rule 809.23(3)(b) and Cook v. Cook, 208 Wis. 2d 166, ¶¶51-53, 560 N.W.2d 246 (1997). Still, the zig zagging probably makes this issue a good candidate for review by SCOW.
