The Wisconsin Supreme Court held an open administrative conference on October 9, 2023, to consider a petition (No. 22-03) filed by Legal Action of Wisconsin (LAW) concerning the retention of court records in eviction cases. Evictions are heard in small claims courts throughout the state. LAW’s petition asked the court to shorten court record retention rules so that cases where no money judgment was entered against a tenant would be deleted from the state CCAP filing system after one year. LAW’s petition did not seek to change the current rule that eviction cases with a money judgment remain public for 20 years.
1. So what exactly did the seven justices decide at their October 9 conference?
Exactly what they decided is not yet certain. While they took a 4-3 vote in favor of changing the record retention rules this has to be put in writing and formally issued as an order by the court. There may then be separate opinions by justices supporting or opposing the changes.
Contrary to the impression from some media coverage, any eviction where a landlord gets a judgment for back rent or even just a judgment for court costs if the tenant moves out WILL NOT “go away” after two years. Those eviction cases remain public for 20 YEARS.
2. Reporting by the media says the court “sided with tenant advocates.” Is that what happened?
The media might be interpreting the 4-3 vote as the majority siding with tenant advocates and the minority siding with landlord advocates. But while we don’t yet have a written order the majority vote clearly rejected LAW’s request for a one year record retention and declared that dismissed evictions would remain public for two years. Numerous tenant advocates and social agencies had filed comments in support of the one year rule. The media failed to look at the comment submitted by major Wisconsin rental property owner groups which opposed a one-year rule but suggested the court adopt a two-year rule. So this 4-3 decision actually sided with the landlords.
3. Are Wisconsin landlords generally in favor of a rule whereby dismissed evictions aren’t searchable anymore after two years?
Many owners would probably prefer a longer look-back period than two years. Some larger owners have policies whereby they want to know of any evictions filed against a prospective tenant for a time period of between three and seven years. Credit histories are generally maintained for seven years by credit reporting agencies, for example.
4. So why did the landlord groups propose a two-year rule?
For two reasons. First the existing Supreme Court Rule SCR 72.01(8) which governs all small claims cases including evictions already operates to remove many eviction records on CCAP two years after the case is closed. For example, of the 1,101 evictions filed in Milwaukee County in December 2019, 517 are not viewable by landlords using CCAP to screen tenants. Secondly, landlord groups supported a statute favorable to tenants passed in 2018. Section 258.20(2)(b) gives the Director of State Courts the authority to remove eviction cases after two years if no money judgment has been docketed. The statute also cuts the retention period to ten years from twenty years for cases where a writ of restitution was issued against the tenant.
5. Why were three justices opposed to the two-year rule if there wasn’t any strong opposition to it by any of the interested parties?
We’ll have to see what any dissenting opinions might say but of course this issue on eviction records doesn’t just involve tenants and landlords as interested parties. The public also has a strong interest in open records. Just because a current landlord and tenant might agree that an eviction record should be effectively sealed doesn’t mean that future landlords or other credit providers don’t have the right to see whether someone has a track record of not paying rent. Even private parties: if you are a person looking for a roommate to share an apartment you’d want to know if someone didn’t pay their rent three years ago, even if the eviction filed against them was dismissed because they moved out just before the court hearing.
6. At the oral hearing on the petition on September 7, 2023, tenant advocates proposed that the Wisconsin Supreme Court and not the Wisconsin Legislature should have ultimate authority over court record retention rules. Has that question been decided?
That legal question may not be covered when the court issues its written order. But it was revealing that Justice Rebecca Dallet, who voted with the majority, said that the court was not contravening an act of the legislature. She pointed out the two-year provision in section 758.20 and stated that the legislature “had the right to do that and we are implementing their policy.”
This FAQ has been prepared by Atty Heiner Giese on behalf of the Rental Property Association of Wisconsin, Inc. (formerly AASEW) and other interested rental property owners and associations.