Court of Appeals decision reinforces the narrow effect of expungement in Wisconsin

By Alexandria Staubach

Earlier this month the Wisconsin Court of Appeals upheld the Wisconsin Department of Justice’s denial of Scot Van Oudenhoven’s handgun purchase application based on an previous misdemeanor domestic violence conviction that had been expunged under Wisconsin law.

The decision reinforces the narrow effect of expungement on criminal convictions in Wisconsin, where they are difficult to obtain and of limited effect. Expungement seals a criminal court file but has no impact on the conviction itself.

Judge Gregory B Gill Jr. wrote for District III appeals court. He was joined in the opinion by Judges Lisa K. Stark and Judge Thomas M. Hruz.

Van Oudenhoven was convicted of battery as an act of domestic violence in a 1994 Calumet County case. In 2019, a Calumet County Circuit Court judge granted Van Oudenhoven’s petition for expungement.

In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. The Wisconsin Department of Justice (DOJ) denied the purchase based on his misdemeanor battery conviction. After Van Oudenhoven exhausted administrative remedies with the DOJ, he sought judicial review in Winnebago County Circuit Court. Judge Teresa S. Basiliere affirmed the DOJ denial.

Federal law prohibits the sale of firearms to individuals who have been convicted of offenses related to domestic violence, but among the exceptions are misdemeanor cases. Possession is permitted where the misdemeanor conviction has been “expunged or set aside.”

On appeal, Van Oudenhoven argued that expungement under Wisconsin law has the same force and effect as “expunged or set aside,” which phrase is not explicitly defined under federal law.

Van Oudenhoven argued that the U.S. Supreme Court provided a common understanding of the phrase when it said in Logan v. United States that “expungement,” “set-aside,” “pardoned,” and “civil rights restored,” “describe[] a measure by which the government relieves an offender of some or all of the consequences of his [or her] conviction.” Because Van Oudenhoven’s expungement removed “some” consequences of his conviction, the Calumet County court “expunged or set aside” his conviction, he argued.

The Court of Appeals rejected Van Oudenhoven’s argument that his conviction had been “expunged or set aside.”

“The terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, require state action that removes the prohibition on an individual from possessing or receiving a firearm under federal law,” wrote Gill. “The state procedure in question must completely remove all effects of the conviction at issue,” he said.

Wisconsin’s expungement law does not remove the effects of conviction; “the statue merely removes evidence of the conviction from court files,” said Gill.

Current state law permits expungement for an offense with a penalty of six years or less, as long as the offense was not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. If all conditions are met, a subsequent court may grant a request for expungement after the person has successfully completed their sentence.

During the last decade, several bills have been introduced to reform Wisconsin’s expungement and pardon laws. Last session, one bill seemed poised for success. Senate Bill 38/Assembly Bill 37 received broad support, with organizations on both sides of the aisle registering in favor, from the conservative group Americans for Prosperity to the ACLU. The bill also had a bipartisan group of 63 co-sponsors. Although the bill successfully made its way through the Assembly, it ultimately failed to get a vote from the Senate.

“Expungement is an issue that has been before the Legislature and the Supreme Court for several years, yet, despite extensive study and discussion, there have been few changes made,” wrote the State Bar of Wisconsin in support of the bill. “Without expungement, every sentence is a life sentence,” it said.

Some legislators remain undeterred. Rep. Tip McGuire (D-Kenosha) told WJI “It has unfortunately been a long, difficult road for the expungement reform bill. However, every session brings in new legislators and a fresh chance for us to get on the same page and recognize the importance of getting this done.”

“Too many people in our state have trouble finding work or housing because of low-level crimes they committed many, many years ago when they were quite young. I’m hopeful we can properly strike a balance between public safety and rightfully giving people a second chance to build a life and a career for themselves,” McGuire told WJI.

According to a 2018 Wisconsin Policy Forum report, an estimated 1.4 million individuals in Wisconsin have criminal records that may hinder their ability to find employment. In Milwaukee County, 30,638 cases closed between 2006 and 2017 technically meet the current restrictive eligibility criteria but have not been expunged, said the report.

In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement.