Desiree Brown v. Wisconsin Department of Justice

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 29, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP2121 Cir. Ct. No. 2022CV2331

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

DESIREE BROWN,

PETITIONER-APPELLANT,

V.

WISCONSIN DEPARTMENT OF JUSTICE,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
FREDERICK C. ROSA, Judge. Affirmed.

Before Donald, P.J, Geenen and Colón, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP2121

¶1 PER CURIAM. Desiree Brown was arrested on February 28, 1988,
for felony possession of marijuana with intent to deliver, and the information
related to this arrest was added to Wisconsin’s criminal history database (the
Database). In Wisconsin, if a person is arrested and “released without charge, or
cleared of the offense” then, upon request, he or she can have his or her fingerprint
record removed from the Database. WIS. STAT. § 165.84(1) (2021-22).1 On
November 30, 2021, the Department of Justice (the DOJ) received such a request
from Brown and denied it. The DOJ also corrected Brown’s information to reflect
that she was convicted of a misdemeanor instead of a felony.

¶2 Brown petitioned the circuit court for judicial review of the DOJ’s
decision under WIS. STAT. § 227.52. The circuit court affirmed the DOJ’s
decision, and Brown now appeals. On appeal, Brown argues that the DOJ failed
to sufficiently identify the basis for its decision and that substantial evidence only
supports that Brown was never charged or convicted.2 For the reasons set forth
below, we affirm.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.
2
For the first time in her reply brief, Brown argues that the DOJ did not have the
authority to deny her criminal history challenge and correct her record; instead, she argues that
the DOJ only has the authority under WIS. STAT. § 19.70 to either concur and remove her arrest
record entirely, or deny her challenge. She also argues that the DOJ is liable for an unspecified
amount of monetary damages. We decline to address these arguments. See A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (explaining that it is
fundamentally unfair to allow a party to raise an argument for the first time in the reply brief);
Bunker v. LIRC, 2002 WI App 216, ¶¶15-17, 257 Wis. 2d 255, 650 N.W.2d 864 (stating that
“[i]t is settled law that to preserve an issue for judicial review, a party must raise it before the
administrative agency,” and that this court should not answer questions that are “exclusively the
role of the trier of fact”).

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BACKGROUND

¶3 The DOJ maintains the Database which contains “an accumulation
of information submitted by Wisconsin law enforcement agencies, prosecutors,
courts, and the Wisconsin Department of Corrections[.]” Teague v. Schimel,
2017 WI 56, ¶2, 375 Wis. 2d 458, 896 N.W.2d 286 (quoted source omitted); see
also WIS. STAT. §§ 165.83-165.84. “All arrest records received from local law
enforcement become part of the [D]atabase and are fingerprint based.” Hall v.
DOJ, 2020 WI App 12, ¶3, 391 Wis. 2d 378, 941 N.W.2d 825. One of the
purposes of the Database is to “assist[] members of the public in discovering
whether a given individual has a criminal history.” Id., ¶4.

¶4 Regarding Brown’s February 28, 1988 arrest, the Database showed
that Brown was arrested, charged, and convicted of felony possession of marijuana
with intent to deliver, under WIS. STAT. § 161.41(1m)(b) (1987-88). On
November 30, 2021, the DOJ received a criminal history challenge from Brown
requesting that the DOJ either update the disposition of or remove Brown’s
February 28, 1988 record from the Database.3 In support of her challenge, Brown
submitted (1) a letter stating she was ineligible to be paid with funds through the
Department of Health Services’ IRIS program due to her February 28, 1988
conviction, (2) a letter from the criminal division of the Milwaukee County Circuit
Court indicating that Brown has no convictions on file, (3) an order appointing

3
Brown previously argued to the DOJ and circuit court that the disposition of her
conviction should be updated because the conviction was expunged, that she violated an
ordinance, and that hearing transcripts are necessary to support that she was convicted. Brown
has not renewed these arguments on appeal. Thus, we consider them abandoned and will not
address them further. See A.O. Smith Corp., 222 Wis. 2d at 491-92 (“[I]n order for a party to
have an issue considered by this court, it must be raised and argued within its brief.”).

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Brown guardianship of another person due to incompetency, (4) Brown’s
discharge from active military duty, (5) Brown’s bachelor’s degree, (6) the first
page of an appellant brief filed in a federal district court related to a case involving
Brown’s ward, and (7) an email chain between Brown and Disability Rights
Wisconsin, Inc.

¶5 The DOJ investigated Brown’s request and discovered that, although
her fingerprint card shows that she was initially arrested and charged with a
felony, the final disposition report suggests that she was convicted of a
misdemeanor that resulted in a fine of $250. The final disposition report does not
explicitly state that Brown was convicted of a misdemeanor; however, the DOJ
found that she was convicted of one because the report showed that she was fined,
the case number listed was in the format used for misdemeanor cases, and the
Milwaukee County District Attorney’s Office’s records described Brown’s case as
a misdemeanor. Accordingly, the DOJ corrected Brown’s record to indicate that
she was convicted of a misdemeanor instead of a felony, but denied Brown’s
request to remove the record entirely because her arrest clearly resulted in a
conviction, thus, it could not remove the record under WIS. STAT. § 165.84.

¶6 Brown petitioned the circuit court for judicial review of the DOJ’s
decision under WIS. STAT. § 227.52. Brown argued that the DOJ’s decision did
not contain the required factual findings and legal conclusions, that Brown had
committed an ordinance violation instead of a misdemeanor, and that the evidence
does not support that she was convicted of a misdemeanor. The circuit court
affirmed the DOJ’s decision, finding that the DOJ sufficiently informed Brown of
the basis of its decision and that substantial evidence in the record supported that
Brown was convicted of a misdemeanor.

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No. 2022AP2121

¶7 Brown appeals.

DISCUSSION

¶8 This is a review of the DOJ’s decision under WIS. STAT. § 227.52.
“When an administrative agency’s decision is challenged in the circuit court under
§ 227.52, an appellate court reviews the decision of the agency, not that of the
circuit court.” Wisconsin Indus. Energy Grp., Inc. v. Public Serv. Comm’n,
2012 WI 89, ¶14, 342 Wis. 2d 576, 819 N.W.2d 240. “The burden of proof in a
proceeding to review an agency action is on the party seeking to overturn the
action.” Racine Educ. Ass’n v. Commissioner of Ins., 158 Wis. 2d 175, 182, 462
N.W.2d 239 (Ct. App. 1990). We will not disturb the factual findings of the
agency unless they are not supported by substantial evidence. WIS. STAT.
§ 227.57(6). We accord due weight to “the experience, technical competence, and
specialized knowledge of the agency involved[.]” Sec. 227.57(10). However, we
“shall accord no deference to the agency’s interpretation of law.” Sec. 227.57(11).

¶9 Brown argues that the DOJ failed to give Brown notice of the basis
for its decision because the DOJ failed to include factual findings and legal
conclusions in its decision.

¶10 Every final agency decision must be “accompanied by findings of
fact and conclusions of law.” WIS. STAT. § 227.47(1). The findings of fact must
“consist of a concise and separate statement of the ultimate conclusions upon each
material issue of fact without recital of evidence.” Id. “There is no requirement,
however, that the agency provide an elaborate opinion. It is sufficient if the
findings of fact and conclusions of law are specific enough to inform the parties
and the courts on appeal of the basis of the decision.” Wisconsin’s Env’t Decade,

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No. 2022AP2121

Inc. v. Public Serv. Comm’n, 98 Wis. 2d 682, 701, 298 N.W.2d 205 (Ct. App.
1980).

¶11 The DOJ determined that it was unable to remove Brown’s arrest
from the Database because the arrest resulted in a conviction, thus not qualifying
for removal under WIS. STAT. § 165.84(1). Section 165.84(1) provides, “Any
person arrested or taken into custody and subsequently released without charge, or
cleared of the offense through court proceedings, shall have any fingerprint record
taken in connection therewith removed from the department’s records upon
request.” (Emphasis added.) The DOJ explained its basis with the following
statement: “We have also determined the arrest event in question resulted in a
conviction. Under [§] 165.84(1), an arrest cannot be removed from an
individual’s criminal record if any charges related to that arrest result in a
conviction, even if the court expunged their record.” This is sufficient.

¶12 The DOJ also sufficiently explained its basis for changing the
disposition of Brown’s conviction from felony to misdemeanor by stating that it
reviewed all of the arrest documents, contacted other agencies that were involved
in her arrest, and thus determined that she was convicted of a misdemeanor.
Brown does not point to any material factual issue or legal conclusion that the
DOJ failed to include to support its decision. Therefore, we conclude that the DOJ
sufficiently informed Brown of the basis for its decision.

¶13 Brown also challenges the sufficiency of the evidence supporting the
DOJ’s decision. Brown argues that the DOJ’s decision is not supported by
substantial evidence and that the evidence shows that she was neither charged nor
convicted. Brown fails to offer any argument grounded in law or fact as to why

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No. 2022AP2121

the evidence the DOJ relied on is insufficient to support that Brown was convicted
of a misdemeanor.

¶14 Instead, Brown argues that the November 5, 2021 letter from the
Milwaukee County Clerk of Circuit Court—indicating that it did not have any
convictions related to Brown currently “on file” and directing Brown to contact
the DOJ’s Crime Information Bureau to find her conviction records—is enough to
support that she was never convicted. However, the record shows that the DOJ
also considered an email from the Milwaukee County Circuit Court which
indicates that Brown’s case was not on file because its case file for Brown’s
February 28, 1988 conviction “was either lost or destroyed.” This letter along
with the final disposition report showing that Brown’s case was labeled with a
misdemeanor case number and resulted in a fine, and the Milwaukee County
District Attorney’s Office’s record labeling Brown’s case as a misdemeanor,
sufficiently supports the DOJ’s finding and conclusion that Brown was convicted
of a misdemeanor and thus could not be removed from the Database under WIS.
STAT. § 165.84.

CONCLUSION

¶15 We conclude that the DOJ sufficiently notified Brown of the basis
for its decision and that its decision is supported by substantial evidence.4
Accordingly, we affirm.

4
To the extent that Brown raised additional arguments that we have not expressly
addressed above, we summarily deny her arguments as undeveloped and not properly supported
by legal authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992).

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No. 2022AP2121

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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