Lawsuit says state levied illegal fee for DNA database
State officials have said fee was unconstitutional
MADISON – A lawsuit that could cost taxpayers millions of dollars says the state forced more than 10,000 offenders to pay an unconstitutional fee to maintain a DNA database.
State officials three years ago acknowledged collecting the $200 fee from certain offenders was unconstitutional but have not taken steps to reimburse them.
The lawsuit, filed in federal court in Milwaukee, centers on a 2013 law that greatly expanded the collection of DNA from criminals. The new law required DNA to be collected from anyone convicted of a misdemeanor or felony, rather than just those who committed certain felonies.
The law did not kick in at once. It required anyone convicted after Jan. 1, 2014, to pay the $200 fee, but the new types of offenders did not have to provide DNA samples unless they were convicted after April 1, 2015.
The law was structured that way so the state would have money on hand to handle the increased number of DNA samples it needed to analyze.
The lawsuit was brought by three people who committed misdemeanors before Jan. 1, 2014, and were convicted during the 15-month period that the DNA fee was being levied but samples were not being collected.
Their attorneys, John Bradley and Ben Elson, are seeking to make the case a class-action lawsuit that would allow them to represent more than 10,000 others who were collectively ordered to pay more than $2 million.
“As applied to the plaintiffs and class members, this was a classic ex post facto
punishment in violation of Article I, Section 10 of the United States Constitution because the law increased the penalty for an offense after the offense has been committed,” Bradley and Elson wrote in their lawsuit.
The lawsuit was brought against Attorney General Brad Schimel; former Attorney General J.B. Van Hollen, the architect of key parts of the law; two former heads of the state court system; and 14 current and former chief judges.
The officials knew money was being taken illegally but did nothing to stop it, the lawsuit alleges.
The lawsuit relies in part on a May 2015 unanimous state Court of Appeals decision that found the fee was unconstitutional when levied against someone like those bringing the new lawsuit — criminals who were charged the fee but not required to give a DNA sample.
In that case, Garett Elward was convicted in Ozaukee County of fourth-offense drunken driving after being arrested in July 2013.
“The state received money for nothing,” Chief Appeals Judge Richard Brown wrote for the court.
“This served only to punish Elward without pursuing any type of regulatory goal. Therefore, the surcharge as applied to Elward was a fine, not a fee, and violated the Constitution’s ex post
facto clause.”
Even before the court issued its decision, Ozaukee County District Attorney Adam Gerol filed a brief acknowledging “the DNA surcharge violates the ex post
facto clause when applied to defendants like Elward.”
More than three years after the state admitted it was unconstitutional to collect the fee from these types of offenders, “Schimel continues to keep the illegally obtained money instead of returning it to the people it was wrongfully taken from,” according to the lawsuit.
The lawsuit contends Gerol made the filing acknowledging the fee was unconstitutional in some instances in concert with Schimel’s Department of Justice, but Schimel spokesman Johnny Koremenos denied that Wednesday.
Koremenos said DOJ attorneys had not yet fully reviewed the lawsuit and could not answer other questions.
A week and a half after the law took effect, chief judges from around the state met with the director of state courts and acknowledged concerns over the law being applied retroactively.
They noted that judges in Milwaukee and Chippewa counties weren’t charging the fee for people who committed crimes before the law took effect but decided as a group that they would charge it based on the conviction date, not the offense date, according to the lawsuit.
Bringing the lawsuit are Jacob Fish of West Allis, who was convicted of possessing drug paraphernalia; Tomick Copeland of Milwaukee, who was convicted of battery; and Taylor Claybrook of Racine, who was convicted of retail theft. Claybrook was later jailed for failing to pay the DNA fee and other fines. The lawsuit contends two of the 10 days he spent in jail were because he hadn’t paid an unconstitutional fee.