Van Oudenhoven v. Wis. Dep't of Just.

413 Wis. 2d 15

10 N.W.3d 402

Scot Van Oudenhoven, Petitioner-Appellant,^†

v.Wisconsin Department of Justice, Respondent-Respondent.

Court of Appeals

No. 2023AP70-FT Submitted on briefs March 13, 2024.—Decided June 4, 2024.

2024 WI App 38

(Also reported in 10 N.W.3d 402.)

APPEAL from an order of the circuit court for Winnebago County: TERESA S. BASILIERE, Judge. Affirmed.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of John Monroe, Dawsonville, Georgia.

On behalf of the respondent-respondent, the cause was submitted on the brief of Joshua L. Kaul, attorney general, and Brian P. Keenan, assistant attorney general.

Before Stark, P.J., Hruz and Gill, JJ.

¶ 1. GILL, J. Scot Van Oudenhoven appeals an order affirming a decision of the Wisconsin Department of Justice ("DOJ") denying his application to purchase a "handgun"¹ in Wisconsin. The DOJ reasoned that because Van Oudenhoven had been convicted of a Wisconsin crime related to domestic violence, the purchase would violate 18 U.S.C. § 922(g)(9), which states that an individual "who has been convicted in any court of a misdemeanor crime of domestic violence" cannot "possess or … receive any firearm." The DOJ reached this conclusion even though Van Oudenhoven's relevant conviction was expunged under Wisconsin law pursuant to Wis. Stat. § 973.015(1m).

¶ 2. On appeal, Van Oudenhoven argues that the DOJ erroneously interpreted the applicable laws.² First, Van Oudenhoven asserts that the DOJ did not have the authority to deny his handgun purchase under 18 U.S.C. § 922(g)(9). Second, Van Oudenhoven asserts that even if the DOJ had such authority, that statute did not apply to his misdemeanor conviction because the conviction was expunged. See 18 U.S.C. § 921(a)(33)(B)(ii) ("A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside.").³

¶ 3. We conclude that federal law authorizes the DOJ to deny an individual's firearm purchase request in Wisconsin. Under federal law, which was the basis for denying Van Oudenhoven's purchase at issue in this case, the DOJ's authority to deny a firearm purchase in Wisconsin is conferred to it by the federal government under 28 C.F.R. §§ 25.2 and 25.6(g)(2) (2023).⁴ The DOJ must deny a firearm purchase if the "receipt of a firearm by a prospective transferee would violate 18 U.S.C. [§]922 or state law." Sec. 25.6(g)(2). We further conclude that Van Oudenhoven was convicted of a misdemeanor crime of domestic violence as that term is defined by federal law. See § 922(g)(9); 18 U.S.C. § 921(a)(33)(A)(ii).

¶ 4. We also conclude that Van Oudenhoven's misdemeanor conviction was not "expunged or set aside" as those terms are used in 18 U.S.C. § 921(a)(33)(B)(ii). As other jurisdictions have articulated, the terms "expunged or set aside" in § 921(a)(33)(B)(ii) must be construed synonymously, thereby requiring the "state procedure to completely remove all effects of the conviction at issue." See, e.g., Wyoming ex rel. Crank v. United States, 539 F.3d 1236, 1245 (10th Cir. 2008). Consistent with our state supreme court's decision in State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, expungement pursuant to Wis. Stat. § 973.015(1m) does not "completely remove all effects" of a conviction because the underlying conviction remains valid. See Braunschweig, 384 Wis. 2d 742, ¶ 22. Section 973.015(1m) "merely deletes the evidence of the underlying conviction from court records." Braunschweig, 384 Wis. 2d 742, ¶ 22. We therefore affirm the circuit court's order upholding the DOJ's decision denying Van Oudenhoven's handgun purchase.

BACKGROUND

¶ 5. The relevant underlying facts are not in dispute. Van Oudenhoven was convicted in Calumet County case No. 1994CM113 of misdemeanor battery as an act of domestic violence against a woman with whom he shares a child. See Wis. Stat. §§ 940.19(1), 968.075(1)(a).⁵ In 2019, the Calumet County Circuit Court granted Van Oudenhoven's petition for expungement of the conviction.⁶ The order stated that the clerk of court "is ordered to expunge the court's record of the conviction."

¶ 6. In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. After searching Van Oudenhoven's record in a state database, the DOJ's Crime Information Bureau Firearms Unit ("Unit") denied the purchase based upon Van Oudenhoven's misdemeanor battery conviction. Van Oudenhoven sought review of that denial pursuant to Wis. Admin. Code § Jus 10.08(2) (Aug. 2012),⁷ and the director of the Unit sustained the earlier decision denying the handgun purchase.

¶ 7. Thereafter, Van Oudenhoven appealed the director's decision to the administrator of the DOJ's Division of Law Enforcement Services.⁸ See Wis. Admin. Code § Jus 10.09(1). The DOJ sustained the director's denial of the handgun purchase based on Van Oudenhoven's misdemeanor conviction. The DOJ reasoned that Wis. Stat. § 175.35 and Wis. Admin. Code ch. Jus 10 require the agency to "consider state and federal law when conducting a firearms restrictions search." According to the DOJ, under federal law, the agency was required to deny the purchase because Van Oudenhoven was convicted of a "misdemeanor crime of domestic violence" notwithstanding the fact that Van Oudenhoven's conviction was expunged under Wisconsin law. See 18 U.S.C. §§ 922(g)(9), 921(a)(33)(B)(ii). Relying on our supreme court's holding in Braunschweig, the DOJ stated that while Van Oudenhoven's misdemeanor conviction was expunged, the conviction still counted under federal law so as to prohibit the purchase because the expungement did not invalidate the underlying conviction.

¶ 8. Van Oudenhoven filed a petition for judicial review in Winnebago County Circuit Court.⁹ See Wis. Stat. § 227.52. Following briefing from the parties, the court sustained the DOJ's decision. This appeal follows.

DISCUSSION

[1]

¶ 9. "On a Wis. Stat. ch. 227 appeal, we review the decision of the agency, not the circuit court." Myers v. DNR, 2019 WI 5, ¶ 17, 385 Wis. 2d 176, 922 N.W.2d 47. Unless we determine there is "a ground for setting aside, modifying, remanding or ordering agency action or ancillary relief under a specified provision of this section, [we] shall affirm the agency's action." Wis. Stat. § 227.57(2). The facts of this case are undisputed, so we address only questions of law—including federal and state statutory interpretation—which we review de novo, while affording "due weight" to "the experience, technical competence, and specialized knowledge of the agency involved." See § 227.57(10), (11); Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶ 84, 382 Wis. 2d 496, 914 N.W.2d 21; Doubek v. Kaul, 2022 WI 31, ¶ 3, 401 Wis. 2d 575, 973 N.W.2d 756.

[2, 3]

¶ 10. Statutory interpretation begins with the statute's language, which "is given its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning." State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶ 46.

I. The DOJ has the authority to deny a Wisconsin-based firearm purchase that would violate 18 U.S.C. § 922.

[4]

¶ 11. We first conclude, contrary to Van Oudenhoven's arguments on appeal, that the DOJ is authorized by federal law to deny a Wisconsin-based firearm purchase due to a prospective buyer's conviction for a misdemeanor crime of domestic violence. As we will explain, the DOJ has been delegated by the federal government as the federal law liaison for firearm purchases in Wisconsin. Here, the DOJ denied Van Oudenhoven's purchase pursuant to federal law, not state law.

A. Handgun purchases in Wisconsin under state law

¶ 12. At the state level, "[t]he purchase of handguns in Wisconsin is regulated by Wis. Stat. § 175.35, which provides the DOJ with authority to promulgate rules regarding the transfer of such firearms." See Moran v. DOJ, 2019 WI App 38, ¶ 13, 388 Wis. 2d 193, 932 N.W.2d 430. Pursuant to that authority, a handgun dealer must obtain from a prospective handgun buyer a completed notification form, which the dealer then forwards to the DOJ. Wis. Admin. Code § Jus 10.06(2)(a)1. After receiving the form, the DOJ must determine whether the purchaser is prohibited under state law from possessing a firearm. See Moran, 388 Wis. 2d 193, ¶ 13; § Jus 10.06(2)(b), (c). To accomplish that task, the DOJ must search the purchaser's "state criminal history record and the national criminal history record maintained by the" Federal Bureau of Investigation (FBI). Sec. Jus 10.06(2)(a)(2), (b); Wis. Admin. Code § Jus 10.03(11).

¶ 13. Wisconsin Stat. § 175.35(2g)(c)4. requires the DOJ to notify a dealer after receiving information from the records search as follows:

a. If the search indicates that the transferee is prohibited from possessing a firearm under [Wis. Stat. §] 941.29, the [DOJ] shall provide the firearms dealer with a unique nonapproval number ….

b. If the search indicates that the transferee is not prohibited from possessing a firearm under [Wis. Stat. §] 941.29, the [DOJ] shall provide the firearms dealer with a unique approval number.

c. If the search indicates that it is unclear whether the person is prohibited under state or federal law from possessing a firearm and the [DOJ] needs more time to make the determination, the [DOJ] shall make every reasonable effort to determine whether the person is prohibited under state or federal law from possessing a firearm and notify the firearms dealer of the results as soon as practicable but no later than 5 working days after the search was requested.

Thus, § 175.35(2g)(c)4.a.-c. outlines the Wisconsin-specific...