State of Wisconsin ex rel. Carl Kaminski, Petitioner-Appellant, v. David H. Schwarz, Administrator, Division of Hearings and Appeals, Respondent-Respondent, 238 Wis. 2d 16

CANE, C.J. ¶ 1. Carl Kaminski appeals from a judgment affirming on certiorari review the Department of Corrections' decision to revoke his probation. Kaminski argues that the department's decision to revoke his probation for failing to notify his neighbors of his convicted sex offender status was arbitrary, unreasonable and contrary to Wisconsin law. Because the revocation of Kaminski's probation may not be based on his failure to comply with a condition that is inconsistent with WlS. Stat. § 301.46, we reverse the judgment and remand for further proceedings consistent with this opinion. Background ¶ 2.

In March 1996, Kaminski was convicted upon his guilty plea of one count of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2). The trial court imposed and stayed a ten-year sentence and placed Kaminski on ten years' probation. As a condition of his probation, the court ordered Kaminski to serve one year in the county jail. Among the other conditions of probation imposed, the court additionally directed that Kaminski have no contact with persons under the age of eighteen. ¶ 3.

In April 1997, Kaminski completed the jail condition, and it is undisputed that he subsequently reported his sex offender status to local law enforcement, in compliance with the notification requirements of Wisconsin's Sex Offender Registration Law, Wis. Stat. § 301.45. ¶ 4. In December 1998, Kaminski's court-ordered conditions of probation were supplemented with additional rules imposed by his probation agent.

Of these rules, Rule 16-3 provided: "You shall notify your agent of any involvement in an Intimate relationship at its beginning and you shall introduce the person to your agent to disclose your past sexual offenses prior to engaging in any type of sexual activity with that person." In turn, Rule 16-25 provided: "You will notify the neighbors on each side that you are a convicted sex offender by December 24,1998." ¶ 5. Kaminski was subsequently taken into custody for investigation of alleged violations of the conditions of his probation.

The department sought revocation of Kaminski's probation based on three alleged violations. The department alleged that: (1) contrary to Rule 16-3, Kaminski had sexual relations with Tamala Breidung without first informing his probation agent or introducing her to his agent;

(2) Kaminski failed to notify his neighbors of his convicted sex offender status, as was required by Rule 16-25; and

(3) Kaminski sexually assaulted Breidung. ¶ 6. Kaminski conceded that he had sexual relations with Breidung without first notifying his agent, but he denied that the sexual contact was nonconsen-sual. Kaminski also admitted that he had not notified his neighbors of his convicted sex offender status. Following a revocation hearing, the administrative law judge found that Kaminski did not sexually assault Breidung, but nevertheless concluded that Kaminski's two conceded probation violations warranted revocation of his probation. The Division of Hearings and Appeals sustained Kaminski's probation revocation.

The circuit court affirmed the department's decision and this appeal followed. Analysis ¶ 7. Kaminski argues that the department's decision to revoke his probation for failing to notify his neighbors of his convicted sex offender status was arbitrary, unreasonable and contrary to Wisconsin law. Our review is of the department's decision, not that of the circuit court. See State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997).

Further, on certiorari, our review is limited to: "(1) whether the tribunal stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the decision that it did." Id. ¶ 8. Kaminski contends that the probation rule mandating that he notify his neighbors of his convicted sex offender status is contrary to the registration and notification scheme set forth in WlS. Stat. §§ 301.45 and 301.46. We agree.

Section 301.45 requires sex offenders to register with the department, providing "their name, address, physical description, place of employment or school, and the offenses for which they were convicted." State v. Bollig, 2000 WI 6, ¶ 6, 232 Wis. 2d 561, 605 N.W.2d 199. In turn, § 301.46 grants access to the registration information provided under § 301.45.

Section 301.46 does not, however, automatically "grant the public carte blanche access to the information." Bollig, 2000 WI 6 at ¶ 24. ¶ 9. Under WlS. Stat. § 301.46(2), access to a sex offender's registration information is made available to "the police chief of any community and the sheriff of any county in which the person is residing, is employed or is attending school." In addition, the department will make a reasonable attempt to notify a victim or members of a victim's family of a sex offender's registration, if such a request has been made. See WlS. Stat. § 301.46(3)(b).

Agencies and organizations other than law enforcement agencies may also request information from the department regarding persons registered tinder § 301.46(4). The statute additionally provides access to the information for the general public. Under § 301.46(5), an individual, upon request, may obtain sex offender information if the department, the police chief or sheriff determine that release of the information is necessary to protect the public and the individual.

Subject to these specific requests and a number of inapplicable exceptions, the department is otherwise required to keep sex offender registration information confidential. See WiS. Stat. § 301.45(7)(a). The Bollig court recognized: Although access is more liberal for law enforcement agencies, release of information to members of the general public requires compliance with enumerated conditions and is limited to when 'providing the information is necessary to protect the public. [Section 301.46] does not allow for the indiscriminate publication of a sex offender's vital information. Id. at ¶ 24.

Thus Kaminski's probation agent was prohibited from divulging Kaminski's sex offender status to his neighbors. ¶ 10. Kaminski's probation was nevertheless revoked, in part, because he failed to notify his neighbors of his convicted sex offender status. The State does not contend that Kaminski's neighbors requested the information pursuant to Wis. Stat. § 301.46(5), nor does it contend this was an instance of a law enforcement official releasing the information to protect the public. See Wis. Stat. § 301.46(2)(e).

Rather, as a condition of his probation, Kaminski's probation agent attempted to force Kaminski to divulge his convicted sex offender status to his neighbors — information that would otherwise not have been available to them absent a request made pursuant to § 301.46. ¶ 11. In Bollig, our supreme court reviewed the legislative intent behind the sex offender registration law, noting that "the intent underlying the legislation related to community protection" and involved balancing "community protection with the offender's community re-integration needs." Id. at ¶ 22.

The court further noted the drafting notes' suggestion of "limited access to the sex offender registry, discouraging the use of mass media releases, distribution of door-to-door fliers, or any other method of notification that may be described as intrusive." Id. at ¶ 25. By enacting Wis. Stat. § 301.46, the legislature provided limitations on access to sex offender registration information.

We conclude that Kaminski's probation agent may not circumvent these statutory limitations by forcing Kaminski, as a condition of his probation and absent any request by his neighbors, to divulge his convicted sex offender status. Under these facts, conditioning Kaminski's probation on a requirement that he notify his neighbors of his convicted sex offender status is contrary to § 301.46 and, thus, should not have been used as a basis for revoking his probation. ¶ 12.

Despite our determination that Kaminski's probation revocation should not have been based on his failure to notify his neighbors of his sex offender status, Kaminski concedes that he violated probation Rule 16-3 by failing to notify his probation agent about his intimate relationship with Breidung. We therefore reverse the judgment denying certiorari relief and remand the matter to the department to determine whether the single remaining violation is sufficient to warrant revocation. See Snajder v. State, 74 Wis. 2d 303, 316, 246 N.W.2d 665 (1976).

By the Court. — Judgment reversed and cause remanded with directions. All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. The State contends that Kaminski waived this argument by failing to raise it before the administrative agency. Generally, this court declines to consider issues raised for the first time on appeal. See Terpstra v. Soiltest, Inc., 63 Wis. 2d 585, 593, 218 N.W.2d 129 (1974). Kaminski contends that this argument was made before the department.

In any event, we will address the legal question of whether Rule 16-25 is contrary to the registration and notification scheme set forth in WlS. Stat. §§ 301.45 and 301.46. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980). Wisconsin Stat. § 301.45(7)(

a) provides, in relevant part: The department shall keep the information confidential except as provided in ss. 301.03(14) and 301.46, except as needed for law enforcement purposes and except to provide, in response to a request for information under s. 49.22(2m) made by the department of workforce development or a county child support agency under s. 59.53(5), the name and address of an individual registered under this section, the name and address of the individual's employer and financial information related to the individual. See WlS. STAT. §§ 301.45, 301.46. All statutory references are to the 1997 — 98 version.