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Wis. High Court Weighs Release of Immigrant Docs

MADISON, Wis. (CN) — In an uncharacteristically civil hearing, the Wisconsin Supreme Court tried Thursday to reconcile state and federal law in a dispute over immigration records.

At issue are I-247 immigration detainer forms that U.S. Immigrations and Customs Enforcement use to request that a state detain prisoners an additional 48 hours if they are suspected of immigration law violations.

Voces de la Frontera, an immigrant-rights group, claims Milwaukee County Sheriff David A. Clarke Jr. uses the detainer requests in a way that violates federal law, and requested 12 of them in late 2014 and early 2015 for review.

Clarke released redacted versions of the requested forms, having blacked out "(1) subject ID, (2) event number, (3) file number, (4) nationality, and (5) a series of boxes pertaining to immigration status," according to an appeals opinion in the case. He later released versions disclosing nationality.

Though Judge David Borowski granted Voces de la Frontera a writ of mandamus to release the rest of the redacted information, the court stayed that order pending the appeal.

Capt. Catherine Trimboli, the sheriff's records custodian, had testified in the lower-court proceedings that she deferred to ICE's request to keep the documents secret when denying a request to view them.

But Borowski found this reason inadequate to trump Wisconsin's open-records law, saying Voces de la Frontera's desire to hold a government actor accountable was the more compelling argument on the issue of disclosure.

On appeal, Clarke argued that the records pertained to federal detainees and were thus exempt from disclosure under an exception to state open-records law.

But Justice Kitty Brennan, writing for a three-judge appeals panel in April, said detaining a state prisoner for potential federal jurisdiction does not convert them into federal detainees.

"The I-247 form itself makes clear, as does the case law, that federal custody only begins when the state custody ends," wrote Brennan, joined by Judges William Brash and Joan Kessler. "Here it is undisputed that the state custody had not ended."

Thursday's hearing focused on the 48-hour detention period, with each side arguing the issue of state or federal custody before, during and after the ICE detention.

Oyvind Wistrom of Milwaukee-based Lindner & Marsack SC argued before the Supreme Court on Clarke's behalf that focusing on when the inmates were in state or federal custody is misguided.

In detaining an inmate for ICE, he argued, the state was acting as an agent of ICE and thus was exempt from providing the records under federal law.

In the April ruling, Brennan noted "that if Sheriff Clarke was correct in his interpretation of the statutes that the filing of an I-247 makes the hold federal, then he was in error to provide any part of the form at all redacted or otherwise including the names of the prisoners."

This same accusation from Justices Rebecca Bradley and Ann Walsh Bradley tripped up Wistrom on Thursday, who stressed that the names were released in chambers with Judge Borowski as a "compromise" in the case.

Milwaukee attorney Peter Earle represents Voces de la Frontera in the case. His attempts to contextualize the case as a civil-rights battle against the ultra-conservative sheriff were nipped in the bud by Justice Daniel Kelly, and his spirited delivery drew the ire of former Chief Justice Shirley Abrahamson, who repeatedly stopped him to ask that he respond to a question.

Once, she even demanded an answer to Justice Michael Gableman's question, an uncommon point of agreement acknowledged by the latter, who regularly lobs subtle attacks at Abrahamson during oral argument.

Earle's answer to Wistrom's argument that the state is an agent of ICE during 48-hour detentions was to cite the 10th Amendment to the U.S. Constitution, arguing that amounted to the federal government commandeering property.

Earle admitted that his case is "dead in the water" if the court finds federal law trumps state law, but as Wistrom confirmed toward the end of the hearing, there is nothing in the record to indicate that ICE cited the federal law at issue in requesting that the records be withheld.

It is unclear when the Wisconsin Supreme Court will issue its ruling in the case.

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