Maier v. Byrnes

• Decision Date: 24 October 1984
• Docket Number: No. 84-663,84-663
• Citation: 358 N.W.2d 833,121 Wis.2d 258
• Parties: Charles P. MAIER, Plaintiff-Appellant, v. Judge John J. BYRNES, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 833

358 N.W.2d 833

121 Wis.2d 258

Charles P. MAIER, Plaintiff-Appellant, v. Judge John J. BYRNES, Defendant-Respondent.

No. 84-663.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 6, 1984.

Opinion Released Oct. 24, 1984.

Opinion Filed Oct. 24, 1984.

Charles P. Maier, pro se.

Bronson C. La Follette, Atty. Gen., and Daniel S. Farwell, Asst. Atty. Gen., Madison, for defendant-respondent.

Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.

NETTESHEIM, Judge.

Dr. Charles P. Maier appeals from an order granting summary judgment in favor of Judge John J. Byrnes in a small claims action commenced pursuant to sec. 782.09, Stats., which imposes a statutory penalty of $1,000 against a judge who refuses to grant a writ of habeas corpus.

On September 28, 1983, Dr. Maier was arrested and jailed for alleged traffic offenses. ¹ At approximately 9:00 p.m. that evening, Leroy Fehrman, William Wiefelspuetz, and Leroy Knies, friends of Dr. Maier, appeared at the residence of Judge Byrnes. They presented a petition for a writ of habeas corpus to Judge Byrnes, who refused to issue the requested writ.

Dr. Maier then commenced this small claims action against Judge Byrnes under sec. 782.09, Stats., which provides as follows:

Any judge who refuses to grant a writ of habeas corpus, when legally applied for, is liable to the prisoner in the sum of $1,000.

Judge Byrnes brought a motion for summary judgment. The trial court granted the motion because Dr. Maier had failed to file the purported petition for a writ of habeas corpus with the clerk of courts. Dr. Maier appeals from the summary judgment granted to Judge Byrnes.

Since the pleadings and the record as made on the motion for summary judgment show no material dispute of fact, the only issue remaining is a question of law as to whether a person claiming the $1,000 punitive damages against a judge in an action under sec. 782.09, Stats., must first file the petition for the writ of habeas corpus with the clerk of courts. We are not required to defer to the trial court's resolution of a question of law. In the Interest of G. and L.P., 119 Wis.2d 349, 351, 349 N.W.2d 743, 744 (Ct.App.1984).

Judge Byrnes contends that Dr. Maier failed to timely file the petition for the writ of habeas corpus. ² He cites in support of this argument sec. 801.02, Stats., which provides, in part, as follows:

(1) A civil action ... is commenced as to any defendant when a summons and complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 60 days after filing.

....

(5) An action seeking a remedy available by ... habeas corpus ... may be commenced under sub. (1), by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith .... [Emphasis added.]

These statute sections govern the manner in which an action or special proceeding is commenced. They do not, however, expressly require the filing of the petition as a condition precedent to the commencement of a civil action commenced against a judge who allegedly refuses to grant a writ of habeas corpus pursuant to sec. 782.09, Stats. If the law requires the timely filing of the petition as a prerequisite to the commencement of an action under sec. 782.09 for the refusal to grant a writ of habeas corpus, it must be found elsewhere than in the provisions of sec. 801.02(1) and (5), Stats.

Although most often inspired by other proceedings, habeas corpus nonetheless stands as an independent civil action and not as a motion in another proceeding. State ex rel. Hellige v. Milwaukee Liedertafel, 166 Wis. 277, 279, 164 N.W. 1004, 1004 (1917). The relator, as any other litigant, may choose to pursue his action or abandon it irrespective of whether he has prevailed upon a judge to order the issuance of the writ.

Goetz v. Black, 256 Mich. 564, 240 N.W. 94 (1932), stands for the proposition that an action against a judge for a statutory penalty upon refusal to issue a writ of habeas corpus requires the previous filing of the petition. The policy reasons in support of this requirement are recited by the Michigan Supreme Court as follows:

If plaintiff desired to press the refusal of the circuit judge to recovery of the statutory penalty, he should have filed the rejected petition so that there would have been an unquestionable and unimpeachable public record thereof, available to his own inspection as well as all others, and incapable of substitution by any one.

If the circuit judge arbitrarily refused to examine the petition, he is not subject to the penalty unless and until it is made to appear by record of the "suit" that the very paper submitted to him for judgment thereon in form and substance commanded issuance of the writ, and this must be established by the record made at the time. Plaintiff claims to have possession of the petition he should have filed. The law will not tolerate an assessment of the invoked penalty against a judicial officer under the circumstances here disclosed, for to do so after the long delay would subject the judge to the machinations, chicanery, fraud, and enmity of any one disposed to so act, and leave the judge without an impartial and incorruptible court record. A statute awarding a penalty is to be strictly construed, and, before a recovery can be had, the case must be brought clearly within its terms. Grier v. Kan. City, Clay Co. & St. Joseph Ry. Co., 286 Mo. 523, 228 S.W. 454; Kitts v. Kitts, 136 Tenn. 314, 189 S.W. 375; United Assurance Association v. Frederick, 130 Ark. 12, 195 S.W. 691; Anderson v. City of Birmingham, 205 Ala. 604, 88 So. 900.

Plaintiff on his own showing abandoned the proceedings when h...