State ex rel. Amek bin Rilla v. Circuit Court for Dodge County

• Decision Date: 15 March 1977
• Citation: 76 Wis.2d 429,251 N.W.2d 476
• Parties: STATE ex rel. AMEK BIN RILLA, a/k/a James Preston, Petitioner, v. CIRCUIT COURT FOR DODGE COUNTY, Henry G. Gergen, Jr., Circuit Judge, Respondent.
• Court: Wisconsin Supreme Court

Page 476

251 N.W.2d 476

76 Wis.2d 429

STATE ex rel. AMEK BIN RILLA, a/k/a James Preston, Petitioner, v. CIRCUIT COURT FOR DODGE COUNTY, Henry G. Gergen, Jr Circuit Judge, Respondent.

Supreme Court of Wisconsin.

March 15, 1977.

Amek bin Rilla, a/k/a James Preston, pro se.

Bronson C. La Follette, Atty. Gen., and Maryann S. Calef, Asst. Atty. Gen., for respondent.

PER CURIAM.

The petitioner has applied for a writ of mandamus to compel the respondent to order production of documents in a pending case. We exercise our discretion to deny mandamus, because the petitioner has shown only a bare legal right, the enforcement of which cannot result in any benefit to him.

On November 15, 1975, the petitioner commenced an action in the circuit court for Dodge County, for compensation which he claimed to be due for his services as registered agent of Prisoners for Survival, Inc. He joined as defendants a person, whom he identified as the president "pro tem" and two other prisoners, whom he identified as incorporators. He did not join the corporation as a party defendant. The complaint did not allege any agreement to pay for his services as registered agent, nor did it allege any services which he performed. The complaint also attempted to state a cause of action against the Secretary of State. The relief demanded against the Secretary of State was that he impose a ten percent tax on all nonstock, nonprofit corporations registered in the corporation department, and that such tax be paid to Prisoners for Survival, Inc. The complaint also demanded that the two prisoners be enjoined from using the name Prisoners for Survival, Inc., without the petitioner's permission, and that treble damages be assessed against them. It was alleged petitioner had registered the name "Prisoners for Survival, Inc." as a trademark and trade name under United States patent law.

The petitioner applied to the circuit court for an order requiring the production of documents. He sought to compel the individual defendants to produce all corporate documents relating to Prisoners for Survival, Inc., and sought to compel the Secretary of State to produce copies of all existing corporate records for each nonstock, nonprofit Wisconsin corporation or association without a "patented" trade name or insignia. This motion was made on April 5, 1976 and was renewed on June 14, 1976. On June 6, 1976, Judge Gergen signed a decision, which upon entry constituted the order of the court with respect to the motion for production of documents. The decision stated as follows:

"Several civil actions have been filed by the plaintiff, an inmate at the Wisconsin State Prison. Having been presented with a proper fact situation, the court takes this opportunity to consider and establish several rules relating to the effect of the new civil actions brought by state prisoners. Specifically, the court is concerned with the application of sec. 802.10, stats.

"In Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484, (E.D.Wis., 1967) the district court stated that prisoners may file 'non-frivolous civil complaints' but, absent unusual circumstances, they will not be afforded the opportunity to appear in court to present their cases during their prison terms. 276 F.Supp. at 487. These exigent circumstances normally pertain to the preservation of oral or physical evidence. The Seybold court declared that a court, in its discretion, may allow a prisoner to proceed beyond the filing stage.

"Several courts, including Beyer v. Werner, 299 F.Supp. 967 (E.D.New York, 1969), and Almond v. Kent, 321 F.Supp. 1225 (W.D.Virginia, 1970), have recently affirmed the Seybold doctrine. The latest court to review the subject, Ball v. Woods, 402 F.Supp. 803, 808 (N.D.Alabama, 1975), stated:

'In Seybold, the court concluded that further proceedings in the civil action should be stayed during the plaintiff's incarceration since only in that way could the plaintiff be protected against the statute of limitations.'

"Section 802.10, stats., pertains to scheduling and pretrial conferences and provides for holding said conferences within 60 to 120 days from the filing of the summons.

"Having reviewed the case and statutory law, the court announces the following procedural rules:

1). 'Prisoners will be permitted to file non-frivolous civil complaints in order to be protected from operation of the statute of limitations.

2). 'The pretrial conference and other preliminary procedures will be held in abeyance until the plaintiff is released from prison.

3). 'Upon a showing of unusual circumstances, the plaintiff may petition the court for a writ to assist him in preserving evidence. The granting of such a writ will be discretionary with the court and the plaintiff will be required to forward affidavits demonstrating exigent circumstances and directed to a designated occasion and subject matter. The court will consider such petitions on a case by case basis.'

"The court is satisfied that the above procedure meets with calls of Seybold.

"Since the plaintiff has failed to demonstrate any exigent circumstances, no further action is taken."

The respondent claims this is not a case for mandamus because the order is appealable. However, the order does not deny the motion for production of documents. Rather, it holds the matter in abeyance. Therefore, it does not deny discovery, and is not appealable as an order denying a provisional remedy under sec. 817.33(3), Stats. We hold the petitioner has no remedy by appeal, and mandamus is the appropriate writ to enforce his claim to production of the documents.

It appears that the circuit court was attempting to promulgate a standard scheduling order, pursuant to the authority granted in sec. 802.10(1)(d), Stats. However, the order promulgated applies only to prisoners. Sec. 802.10 does not contemplate that one class of litigants will be treated differently from another for purposes of scheduling pretrial conferences. Moreover, to stay all proceedings, as is done in the second paragraph of the order, until the prisoner is released, means that a prisoner serving a life sentence, who is not released on parole, will never have an opportunity to litigate his claim. If the cause of action does not survive his death, there will never be an opportunity for anyone to litigate it.

In the foregoing discussion we have assumed that the action is arguably meritorious. If it is not, the trial judge can refuse to waive costs and fees under former sec. 271.29, Stats., now sec. 814.29, Stats. This statute requires a person seeking waiver of any court fee or suit tax to make an affidavit that because of his poverty he is unable to pay the costs of the action, and that he believes he is entitled to the redress he seeks, setting forth the nature of his case. In 1967 the statute was amended to provide that the affidavit must be approved by the court. We...