State ex rel. Freemon v. Cannon

• Decision Date: 29 October 1968
• Citation: 162 N.W.2d 32,40 Wis.2d 489
• Parties: STATE of Wisconsin ex rel. Theodie FREEMON, Appellant, v. David J. CANNON, District Attorney, Milwaukee County, Respondent.
• Court: Wisconsin Supreme Court

Page 32

162 N.W.2d 32

40 Wis.2d 489

STATE of Wisconsin ex rel. Theodie FREEMON, Appellant, v. David J. CANNON, District Attorney, Milwaukee County, Respondent.

Supreme Court of Wisconsin.

Oct. 29, 1968.

Eisenberg, Kletzke & Eisenberg, Milwaukee, for appellant; Jerome F. Pogodzinski, Milwaukee, of counsel.

Bronson C. LaFollette, Atty. Gen., Madison, David J. Cannon, Dist. Atty., Milwaukee County, Harold B. Jackson, Jr., Asst. Dist. Atty., Milwaukee, for respondent.

HALLOWS, Chief Justice.

The facts which gave rise to this issue of law are simple. Theodie Freemon was charged with attempted murder contrary to sec. 939.32, Stats. Leon V. Brady, attorney of Milwaukee, was appointed by the court to represent him. October 3, 1967, was set for a preliminary examination. On that day Alan D. Eisenberg, attorney, appeared and stated he had been retained by Freemon and asked for an adjournment in order to prepare adequately for the preliminary hearing. After some discussion, Mr. Brady was relieved as counsel, Mr. Eisenberg was substituted, the request for an adjournment denied, the preliminary hearing had, and Freemon was bound over to the circuit court for trial.

Freemon then brought this action for a writ of prohibition in the circuit court against the district attorney. Upon the petition an order was issued to show cause why the action against Freemon should not be dismissed or in the alternative remanded for another preliminary examination. In dismissing the petition for the writ of prohibition we think the court was correct but for the reasons given in this opinion. The petition did not seek a writ of prohibition addressed to the circuit court or a judge thereof but only against the district attorney. How the district attorney could dismiss the case or remand it is not explained in the petition. The ordinary and adequate remedy for the petitioner would have been to move the circuit court to remand for a new preliminary. This was not done as was pointed out by the trial court.

Traditionally the purpose or office of the writ of prohibition was only to restrain the exercise of judicial power by a court when it exceeded or usurped jurisdiction which did not belong to it. This is called jurisdictional error. State ex rel. Kellogg v. Gary, County Judge (1873), 33 Wis. 93; State ex rel. Long v. Keyes (1889), 75 Wis. 288, 44 N.W. 13. Recently this court enlarged the scope and use of the writ of prohibition to include nonjurisdictional error when the appeal or other remedies would come too late for effective relief and great hardship would result. State ex rel. Kiekhaefer v. Anderson (1958), 4 Wis.2d 485, 90 N.W.2d 790. More recently this court has expanded the concept of hardship and the inadequacy of other remedies. In Drugsvold v. Small Claims Court (1961), 13 Wis.2d 228, 232, 108 N.W.2d 648, 650, we said '* * * the appeal may come too late for effective redress, or be inadequate and there is a need for such intervention to avoid grave hardship or a complete denial of the rights of a litigant.' See also State ex rel. Reynolds v. Circuit Court (1961), 15 Wis.2d 311, 112 N.W.2d 686, 113 N.W.2d 537; State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 143 N.W.2d 437; State ex rel. Beaudry v. Panosian (1967), 35 Wis.2d 418, 151 N.W.2d 48; State ex rel. La Follette v. Circuit Court (1967), 37 Wis.2d 329, 155 N.W.2d 141; State ex rel. Schulter v. Poraff (1968), 39 Wis.2d 342, 159 N.W.2d 25.

Although this court has extended the scope of the writ, it must still be directed to the restraint of the exercise of judicial or quasi-judicial power by a court, tribunal or individual. In the Kellogg Case, this court said the writ of prohibition could not be used against any 'officer or body on whom the law confers no power of pronouncing any judgment.' See also State ex rel. De Puy v. Evans (1884), 88 Wis. 255, 60 N.W. 433.

In State ex rel. Distenfeld v. Neelen (1949), 255 Wis. 214, 38 N.W.2d 703, this court affirmed the quashing of a writ of prohibition which sought to enjoin the district judge, assistant city attorney, the mayor and the president of the Milwaukee Common Council from disclosing at a liquor-license hearing the testimony the petitioner gave at a John Doe proceeding before the district judge. The Common Council had ordered the district judge to appear as a witness and to bring with him the John Doe testimony. The court held the...