State ex rel. Kurkierewicz v. Cannon

• Citation: 166 N.W.2d 255,42 Wis.2d 368
• Decision Date: 04 April 1969
• Docket Number: No. 185,185
• Parties: STATE ex rel. Marcella A. KURKIEREWICZ, Respondent, v. David J. CANNON, Dist. Atty. of Milwaukee County, Appellant.
• Court: United States State Supreme Court of Wisconsin

Page 255

166 N.W.2d 255

42 Wis.2d 368

STATE ex rel. Marcella A. KURKIEREWICZ, Respondent, v. David J. CANNON, Dist. Atty. of Milwaukee County, Appellant.

No. 185.

Supreme Court of Wisconsin.

April 4, 1969.

Rehearing Denied June 3, 1969.

Robert P. Russell, Corp. Counsel, James J. O'Donnell, Deputy Corp. Counsel, Milwaukee, for appellant.

Ross R. Kinney, Milwaukee, for respondent.

HEFFERNAN, Justice.

The defendant, district attorney, moved to quash the alternative writ. It is conceded by the parties to this action that a motion to quash the writ is deemed a demurrer and admits the facts appearing in the petition. Sec. 293.01, Stat.; State ex rel. Nelson v. Henry (1934), 216 Wis. 80, 256 N.W. 714; Walter Laev, Inc. v. Karns (1968), 40 Wis.2d 114, 161 N.W.2d 227.

The following facts are alleged in the petition of Marcella Kurkierewicz: In April, 1968, her eighteen-year-old son, Jerome, was killed as a result of being shot twice, once in the head and once in the chest, by Patrolman William J. Miller of the St. Francis police station. Just prior to the shooting, when Jerome, Officers Miller, Bronstad, and Ast were in an interrogation room, Jerome pulled out a round-tipped table knife with a serrated edge. He began slashing out at Officer Ast and drove him through the door of the interrogation room into a fingerprinting room. He did not strike Officer Ast with the knife. He then went after Officers Miller and Bronstad, who backed up to or through a door. He slashed at them with his knife but did not strike either one of them. At this point, Officer Miller shot Jerome in the head and chest. The district attorney talked with the officers involved about this matter. At this meeting, Officer Ast said that Miller and Bronstad did not drop to the floor to try to trip the deceased, did not throw the dispenser or the logbook at the deceased, and did not back through the door into the city hall area in order to attempt to seize the deceased if he came through the door. Officer Ast did not know why these actions were not taken. Officer Miller said that he shot the deceased because there was no place else he and Officer Bronstad could have gone. He did not know why he shot the deceased twice. Officer Miller knew deceased prior to the shooting and had had trouble with him before. Moreover, Officer Miller is a defendant in a pending action brought by Leonard Symkowski, who claims Miller pistol-whipped him.

Marcella Kurkierewicz, through her attorney, asked the district attorney of Milwaukee to order an inquest to investigate the circumstances surrounding the death of her son and asked the coroner of Milwaukee county, Dr. Helen Young, to hold an inquest. Both refused to do so.

On the basis of the facts set out in the petition, Marcella Kurkierewicz argues that she is entitled to a writ of mandamus directing the district attorney to order an inquest in accordance with sec. 966.01, Stats., which provides in part as follows:

'Whenever the district attorney has notice of the death of any person and from the circumstances surrounding the same there is any reason to believe that murder, manslaughter, homicide resulting from negligent control of vicious animal, homicide by reckless conduct, homicide by negligent use of vehicle or firearm, or homicide by intoxicated user of vehicle or firearm may have been committed, or that death may have been due to * * * unexplained or suspicious circumstances * * * he shall forthwith order and require the coroner * * * to take an inquest as to how such person came to his death.'

On the facts, after considering the petition and the supplementary affidavit of the district attorney, the circuit judge granted the peremptory writ. A writ of mandamus is a discretionary writ in that it lies within the sound discretion of the trial judge either to grant or deny it. Hence, the action of a trial judge in either granting or denying the writ will be affirmed unless the trial judge abused his discretion. Menzl v. City of Milwaukee (1966), 32 Wis.2d 266, 275, 145 N.W.2d 198; State ex rel. New Strand Theatre Co. v. Common Council of City of Racine (1930), 201 Wis. 423 425, 230 N.W. 60. As a corollary, it follows that if mandamus is not a proper remedy to direct the district attorney to order an inquest, a writ of mandamus that so directs is the result of an abuse of discretion.

A writ of mandamus will lie to compel public officers to perform their prescribed statutory duties. State ex rel. Martin v. Zimmerman (1939), 233 Wis. 16, 288 N.W. 454; State ex rel. Ingold v. Mayor (1919), 170 Wis. 133, 174 N.W. 471; State ex rel. McKay v. Curtis (1907), 130 Wis. 357, 110 N.W. 189. Mandamus, however, is an extraordinary remedy and will not lie if there is another adequate and specific remedy at law (Underwood v. Karns (1963), 21 Wis.2d 175, 124 N.W.2d 116), or if the act lies entirely within the discretion of the officer.

'* * * it is an abuse of discretion for a court to compel action through mandamus when the officer's duty is not clear and unequivocal and requires the exercise of the officer's discretion.' Menzl v. City of Milwaukee, supra, p. 276, 145 N.W.2d p. 203.

During oral argument it was suggested that a John Doe proceeding, outlined in sec. 954.025, Stats., would have afforded the petitioner the relief she sought and that, therefore, mandamus should not lie. A John Doe proceeding could possibly afford the relief sought by the petitioner. The John Doe, as well as the coroner's inquest, is primarily an investigative device, out of which can come either an exoneration, by implication at least, or a formal charge of a crime. We conclude, however, that the John Doe would not assure the investigation sought by petitioner. Sec. 954.025 requires that the petitioner must complain to the magistrate 'that he has reason to believe that a crime has been committed.' Marcella Kurkierewicz made no allegation of the commission of a crime in her petition for mandamus. The strongest statement of her state of mind in this regard is reflected in the memorandum of the circuit judge in which there appears the statement, 'His mother * * * aggrieved by the death of her son and beset by doubts as to whether the shooting of her son was justified. * * *' This is far from being able to swear to a magistrate that she had reason to believe a crime had been committed.

Moreover, what Marcella Kurkierewicz sought was a public investigation that would either allay her doubts or confirm her fears. A John Doe would not do that, for it may be held in secret and the statute itself leaves even the nature of the investigation to the complete discretion of the magistrate. Sec. 954.025, Stats., provides, in part: 'The extent to which the magistrate may proceed in such examination is within his discretion.' Hence, no greater obligation than merely hearing the complainant and her witnesses is imposed on the magistrate. Only at the request of the district attorney, and subject to the discretion of the magistrate, may other witnesses be subpoenaed and examined.

We are satisfied that John Doe is a feeble investigative device indeed, unless both the district attorney and the magistrate are amenable to using their offices in furtherance of the investigation. A John Doe would not necessarily provide the relief sought by the petitioner, and hence we cannot say that there is a remedy other than mandamus which is competent to afford relief on the same subject matter and is both adequate and specific. See State ex rel. Racine County v. Schmidt (1959), 7 Wis.2d 528, 536, 97 N.W.2d 493; State ex rel. Sheboygan County v. Telgener (1929), 199 Wis. 523, 227 N.W. 35.

We are not satisfied, however, that the act that the mandamus seeks to have performed--the calling of an inquest--is a plain and imperative duty under the facts alleged in the petition and admitted by the motion to quash. The duty of a public officer to act must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.

The district attorney in Wisconsin is a constitutional officer and is endowed with a discretion that approaches the quasijudicial. State v. Peterson (1928), 195 Wis. 351, 359, 218 N.W. 367.

It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. ² In general, the district attorney is not answerable to any other officer of the state in respect to the manner in which he exercises those powers. True, he is answerable to the people, for if he fails in his trust he can be recalled or defeated at the polls. In the event he wilfully fails to perform his duties or is involved in crime, he may be suspended from office by the governor and removed for cause. These, however, are political remedies that go not to directing the performance of specific duties but rather go to the question of fitness for office.

The district attorney's function, in general, is of a discretionary type, the performance of which is not compellable in mandamus. 27 C.J.S. District and Prosecuting Attorneys § 10, p. 648, summarizes, correctly we believe, the broad nature of the discretion conferred upon the district attorney:

'The prosecuting attorney has wide discretion in the manner in which his duty shall be performed, and such discretion cannot be interfered with by the courts unless he is proceeding, or is about to proceed, without or in excess of jurisdiction. Thus, except as ordained by law, in the performance of official acts he may use his own discretion without obligation to follow...