State ex rel. Lewandowski v. Callaway, s. 81-1313
| Decision Date | 12 April 1984 |
| Docket Number | Nos. 81-1313,82-1344,s. 81-1313 |
| Citation | 346 N.W.2d 457,118 Wis.2d 165 |
| Parties | STATE of Wisconsin ex rel. Floyd W. LEWANDOWSKI, Petitioner-Appellant-Petitioner, v. Richard CALLAWAY, in his capacity as Attorney-Chairman of a formal panel of the Wisconsin Patient Compensation Panels, and Joseph D. Hill, in his capacity as director of Wisconsin Patient Compensation Panels, Respondents, Vernon Griffin, M.D., and Hess Memorial Hospital, Intervenors-Respondents. Floyd W. LEWANDOWSKI, Plaintiff-Appellant-Petitioner, v. Vernon GRIFFIN, M.D., and Hess Memorial Hospital, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Brent Smith, La Crosse, argued for petitioner; Daniel T. Flaherty, James P. Gokey, Ellen M. Frantz and Johns, Flaherty & Gillette, S.C., La Crosse, on brief.
Barbara L. Block, for respondent, Vernon Griffin, M.D.; Boardman, Suhr, Curry & Field, Madison, on brief.
Bruce A. Schultz, argued, for respondent, Hess Memorial Hosp.; Eugene O. Gehl, Bruce A. Schultz and Brynelson, Herrick, Gehl & Bucaida, Madison, on brief.
Floyd Lewandowski seeks review of a decision denying him a writ of mandamus. The writ he sought would have compelled a Wisconsin Patients Compensation Panel to consider his motion to reopen his case and to review its order which dismissed his case before the panel. Because we conclude that Lewandowski has a statutory right to have the panel consider his motion to reopen his case, we reverse the court of appeals' decision and remand to the circuit court with directions to enter the writ of mandamus to compel the patients compensation panel to consider Lewandowski's motion to reopen his case. 1
The issues presented for review are:
(1) Did the circuit court abuse its discretion in quashing the writ of mandamus that Lewandowski sought to compel the patients compensation panel to consider his motion to reopen his case under sec. 806.07, Stats., to determine whether it should grant him relief from an order dismissing his case before the panel? We conclude that it abused its discretion in quashing the writ.
(2) If Lewandowski has a right to have the panel consider his motion to reopen, did he lose that right because he filed his motion more than 120 days after the panel issued its dismissal order? We conclude that Lewandowski did not lose his right to have the panel consider his motion to reopen even though he brought the motion more than 120 days after the dismissal order was issued.
(3) Was Lewandowski denied due process of law by the circuit court's dismissal of his medical malpractice action, by the circuit court's denial of the writ of mandamus, and by the panel's failure to reopen his case? We conclude that because mandamus must issue to compel the panel to consider Lewandowski's motion to reopen his case before the panel, this affords him an opportunity to be heard that is sufficient to satisfy any due process requirements.
On December 21, 1979, Lewandowski filed a submission of controversy with a Wisconsin Patients Compensation Panel pursuant to sec. 655.04, Stats. In his claim, he alleged negligence on the part of Vernon Griffin, a physician, and Hess Memorial Hospital (Hess). A prehearing conference was held on March 5, 1980, before Richard Callaway, the attorney-chairman of the panel.
On March 14, 1980, Callaway entered an order directing Lewandowski to disclose to the defendants the names of his expert witnesses within 60 days. The order stated that failure to submit the names within the specified time period would result in a dismissal of the case on its merits. Lewandowski's attorney failed to disclose the names within the 60 day period as required by the order. Lewandowski claims that he had no knowledge of his attorney's failure to comply with the March 14 order. On May 12, 1980, Callaway signed an order dismissing Lewandowski's claim on its merits.
On October 2, 1980, Lewandowski filed a motion with the patients compensation panel for an order reopening his case. Lewandowski's attorney also wrote letters to Callaway and to Joseph Hill, director of the Wisconsin Patients Compensation Panels, requesting a hearing before the panel to provide Lewandowski the opportunity to present reasons why the panel should reopen his case. On October 10, 1980, Hill wrote to Lewandowski's attorney, stating that he declined to reopen the case because of the May 12, 1980, order dismissing the case on its merits. On October 28, Callaway wrote to the attorney, informing him that the case would not be reopened because the panel no longer had jurisdiction. Hill subsequently informed Lewandowski's attorney that he declined to reopen the case because he believed there was no statutory authority allowing him to do so. On November 18, 1980, Callaway wrote to Lewandowski's attorney, again stating that he believed he had no jurisdiction over the matter.
On December 17, 1980, Lewandowski filed a petition with the circuit court for a writ of mandamus. Lewandowski sought to compel Callaway and Hill to schedule a hearing to determine whether under sec. 806.07, Stats., Lewandowski should be relieved from the May 12, 1980, order dismissing his case. Lewandowski also filed an affidavit in support of the petition for the writ of mandamus. On December 17, the circuit court issued the writ, ordering Callaway and Hill to schedule a hearing pursuant to secs. 655.17(1) and 806.07, to determine whether the panel would reopen Lewandowski's case.
Hill filed a motion to quash the writ of mandamus. Griffin and Hess Memorial Hospital subsequently intervened in the proceedings and also filed motions to quash the writ. The circuit court granted the motion to quash, holding that mandamus was an inappropriate remedy to compel the panel to reopen Lewandowski's case, and that the panel lacked jurisdiction to reconsider its order dismissing Lewandowski's claim.
Lewandowski appealed the judgment quashing the writ. The court of appeals affirmed the judgment. (Case no. 81-1313.) Lewandowski then filed a petition for review with this court, which we granted.
Lewandowski argues that the patients compensation panel had a clear legal duty to consider his motion to reopen his case and review whether he should be granted relief from the May 12, 1980, order dismissing his case before the panel. Lewandowski contends that mandamus is an appropriate method to compel the panel to exercise its discretion to review the May 12, 1980, order, and that the circuit court therefore abused its discretion in quashing the writ.
It is within the circuit court's discretion to grant or deny a writ of mandamus. Miller v. Smith, 100 Wis.2d 609, 621-22, 302 N.W.2d 468 (1981). The decision granting or denying a writ will be affirmed on appeal unless the court abused its discretion. Id.
Mandamus is an extraordinary legal remedy, and one seeking a writ must establish that it is based on a clear, specific legal right that is free from substantial doubt. Eisenberg v. ILHR Department, 59 Wis.2d 98, 101, 207 N.W.2d 874 (1973). It is the proper remedy to compel a public officer to perform his or her statutory duties. State ex rel. Hurley v. Schmidley, 48 Wis.2d 659, 662-63, 180 N.W.2d 605 (1970).
When the action sought to be compelled is discretionary, mandamus will not lie. State ex rel. Althouse v. Madison, 79 Wis.2d 97, 106, 255 N.W.2d 449 (1977). However, mandamus is appropriate to compel the exercise of discretion. Id. Although the statutes that allegedly create the duty which Lewandowski seeks to compel may be unclear and may require statutory construction, that does not mean that mandamus is an inappropriate remedy. Id.
In this case, Lewandowski argues that the panel's duty to consider his motion to reopen to determine whether it should grant him relief from the dismissal order is created by secs. 655.17(1), Stats., and 806.07. He therefore asserts that he has a clear and specific legal right to have the panel consider his motion. We agree.
Section 655.17(1), Stats., is part of the chapter governing patients compensation proceedings. That statute provides in pertinent part: Chapter 655 is silent concerning the possible procedure that a panel is to follow when a party requests that the panel review a prior order dismissing a case to determine whether it should grant relief from that order. Therefore, under sec. 655.17(1), we must look to the law applicable to civil actions to determine what procedure governs consideration of a motion to reopen a case that previously was dismissed.
Section 806.07(1), Stats., which governs civil actions, grants to courts the power to "... relieve a party or legal representative from a judgment, order or stipulation ..." upon a motion for relief and upon a showing that one of the reasons for relief specified in the statute is satisfied. That statute is cited in full below. 2 Because ch. 655 is silent concerning the procedure a panel should follow in determining whether to review a prior order dismissing a claim, and because sec. 655.17(1) mandates that under those circumstances, a panel must be bound by the law applicable to civil actions, we conclude that Lewandowski has a clear and specific legal right to have the panel consider his motion under sec. 806.07 to determine whether to grant him relief from the order dismissing his claim. We note that in 71 Op.Atty.Gen. 1 (1982), the attorney general concluded that a patients compensation panel has the power under sec. 806.07 to grant relief from a judgment, order or stipulation. Although attorney general opinions are not controlling precedent, City of Madison v. Town of Fitchburg, 112 Wis.2d 224, 237, 332 N.W.2d 782 (1983), we believe that the discussion in 71 Op.Atty.Gen. 1 (1982) concerning a panel's power to grant relief under sec. 806.07 is a...
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