State ex rel. Lynch v. County Court, Branch III

• Decision Date: 07 March 1978
• Docket Number: No. 75-807,75-807
• Citation: 82 Wis.2d 454,262 N.W.2d 773
• Parties: In the Matter of STATE ex rel. Humphrey J. LYNCH, District Attorney for Dane County, v. COUNTY COURT, BRANCH III, the Honorable Archie E. Simonson, presiding. Gary G. CLEVELAND and Ronald S. Sielo, Appellants, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable Richard W. Bardwell, Circuit Judge, presiding, Respondent.
• Court: Wisconsin Supreme Court

Page 773

262 N.W.2d 773

82 Wis.2d 454

In the Matter of STATE ex rel. Humphrey J. LYNCH, District

Attorney for Dane County, v. COUNTY COURT, BRANCH III, the Honorable Archie E. Simonson,

presiding.

Gary G. CLEVELAND and Ronald S. Sielo, Appellants, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable Richard W.

Bardwell, Circuit Judge, presiding, Respondent.

No. 75-807.

Supreme Court of Wisconsin.

Argued Feb. 6, 1978.

Decided March 7, 1978.

A judgment of absolute prohibition was entered by the circuit court pursuant to sec. 293.12, Stats., to prohibit enforcement of an order of the county court. The order of the county court directed the district attorney to permit counsel for certain criminal defendants charged with delivery of a controlled substance to review the files of the state for the respective defendants, and to take whatever notes they wished before proceeding with a preliminary examination. The defendants appeal from the judgment of the circuit court.

Donald S. Eisenberg and Charles W. Giesen, Madison, for appellant Ronald S. Sielo; Jack M. Priester, Madison, argued.

Warren A. Kenney and Steven P. Weiss, Wisconsin Indian Legal Services, Madison, argued and on brief, for appellant Gary G. Cleveland.

Wm. L. Gansner, Asst. Atty. Gen., argued for respondent; Bronson C. La Follette, Atty. Gen., on brief.

CONNOR T. HANSEN, Justice.

The appellants, Gary G. Cleveland and Ronald S. Sielo, and five others were charged with feloniously delivering cocaine, a controlled substance, contrary to secs. 161.41(1)(b), 161.16(4), and 939.05, Stats. Preliminary examination was commenced in the county court of Dane county. In the course of cross-examination of the state's first witness, counsel for one of the defendants demanded any exculpatory material contained in reports prepared by the witness, and counsel for the other defendants joined in this motion. During the ensuing exchange, the motion became a general demand for all exculpatory material in the possession of the district attorney.

In response, the state offered to have the county court inspect the state's files ¹ in camera to determine whether any exculpatory evidence was present, an offer which the state repeatedly advanced. The county court ultimately determined that the files should be examined by the respective attorneys for the defendants and in doing so ordered from the bench that:

". . . The order is to allow each of the attorneys for the defendants to review their respective file in your (district attorney's) office. They can take whatever notes they want to out of that file. They are not to have copies of the file, you know, xerox (sic) them at this time."

The preliminary examination was then adjourned and the district attorney petitioned the circuit court for an alternative writ of prohibition restraining the county court and the county judge from enforcing the order of the county court.

A hearing was held before the circuit court, and although the county judge did not appear, appellants Cleveland and Sielo were permitted to intervene. The appellants' motions to quash the writ were denied, and the writ was granted. Judgment making absolute the writ of prohibition was entered and the appellants appeal.

The issue presented is whether, on the facts of the present case, the extraordinary remedy of a writ of prohibition was proper.

The writ of prohibition is an extraordinary remedy. State ex rel. Dept. of Pub. Instruction v. ILHR, 68 Wis.2d 677, 684, 229 N.W.2d 591 (1975). Traditionally employed to restrain an inferior court from exceeding its jurisdiction, State ex rel. Freemon v. Cannon, 40 Wis.2d 489, 491, 162 N.W.2d 32 (1968), the writ of prohibition has in recent years been extended to reach claims of nonjurisdictional error, State ex rel. Jefferson v. Roraff, 44 Wis.2d 250, 255, 170 N.W.2d 691 (1969); State ex rel. Freemon v. Cannon, supra, 40 Wis.2d at 492, 162 N.W.2d 32; State ex rel. Reynolds v. Circuit Court, 15 Wis.2d 311, 314, 315, 112 N.W.2d 686 (1961).

Regardless of the nature of the error asserted, however, prohibition remains a drastic and extraordinary remedy, State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 375, 151 N.W.2d 63 (1967); State ex rel. Niedziejko v. Coffey, 22 Wis.2d 392, 401, 126 N.W.2d 96, 127 N.W.2d 14 (1964), and its invocation is subject to stringent prerequisites. State ex rel. Jefferson v. Roraff, supra.

Prohibition will not lie to correct every judicial error. Only where the duty of the court below is plain, and where there is a clear refusal to meet that duty or a clear intent to disregard it, will a writ of prohibition issue. State ex rel. Prentice v. County Court, 70 Wis.2d 230, 235, 234 N.W.2d 283 (1975); State ex rel. Jefferson v. Roraff, supra, 44 Wis.2d at 257, 170 N.W.2d 691, quoting In Petition of Pierce- Arrow Motor Car Co., 143 Wis. 282, 285, 127 N.W. 998 (1910).

Moreover, no matter how meritorious a claim of error may be, two distinct showings must be made before a writ of prohibition will issue. First, it must be shown that ordinary remedies, by appeal or otherwise, are inadequate. State ex rel. Dept. of Pub. Instruction v. ILHR, supra, 68 Wis.2d at 684, 229 N.W.2d 591; Mohrhusen v. McCann, 62 Wis.2d 509, 512, 215 N.W.2d 560 (1974). ² Second, it must be shown that grave or extraordinary hardship will result if the writ does not issue. State ex rel. Di Salvo v. Washington County Ct., 79 Wis.2d 27, 31, 255 N.W.2d 459 (1977); State ex rel. Prentice v. County Court, supra, 70 Wis.2d at 234, 234 N.W.2d 283.

It will not suffice merely to assert these prerequisites in a conclusory fashion. Rather, a party seeking the intervention of a supervisory court has the burden of alleging facts sufficient to reasonably demonstrate both the inadequacy of ordinary remedies and the gravity of the hardship if the writ does not issue, State ex rel. Di Salvo v. Washington County Ct., supra, 79 Wis.2d at 31, 255 N.W.2d 283; State ex rel. Prentice v. County Court,supra, 70 Wis.2d at 234, 234 N.W.2d 283; Mohrhusen v. McCann, supra, 62 Wis.2d at 512, 215 N.W.2d 560; unless the harm is "inherent in the situation," Mohrhusen v. McCann, supra, at 509, 512, 215 N.W.2d 560; State ex rel. Dept. of Pub. Instruction v. ILHR, supra, 68 Wis.2d at 686, 687, 229 N.W.2d 591.

In the instant case, the petition for the writ of prohibition alleged the inadequacy of the remedy of appeal, asserting that appeal would come too late for effective redress because the order of the county court directed the state to permit the defendants to examine their respective files before resuming the preliminary hearing. On appeal, the state further asserts that immediate appeal was not available to the state under sec. 974.05, Stats., and that the issue may evade review altogether, because a jury verdict favorable to the defendants would prevent appeal by the state.

These arguments are consistent with the decisions of this court. The inadequacy of the remedy of appeal may arise from the fact that appeal would come too late for effective redress. State ex rel. Jefferson v. Roraff, supra, 44 Wis.2d at 256, 170 N.W.2d 691, quoting Drugsvold v. Small Claims Court, 13 Wis.2d 228, 232, 108 N.W.2d 648 (1961); see: State ex rel. Dept. of Pub. Instruction v. ILHR, supra, 68 Wis.2d at 687, 229 N.W.2d 591.

This court has indicated that a writ of prohibition is a proper remedy where an inferior court has improperly compelled disclosure of evidence. Thus in State ex rel. Reynolds v. Circuit Court, 15 Wis.2d 311, 315, 112 N.W.2d 686 (1961), prohibition was sought to restrain enforcement of a trial court order requiring two appraisers to give certain depositions in a civil action against the state highway commission. Although the petitioners did not prevail on the merits of their claim, and the writ was therefore denied, this court acknowledged the inadequacy of the remedy of appeal in such a situation. If the appraisers were required to comply with the order, this court observed, any right which the state had to have such testimony withheld would be destroyed, and an appeal would be unable to repair the damage.

The appellants contend that the state could have secured adequate relief by seeking a protective order covering any privileged items or material which could not safely be disclosed. However, the record makes plain that the state's objection to disclosure does not concern specific items which might properly be made subject to a protective order.

Upon direct inquiry by the county court, the assistant district attorney stated that the seven files did not contain information which would reveal the identities of informants or undercover agents. The trial court further inquired whether the files contained information regarding any other persons which warranted protection, or anything which should not be revealed to the defendants. The assistant district attorney stated that generally there was nothing of that nature, but that he could not be positive without examining the files page by page.

Neither the petition for the writ of prohibition nor the supporting brief indicated that the files contain specific items requiring protection. It is apparent, therefore, that the writ of prohibition was sought, not to prevent disclosure of any specific item or items, but to prevent whatever harm may be implicit in ordering that the state make its file available to counsel for the defendant for examination and the taking of such notes as he wishes prior to a preliminary examination.

The question, then, is whether the order of the county court was plainly erroneous, and whether grave harm would result if the writ of prohibition did not issue.

The state maintains that prohibition was proper because the harm in the present case is "inherent in the situation." State ex rel. Dept. of Pub. Instruction v. ILHR, supra, 68 Wis.2d at 686, 687, 229 N.W.2d 591; Mohrhusen v. McCann, supra, 62 Wis.2d at 512, 215 N.W.2d 560. More specifically, the state contends that the...