State ex rel. Morke v. Record Custodian, Dept. of Health and Social Services, 89-1143

• Decision Date: 08 February 1990
• Docket Number: No. 89-1143,89-1143
• Citation: 154 Wis.2d 727,454 N.W.2d 21
• Parties: STATE ex rel. Thomas R. MORKE, Petitioner-Appellant, v. RECORD CUSTODIAN, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent.
• Court: Wisconsin Court of Appeals

Page 21

454 N.W.2d 21

154 Wis.2d 727

STATE ex rel. Thomas R. MORKE, Petitioner-Appellant, v. RECORD CUSTODIAN, DEPARTMENT OF HEALTH AND SOCIAL SERVICES,

Respondent.

No. 89-1143.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 12, 1990.

Opinion Released Feb. 8, 1990.

Opinion Filed Feb. 8, 1990.

Thomas R. Morke, Lexington, Va., for petitioner-appellant.

Donald J. Hanaway, Atty. Gen., with Jennifer Sloan Lattis, Asst. Atty. Gen., for respondent.

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.

GARTZKE, Presiding Judge.

Thomas Morke appeals from an order dismissing his three petitions for mandamus directed to the Department of Health and Social Services. While an inmate at the Fox Lake Correctional Institution, Morke requested copies of all judgments of conviction in the possession of the department concerning three named prison inmates, all of whom were incarcerated with him at Fox Lake. He made the request under sec. 19.35, Stats., the Public Records Law. The department denied his requests. He petitioned the circuit court for mandamus pursuant to sec. 19.37(1)(a) to review the department's denials of his three requests. ¹ We infer from the record that he has since been released from incarceration in Wisconsin.

The issue is whether the circuit court abused its discretion by dismissing the petitions. We disagree with the court's stated reason, but we conclude that a reasonable basis exists for the dismissals. We therefore affirm.

The department has copies of the judgments. It refused to release them because in the department's view the harm produced by Morke's access to the judgments would outweigh his right of access. The denial letters stated that: (1) Morke did not have permission from the three inmates; (2) his access to the judgments would create a substantial risk he would use the records to intimidate, harass, or otherwise harm the inmates; and (3) access would jeopardize the inmates and create turmoil within the correctional institution, causing a breach of institutional security.

The circuit court issued alternative writs of mandamus requiring that the department release the judgments or show cause why it need not. The court granted the department's motion to quash and dismissed Morke's petitions because neither he nor the public would suffer grave or irreparable harm from the denial, citing State ex rel. Staples v. DH & SS, 130 Wis.2d 285, 288, 387 N.W.2d 118, 120 (Ct.App.1986). It reached that conclusion because Morke could obtain the same records from clerks of court in this state.

We conclude that the circuit court reached the right result but for the wrong reason. Mandamus must issue on behalf of a petitioner who establishes: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law. Law Enforce. Stds. Bd. v. Lyndon Station, 101 Wis.2d 472, 493-94, 305 N.W.2d 89, 99 (1981). The circuit court relied on an erroneous interpretation of the substantial damages requirement. However, we affirm the order under review because Morke has not shown a positive and plain duty of the department to release the records to him.

The circuit court relied on our reference in Staples, 130 Wis.2d at 288, 387 N.W.2d at 120, to "grave or irreparable harm" rather than "substantial damages." That interpretation was not essential to our judgment in Staples, was dictum, and we withdraw it. We cited Lyndon Station as precedent, but that decision nowhere refers to grave or irreparable harm. As the Lyndon Station court said, the test is "substantial damages." Lyndon Station, 101 Wis.2d at 494, 305 N.W.2d at 99.

A trial court abuses its discretion if it relies on an erroneous view of the law. In re Marriage of Olson v. Olson, 148 Wis.2d 219, 221, 435 N.W.2d 266, 267 (Ct.App.1988). However, an appellate court may independently review the record to determine whether the result of a discretionary determination is proper. In re Marriage of Rodak v. Rodak, 150 Wis.2d 624, 632 n. 6, 442 N.W.2d 489, 493 (Ct.App.1989). We take that course here.

The department urges that we sustain dismissal of Morke's mandamus petitions because he has an adequate remedy at law. The department argues that Morke can request copies of the judgments from the clerks of courts which convicted the three inmates. We reject the argument.

Mandamus should issue even if another remedy exists if the other is inadequate.

To exclude resort to mandamus on the ground that the relator has another remedy, such remedy must be an adequate one and well adapted to remedy the wrong complained of; if it is inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. Another remedy tedious and not so well adapted to the nature of the case as that by mandamus will not operate to prevent resort to the latter remedy, and it is said the other remedy must be one competent to afford relief upon the very subject matter involved, that it must not only be adequate but specific.

State ex rel. Sheboygan County v. Telgener, 199 Wis. 523, 526-27, 227 N.W. 35, 37 (1929) (citation omitted).

Unless he knew the counties involved, Morke's alternative to obtaining copies from the department would be to request conviction records for each of the three inmates from each of the seventy-two circuit court clerks in the state. ² That alternative is laborious, certainly inconvenient, and perhaps expensive and would be enormously complicated if any of the inmates had out-of-state convictions. We conclude that Morke's alternative remedy to mandamus is inadequate.

The circuit court's decision to quash the writs of mandamus and...