State ex rel. Reynolds v. Circuit Court for Waukesha County

• Decision Date: 29 December 1961
• Citation: 15 Wis.2d 311,112 N.W.2d 686
• Parties: STATE ex rel. John W. REYNOLDS, Attorney General, Frances E. Gutschenritter and Harry Koepp, Petitioner, v. CIRCUIT COURT FOR WAUKESHA COUNTY, the Honorable William E. Gramling, Judge of said Court presiding therein, and Rolland J. Ruby and Kathryn Ruby, his wife, Respondents.
• Court: Wisconsin Supreme Court

Page 686

112 N.W.2d 686

15 Wis.2d 311

STATE ex rel. John W. REYNOLDS, Attorney General, Frances E Gutschenritter and Harry Koepp, Petitioner, v. CIRCUIT COURT FOR WAUKESHA COUNTY, the Honorable William E Gramling, Judge of said Court presiding therein and Rolland J. Ruby and Kathryn Ruby his wife, Respondents.

Supreme Court of Wisconsin.

Dec. 29, 1961.

Rehearing Denied March 6, 1962.

See 113 N.W.2d 537.

The State, on the relation of the attorney general, and Frances E. Gutschenritter and Harry Koepp, petitioned for a writ commanding the circuit court to vacate an order requiring Gutschenritter and Koepp to give certain depositions before a court commissioner in an action by Rolland Ruby and his wife against the State Highway Commission.

An alternative writ of prohibition was issued enjoining the court, the presiding judge, and plaintiffs from proceeding in the action until our further order and ordering them to show cause why the prohibition should not be made absolute with respect to the depositions referred to.

The court and presiding judge moved that the alternative writ be quashed and also made a return alleging facts and setting forth a transcript of proceedings before the circuit court in the matter complained of. Relators filed a transcript of proceedings before the court commissioner.

It appears that plaintiffs owned land in the city of Brookfield. The State Highway Commission, as condemnor, took a portion thereof and made an award. Plaintiffs appealed to the circuit court on August 15, 1960. A trial which began June 1, 1961, ended in a mistrial. Pursuant to an order of the court, apparently entered as part of pretrial procedure, it was disclosed that the damages estimated by the State's appraisers averaged just under $46,000. Those by the plaintiff's appraisers averaged over $111,000.

Relators Gutschenritter and Koepp are experienced in appraising real property. They made appraisals of plaintiff's property for the highway commission before the award was made. Koepp had a contract with the State as a consultant with respect to the property. Gutschenritter was an employee of American Appraisal Company and that company had a similar contract. Gutschenritter has since left the company's employ. His notes are in the company's possession.

Gutschenritter and Koepp appeared before the commissioner in answer to subpoena, and counsel for American Appraisal Company also appeared. Plaintiff's counsel attempted to question the experts concerning their appraisal of the plaintiff's property, and after the witnesses indicated they would refuse to answer, the matter was certified to the circuit court.

Relators allege that on October 30, 1961, the circuit court entered an order requiring relators to give the depositions and requiring Mr. Gutschenritter to produce the records and documents subpoenaed. The record shows only the oral directions of the court, and the court disclaims any command that the witness produce papers not in his control.

John W. Reynolds, Atty. Gen., Richard E. Barrett, Asst. Atty. Gen., Jay Schwartz, Madison, Herman E. Friedrich, Milwaukee, for petitioner.

Donald Tikalsky, Milwaukee, for respondents.

FAIRCHILD, Justice.

1. Is this an appropriate case for exercise of superintending control? A writ of prohibition may be invoked in cases of nonjurisdictional error where appeal from the error may come too late for effective redress, or be inadequate, and there is need for such intervention to avoid grave hardship or a complete denial of the rights of a litigant. ¹ If relators Gutschenritter and Koepp comply with the order of the circuit court, any right they have to withhold testimony, and any right the State has to have such testimony withheld, will have been destroyed. An appeal could not repair the damage. If they refuse to comply they risk punishment for contempt of court. ² It is difficult under the circumstances presented to separate the question of whether prohibition would be appropriate from the question whether the circuit court erred, and we consider the matter on its merits for that reason.

2. Discovery devices under ch. 32, Stats. Relators contend that since ch. 32 provides methods by which specified types of information are to be furnished by condemnor to condemnee and vice versa, general statutory provisions for discovery were not intended to apply. Sec. 32.11(2), Stats.1957 (first created by ch. 597, Laws of 1957, and in effect at the time of the award in this case) empowered the court to require both parties to submit to the court a statement of contentions on enumerated points, i. e., highest and best use of the property, applicable zoning, designation of claimed comparable lands, sale of which will be used in appraisal opinion, severance damage, if any, maps and pictures to be used, costs of reproduction less depreciation and rate of depreciation, statement of capitalization of income with supporting data, separate opinion as to fair market value, including before and after value where applicable by not to exceed three appraisers, and qualifications and experience of witnesses offered as experts. Subsection (3) authorized the court to make regulations for a pretrial conference and, if both parties furnished statements of contentions, for exchange of the statements. Sec. 32.10(1), Stats., as amended at the same time provides that the commissioners shall have the same powers as given to the circuit court by sec. 32.11(2), Stats. A memorandum in the files of the legislative reference library prepared by the corporation counsel of Milwaukee county, the sponsor of the bill, contains the comment that this provision 'is a new idea in Wisconsin although it is possible that circuit courts now have such power by implication under pretrial power * * *.' Similar provisions appear in sec. 32.09(7) and (8), Stats.1959. Sec. 32.05(3)(d) and (e), Stats.1959, also requires that when the condemnor gives notice of its jurisdictional offer, it must state that one of the appraisals on which the offer is based is available for inspection at a specified place.

When these provisions of ch. 32 were enacted, sec. 326.12, Stats., authorized the adverse examination of a party, or person standing in specified relationships to a party, and sec. 269.57 authorized the court or judge to order inspection of property or books and documents containing evidence. It would appear that the discovery provisions in ch. 32 were intended to liberalize rights of discovery in action under ch. 32 beyond, in some respects, what they would be under the general statute. It is by no means clear that the legislature considered that the general statutes had been inapplicable to actions under ch. 32, nor that it intended that they cease to be applicable.

By ch. 113, Laws of 1961, effective June 10, 1961, the legislature repealed and recreated sec. 326.12, Stats., authorizing a discovery examination in civil actions or proceedings of any person, thus vastly enlarging the rights of litigants to discovery at any time before the final determination of the action or proceeding. The general policy was thus adopted after the adoption of the discovery procedures under ch. 32, Stats. We find no such inconsistency or conflict of policy or legislative intent as to lead us to the conclusion that sec. 326.12 is inapplicable to appeals under ch. 32. Sec. 32.05(10), Stats.1959, provides that after an appeal to circuit court from an award, the appeal 'shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein * * *.'

3. Records and documents. Relators contend that the circuit court required Gutschenritter to produce documents not in his possession or subject to his control. The parties had stipulated that if American Appraisal Company had been subpoenaed it would have refused to produce the documents. The return to the writ alleged that the court's order was to the effect that if a subpoena were served upon the American Appraisal Company to produce the documents, they would have to be produced. Gutschenritter therefore does not appear to have been required to produce documents not in his possession.

4. Claim of privilege. Relators contend that the information sought by plaintiffs from the experts is privileged. They say that the appraisals of Gutschenritter and Koepp were obtained by the highway commission in contemplation of litigation and were made part of the file of the attorney general for the purpose of preparing for condemnation proceedings. They state that under decided cases in this state and elsewhere, 'reports prepared by an agent for his principal to be used for purposes of litigation are clearly reports which fall within the privilege of attorney and client.'

Relators' argument as applied to the present situation does not distinguish between compelling a witness to disclose his knowledge or information of relevant facts and compelling him to disclose the fact of past communication of his knowledge or information or other matters to his attorney or the attorney of his principal. This distinction appears in simplest form in the proposition that a defendant in a civil action may be compelled to testify to his own actions relevant to the cause of action, but neither he nor his attorney may be compelled to testify how the defendant described the same events to his attorney.

Presumably Gutschenritter and Koepp examined the property involved, the general area in which it is located, and informed themselves as to sales and other factors which should, in their opinion, be considered in determining value before and after the taking. When they felt they had sufficient information they worked out opinions as to such values in the light of the experience and special knowledge which makes them experts, determining to their own satisfaction the weight which ought to be ascribed to various factors. They doubtless prepared and delivered to the...