La Crosse Tribune v. Circuit Court for La Crosse County: Creating a Trick Box for an Award of Attorney Fees

In La Crosse Tribune v. Circuit Court for La Crosse County, No. 10AP3120 (Wis. Ct. App., Mar. 15, 2012), the Court of Appeals left a newspaper seeking a statutory fee award for its success in obtaining access to public records in a trick box with no apparent way out.

The case began when a defendant found not guilty of homicide by reason of insanity in the mid-‘80s was ordered conditionally released.  This triggered preparation of a release plan, which the circuit court considered and then sealed, along with related documents, as it thought the mental health laws required.  The local paper disagreed and sought access under the public records law to four documents.  Here’s where the problem arose.  The public records law clearly applies to records in the custody of a circuit court, Wis. Stat. § 19.32(1), and dictates that the requester’s remedy (apparently exclusive) upon being denied access is to “bring an action for mandamus asking a court to order release of the record.”  § 19.37(1)(a).  Success in that action entitles the requester to an award of attorney fees.  Wis. Stat. § 19.32(2)(a).

Normally, the requester would seek mandamus in an original action in the circuit court.  Wis. Stat. §§ 783.01, 801.02(5).  But circuit courts lack supervisory jurisdiction over other circuit courts, Eau Claire Leader-Telegram v. Barrett, 146 Wis. 2d 647, 431 N.W.2d 741 (Ct. App. 1988), and the court of appeals, which has supervisory jurisdiction over circuit courts, Wis. Const. art. VII, § 5(3), and in which the newspaper accordingly filed its request for mandamus relief, lacks original jurisdiction to entertain a mandamus action.  See State ex rel. Swan v. Elections Bd., 133 Wis. 2d 87, 394 N.W.2d 732 (1986).  Because the paper had not commenced an original mandamus action, the court of appeals (which granted it access to one of the records sought) held that it could not recover the fees to which it would be entitled if it had complied with the exclusive statutory remedy (which it could not do).

Or so the court of appeals held.  The court’s logic seems less than compelling. Section 19.37(1)(a) doesn’t use the word “original” in describing the “action for mandamus” that a requester must bring, and the court of appeals does have original jurisdiction, under the constitutional provision cited, to issue a writ of mandamus to a circuit court.  State ex rel. Staples v. DH&SS, 130 Wis. 2d 285, 387 N.W.2d 118 (Ct. App. 1986).  But the decision is recommended for publication, so it likely will soon be the law that a prevailing party in a proceeding to gain access to public records in the custody of a circuit court may not recover its fees.