Justice Hagedorn Opines that There Are No Procedural Bars to Disclosure Under Public Records Laws
Justice Hagedorn opines in a solo concurrence in Wis. Voter Alliance v. Secord that the common-law legal requirements for a writ of mandamus do not affect public records cases.
When seeking a court order for disclosure of a public record, section 19.37(1)(a) of the Wisconsin Statutes directs litigants to “bring an action for mandamus asking the court to order release of the record.” However, in litigation leading up to the Wisconsin Supreme Court’s review of Wisconsin Voter Alliance v. Secord, the parties’ arguments and the Wisconsin Court of Appeals’ reasoning brought into question whether mandamus was available in all cases where records were found to be public records. While the Wisconsin Supreme Court did not decide the merits of whether the records in question were public records, Justice Brian Hagedorn wrote a solo concurrence to explain that once the merits of disclosure have been determined under Wisconsin’s public records laws, the common-law elements of mandamus relief do not provide any basis for denying disclosure.
The writ of mandamus has a long history in English courts, where it was a mechanism to petition the King’s Bench to order the King’s inferior officers to “do their Duty.”. Asit has developed in Wisconsin law, an action for mandamus asking for the performance of a duty by a governmental officer should be granted when the following four elements are met:
- The petitioner has a clear legal right to the performance of the duty.
- The public officer in question has a positive and plain duty to perform the requested act.
- The petitioner would suffer substantial damages because of the nonperformance of the duty in question.
- The petitioner has no other adequate specific legal remedy.
These requirements are commonly abbreviated as follows: “(1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law.”
In Wisconsin Voter Alliance v. Secord, the Wisconsin Voter Alliance petitioned the Walworth County Circuit Court for a writ of mandamus compelling the county’s register in probate to disclose certain records. The circuit court dismissed the petition; the Court of Appeals reversed; and the Wisconsin Supreme Court reversed again. At the supreme court level, there was a majority opinion, a concurrence, and a dissent, but none of the justices opined on whether there was a clear legal right to the disclosure of the documents in question under public records law.
However, Justice Hagedorn wrote separately in a solo concurrence to respond to the parties’ arguments and the Court of Appeals’ holdings with respect to the second, third and fourth elements of the mandamus test. According to Justice Hagedorn, “the last three mandamus requirements do not accomplish any analytical work.” Once a clear legal right to the disclosure of public records under section 19.35 is shown, J. Hagedorn concludes that mandamus relief must be granted.
Justice Hagedorn’s reasoning is straightforward. So long as the defendant is the custodian of the public records in question, there will always be “a positive and plain duty” to release the records. With respect to the “substantial damages” requirement, Wisconsin’s express public policy favoring disclosure makes the denial of that right “harm enough.” And since mandamus was expressly adopted as the procedure for public records violations, it does not matter if there is a different remedy available under any other statute.
Justice Hagedorn’s conclusions may seem obvious enough, but they were made in response to the parties’ complex arguments and the Court of Appeals’ reasoning on the last three elements of mandamus.
For the “positive and plain duty” requirement, the defendant in Secord argued that since no previous court had ruled that the particular type of documents in question were public records, there was no plain and positive duty to disclose. The defendant also argued that there was no plain and positive duty because the commitment statutes under which the documents were created, standing alone, did not provide for the release of the documents in question.
The Court of Appeals rejected those arguments and held that there was a positive and plain duty to “communicate voter eligibility determinations.” But under Justice Hagedorn’s analysis, once documents have been determined to be public records, there is a positive and plain duty to disclose public records, period.
For the “substantial damages” requirement, the plaintiffs explained that they were harmed substantially based on the intended uses for the documents following disclosure. The defendant argued that disclosure would harm the subject of the records more than it would benefit the requesters.
The Court of Appeals concluded that the plaintiffs were harmed by being hindered in their efforts to ensure that voter ineligibility requirements were being enforced; that the constitutional rights of “all qualified voters” were harmed; and that rightfully ineligible voters were harmed because without relief they may be “coerced to vote illegally or may have their votes stolen.” Under Justice Hagedorn’s analysis, a violation of the right to the release of public records is harm enough, regardless of the content of the records in question.
For the “no other remedy” requirement, the plaintiffs argued that even if mandamus relief was inappropriate, the same relief would have resulted from a declaratory judgment action based on the same facts, law, and arguments. The defendant, in turn, argued that the register in probate’s role is to keep probate documents “that may not be subject to Public Records Law,” and so mandamus is an inappropriate remedy. The defendant further argued that the plaintiff had “failed to demonstrate that it has exhausted all available legal remedies” because the plaintiff had not first requested disclosure under disclosures required under the commitment statutes, before seeking relief under the public records statutes. The plaintiff replied that disclosure under the commitment statutes was not an “administrative process” that was required to be exhausted before filing for mandamus.
The Court of Appeals concluded that no other public entity was required to audit voter rolls, and therefore no other sufficient legal remedy was available. Justice Hagedorn, on the other hand, simply reviewed section 19.37(1), which expressly established mandamus as the enforcement mechanism for the public records laws and found the statutory language to be conclusive.
Justice Hagedorn’s conclusion that the elements of mandamus do not bar disclosure of public records once the disclosure requirement under chapter 19 has been determined is not binding precedent, since it is not stated in the majority opinion. However, Justice Hagedorn’s reasoning is persuasive. The arguments made in Wis. Voter Alliance v. Secord show that arguments against mandamus relief with respect to the second, third and fourth mandamus requirements are, at heart, mere refrains of arguments in favor or in opposition to disclosure under section 19.35. Based on the analysis in Justice Hagedorn’s concurrence, parties in public records cases should focus their arguments on that analysis, and not on whether mandamus is available for the disclosure of the particular records in question, should it be determined that they are public records.
