WisBar News: Appeals court upholds dismissal of newspaper's claim against former Gov. Doyle:

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  • Appeals court upholds dismissal of newspaper's claim against former Gov. Doyle

    Those who seek records under Wisconsin’s open records law must file a mandamus action to obtain punitive damages for an underlying violation. No separate action exists, the court clarified.

    Joe Forward

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    Appeals court upholds dismissal of 
newspaper’s claim against former Gov. 
Doyle Sept. 28, 2011 – A Wisconsin appeals court today upheld the dismissal of claims by a Madison-based newspaper against former Governor Jim Doyle, concluding the newspaper did not timely file a writ of mandamus to obtain relief for alleged violations of the state’s open records law.

    The Capital Times Company alleged that Doyle’s office did not timely respond to a request for letters regarding nine judicial candidates in 2009. Specifically, the newspaper argued that Doyle’s office unnecessarily delayed a response until 90 minutes before making judicial appointments.

    The newspaper sued for punitive damages, arguing the delay was arbitrary and capricious. But the Dane County Circuit Court dismissed the complaint after concluding the newspaper did not timely file a writ of mandamus, the vehicle by which opens records law is enforced by Wisconsin courts.

    Wis. Stat section 19.37(3) states that a court may award punitive damages if an authority or legal custodian has arbitrarily or capriciously delayed or denied a request for public records.

    Section 19.37(1) states that, if an authority delays a request for records, a requester may bring an action for mandamus asking the court to demand the authority release the records requested, or ask the district attorney or attorney general to bring a mandamus action.

    The newspaper argued that an action for mandamus is not the only vehicle to obtain punitive damages for a violation of section 19.37(3). But in The Capital Times Company v. James E. Doyle, 2010AP1687 (Sept. 28, 2011), the District IV Wisconsin Court of Appeals disagreed.

    The appeals court concluded that section 19.37 unambiguously limits punitive damages claims to mandamus actions, which is consistent with well-established punitive damages law.

    “Plaintiffs must allege the underlying cause of action, request and prove actual damages, and request punitive damages based on the conduct that caused the actual damages,” wrote Chief Appeals Judge Richard Brown. “The Newspaper asks us to believe that the legislature intended a stand-alone punitive damages cause of action without the legislature having explicitly announced such a wholesale departure from the accustomed process. We reject the Newspaper’s interpretation.”

    The appeals court also rejected the newspaper’s argument that Doyle should be equitably estopped from defending the action on the grounds that a mandamus action was not timely filed. A civil action for punitive damages under section 19.37 does not exist, the appeals court explained, and “estoppel cannot be used to create a cause of action where there otherwise was none.”

    “Our holding does not encourage or condone noncompliance by government officials; it merely encourages timely action by requesters to force timely compliance by government officials and timely public access to records …,” Chief Judge Brown noted.

    Whether legal custodians should be exposed to damages after records are released and without a mandamus action is a policy decision the legislature should make, the appeals court explained.

    By Joe Forward, Legal Writer, State Bar of Wisconsin