COURT OF APPEALS DECISION DATED AND RELEASED February 6, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3413
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
JOHN JELKS and
VELORIA JELKS,
Petitioners-Respondents,
v.
PHILIP ARREOLA,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
LOUISE M. TESMER, Judge. Order
dismissed; order affirmed.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Philip Arreola, City of Milwaukee Police
Chief, appeals from two orders granting John and Veloria Jelks's writ of
mandamus. The writ sought access to the
police file surrounding the homicide of the Jelks's son on July 7,
1991. Arreola claims the trial court
erred in granting the writ because the homicide investigation was ongoing and,
therefore, the public should not have access to the police file until the case
is closed. Because Jelks's counsel has
already received 102 pages of the file, the appeal from the trial court's
October 18, 1994, order granting access to these pages is moot and the
appeal from this order is dismissed.
Because the trial court did not err in granting access to the remaining
50 pages in the police file, by order dated November 11, 1994, we affirm
that order.
I. BACKGROUND
On July 7, 1991, the Jelks's
son, Byron, was a passenger in an automobile which was insured by American
Family Insurance Company. Byron was
shot in the leg by an unknown person and died as a result of the gunshot. As of the date of this appeal, no one has
been charged for Byron's death.
The Jelkses retained
attorney Thomas M. Croke to investigate the possibility of a civil suit
against the driver of the car and American Family for the death of their
son. Croke made an open records request
on December 1, 1992, seeking access to the police file relating to Byron's
death. The request was denied on the
basis that this homicide investigation was still ongoing and, therefore, the
file could not be released to the public.
On January 27, 1993, the Jelkses, by their attorney, filed a petition
for a writ of mandamus in Milwaukee County Circuit Court. The writ sought access to the police file
surrounding Byron's death, and/or requested that the court perform an in
camera inspection of the records to determine whether
they
could be released. The trial court held
numerous hearings on the matter, but repeatedly postponed its ruling. During this time, the Jelks's attorney
discovered that American Family had somehow obtained 102 pages of the police
file. Upon request, American Family provided
a copy of these 102 pages to attorney Croke.
On October 18, 1994, the
trial court issued a decision on the writ.
It conducted an in camera inspection of the entire file, and
granted the writ with respect to the 102 pages that had already been disclosed. The trial court issued a second order on
November 11, 1994, which provided that the remaining 50 documents could be
examined by attorney Croke because the investigation was no longer an ongoing
one. This order was stayed pending
appeal. Arreola now appeals.
II. DISCUSSION
A. October
18, 1994, order.
Arreola's appeal from
the October 18, 1994, order is moot.
The October 18, 1994, order grants the writ of mandamus with
respect to the 102 pages of the police file that was in some manner released to
American Family. The trial court
specifically found that because the records had been released, Arreola waived
his privilege to deny access to those records.
This finding is not clearly erroneous.
See Noll v. Dimiceli's, Inc, 115 Wis.2d 641, 643,
340 N.W.2d 575, 577 (Ct. App. 1983).
Because these 102 pages
have already been released, Arreola's appeal with respect to these pages is
moot, and we therefore dismiss it. See
Zieman v. Village of North Hudson, 102 Wis.2d 705, 712, 307
N.W.2d 236, 240 (1981); Racine Educ. Ass'n v. Racine Bd. of Educ.,
129 Wis.2d 319, 322-25, 385 N.W.2d 510, 511-12 (Ct. App. 1986).
B. November
11, 1994, order.
Arreola also appeals
from the November 11, 1994, order. This
order indicates that the trial court conducted an in camera review of
the remaining 50 pages of the police file and determined from this review that
the “criminal investigation [into Byron's death] is not an active
investigation” and that Arreola “has failed to meet his burden with regard to
supporting his denial of access to the subject criminal investigation
file.” Accordingly, the trial court
ordered the police to provide attorney Croke the opportunity to examine the
remaining 50 pages of the police file.
Arreola makes
essentially three arguments with regard to this order: (1) the
trial court erred in granting attorney Croke access to the remaining documents;
(2) the trial court should have decided the writ when it was first filed
instead of continually adjourning it; and (3) the trial court should have dismissed
the writ as moot. We reject all three
arguments.
We review whether the
trial court erred in granting the writ of mandamus under the erroneous exercise
of discretion standard. Appleton
Post-Crescent v. Janssen, 149 Wis.2d 294, 302-03, 441 N.W.2d 255, 258
(Ct. App. 1989). Accordingly, we will
not reverse the trial court's order if it “examined the relevant facts, applied
a proper standard of law, and using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.” Id. In the
instant case, the trial court reviewed the relevant documents and heard
repeated argument regarding the facts particular to this case. After having done so, the trial court
concluded that the homicide investigation into Byron's death was no longer an
active, i.e., ongoing one. We cannot
say that this finding is clearly erroneous.
The homicide occurred over three years prior to the trial court's
ruling. Further, testimony in the
record documents that there has been very little activity with respect to this
file for some time. Our independent
review of the police file confirms this testimony.
In addition, the trial
court balanced the interests of the police in keeping the remaining 50 pages of
the file confidential versus the interests of the public to have access to the
public records. In doing so, the trial
court reached a very rational conclusion:
attorney Croke will be able to examine these 50 pages under a strict
secrecy order. Based on the foregoing,
we conclude that the trial court did not erroneously exercise its discretion
and we affirm the November 11, 1994, order.
Regarding Arreola's
claim that the order should be reversed because of the repeated adjournments,
Arreola offers no legal authority to support his proposition that a trial court
cannot adjourn a decision on a writ of mandamus. Accordingly, we reject his proposition. See State v. Pettit, 171 Wis.2d 627,
646-47, 492 N.W.2d 633, 642 (Ct. App. 1992).
We also reject Arreola's
argument that the mandamus action is moot.
Essentially, Arreola argues that since attorney Croke obtained the
“heart of the homicide investigation, namely the 102 pages” the mandamus action
is moot. We cannot agree. Attorney Croke requested the entire
file. There are still some 50 odd pages
that he has not seen. This comprises
one-third of the file. Such obvious
practical effect can hardly be defined as moot. DeLaMatter v. DeLaMatter, 151 Wis.2d 576, 591, 445
N.W.2d 676, 683 (Ct. App. 1989) (“A matter is moot [only] if a determination is
sought which cannot have a practical effect on an existing controversy.”).
By the Court.—Order
dismissed; order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.