oag4-10

  Mandamus is an extraordinary writ that may be used to compel a public officer to perform a duty that he or she is legally bound to perform. See Karow v. Milwaukee County Civil Serv. Comm’n, 82 Wis. 2d 565, 568 n.2, 263 N.W.2d 214 (1978). In order for a writ of mandamus to be issued, there must be a clear legal right, a positive and plain duty, substantial damages, and no other adequate remedy at law. Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72.

¶ 12. “‘It is well settled that mandamus will not lie to compel the performance of an official act when the officer’s duty is not clear and requires the exercise of judgment and discretion. Wisconsin Pharmaceutical Asso. v. Lee (1953), 264 Wis. 325, 58 N.W. (2d) 700.’” Vretenar v. Hebron, 144 Wis. 2d 655, 662, 424 N.W.2d 714 (1988), quoting Beres v. New Berlin, 34 Wis. 2d 229, 231-32, 148 N.W.2d 653 (1967). “A plain duty ‘must be clear and unequivocal and, under the facts, the responsibility to act must be imperative.’” State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 22, 271 Wis. 2d 633, 681 N.W.2d 110, quoting State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 377-78, 166 N.W.2d 255 (1969).

¶ 13. Kurkierewicz was a mandamus action attempting to compel the district attorney to order the coroner to hold an inquest. Describing the powers of the district attorney in great detail, the court held:

  It is clear that in his functions as a prosecutor he has great discretion in determining whether or not to prosecute. There is no obligation or duty upon a district attorney to prosecute all complaints that may be filed with him. While it is his duty to prosecute criminals, it is obvious that a great portion of the power of the state has been placed in his hands for him to use in the furtherance of justice, and this does not per se require prosecution in all cases where there appears to be a violation of the law no matter how trivial. . . .

  The district attorney’s function, in general, is of a discretionary type, the performance of which is not compellable in mandamus.

Kurkierewicz, 42 Wis. 2d at 378.

¶ 14. The discretionary authority of the corporation counsel in involuntary civil commitment proceedings is similar to the discretionary authority of the district attorney in criminal matters.[2] See 79 Op. Att’y Gen. at 132-33. Although the corporation counsel plainly has a duty to make a good faith discretionary determination as to whether the filing of a petition for examination would be in the interests of the public, that duty requires the exercise of legal judgment. Consequently, the exercise of that duty is not susceptible to challenge in a mandamus action.

CONCLUSION

¶ 15. I therefore conclude that the corporation counsel has discretion to refuse to commence an involuntary civil commitment proceeding by filing a petition for examination under Wis. Stat. § 51.20(1) after receiving signed statements under oath from three adults that meet the requirements of that statute. A good faith discretionary determination on the part of the corporation counsel that the filing of a petition for examination would not be in the interests of the public is not susceptible to challenge in a mandamus action.

            Sincerely,

            J.B. VAN HOLLEN

            Attorney General

JBVH:KMS:cla

1

  Though the Matter of D.S. Court did not expressly analyze whether Wis. Stat. § 51.20(1)(b) authorized three adult persons to file an involuntary commitment petition independent of the corporation counsel, the Court’s opinion appears to reject any such interpretation. The Court stated that Wis. Stat. § 51.20(4) “require[s] the district attorney or corporation counsel to prepare involuntary commitment papers” and used its superintending authority to instruct circuit judges to “refuse to accept petitions drafted by persons not authorized to do so under sec. 51.20(4), Stats.” Matter of D.S., 142 Wis. 2d at 132, 136-37. Subsequent to Matter of D.S., Wis. Stat. § 51.20(4) was amended into its current form by 1989 Wisconsin Act 31, sec. 1575. The Act retained the statutory structure considered by the Court in Matter of D.S., but it eliminated the prior statutory designation of the district attorney as an officer (in addition to the corporation counsel) who had a duty to represent the public and draft papers in chapter 51 proceedings.

2

  Unlike district attorneys, who are elected, corporation counsel are employed by, and subject to the supervision and control of, the county board or other authorized authority. See, e.g., Wis. Stat. § 59.42(1); see also 79 Op. Att’y Gen. at 131 (county board must supervise “policy-making functions” of corporation counsel). My opinion is only intended to address the corporation counsel’s discretion, visàvis, the public, and is not intended to address any issues relating to supervision or control over corporation counsel by other authorities.