### COURT OF APPEALS DECISION DATED AND FILED February 17, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP211 Cir. Ct. No. 2019CV604 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S COTT K ARCHER ,
P ETITIONER - A PPELLANT ,

V . WI D EPT . OF H EALTH S ERVICES D IVISION OF P UBLIC H EALTH ,
R ESPONDENT - R ESPONDENT .

APPEAL from an order of the circuit court for Walworth County:
DANIEL STEVEN JOHNSON , Judge. Affirmed

.

Before Neubauer, C.J., Reilly, P.J., and Davis, J.

¶ 1 NEUBAUER, C.J. Scott Karcher appeals from an order dismissing his mandamus action against the Wisconsin Department of Health Services Division of Public Health ( D HS) seeking to compel the release of certain records alleged to be in DHS’s possession. We conclude that the circu it court properlyNo

. 2020AP211

2 dismissed the action at the request of DHS because there are no public records responsive to Karcher’s request. We affirm.

¶ 2 In a letter dated July 6, 2019, Karcher requested public records from
the Wisconsin Vital Reco rds Office. The Wisconsin Vital Records Office operates
within DHS

. In the letter, Karcher requested :

In Rem Lien List Foreclosure Information recorded by the Walworth County Clerk of Circuit Court by year and list number under Wis

. Stats.,§75.521( 4) regarding State File Number 1962037406. (A Copy of my State issued Certificate of Live Birth is enclosed for your reference) A cross reference list of owners listed on a civil court docket in which public notice of this file number is recorded at the discretion of the State Registra r of Vital Records under Wis

. Stats.,§69.03(5). 1

1 Karcher’s records request continued:

If any record information associated to this request contained in the official record has been deemed unresponsive to this reque st, I would like to inspect the entire document. Under the Public Records Law, all non

- exempt portions of any partially

exempt documents must be disclosed. If any records or portions of records I am requesting to view are withheld, please state the exemption on which you rely, the codes, sta[t]utes, and/or regulations on which the exemption has been invoked, and the agency or court to which an appeal should be addressed. Failure to disclose vital vested property ownership information such as th e case file number, and the legal land description of the property to me as a pre

- qualified* US citizen holding a direct and tangible interest in property is not in the public ’ s economic interests, and non

- disclosure of the above requested information woul d constitute a waste of equitable public economic resources, and would be a direct violation of my inher[e]nt, unalienable personal rights, and my person ’ s rights under Article 1, sections 1 & 13 of the Wisconsin Constitution, and a violation of Section 1 of the US Constitution ’ s 14th amendment ’ s due process clause.

(continued)No

. 2020AP211

3 On July 11, 2019, State Registrar Lisa Walker sent a response letter to Karcher, stating that “DHS has no responsive records.” Subsequently, Karcher sent letters
to the W alw orth County District Attorney and the Attorney General of Wisconsin, requesting each to file a mandamus action to secure Karcher’s access to the
records. Nei ther pursued a mandamus action.

¶ 3 Karcher then initiated a mandamus action pro se against DHS. He filed a pleading entitled “ A pplication for A lternative W rit of M a ndamus” with the
circuit court. A few weeks later he filed an “ A mended A pplication for A lternative
W rit of M andamus.” Karcher attached his records request and the letter from DHS advising that it did not have any responsive documents to his pleadings. DHS filed a response to Karcher’s amended application. DHS stated that “[t]he Court cannot order [DHS] to provide review of a file or records which it does not have.” As such, DHS asked the circuit court to “ deny the A pplication for W rit of
M andamus and dismiss this case in its entirety

. ” Karcher filed a response to the document DHS filed with the court, specifically objecting to DHS’s requests to deny the writ applic ation and to dismiss the case.

¶ 4 On December 30, 2019, the circuit court held a telephone status
conference with the parties

. At the start of the conference, the court acknowledged: “I did receive the motion or the responsive pleading t hat [DHS]

.... *Wis

. Stats.,§75.115 Rights of persons who have an interest in mineral rights. Notwithstanding ss. 75.14 (1), 75.16, 75.19 and 75.521 (3) (am) 4, (5), (8) and (13) (b), the failure of an owner of a fee simple interest in surface rights to pay property taxes on land does not extinguish the rights of a holder of a fee simple interest in severed mineral rights related to that land.No

. 2020AP211

4 had filed here beginning of December or so about potentially wanting this case dismissed and I, Mr. Karcher, did receive your response as well .” Based on the record and focusing on Karcher’s request , the court stated that it lacked authority

to order DHS to “go back and look again [for responsive records].” The court explained to Karcher that DHS had “been responsive to your request. I know you don’t like the response. I know you think something else must exist, but they are saying it doesn’t exist and that’s the end of this analysis from my perspective legally.” The circuit court denied the writ and dismissed the case with prejudice. Karcher now appeals.

¶ 5 We review a circuit court’s grant or denial of a writ of mandamus fo r an erroneous exercise of discretion. See Law Enf’t St andards Bd. v. Vill

age of Lyndon Station , 101 Wis. 2d 472, 493

- 94, 305 N.W.2d 89 (1981). It is an erroneous exercise of discretion to compel action through mandamus when the duty is not clear and une quivocal. Id. at 494 . However, “[t] he application of the Open Records Law to undisputed facts is a question of law that we review de novo, benefiting from the a nalys[i]s of the circuit court. ” Hempel v. City of Baraboo , 2005 WI 120, ¶ 21, 284 Wis. 2d 162, 699 N.W.2d 551

. ¶ 6 Karcher makes two main arguments on appeal, a challenge to the denial of his writ on the merits, and a procedural challenge to what he refers to as a “sua sponte dismissal” of his petition. 2 We reject Karcher’s arg uments.

2 Karcher makes a third argument regarding the title of his pleading (“Application for Alternative Writ of Mandamus”). Specifically, he asserts that it does not matter whether the pleading indicated that Karcher sought a writ or an alternative writ. Based on our conclusion above that the circuit cou rt properly dismissed the action based on the fact that Karcher’s request was deficient and no responsive records exist, we agree with Karcher that the title of his pleading is inconsequential and we do not base our decision on it in any part. The circuit court dismissed based on the deficiency of the request, not of the pleading.No

. 2020AP211

5 ¶ 7 First, the court did not err in denying the writ on its merits. The
Wisconsin public records law states that a requester may bring an action for mandamus “[i]f an authority withholds a record or a part of a record or delays
gr anting access to a record or part of a record after a written request for disclosure is made.” W IS

. S TAT

. § 19.37(1) (2017

- 18)

. 3 These mandamus provisions are not triggered when an authority does not possess the records because “[a]n authority
cannot den y or withhold access to that which does not exist. ” State ex rel. Zinngrabe v. School Dist. of Sevastopol , 146 Wis. 2d 629, 631

- 32, 633, 431
N.W.2d 734 (Ct. App. 1988) (concluding “ that because no records existed for these meetings, there is no vi olation under the provisions of [§] 19.37 .”) ; see also Journal Times v. City of Racine Bd. of Police & Fire Comm’rs , 2015 WI 56, ¶153, 362 Wis. 2d 577, 866 N.W.2d 563 (Abrahamson, J., concurring) (explaining the futility of a mandamus action seeking to compel the disclosure of nonexistent records); Schulten, Ward & Turner, LLP v. Fulton

- DeKalb Hosp. Auth

. , 535 S.E.2d 243, 246 ( Ga. 2000) (“An agency does not ‘deny’ access to records which
do n ot ex ist” and, therefore, mandamus action was improper

. )

. Addressed somewhat differently under federal law, “[i] f no documents exist, nothing can be withheld, and jurisdiction cannot be established. ” Burr v. Huff , No. 04

- C

- 53

- C, 2004WL253345, at * 2 (W.D. Wis. Feb. 6, 2004) (finding allegations in petition
for writ of mandamus under Freedom of Information Act frivolous where there was no evidence that records sought by petitioner existed).

3 All references to the Wisconsin Statutes are to the 2017

- 18 version unless otherwise noted.No

. 2020AP211

6 ¶ 8 As set forth in his writ seeking mandamus, in respon se to Karcher’s open records request, DHS advised that it had no responsive records. 4 Then, in DHS’s answer to Karcher’s writ, DHS repeated that it ha d no responsive records, referring to its earlier letter to Karcher, and requested dismissal. Karcher’s subsequent response provide d nothing to show that the Office of Vital Statistics
has responsive records

. ¶ 9 Karcher contends that his say so is sufficient. We disagree. Nothing in his allegations (or in anything he has provided since the n to the circuit court or to this court on appeal), show violation of a clear and unequivocal legal duty. He provides nothing to suggest why the Office of Vital Statistics would have property

- ownership records “cross

- referenced” with his birth certificate and corresponding state file number. W IS CONSIN S TAT

. § 69. 03 (5) requires the state registrar to “preserve original marriage documents and records of birth, death, divorce, and domestic partnership.” (Emphasis added.) There is no mention of property

- ownership information, and Karcher has provided nothing to suggest otherwise. The “In

- Rem Foreclosure Lien List” and W IS

. S TAT

. § 75.521(4) appear to reference a list maintained by circuit court clerks relating to foreclosu res and liens. Again, there is simply nothing to suggest that the Office of Vital
Statistics would cross

- reference information maintained by circuit court clerks or that the DHS response was wrong.

¶ 10 A well

- grounded basis in fact and l aw is a prerequisite to the commencement of any civil action. See, e.g ., W IS

. S TAT

. § 802.05(2)(c). After

4 See Soderlund v. Zibolski , 2016 WI App 6, ¶¶37

- 38, 366 Wis. 2d 579, 874 N.W.2d 5 61 (holding that documents referenced by pleadings may be considered in a motion to dismiss).No

. 2020AP211

7 reviewing this request and the briefs of the parties, we see nothing to suggest that this is anything but a largely incoherent request that lack s an y reasonable basis in
fact or law

. We therefore will not consider the issue further. As DHS can neither withhold nor delay access to nonexistent records, the mandamus provisions do not apply

. ¶ 11 Nonetheless, Karcher argues that the cir cuit court’s dismissal of his

case at the status conference “raises fundamental due process concerns” and that he was given neither notice nor a meaningful opportunity to be heard. See Neylan v. Vorwald , 124 Wis. 2d 85, 90, 368 N.W. 2d 648 (1985) (d ue proc ess requires notice and an opportunity to be heard ). We note that, although rare, circuit courts have authority to dismiss cases sua sponte, subject to due process requirements.
See Larry v. Harris , 2008 WI 81, ¶¶23, 26, 311 Wis. 2d 326, 752 N.W.2d 279.

¶ 12 Here, the record reflects that Karcher was on notice that DHS denied that it had responsive records. He was also on notice that DHS sought dismissal.
See , e.g. , State ex rel. Schatz v. McCaughtry , 2003 WI 80, ¶¶30

- 31 , 263 Wis. 2d 83, 664 N.W.2d 596 (n otice can take the form of actua l notice or constructive notice)

. Namely, Karcher was first told by letter from DHS that it did not have any responsive records. He did not revise his request or otherwise seek to explain why he believed t his answer was incorrect. Karcher then filed his initial pleading and exhibits, and subsequently amended his pleading , attaching DHS’s letter explaining that it had no responsive documents . DHS ’s answer requested denial
of the writ and dismissal of Karch er’s petition, to which Karcher responded. At no point did Karcher seek to revise his request or otherwise explain why he believed DHS’s answer was incorrect.No

. 2020AP211

8 ¶ 13 At the status conference, t he court indicated that it had reviewed the
par ties’ submissions and Karcher participated in person and engaged with the

cour t in a discussion of his claim. The court initially set forth its concerns with Karcher’s case and then afforded him the opportunity to respond. He engaged in an active discussion with the court, including answering questions and, at times, offering his counterpoints. Again, at no point did Karcher provide anything to show that DHS denied or delayed access to responsive records.

¶ 14 I t is well established that due process violations are subject to a harmless error analysis

. See Schoen v. B oard of Fire & Police Comm ’ rs of Milwaukee , 2015 WI App 95, ¶24, 366 Wis. 2d 279, 873 N.W.2d 232; Union State Bank v. Galecki , 142 Wis. 2d 118 , 417 N.W.2d 60 ( Ct. App. 1987) ; s ee also
W IS

. S TAT

. § 805.18

. Thus, even if we concluded that Karcher was not provided
with sufficient notice that his writ would be considered and dismissed at the status conference without a motion to dismiss from DHS, w e would not reverse, as there has been no showing that Karcher was harmed. S e e , e.g. , Glendenning ’ s Limestone & Ready

- Mix Co. v. Reimer , 2006 WI App 161 , 295 Wis. 2d 556 , 721
N.W.2d 704 (a ssuming that circuit court erred in sua sponte considering the “Damage to Property” exclusion in insurance policy without giving tenants notice and an opportunity to be heard , error did not aff ect tenants ’ substantial rights and
thus they were not entitled to reversal of summ ary judgment on that ground on appeal); Poncek v. Poncek , 121 Wis. 2d 191, 358 N.W.2d 539 (Ct. App. 1984) (wife ’ s failure to serve an order for husband ’ s appearance was harmless error
where the record reflected that husband h ad actual notice of the hearing ).No

. 2020AP211

9 ¶ 15 There is little point in reversing to require a formal motion to dismiss, when there has been nothing to show that the outcome as it pertains to Karcher’s records request would be different. 5

¶ 16 For the foregoing reasons, we conclude that the circuit court properly dismissed the mandamus action on the basis that there are no responsive
records. We affirm.

By the Court

. — Order affirmed.
Not recommended for publication in the official reports.

5 We note that Karcher had and has additional procedural safeguards, such as a reconsideration motion or a motion for relief under W IS

. S TAT

. § 806.07, to the e xtent that such motions have merit, and the same is true for future records requests. Again, we see no merit to Karcher’s challenge to the denial of his request and have been provided with nothing to suggest otherwise. See , e.g. , State ex rel. Schatz v. McCaughtry , 2003 WI 80, ¶¶30 , 35, 263 Wis. 2 d 83, 664 N.W.2d 596

.