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 WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP211 Cir. Ct. No. 2019CV604

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

SCOTT KARCHER,

 PETITIONER-APPELLANT,

 V.

WI DEPT. OF HEALTH SERVICES DIVISION OF PUBLIC HEALTH,

 RESPONDENT-RESPONDENT.

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 (DHS) seeking to compel the release of certain records 

alleged to be in DHS’s possession. We conclude that the circuit court properly 
No. 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 Records 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 Registrar 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 

request, I would like to inspect the entire document. Under the 

Public Records Law, all non-exempt portions of any partiallyexempt 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 the 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 would 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 Walworth County District Attorney and the Attorney General of Wisconsin, 

requesting each to file a mandamus action to secure Karcher’s access to the 

records. Neither pursued a mandamus action.

¶3 Karcher then initiated a mandamus action pro se against DHS. He 

filed a pleading entitled “Application for Alternative Writ of Mandamus” with the 

circuit court. A few weeks later he filed an “Amended Application for Alternative 

Writ of Mandamus.” 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 Application for Writ of 

Mandamus 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 application 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 that [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 for 

an erroneous exercise of discretion. See Law Enf’t Standards Bd. v. Village 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 unequivocal. 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 analys[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 arguments. 

 

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 court 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 

granting access to a record or part of a record after a written request for disclosure 

is made.” WIS. STAT. § 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 deny 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 violation 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 not exist” 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 response 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 had no responsive records, 

referring to its earlier letter to Karcher, and requested dismissal. Karcher’s 

subsequent response provided 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 then 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. WISCONSIN STAT. § 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 WIS. STAT. § 75.521(4) 

appear to reference a list maintained by circuit court clerks relating to foreclosures 

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 law is a prerequisite to the 

commencement of any civil action. See, e.g., WIS. STAT. § 802.05(2)(c). After 

 

4

 See Soderlund v. Zibolski, 2016 WI App 6, ¶¶37-38, 366 Wis. 2d 579, 874 N.W.2d 

561 (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 lacks any 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 circuit 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) (due process 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 (notice can take the form of actual 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 this 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 Karcher’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, the court indicated that it had reviewed the 

parties’ submissions and Karcher participated in person and engaged with the 

court 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 It is well established that due process violations are subject to a

harmless error analysis. See Schoen v. Board 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); see also

WIS. STAT. § 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, we would not reverse, as there 

has been no showing that Karcher was harmed. See, e.g., Glendenning’s

Limestone & Ready-Mix Co. v. Reimer, 2006 WI App 161, 295 Wis. 2d 556, 721 

N.W.2d 704 (assuming 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 affect tenants’ substantial rights and 

thus they were not entitled to reversal of summary 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 had 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 WIS. STAT. § 806.07, to the extent 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. 2d 83, 

664 N.W.2d 596.