DOJ – Mandamus Action Denied

Listen to this article

WI Court of Appeals – District III

Case Name: Albert D. Moustakis v. State of Wisconsin Department of Justice

Case No.: 2018AP373

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: DOJ – Mandamus Action Denied

Albert Moustakis appeals a judgment dismissing his claims seeking a common law writ of mandamus and a declaration that part of the Wisconsin public records law, WIS. STAT. § 19.356 (2017-18), is unconstitutional as applied to him. The Wisconsin Department of Justice (DOJ) planned to release the records of a closed investigation concerning Moustakis’s conduct while he was serving as an elected district attorney. Moustakis asserts that in deciding to release the records, the DOJ’s records custodian performed an arbitrary public interest balancing test. He also claims that § 19.356 denies him equal protection of the law by excluding him from the class of government workers entitled to maintain an action for prerelease judicial review of the record custodian’s decision to release records.

We conclude the circuit court properly dismissed both of Moustakis’s claims. Moustakis is not entitled to a writ of mandamus because the legal authorities he marshals in support of his claim fail to establish that he has a clear legal right to the relief he seeks or that the DOJ has a positive and plain legal duty to withhold the records. Consequently, Moustakis is not permitted to have the public interest balancing applied in the manner he desires or to reach a result in favor of nondisclosure. Moustakis is also not entitled to a judgment declaring WIS. STAT. § 19.356 unconstitutional as applied to him on equal protection grounds. The statute does not violate any fundamental right of his so as to warrant the application of strict scrutiny, and the classification scheme established by the statute easily satisfies rational basis review. Accordingly, we affirm.

Full Text

Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.