Thomas Socha v. Charles Simono

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 25, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1455 Cir. Ct. No. 2019CV31

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN EX REL. THOMAS SOCHA,

PETITIONER-APPELLANT,

V.

CHARLES SIMONO,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Forest County:
JAMES R. HABECK, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Thomas Socha appeals from an order that
dismissed his mandamus action without awarding him costs and fees pursuant to
No. 2020AP1455

WIS. STAT. § 19.37(2)(a) (2019-20).1 The primary issue on appeal is whether
Socha substantially prevailed on his action to compel the Forest County District
Attorney to turn over documents in response to Socha’s open records requests.
We conclude that Socha prevailed in substantial part on the action. Accordingly,
we reverse and remand with directions that the circuit court award Socha costs and
fees consistent with this opinion.

BACKGROUND

¶2 Judge Leon Stenz formerly served as the Forest County District
Attorney. In 2002, Stenz prosecuted criminal cases against Socha, Elizabeth
Mrazik and Victor Holm, each relating to the death of Lance Leonard. Charles
Simono succeeded Stenz as the Forest County District Attorney in 2008.

¶3 On March 11, 2019, Socha sent Simono an open records request
seeking a copy of a “proffer agreement” Socha asserted had been made in
Mrazik’s case. Simono did not respond to that request. Socha sent Simono a
follow-up request for the same proffer agreement on April 4, 2019. In response,
on April 9, 2019, Simono’s legal assistant sent Socha a letter stating that she was
only able to find two relevant pages from the files in the district attorney’s office
left by Simono’s predecessor. One of the pages was a letter from Stenz to
Mrazik’s attorney, Wright Laufenberg, dated October 22, 2002, discussing the
terms of a potential plea agreement. The other page consisted of handwritten
notes dated September 4, 2002, appearing to memorialize the referenced
agreement.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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¶4 On April 12, 2019, Socha sent Simono a letter asserting that the
pages provided were not responsive to Socha’s first and second open records
requests because they were not in the “format” that Socha would expect a proffer
agreement to take. Socha believed that Mrazik had signed a written agreement to
obtain a reduction of the first-degree homicide charge against her to second-degree
reckless homicide, with reduced bail, use and derivative use testimonial immunity,
and a recommendation for probation, all in exchange for her cooperation with the
investigation into Leonard’s death. Socha stated that he was in possession of a
copy of a proposed “stipulation and order” to reduce Mrazik’s bail that Laufenberg
had faxed to Stenz on May 2, 2002, a day after Mrazik had provided information
to the district attorney. There appeared to be two pages missing from the fax,
which Socha believed to be the proffer agreement. Socha attached to his letter a
third open records request for the proffer agreement.

¶5 On May 23, 2019, after receiving no response to his third open
records request, Socha sent Simono a fourth open records request seeking
additional documents, including all letters and emails between Stenz and Socha’s
postconviction attorney, Barbara Cadwell, all letters and emails between Stenz and
Socha himself, and a “NSF cash receipt” that Holm’s attorney had provided to
Stenz. Socha advised Simono that if Simono did not provide the requested
documents as soon as practicable, or provide a written explanation for his failure
to do so, Socha would pursue legal action. Although a cover letter to Socha’s
fourth open records request mentioned that he was still awaiting a response to the
third open records request for the proffer agreement, the fourth open records
request did not itself request the proffer agreement.

¶6 Having received no response to his fourth open records request,
Socha commenced this mandamus action on June 25, 2019, seeking to compel

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Simono “to produce, inter alia, [Mrazik’s] proffer agreement.” Socha
incorporated a demand for the additional materials he sought in his fourth open
records request into his mandamus action by reference to the date of that request,
which he attached to the petition.

¶7 On September 24, 2019, the circuit court issued a writ of mandamus
compelling Simono to provide Socha with copies of “all of the non-confidential,
unprivileged, and available information” requested by Socha within five days of
service of the writ. Simono accepted service of the writ on November 12, 2019.
On November 18, 2019, Simono provided Socha with: (1) a letter dated May 22,
2002, from Laufenberg to Stenz, requesting a transcript of Mrazik’s statement to
law enforcement; (2) Stenz’s handwritten notes regarding a potential plea deal
dated September 4, 2002, that had been previously provided; (3) a letter dated
September 27, 2002, from Laufenberg to Stenz, expressing interest in working out
a resolution to Mrazik’s case; (4) a letter dated October 16, 2002, from Laufenberg
to Stenz, proposing a resolution to Mrazik’s case; (5) the previously provided
letter dated October 22, 2002, from Stenz to Laufenberg, expressing Stenz’s
understanding of a proposed plea deal for Mrazik; (6) a letter dated October 24,
2002, from Laufenberg to Stenz, with an attached blank “plea agreement” form,
noting that Laufenberg had not yet received a “formal” offer from Stenz; (7) a
letter dated February 26, 2004, from Stenz to Cadwell, referencing enclosures that
were not included in the district attorney’s file; and (8) a letter dated March 25,
2004, from Stenz to Socha, regarding Socha’s request for postconviction
discovery.

¶8 Simono stated in a cover letter that the items were being provided
“in response” to Socha’s open records requests and the writ of mandamus.

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Addressing the lack of additional records, including the proffer agreement,
Simono explained:

Unfortunately, the record keeping process that existed prior
to my entering office, for lack of a better word, was
abysmal. The files, including all yours and all
co-defendants in the matter to which you seek documents,
have no order or structure but rather are pieces of paper
piled into plastic bins. Each defendant having their own
respective bin(s).

In an effort to best respond to your requests, I personally
have gone through every codefendant file in addition to
your own. The written correspondence between individuals
with former district attorney Stenz appears to be minimal at
best given what does exist in the files.

In response to the want for a copy of the Elizabeth Mrazik
“PROFFER AGREEMENT” I can advise you that one does
not exist in the files within my office. I have included
within this response all communications that reference the
want for consideration. I was not able to locate any proffer
letter/agreement. Additionally, I spoke with Judge Leon
Stenz regarding the matter, as he was the prosecutor on the
matter, and he is of the recollection that there wasn’t any
agreement for Ms. Mrazik.

In addition, Simono asserted for the first time in the cover letter that he was not
the custodian of any emails between his office and any of the codefendants or their
attorneys, directing Simono to the Department of Justice IT department for those
requests. Finally, Simono further asserted for the first time that he was not the
custodian of the NSF cash receipt, and he suggested that it might be in the
possession of the clerk of court if it had been introduced as an evidentiary exhibit.

¶9 On December 2, 2019, Socha filed a document entitled “Motion to
Strike the Return.” Socha asked the circuit court for a ruling that Simono was the
rightful custodian of the proffer agreement and the NSF cash receipt and for an
order compelling Simono to locate those documents if they had been removed

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from the district attorney’s office, so that Simono could provide them to Socha.
As evidence that the proffer agreement existed, Socha provided a copy of the bond
reduction stipulation that he had referenced in his third open records request dated
April 12, 2019, which contained mechanically generated notations along the top of
the stipulation indicating that it was page three of a fax.

¶10 The circuit court held a hearing on Socha’s motion on April 23,
2020, at which Simono failed to appear. With respect to the proffer agreement,
the court observed that, in its experience, “sometimes these things are done orally
when there are attorneys.” As a result, “not everything has a record that can be
reproduced later on.” With respect to the receipt, the court noted there were
several places where it could be located. The court ultimately determined that
Simono had turned over all of the requested materials in his possession, and he
had no further duty to respond.

¶11 Socha then asked the circuit court to award him costs and fees
pursuant to WIS. STAT. § 19.37(2). Socha argued that he was entitled to recover
the $164.50 filing fee for the mandamus action and $100 for service costs because
Simono had not provided the correspondence items sought in Socha’s May 23,
2019 open records request until November 18, 2019, in response to the writ of
mandamus issued by the court. The court orally denied the motion, stating:

[S]o at this point, from what I can see, I believe that there
has been disclosure and providing of the documents that are
available there. That being the case, I cannot find a gap
that would lead me to believe that Mr. Socha would be
entitled to a cost award under these circumstances.

¶12 Socha moved for reconsideration, and he also asked for the entry of
a final written judgment. Simono agreed with the request for a final written
judgment and did not object to Socha’s request for costs and fees, but he argued

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against any discretionary award of damages (which Socha had mentioned in his
writ petition, but not in his motion for costs and fees). The circuit court then
issued a written order noting that Simono “had spent considerable time and effort
providing records” to Socha, “justifying dismissal.” Socha now appeals the
court’s denial of his motion for costs and fees.

DISCUSSION

¶13 WISCONSIN STAT. § 19.37 authorizes the recovery of costs and fees
in an open records mandamus action when an authority has “wrongfully withheld”
requested records. Eau Claire Press Co. v. Gordon, 176 Wis. 2d 154, 159, 499
N.W.2d 918 (Ct. App. 1993). The statute provides in relevant part:

[T]he court shall award reasonable attorney fees, damages
of not less than $100, and other actual costs to the requester
if the requester prevails in whole or in substantial part in
any action … relating to access to a record or part of a
record [requested under the open records law]. If the
requester is … [an] incarcerated person, the requester is not
entitled to any minimum amount of damages, but the court
may award damages.

Sec. 19.37(2)(a). A requester “prevails” on a mandamus action to produce open
records when the action could reasonably be regarded as necessary to obtain the
information and a “causal nexus” exists between the action and the authority’s
production of the records sought. Eau Claire Press Co., 176 Wis. 2d at 159. The
test for determining causation in Wisconsin “is whether the actor’s action was a
substantial factor in contributing to the result.” Id. at 160. Where, as here, the
existence of causation is an inference to be drawn from established facts, we will
review the circuit court’s determination under the “reasonableness standard.” Id.
That is, we will uphold the court’s determination of causation unless we find that

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the inference drawn by the court could not reasonably be drawn from the
established facts. Id.

¶14 Socha asserts that it was reasonably necessary for him to commence
the mandamus action because Simono did not “as soon as practical and without
delay” either produce the records sought in Socha’s April 12 and May 23 open
records requests, or notify Socha of the “determination to deny the request[s] in
whole or in part and the reasons therefor,” as required by WIS. STAT. § 19.35(4).
Specifically, Simono did not produce the requested letters and provide an
explanation for why he was denying the requests for emails, the receipt, and the
renewed, more specific request for the proffer agreement until nearly six months
after Socha’s last open records request, but within days after the circuit court’s
issuance of a writ of mandamus. Socha contends that the only reasonable
inference to be drawn from the timing of Simono’s response to Socha’s April 12
and May 23 open records requests is that the mandamus action was a “substantial
factor” in the release of the requested information.

¶15 In response, Simono first argues that he was not obligated to respond
to Socha’s April 12 renewed request for the proffer agreement because he had
already produced the records he believed were relevant to that request.
Technically, we note that it was Simono’s legal assistant who responded to one of
Socha’s prior open records requests for the proffer agreement and apparently made
a determination as to what appeared to be relevant. Simono did not assert that he
had “personally” searched the files until his November 18 letter in response to the
writ of mandamus. In any event, the assertion that Simono’s office had already
produced two records relevant to the proffer agreement sought in the April 12
request does not address Simono’s failure to timely respond to Socha’s separate
May 23 request for letters, emails and the NSF cash receipt.

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¶16 Simono next asserts that Socha did not prevail on the mandamus
action with respect to the additional materials sought in the May 23 request
because the mandamus action “focused” on the proffer agreement and did not
“clearly put at issue” the additional materials Socha was seeking to have produced.
This assertion is neither factually nor legally persuasive.

¶17 Socha’s writ petition was only three pages long. We agree with
Simono that a substantial portion of the petition focused on the proffer agreement
sought in Socha’s April 12, 2019 request. Nonetheless, the petition also devoted
two full paragraphs to discussing Socha’s May 23 request, which did not include
the proffer agreement. Socha then concluded his petition with a request for the
circuit court to issue a writ of mandamus ordering Simono to either produce “the
record” identified in Socha’s April 12 and May 23 open record requests or to
provide a response explaining his failure to do so. In this context, where the
April 12 and May 23 requests were seeking different records, the reference to “the
record” in the singular was an obvious typographical error. The reference does
not, as Simono contends, signify that Socha’s mandamus action was seeking
production only of the proffer agreement.

¶18 Moreover, even if the writ petition could more “clearly” have
articulated that Socha was also seeking the letters, emails and receipt identified in
his May 23 request, Simono provides no convincing explanation as to how such an
alleged defect would affect Socha’s entitlement to costs and fees under WIS. STAT.
§ 19.37(2)(a). It is undisputed that Simono provided Socha with six new
documents on November 18 that fell within the scope of Socha’s May 23 request.
The issue under Eau Claire Press Co. is whether the mandamus action was a
“substantial factor” in the production of those documents. Simono’s own cover
letter acknowledged that the documents were being produced “in response” to the

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writ of mandamus. Simono did not provide any other reason, either to the circuit
court or to this court, for his six-month delay in producing the letters sought in the
May 23 open records request—which he was able to locate within five days of
being served with the writ. He certainly did not claim that his failure to timely
respond to the May 23 open records request was due to a lack of specificity in the
writ petition that Socha filed approximately one month later.

¶19 Simono makes an additional assertion that “the circuit court acted
within its fact-finding province when it concluded that a connection was lacking”
between the mandamus action and the production of the additional documents.
The problem with this argument is that the court made no such determination.
Instead, the court stated that Socha was not entitled to costs and fees because, by
the time of the hearing on the motion to strike the return, Simono had provided all
of the requested documents that were available and had spent considerable time
and effort doing do. The court did not find, however, that any efforts to locate the
correspondence sought in the May 23 request had been undertaken before Socha
commenced the mandamus action. Rather, from the court’s comments, it appears
that it was denying costs and fees because Simono complied with the writ by
supplying the requested correspondence and making additional attempts to track
down the missing or nonexistent written proffer agreement and missing receipt.
Under the substantial factor test, however, compliance with a writ would weigh in
favor of a causation determination, not against it.

¶20 We conclude that the only reasonable inference that could be drawn
from the established facts is that Socha’s mandamus action was a substantial factor
in Simono’s production of the documents sought in Socha’s May 23 open records
request. It follows that Socha prevailed, in substantial part, on the mandamus

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action, even though no additional documents were produced in relation to the
April 12 open records request.

¶21 Finally, Simono contends that even if Socha is entitled to some costs
and fees, he is not entitled to attorney fees or damages. We note that Socha did
not request attorney fees, either before the circuit court or this court. Socha did
make a general demand for damages, but he did not specify any damages that he
actually suffered. Simono does not dispute that Socha paid $164.50 for the filing
fee and $100 for personal service of the writ of mandamus, or that those costs and
fees are reasonable. We conclude that Socha is entitled to recover $264.50 in
costs and fees under WIS. STAT. § 19.37(2)(a). We therefore reverse and remand
with directions that the circuit court enter an amended judgment awarding Socha
those costs.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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