April 3, 2018 – The Wisconsin Supreme Court has ruled (5-2) that an appeal filed by the Wisconsin Department of Natural Resources (DNR) must be heard by the District II Court of Appeals, based in Waukesha, rather than District IV, based in Dane County.

In Department of Natural Resources v. Wisconsin Court of Appeals, District IV, 2018 WI 25 (April 3, 2018), the supreme court majority granted the DNR’s petition for a supervisory writ, which vacates the District IV Appeals Court’s decision on venue.

In doing so, the majority interpreted a set of venue statutes, including one altered by a 2011 law that removed a requirement that lawsuits against the state (including state agencies like the DNR), be filed in Dane County, where the state’s capital is located.

“We conclude that the DNR has met the requirements for the issuance of a supervisory writ,” Justice Daniel Kelly wrote for the majority. “The Court of Appeals shall hear the appeal in District II.”

Separate Suits Filed

It all started with a DNR decision to reissue a pollutant discharge elimination system permit to a dairy farm in Kewaunee County. Five individuals contested the DNR’s permit decision, and an administrative law judge attached conditions to the permit.

The dairy farm, Kinnard Farms Inc., challenged the conditions and petitioned the DNR to remove them. Ultimately, the DNR removed the conditions on the permit.

Two separate lawsuits followed. Clean Wisconsin first filed a petition for judicial review of the DNR’s decision in Dane County. The individual petitioners, led by Lynda Cochart (Cochart petitioners), filed a subsequent petition for review in Kewaunee County.

The Dane County Circuit Court, as the first court to receive the lawsuit filing, had authority to consolidate the cases, and did so in the Dane County Circuit Court. It then ruled for the petitioners, restoring the permit conditions the DNR had removed.

DNR Files Appeal

The DNR filed an appeal in the District II Court of Appeals, located in Waukesha, even though the DNR is a state agency located within District IV. However, a District IV Appeals Court judge issued an order, sua sponte, which transferred the case to District IV, concluding that District IV was the proper venue under Wis. Stat. section 752.21(1).

That provision says “a judgment or order appealed to the court of appeals shall be heard in the court of appeals district which contains the court from which the judgment or order is appealed.” The DNR was appealing a case with judgment in Dane County.

But there’s an exception to section 752.21(1). Section 752.21(2) says “a judgment or order appealed from an action venued in a county designated by the plaintiff to the action as provided s. 801.50 (3) (a) shall be heard in a court of appeals district selected by the appellant but the court of appeals district may not be the court of appeals district that contains the court from which the judgment or order is appealed.”

The DNR argued that since Clean Wisconsin “designated” the action in Dane County, the DNR could “select” the venue for appeal, and it could not be in Dane County. However, the District IV Court of Appeals rejected the DNR’s argument.

Two weeks later, the DNR petitioned the Wisconsin Supreme Court for a supervisory writ, to use its supervisory authority over all Wisconsin courts and require the DNR’s appeal to be transferred back to District II where the DNR originally filed it.

Majority Issues Supervisory Writ

The court noted that it may issue a supervisory writ if a petitioner makes a prompt and speedy request and demonstrates that an appeal is an inadequate remedy, grave hardship or irreparable harm will result, and the lower court violated a plain duty.

The majority ruled that the DNR met its burden. First, the majority ruled that the Court of Appeals would violate a plain duty to hear the DNR’s appeal in the proper venue if the order that transferred the case from District II to District IV is allowed to stand.

To get there, Justice Daniel Kelly interpreted the venue statutes to conclude that Clean Wisconsin “designated” the case in Dane County, which allowed the DNR to “select” the venue for appeal. Thus, the District IV Court of Appeals had no discretion to decide.

Clean Wisconsin argued that that it did not “designate” the Dane County Circuit Court to review the DNR’s permitting decision, because it had no choice to choose the venue under another piece to the venue puzzle, Wis. Stat. section 801.50(3)(a).

That provision says actions against the state “shall be venued in the county designated by the plaintiff unless another venue is specifically authorized by law.”

The legislature changed this provision in 2011. Previously, lawsuits against the state were required to be filed in Dane County. Now, this provision says the plaintiff designates the venue “unless another venue is specifically authorized by law.”

Clean Wisconsin argued that a fourth venue provision, Wis. Stat. section 227.53(1)(a)3, negated its ability to “designate” the venue.

That provision – which applies to parties aggrieved by an administrative decision, such as one from the DNR – says “if the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides.” Clean Wisconsin is based in Dane County, so this statute required its petition to be filed in Dane County.

It had no choice, Clean Wisconsin argued. But it didn’t matter, the majority concluded, because “designating” the venue is not the same as “choosing” or “selecting” it.

“[W]hen a plaintiff ‘designates’ venue in the circuit court, it means he is specifying venue, not choosing it,” Justice Kelly wrote. “The fact that Wis. Stat. § 227.53(1)(a)3 eliminates a plaintiff’s choice of venue would be of some moment only if Wis. Stat. § 801.50(3)(a) speaks to the plaintiff’s choice. It does not.”

The authority of the circuit court to override a plaintiff’s designation, when two or more petitions for review of the same decision are filed in different counties, did not change the majority’s mind that Clean Wisconsin still “designated” the case in Dane County.

“Here, the circuit court did not transfer venue to a county different from the one Clean Wisconsin had designated; the venue remained as designated by Clean Wisconsin,” Justice Kelly wrote. “So Dane County cannot be ‘another venue’” under the provision that said the plaintiff designates “unless another venue is specifically authorized by law.”

Because Clean Wisconsin designated the Dane County Circuit Court to review the DNR decision, the majority explained, “it is the court of appeals’ plain duty to hear the DNR’s appeal in District II” where the DNR originally selected the appeal to go.

The majority went on to rule that the DNR, in addition to establishing the plain duty of the court of appeals, met the other requirements for the supervisory writ.

It said an appeal of the venue issue, to the appeals court, would be an inadequate remedy because the DNR could not appeal the venue order without more, a “plus” factor, to trigger the Wisconsin Supreme Court’s criteria for granting petitions for review.

And finally, the majority concluded that the DNR would be irreparably harmed if it lost a right to select the venue for an appeal. “Losing the right with no means to recover it makes the harm irreparable,” Justice Kelly wrote.

Dissent

Justice Shirley Abrahamson wrote a dissenting opinion, joined by Justice Ann Walsh Bradley, concluding the court was required to undertake a harmless error analysis and its statutory interpretation was wrong since “designate” clearly contemplates a choice.

“It is much more likely that the legislature did not intend to create such a lopsided framework and instead intended to create a framework wherein an appellant’s ability to choose the venue is necessarily tied to the plaintiff’s having a choice at the trial court level,” Justice Abrahamson wrote.