Venue in prisoner cases

In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR 70.40 - Venue in Prisoner Case

Order 96-14

On Dec. 3, 1996, the Committee of Chief Judges filed a petition requesting the
creation of a rule of court administration to establish a procedure by which
proper venue in inmate conditions of confinement and grievance proceedings would be determined by the court in which the proceeding is filed and if an evidentiary hearing is deemed likely to be required and a county other than where the proceeding was filed appears more convenient for the parties and witnesses, the case would be sent to the more convenient county by the court in which the proceeding was filed. The rule would further provide that indigency determination and a decision on the arguable merit of the proceeding would be made by the court to which the proceeding is sent or the court in which it remains.

IT IS ORDERED that a public hearing on the petition be held in the Supreme Court Room in the State Capitol, Madison, Wis., on April 15, 1997, at 1:30 p.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.

Dated at Madison, Wis., this 22nd day of January, 1997.

By the court:
Marilyn L. Graves, Clerk

Petition

WHEREAS, in the State of Wisconsin, there are now 11 adult correctional facilities located in nine counties, and 18 adult correctional centers located in an additional seven counties; and

WHEREAS, the Department of Corrections is currently in the process of expanding existing prisons and building a new "super max" prison that will add 1,050 new beds by November 1997, and have also requested funds in the 1997-99 budget for an additional 1,100 new beds; and

WHEREAS, it is estimated the increase in prisoner-generated litigation will keep pace with, if not exceed, the growth in prison population, and that filings will occur in a greater number of counties; and

WHEREAS, during the current calendar year an estimated 600 cases are expected to be initiated in Wisconsin circuit courts by inmates of Wisconsin prisons; cases such as writs of certiori, mandamus and habeas corpus, actions filed under 42 U.S.C. 1983 and tort actions for property loss, damages, slander or negligence; and

WHEREAS, inmates are often in error with their assumptions of correct or convenient venue and attempt to file cases in inappropriate and/or multiple courts, leading to delays in processing and misunderstanding among judges and court personnel; and

WHEREAS, a Supreme Court Rule will provide guidance to judges and court personnel and consistent treatment of these cases, which is good public policy; and

WHEREAS, on Aug. 9, 1996, the chief judges agreed in concept on how venue should be addressed in these cases, and at the suggestion of the Director of State Courts, agreed that a rulemaking petition to the court was the appropriate course to pursue to implement these concepts;

THEREFORE, the chief judges hereby petition the supreme court to create the following rule effective Jan. 1, 1997, or as soon thereafter as practicable:

SCR 70.40 Venue in Prisoner Cases

The Incarcerated Person (IP) case type designation shall be used by a Clerk of Circuit Court to identify pleadings filed by any jail or prison inmate when the intention is to initiate a court case dealing with conditions of imprisonment or other grievance matters not including family, small claims, or criminal post-judgment issues related to conviction. The only issues before the court at this stage of the proceedings are whether the petitioner is indigent and whether the pleadings state a claim for which relief might be granted. Upon determination that a case has merit and states a cause of action, and after resolution of indigency and/or filing fee questions, the IP case shall be transferred and assigned a civil (CV) case type designation and number and shall proceed before the assigned judge. The IP case designation is not intended to replace family, criminal or civil case type designations when those designations are appropriate.

When an Incarcerated Person (IP) case is initiated, the circuit court shall determine on the pleadings, in the following order:

1)if venue is statutorily proper;

2)if venue is proper in more than one county;

3)if an evidentiary hearing is likely to be needed; and,

4)if another county is more convenient for parties and witnesses.

If 2), 3) and 4) are all answered in the affirmative, then the case shall be forwarded to the Clerk of Circuit Court in the more convenient county, with notice to the parties. The judge ultimately responsible for the case shall determine indigency and merit.

If a case is forwarded to another circuit court and the judge of the receiving court believes an error has been made in establishing venue, the matter shall be referred to the chief judge(s) of the district(s) involved who shall resolve the dispute. The chief judge of the receiving jurisdiction shall have the final authority.

COMMENT: This rule is intended to have three positive results. Circuit judges will determine proper venue in a consistent manner throughout the state. The IP case designation will be used in a standard manner, permitting statewide analysis of prisoner litigation workloads. Finally, only the judge in the jurisdiction where the case is filed after all changes in venue have been made will make the determinations as to merit and indigency.

Respectfully submitted this 3rd day of December, 1996.

Committee of Chief Judges

J. Denis Moran
Director of State Courts