Department of Natural Resources v. Wisconsin Court of Appeals, District IV
909 N.W.2d 114
Wis.2018Background
- DNR reissued a WPDES permit to Kinnard Farms; Administrative Petitioners (Clean Wisconsin and Cochart group) sought judicial review in different counties and prevailed in Dane County circuit court, restoring contested permit conditions.
- DNR appealed and chose Court of Appeals District II as the appellate venue; a single Court of Appeals judge sua sponte transferred the appeal to District IV under Wis. Stat. § 752.21(1).
- DNR moved for reconsideration, arguing § 752.21(2) allowed the appellant to select venue when the plaintiff had designated circuit-court venue under § 801.50(3)(a); the District IV panel denied reconsideration.
- DNR petitioned the Wisconsin Supreme Court for a supervisory writ to vacate the transfer and require the Court of Appeals to hear the appeal in District II; the Supreme Court granted full briefing and argument.
- The central statutory issues: interaction of Wis. Stat. §§ 752.21(1)-(2) (appellate venue), 801.50(3)(a) (plaintiff-designated venue when state is sole defendant), and 227.53(1)(a)3. (venue rules for administrative appeals filed in different counties).
- The Supreme Court concluded (majority) that Clean Wisconsin’s circuit-court designation was effective under § 801.50(3)(a), triggering § 752.21(2) and requiring the Court of Appeals to hear the DNR’s appeal in District II; it granted the supervisory writ and vacated the transfer to District IV.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 801.50(3)(a) applies to judicial review/special proceedings and to parties labeled "petitioners" | § 801.50(3)(a) applies to "actions," and under statutes chs. 801–847 "action" includes "special proceedings," so it governs judicial review | § 801.50(3)(a) applies only to "actions" and to "plaintiffs," not to administrative "petitioners" or ch. 227 proceedings | Court: § 801.50(3)(a) applies to special proceedings (judicial review) and the petitioner designation does not defeat its operation; chapters 801–847 apply unless ch. 227 prescribes different procedure |
| Whether § 227.53(1)(a)3. (requiring resident petitioners to file in county of residence) prevents a plaintiff from "designating" venue under § 801.50(3)(a) | "Designate" does not require a meaningful choice; even if statute fixes the county, filing still "designates" that county for purposes of § 801.50(3)(a) | "Designate" must mean "choose;" if statute mandates the county (e.g., petitioner’s residence), the plaintiff did not choose and so did not "designate" under § 801.50(3)(a) | Court: "designate" means to specify or indicate (not necessarily choose); § 227.53(1)(a)3. does not preclude a plaintiff’s designation for purposes of § 801.50(3)(a) |
| Whether a circuit-court determination under § 227.53(1)(a)3. that leaves the plaintiff’s originally designated county in place constitutes "another venue specifically authorized by law" that would negate § 801.50(3)(a) | If the circuit judge "determines venue" and could have ordered a different county, that statutory power is "another venue specifically authorized by law" making § 752.21(1) control appellate venue | The court of appeals and dissent: the mere statutory ability to specify venue should limit appellant’s selection on appeal; appellants’ right to select should be tied to plaintiffs’ real choice | Court: the "unless another venue..." exception requires an actual different county to be authorized/selected; because the circuit court consolidated and left venue in the plaintiff’s county (Dane), no "another venue" existed and § 752.21(2) governs appellate venue |
| Whether an appeal is an adequate remedy (or supervisory writ is required) and whether harm is irreparable | DNR: appellate review or petition for review would be inadequate because interlocutory remedy for appellate-venue order is unavailable and petition for review requires discretionary "plus" factors; loss of statutory venue-selection right is irreparable | Respondents/dissent: any error is harmless because different districts are equally fair and convenient; harmless-error analysis should apply | Court: appeal/petition for review is inadequate to rescue the statutory right; losing a statutory right with no adequate corrective path is irreparable harm; supervisory writ appropriate to restore DNR’s chosen appellate venue (District II) |
Key Cases Cited
- Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425 (1874) (discussing writs incident to appellate and superintending jurisdiction)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (standards for supervisory writs and plain duty analysis)
- Madison Metro. Sch. Dist. v. Circuit Court for Dane Cty., 336 Wis. 2d 95 (2011) (supervisory writ principles; distinguishing duties appropriate for writ relief)
- State v. Buchanan, 346 Wis. 2d 735 (2013) (court’s authority to issue supervisory writs)
- State ex rel. Spence v. Dick, 103 Wis. 407 (1899) (historical treatment of mandamus for venue orders when interlocutory appeal unavailable)
- In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) (holding mandamus appropriate where interlocutory appeal unavailable and post-judgment review would be inadequate)