Act 61 is a new statute that will take effect on November 24 and will apply to all actions commenced on or after that day. And it’s one you should be aware of — both for its effect on venue in the circuit courts of this state and for the unique changes it makes related to venue in the state’s court of appeals.
In the state’s trial courts, Act 61’s new s. 801.50(3)(a) places the venue of “all actions in which the sole defendant is the state, any state board or commission, or any state officer, employee, or agent in an official capacity” in “the county designated by the plaintiff, unless another venue is specifically authorized by law.” Until now, all such actions have been mandatorily venued in Dane County. The only statutorily noted exceptions to this new venue rule are that Dane County remains the exclusive venue for declaratory judgment proceedings as to the validity of a rule (s. 227.40(1)) and actions by prisoners (s. 801.50(c)(3)). You will note that, unlike the statute that I will next discuss, this new one leaves the choice of county of venue to the plaintiff, without requiring that the plaintiff reside in that county or that that county have any connection whatsoever to the dispute.
On its face, with this exception, the new venue law resembles the amendment adopted quite a few years ago to s. 227.53(1)(a)3., moving proceedings for judicial review of agency decisions from Dane County to the county where the person adversely affected by the agency decision resides.
A very interesting provision in this new law is an amendment to s. 752.21, the appeal venue provision. Till now, that statute was about as simple and straightforward as one can imagine: all appeals from the circuit court are to be heard in the court of appeals district that contains the court from which the appeal is taken. Appeals from Milwaukee County are to be heard in District I, from Waukesha County in District II, from Dane County in District IV, and so on. (To the extent that recusals and workflow considerations dictate, the Chief Judge of the Court of Appeals assigns judges from different districts to “sit” in the assigned district, so that one sees from time to time, for example, a panel of judges from District IV deciding a District I case.)
But this new statute contains a new s. 752.21(2) to this effect: In a case where venue of the proceeding was designated by the plaintiff under the new s. 801.50(3)(a), any appeal “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.” In other words, the loser below gets to pick the court of appeals district in which the appeal will be heard, and it can be any district except the one containing the county from which the appeal is taken.</span
Among the things that are unclear is whether the court designated by the plaintiff may change venue under the discretionary change authority in s. 801.52, to which the new statute does not refer.
What this new statute does to promote the idea that our courts are governed by the rule of law, rather than the will or whim of the chosen judge, is a subject for another day. For now, be aware of the fact that it will soon be effective.