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State ex rel. Department of Natural Resources v. Wisconsin Court of Appeals, District IV

Supreme Court of Wisconsin

April 3, 2018

State of Wisconsin ex rel. Department of Natural Resources, Petitioner,
Wisconsin Court of Appeals, District IV, Clean Wisconsin, Inc., Lynda A. Cochart, Amy Cochart, Roger D. DeJardin, Sandra Winnemueller, Chad Cochart and Kinnard Farms, Inc., Respondents.

          Submitted on Briefs: oral argument: September 15, 2017


         PETITION for supervisory writ. Granted; rights declared; and stay on appeal lifted.

          For the petitioner, there were briefs filed by Kevin M. LeRoy, deputy solicitor general, with whom on the briefs were Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general. There was an oral argument by Kevin M. LeRoy.

          For the respondents Clean Wisconsin, Inc., Lynda A. Cochart, Amy Cochart, Roger D. DeJardin, Sandra Winnemueller, and Chad Cochart, there was a brief filed by Sarah Geers and Midwest Environmental Advocates, Madison, with whom on the brief were Katie Nekola and Clean Wisonsin, Inc., Madison. There was an oral argument by Sarah Geers.

          For the respondent Wisconsin Court of Appeals, District IV, there was a brief filed by John S. Skilton and Perkins Coie LLP, Madison. There was an oral argument by John S. Skilton.

          DANIEL KELLY, J.

         ¶1 The Wisconsin Department of Natural Resources ("DNR") says its appeal in Clean Wisconsin, Inc. v. DNR, 2016AP1688 ("Clean Wisconsin") is pending in the wrong district, and asks us to exercise our supervisory authority to shepherd it to the correct venue. Because we agree with the DNR, we grant its petition for a supervisory writ and vacate the order of the Wisconsin Court of Appeals transferring venue for Clean Wisconsin from District II to District IV.

         ¶2 We accepted review because this case presents an important issue of first impression regarding the right of an appellant to select appellate venue under Wis.Stat. § 752.21(2) (2015-16), [1]


         ¶3 The dispute giving rise to this petition for a supervisory writ involves the DNR's decision to reissue a Wisconsin Pollutant Discharge Elimination System ("WPDES") permit to Kinnard Farms, Inc. ("Kinnard Farms")/ a dairy farm in Kewaunee County. After a group of five individuals (led by Lynda A. Cochart, hereinafter the "Cochart Petitioners") contested the decision, an administrative law judge concluded the permit should issue, but only with the addition of two conditions to which Kinnard Farms objected.[2] Kinnard Farms filed a petition with the DNR requesting removal of the conditions. The DNR initially denied the petition, but upon reconsideration found that " [n] either [of the conditions] may be imposed upon Kinnard [Farms] in this case, and therefore, these conditions will not be added to or modified into the WPDES Permit."

         ¶4 Clean Wisconsin, Inc. ("Clean Wisconsin") and the Cochart Petitioners each filed petitions seeking judicial review of the DNR's decision. Clean Wisconsin filed in Dane County (the county of its residence), while the Cochart Petitioners filed in Kewaunee County (the county of their residence). The Circuit Court for Dane County, as the court in which the first petition was filed, exercised its statutorily-granted discretion to consolidate the Kewaunee County case into the Dane County case.[3] Subsequently, the Dane County Circuit Court entered judgment on the merits in favor of Clean Wisconsin and the Cochart Petitioners, restoring the contested permit conditions that the DNR had rejected. We will refer to Clean Wisconsin and the Cochart Petitioners collectively as the "Administrative Petitioners" so that we may more conveniently distinguish their arguments from those of the Court of Appeals when they diverge.

         ¶5 The DNR appealed the circuit court's decision, and selected District II as the appellate venue. A single court of appeals judge (sitting in District IV) issued an order, sua sponte, transferring venue from District II to District IV on August 31, 2016. The judge, relying on Wis.Stat. § 752.21(1), wrote that District IV is the proper venue because it encompasses the circuit court that issued the judgment from which the DNR appealed. The DNR moved for reconsideration. It asserted that § 752.21(2) gave it the right to select appellate venue because Clean Wisconsin had designated the circuit court venue. Sitting as a three-judge panel in District IV, the Court of Appeals denied the motion on September 29, 2016.

         ¶6 Approximately two weeks later, the DNR petitioned this court for a supervisory writ requiring the Court of Appeals to transfer venue back to District II. We stayed the appeal and asked the respondents for a response to the petition. We subsequently ordered full briefing and argument.


         A. Supervisory Writs

         ¶7 The authority to issue supervisory writs depends on the constitutional grant of jurisdiction to this court. In relevant part, our constitution says:

(1) The supreme court shall have superintending and administrative authority over all courts.
(2) The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.
(3) The supreme court may review judgments and orders of the court of appeals, may remove cases from the court of appeals and may accept cases on certification by the court of appeals.

Wis. Const, art. VII, § 3. We have previously observed that with the grant of jurisdiction come all the writs necessary to give it effect:

The framers of the constitution appear to have well understood that, with appellate jurisdiction, the court took all common law writs applicable to it; and with superintending control, all common law writs applicable to that; and that, failing adequate common law writs, the court might well devise new ones, as Lord Coke tells us, as "a secret in law."

Attorney Gen, v. Chicago & N.W. Ry. Co., 35 Wis. 425, 515 (1874) (construing our original constitution[4]); see State v. Buchanan, 2013 WI 31, ¶11, 346 Wis.2d 735, 828 N.W.2d 847 ("As the court of original jurisdiction, we have discretion to issue a supervisory writ."); Madison Metro. Sch. Dist. v. Cir. Ct. for Dane Cty., 2011 WI 72, ¶74, 336 Wis.2d 95, 800 N.W.2d 442');">800 N.W.2d 442 (2011) (stating that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction").

         ¶8 "A supervisory writ is 'a blending of the writ of mandamus and the writ of prohibition.'" Madison Metro. Sch. Dist., 336 Wis.2d 95, ¶74 (citation omitted). The court traditionally uses the writ of prohibition "to keep an inferior court from acting outside its jurisdiction when there [is] no adequate remedy by appeal or otherwise." Id., ¶76 (internal marks and citation omitted). The writ of mandamus, on the other hand, directs "a public officer to perform his plain statutory duties." Id., ¶75 (citing Menzl v. City of Milwaukee, 32 Wis.2d 266, 275-76, 145 N.W.2d 198 (1966)). Thus, the supervisory writ "serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process." State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004 WI 58, ¶24, 271 Wis.2d 633, 681 N.W.2d 110. A supervisory writ is "an extraordinary and drastic remedy that is to be issued only upon some grievous exigency." Id., ¶17 (internal marks and citation omitted).

         ¶9 A party may request a supervisory writ from this court by petition.[5] Wis.Stat. § (Rule) 809.71. To justify the writ, a petitioner must demonstrate that: "(1) an appeal is an inadequate remedy; (2) grave hardship or irreparable harm will result; (3) the duty of the trial court is plain and it . . . acted or intends to act in violation of that duty; and (4) the request for relief is made promptly and speedily." Kalal, 271 Wis.2d 633, ¶17 (citation omitted). Our deliberation on whether to issue the writ "is controlled by equitable principles and, in our discretion, we can consider the rights of the public and third parties." Id. (internal marks and citation omitted).

         ¶10 We will consider only the first three factors identified above-the respondents do not contest the timeliness of the DNR's petition, and we agree that filing within two weeks of the Court of Appeals' order denying the motion for reconsideration is, under these circumstances, unquestionably "prompt and speedy." For the sake of analytical clarity, our opinion addresses the three factors in the following order. We begin with whether the Court of Appeals will violate a plain duty to hear the DNR's appeal in the proper district if the venue-transfer order stands. Then, we will consider whether an appeal would be an inadequate remedy. And finally, we will determine whether the DNR will suffer grave hardship or irreparable harm if the writ does not issue.

         B. Plain Duty

         1. Existence of the Duty

         ¶11 We start with determining whether the Court of Appeals has a plain duty to hear the DNR's appeal in the proper venue. A plain duty is one that is "clear and unequivocal and, under the facts, the responsibility to act [is] imperative." Id., ¶22 (internal marks and citation omitted). "[C]lear and unequivocal" does not require the duty to be settled or obvious. There may be a plain duty even when it involves "a novel question of law requiring harmonization of several statutory provisions." See Madison Metro. Sch. Dist., 336 Wis.2d 95, ¶84.[6]

         ¶12 Appellate venue is governed by Wis.Stat. § 752.21, which provides, in toto:

(1) Except as provided in sub. (2), 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.
(2) A judgment or order appealed from an action venued in a county designated by the plaintiff to the action as provided under 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.

         ¶13 The first subsection of Wis.Stat. § 752.21 contains the general rule controlling appellate venue. The second subsection contains a specific rule, which applies only to the subset of cases in which the plaintiff designated venue in the circuit court pursuant to Wis.Stat. § 801.50(3) (a) . However, both the general and specific rules speak in mandatory terms. The general rule uses the mandatory "shall" in requiring the court to hear the appeal in the district encompassing the circuit from which the appeal is taken.[7] The specific rule, when applicable, is no less mandatory in its requirement that the court hear the appeal in the district selected by the appellant. Thus, regardless of whether the general or specific rule determines venue, the court of appeals has no discretion with respect to where it must hear the appeal. Further, the correct venue does not depend on uncertain factual developments or circumstances outside the contemplation of the statute. Nor does the court of appeals have the option of not acting: The appeal must be heard somewhere. Therefore, the obligation to venue the appeal in the correct district is clear, unequivocal, and mandatory. It is, therefore, a "plain duty" within the meaning of our supervisory writ jurisprudence.

         2. Compliance with the Duty

         ¶14 Whether the Court of Appeals acted consonantly with its plain duty when it transferred the DNR's appeal from District II to District IV depends on the requirements of three statutes, all of which have something to say about venue in this case. The statute controlling appellate venue is Wis.Stat. § 752.21, which we quoted above. Then there is Wis.Stat. § 801.50(3) (a), which governs circuit court venue. And finally, there is Wis.Stat. § 227.53(1) (a)3., which restricts venue eligibility for administrative appeals such as the one sub judice.

         ¶15 We determine the meaning of these statutes by focusing on their text, context, and structure. "[S]tatutory interpretation 'begins with the language of the statute, " and we give that language its "common, ordinary, and accepted meaning." Kalal, 271 Wis.2d 633, ¶¶45-46 ("Context is important to meaning. So, too, is the structure of the statute in which the operative language appears. Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes ...."). In performing this analysis, we carefully avoid ascribing an unreasonable or absurd meaning to the text. Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably, to avoid absurd or unreasonable results.") . We may also look to the statute's history where, as here, there has been a significant revision to the language in which we are interested. Cty. of Dane v. LIRC, 2009 WI 9, ¶27, 315 Wis.2d 293, 759 N.W.2d 571 ("'A review of statutory history is part of a plain meaning analysis' because it is part of the context in which we interpret statutory terms." (citation omitted)). If we determine the statute's plain meaning through this methodology, we go no further. Kalal, 271 Wis.2d 633, ¶45 ("If the meaning of the statute is plain, we ordinarily stop the inquiry." (internal marks and citation omitted)). See generally Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969 (2017) .

         a. Applicability of Wis.Stat. § 801.50(3) (a)

         ¶16 The presenting question is whether the general or specific appellate venue rule of Wis.Stat. § 752.21 is operative in this case. According to the express terms of that statute, the answer depends on whether the circuit court venue was "designated by the plaintiff" pursuant to Wis.Stat. § 801.50(3)(a). This statute, in turn, says that:

Except as provided in pars, (b) and (c), [8] 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 shall be venued in the county designated by the plaintiff unless another venue is specifically authorized by law. [9]

         ¶17 The Administrative Petitioners tell us that Wis.Stat. § 801.50(3)(a) cannot apply at all to these proceedings for two reasons.[10] First, they say it applies to "actions, " not "special proceedings" (like judicial review of administrative agency decisions) . And second, they say § 801.50(3) (a) cannot apply because they were "petitioners" in the circuit court, and the statute refers only to "plaintiffs."

         ¶18 With respect to the first objection, it is true that § 801.50(3) (a) refers only to "actions." But that term encompasses "special proceedings" as well: "Proceedings in the courts are divided into actions and special proceedings, " and "[i]n chs. 801 to 847, 'action' includes 'special proceeding' unless a specific provision of procedure in special proceedings exists." Wis.Stat. § 801.01(1). The rules of civil procedure apply to both types of proceedings: "Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule." § 8 01.01(2); Wagner v. State Med. Examining Bd., 181 Wis.2d 633, 639, 511 N.W.2d 874 (1994) ("[W]hen a conflict occurs between the rules of civil procedure and ch. 227, the dictates of ch. 227 must prevail."); State ex rel. Town of Delavan v. Cir. Ct. for Walworth Cty., 167 Wis.2d 719, 725, 482 N.W.2d 899 (1992) ("As chs. 801 to 847 apply to special proceedings, sec. 801.58(7) necessarily applies to ch. 227 judicial reviews, unless foreclosed by different procedure prescribed by ch. 227.") .

         ¶19 Therefore, in the absence of a contrary provision in chapter 227, it does not matter that the Administrative Petitioners commenced this case as a "special proceeding" rather than as an "action." Nor is this the first time we have used Wis.Stat. § 801.50 in the specific type of special proceeding known as "judicial review." See, e.g., Prow v. Schwarz, 225 Wis.2d 362, 367, 592 N.W.2d 623 (1999), as amended on denial of reconsideration (June 25, 1999) (§ 801.50 controlling venue in certiorari review proceeding); Aparacor, Inc. v. PILHR, 97 Wis.2d 399, 407, 293 N.W.2d 545 (1980) (§ 801.50 controlling venue in judicial review proceeding); Johnson v. Berge, 2003 WI.App. 51, ¶11 n.3, 260 Wis.2d 758, N.W.2d 418 ("The trial court may consider whether to transfer the entire case to Dane County pursuant to Wis.Stat. § 801.52, or whether to transfer Johnson's Wis.Stat. ch. 227 claim to Dane County and itself resolve Johnson's other issues.") . The Administrative Petitioners provided no authority for the proposition that § 801.50(3) cannot apply to judicial review of an agency decision. Nor did they even acknowledge our opinions in Aparacor, Inc. or Prow.

         ¶20 The second objection gives us no reason to doubt the applicability of Wis.Stat. § 801.50(3) (a) because the party denominations have no significance in this case. It is standard practice to refer to the one who files the initiating document in a special proceeding (such as a petition for judicial review) as a "petitioner." And that, by itself, has never ousted chapters 801 through 847 from their authoritative role. See Wis. Indus. Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶¶1, 13, 342 Wis.2d 576, 819 N.W.2d 240 (applying Wis.Stat. § (Rule) 809.61 to petition for judicial review under both Wis.Stat. § 196.41 and Wis.Stat. § 227.52); Prow, 225 Wis.2d at 362-66 (applying Wis.Stat. § 801.50 even though parties were denominated as "petitioner" and "respondent"); Town of Pelavan, 167 Wis.2d at 721 (holding that Wis.Stat. § 801.58(7) applies in a ch. 227 judicial review; also applying Wis.Stat. § (Rule) 809.61); Wis.'s Envtl. Pecade, Inc. v. PILHR, 104 Wis.2d 640, 644, 312 N.W.2d 749 (1981) (applying Wis.Stat. § 808.05(1) in case involving an underlying petition for review). The Administrative Petitioners cite no authority for the proposition that this difference in nomenclature has any effect on the applicability of this statute. Consequently, § 801.50 applies to judicial review of an agency decision-but only so long as it does not contradict a relevant chapter 227 provision.

         ¶21 And that brings us to the third venue-related statute of interest. The respondents say Wis.Stat. § 227.53(1) (a) 3. conflicts with, and negates, a petitioner's ability to "designate" venue pursuant to Wis.Stat. § 801.50(3) (a) by requiring that it file its petition in its county of residence. Specifically, § 227.53(1) (a)3. says that "[i]f the petitioner is a resident, the proceedings shall be held in the circuit court for the county where the petitioner resides." This is important because, if the respondents are right, then the Administrative Petitioners could not have "designated" venue for the circuit court proceedings, ...

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