On April 3, the Wisconsin Supreme Court issued a decision in Department of Natural Resources v. District IV Court of Appeals. The court held that the appeal by DNR in this case must be held outside of the District IV Court of Appeals under Wisconsin’s venue statute (Wis. Stat. § 752.21(2)) created by 2011 Act 61.

The underlying litigation in this case involved the reissuance of a Wisconsin Pollutant Discharge Elimination System permit under DNR regulatory authority to a dairy farm, Kinnard Farms, Inc., located in Kewaunee County. The permit was initially reissued to Kinnard with two new permit conditions imposed by DNR. Kinnard challenged the imposition of those permit conditions for lack of DNR explicit authority. DNR initially rejected the challenge but subsequently agreed to remove the conditions and reissued the permit to Kinnard.

Clean Wisconsin, Inc., a state-wide environmental advocacy group, and Kinnard’s neighbors, the Cocharts, challenged DNR’s decision to reissue the permit without conditions. Clean Wisconsin filed a petition for judicial review in Dane County Circuit Court, and the Cocharts filed their petition in Kewaunee County Circuit Court—the home counties of Clean Wisconsin and the Cocharts, respectively. Because the Clean Wisconsin petition was filed first, the venue of both petitions was moved to Dane County Circuit Court, where the two cases were consolidated into one case. The court subsequently ruled in favor of Clean Wisconsin and the Cocharts.

DNR then appealed the Dane County Circuit Court’s Clean Wisconsin decision, requesting venue in the Wisconsin District II Court of Appeals, instead of District IV. The DNR made the request under Wis. Stat. § 752.21(2), which provides in relevant part:

(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.  [emphasis added]

Contrary to the highlighted language in the statute, the Wisconsin District IV Court of Appeals, whose district includes Dane County Circuit Court, took jurisdiction over the Clean Wisconsin case. DNR appealed the District IV decision to claim venue over the Clean Wisconsin appeal, arguing the District IV venue violated Wis. Stat. § 752.21(2).

In the 5-2 opinion (Justice Kelly, joined by Chief Justice Roggensack and Justices R. Bradley, Gableman, and Ziegler), the court agreed with DNR that the case was improperly venued under the explicit statutory section and ordered the case to be moved to the District II Court of Appeals, as initially requested by DNR.

In 2011, Gov. Scott Walker signed into law Act 61, which created Wis. Stat. § 752.21(2), aimed directly at establishing balance in administrative agency review appeals. Act 61 also amended another important venue provision governing Wisconsin courts, Wis. Stat. § 801.50(3)(a):

Except as provided in this subsection pars. (b) and (c), all actions in which the sole defendant is the state . . . shall be venued in the county designated by the plaintiff unless another venue is specifically authorized by law.

The court held that because the initial petitioner in the underlying case, Clean Wisconsin, designated Dane County Circuit Court as the court in which to file its petition, and because the Cochart’s petition was subsequently filed in Kewaunee County Circuit Court, but was removed to Dane County Circuit Court and consolidated with the Clean Wisconsin petition, the combined administrative challenge was properly venued in Dane County Circuit Court under Wis. Stat. § 801.50(3)(a), by designation of the initial petitioner. The decision said that although Clean Wisconsin was required to file in Dane County under Wis. Stat. § 227.53(1)(a), filing in the circuit court of Clean Wisconsin’s county of residence still falls under the definition of “designated” in Wis. Stat. § 752.21(2). Therefore, the initial designation of circuit court venue by Clean Wisconsin at the trial court then invoked DNR’s choice of appeals court venue under Wis. Stat. § 752.21(2).

This decision affirms the legislature and governor’s Act 61 venue reforms, enhancing Wisconsin businesses potential for receiving balanced consideration by the courts when challenging state administrative agency decisions.

In her dissent, Justice Abrahamson (joined by Justice Walsh Bradley) argued that the venue statute created by Act 61 does not apply in this case because Clean Wisconsin was required by Wis. Stat. § 227.53(1)(a) to file its petition in Dane County and thus did not “designate” the circuit court venue as required in Wis. Stat. § 752.21(2). The dissent said the term “designated by the plaintiff” indicates a choice in venue and cited the Legislative Reference Bureau and Fiscal Estimate Narrative of the original bill as indicating Act 61 “permits” the plaintiff to designate the circuit court venue, implying a necessary choice. Because Clean Wisconsin was required by statute to file in its county of residence, the dissent argues this lack of choice prohibits the application of Wis. Stat. § 752.21(2), and DNR should not be permitted to select the appellate court venue.