Tuesday, October 04, 2011

Let the state defend where it acts

I need a break from the Brewers' off night (not that I'm giving up) and spent some time perusing WisOpinion. There is a link to a site called Badger Democracy and a post by someone named Scott Wittopf regarding SB 117, a modification to Wisconsin's venue statute. It is a topic near and dear to my heart and, while I commend WisOpinion for recognizing its importance and even to Mr. Wittopf for addressing it, he doesn't have it right.

To get the legal jargon aside, "venue" has to do with where, from all the courts which may have jurisdiction over a matter, the action must, at least presumptively, be brought. Under current law, if the state is the sole defendant action in an action, it must be venued in Dane County. Don't like what the GAB or Governor has done ? It's Madison for you.

There are a few problems with this. First, it is not at all clear why an aggrieved taxpayer or citizen should have to go to Madison to challenge an action that affects him in Milwaukee, Superior or Crivitz. This is Mr. Wittkopf's first big mistake. He seems to assume that, if you want to sue a corporation, you must go to the county in which it is headquartered. That isn't true. Putting aside the more esoteric grants of venue, you can always sue in the county in which the cause of action arose or a county in which the corporation does any substantial business. Mr. Wittkopf may not know it, but both Wisconsin and non-Wisconsin corporations get sued away from home every day of the year.

Second, there is an inherent threat to judicial independence associated with venue in Dane County. Dane is a company town dominated by the interests of state government and allied interests. Much of the time, this doesn't much matter. But on hot button issues - like Act 10 or other politically charged issues - Dane County judges find themselves faced with issues on which an overwhelming majority of the people who vote them in or out or office feel intensely and lopsidedly. Under those circumstances, venue might be better placed elsewhere.

This is not to cast aspersions on any Dane County judge. We all do our best. We are all challenged by the circumstances in which we find ourselves.

Don't follow? Let me expand. About 15 years ago, I represented the Wisconsin Trial Judges Association with respect to a challenge to the election of judges on a county wide basis under the Voting Rights Act. The case was brought by the Milwaukee chapter of the NAACP who wanted judges in Milwaukee County to be elected by districts drawn within the County. The idea was that a north side district would be most likely to elect an African American judge.

The trial judges mostly hated the idea. As one judge from the North Shore told me, he was charged to hear cases from throughout the county. But if he decided that an inner city defendant defendant was entitled to a break, it might not sit well with his neighbors. If he has to hear cases from throughout the county, he ought to be elected by voters throughout the county.

The issue here is different but informed by the same insight. State actions affect people throughout the state. Why shouldn't those actions be subject to judicial review throughout the state? To be sure, there can be parochial interests in any particular county, but those interests are not - in the run of cases in which this matters - any more parochial than those of the voters of Dane County.

While some federal actions need to be heard in DC, the Wisconsin rule is not the rule in federal courts. You can challenge federal actions across the country and it seems to have worked relatively well. The need for that flexibility is behind SB 117,I'm not sure that I would have given an untrammeled choice of venue to the plaintiff or appellant, but this is a move in the right direction.


Tom said...

"I'm not sure that I would have given an untrammeled choice of venue to the plaintiff or appellant."

This is one of my two biggest concerns. Although the idea meets my personal ideological goals, institutionally I don't see it as any improvement in the system that people will be able to bring actions challenging state actions in the most conservative counties instead of the most liberal.

I also don't like the idea of spending taxpayer money ferrying government lawyers and staff all over the state - you could have actions happening simultaneously in all four corners of the state.

Maybe a special court that sits in Madison but is filled by lot from a pool of retired judges and justices? A special court that sits in Madison and is elected statewide solely for these cases? Grant original jurisdiction over these cases to the Wisconsin Supreme Court?

Although I appreciate the goal here, I think there are better ways to achieve it.

Anonymous said...

It sounds more like a policy to save time and money for State employees then a law based on where the action was committed.

Perhaps they could select locations as Regional Courts to conduct hearings against the State?

Rick Esenberg said...

Why is it better to impose the cost of lawyers ferrying all over the state on private litigants?

The odd disjoint between trial and appellate venue is, I take it, supposed to address forum shopping and I suppose the rationale is that the state is everywhere. But I would have suggested a different approach for the reasons you suggest.

Still, its better than what we have now.

Tom said...

"Why is it better to impose the cost of lawyers ferrying all over the state on private litigants?"

Because the costs are then born by people who make the decisions leading to the costs rather than taxpayers?

I agree it's better than what we have now, although if Dane County were a more temperate political clime, I don't think I would agree.

Rick Esenberg said...

I don't know that you can say that the plaintiff is the one making the decision to impose the costs. Why isn't a state agency who has made a decision leading to the need for litigation equally (or more) responsible?

Geo mitchell said...

Excellent point, Rick. I am soon to be a small claims plaintiff in a defective product case. The defendant caused the problem.

Dad29 said...

Well, George....

A friend of mine was Chief Engineer for Briggs. Met him at some obscure airport one day (entirely by coincidence) and asked what in blazes he was doing there--in Lower Slobbovia...

Defending Briggs. Some bozo had cut off his foot with a no-name walk-behind, and sued Briggs, too.

Ask Shiely for advice!

Rick Esenberg said...

And I suspect that George will bring his case in Milwaukee County Circuit court.

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