Of venue and forum shopping

My post on the Marquette University Law School Faculty Blog on Judge Davis' decision ordering the GAB to conduct a more extensive review of recall petitions can be found here.

The decision of the plaintiffs to file in Waukesha County has been derided as "forum shopping" facilitated by a new law that permits a plaintiff to, subject to certain exceptions, choose any county in which to bring suit in an action where the state and its agents are the sole defendants.

This provides an opportunity to comment on the idea of "forum shopping" and the new law governing suits against the state.

First, all lawyers will try to get their case into the best possible forum. For example, the current challenge to redistricting pending in federal court was a blatant exercise in forum shopping. The plaintiffs filed a challenge before the new districts had been passed. They did do by arguing that the old districts - which no one intended to keep - had become unconstitutional in light of the 2010 census. (As old districts always do.)

The purpose was to win the "race to the courthouse door" in an attempt to keep redistricting out of state court (which the US Supreme Court has suggested is the preferred forum). Do I blame the plaintiffs' lawyers for doing this? No. They were employing whatever tools were available to them.

The change in venue laws for actions against the state was a good idea that was poorly executed. It was a good idea because there is no reason to force taxpayers to Madison in order to sue their own government. One does not generally have to go to DC in order to sue the federal government and so it should be here. Looking at it another way, it may not inspire public confidence to require suits against the Company to be brought in the Company Town.

But it was not necessary to allow a plaintiff to pick any county. A better approach would have been to permit the plaintiff to sue in Dane or in any county in which a substantial part of the cause of action arose or the harm was suffered. These can be fuzzy concepts but they work in other contexts.

Because the new law went beyond that in giving the plaintiff an unlimited choice of venue, the law has a curious venue provision in the event of appeal.  The losing side in the trial court can pick the district in which the appeal will be heard as long as it is not the district in which the trial court is located.

I am sure that this was intended to discipline plaintiff's unlimited choice of forum but it also enhances the opportunity for gamesmanship - and we see that in the case challenging the GAB's intent to conduct a more limited review of petitions.

Of course, the plaintiffs chose Waukesha because they expected it to be a favorable forum. Having lost, the GAB Democratic groups (Ed.: It was Democratic groups that had attempted to intervene that filed an appeal - not the GAB) that attemted unsuccessfully to intervene have now chosen District IV of the the Court of Appeals which embraces - Dane County. They certainly expect that District IV will be a more favorable forum.

Of course,what you expect in a particular place is not always what you get. Judges are limited by the law in ways that politicians are not. Neither Judge Davis' decision - or whatever a District IV panel might do - was or is foreordained. Lawyers understand that but if you can do something that might improve the odds, it's hard to explain  to your client why you shouldn't try..

So lawyers on all sides look to get whatever advantage they can. Railing against Republicans for forum shopping is only going to bring examples of Democrats doing the same thing.

And vice versa.

The changes in the venue law were undertaken in response to some serious objections concerning the old law but may not have been the best way to address them.