Thursday, January 12, 2012

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.


Display Name said...

I think you forgot to link to your post where you criticized this new law before it was passed. And you were on TV, radio, and in the newspaper about that, too, right?

Rick Esenberg said...

I am only one man, Foust. Only one.

Display Name said...

In other words, sometimes Marquette pays you to not say something about what you believe to be a bad law.

What were you busy with when this venue-shopping law was being passed? Or was it one of those ten-minutes-start-to-finish-including-public-comment bills?

Anonymous said...

Like Rushbo's doctor shopping, don't expect any charges anytime soon.

Anonymous said...

First, if the professor had criticized this law before, as Foust alleges, what were the professors specific reasons? Is his current rationale similar or different than his past concerns? IF his views changed, why?

We all await the professor's response in the name of transparency.

Next, what political party was the driving force behind the new change in venue laws? Could it be the GOP? IF YES, why did the professor neglect to mention it?

Relevance, your honor! Well, certainly this law could further an agenda in some way, shape, or form. Not saying that the Democrats would refuse to pull this same stunt, but it is intriguing the professor makes no effort to, at the very least, identify the political party and speculate on its motives. Apparently, our current political climate is all about seeking redress of grievances in a court that, in all likelihood, will twist and turn the law into a desired outcome. So much for the letter of the law, eh, professor?

Next, interesting how the professor makes this statement "All lawyers will try to get their case into the best possible forum" without providing the specific reasons why.

Could it be the lawyers realize that a judge, who supposedly is non-partisan, will more than likely side with their legal arguments? That, in the event of "losing", the provision of the law enables the plaintiff to seek a redress in a court of their choosing that will, most likely, rule in their favor?

I wonder if these are the "advantages" the professor implies. But the dear professor pooh-poohs these notions, arguing "what you expect in a particular place is not always what you get" and "decisions are not foredained". Sir, in this SPECIFIC instance, the lawyers chose Waukesha County. Judge Mac Davis. The outcome is predictable, so who are you trying to kid?

Next, the professor provides this reason (I guess) for supporting the change in venue laws--"there is no reason to force taxpayers to Madison in order to sue their own government". Objection, your honor, "fuzzy concept".

Finally, the professor has the audacity to infer that the GAB is appealing Davis' ruling by seeking a "favorable forum" because it is beholden to Democrats. Any evidence to support your accusation the GAB is doing the bidding of liberal partisans? Could it not be that the six former judges which consist of the GAB find Davis' ruling to be conservative judicial activism?

No, of course not, that concept is only reserved to liberal judges /sarcasm

George Mitchell said...

anon 10:09 says Rick should explain why

"All lawyers will try to get their case into the best possible forum"....

Yeah, that's a real mystery.

Display Name said...

Sorry, Anony. Sometimes I'm a bit dry and oblique. The Professor tends to look the other way when his WisGOP overlords are doing something wrong. The cognitive dissonance must be painful.

If he spoke out against this major change in the law, I'd be glad to see the link. After all, part of his job at Marquette is to speak about issues of the law as to serve the public.

In this case, if he didn't speak out, perhaps it was because he feels he can't criticize the WisGOP until after they've implemented a law. It's kind of like the Standard Contradictory Disclaimer™, except time-reversed. Now he can always point to this post, take a sip from the wine glass, and say "Well, you know, I did criticize that change to the law."

George, it's simple odds improvement. There's almost 50 circuit court judges in Milwaukee County, almost 20 in Madison, and an average of two in every other county, for a total of about 200 in the state.

It wasn't about propinquity, even though that was the primary argument when they passed this. "Woe is us, imagine being in Ashland and having to come to Madison to sue the State." Somehow this distance argument doesn't matter when it comes to mining hearings, though.

Instead of heading 80 minutes away to Mac Davis, why didn't the WisGOP save a half-hour of driving and attempt to get Koschnick in Jefferson County? Because they knew Davis would give them an even better deal.

Anonymous said...

Hey, George Mitchell, why don't you enlighten me with your Chinese puzzle sleuthing!

Tom said...

What a surprise, the liberals can't bring themselves to admit they agree with you on the substance of a legal issue, so they fall back to personal attacks (not even open and honest criticism, just ugly attacks) instead.

On the merits, I agree that this is better than the prior arrangement of always-Dane, but not by much.

I would like to see a system that creates some kind of panel randomly drawn from a pool of certain judges (reserve and court of appeals, maybe?) that MEETS in Madison (save the government the money sending their lawyers all over the state), and also only hears challenges to actual laws or actions of a state body (not, say, an open records suit against a lawmaker from up north).

As to why a judge might be more favorable, there are many jurisprudential reasons a judge might be more favorable to your argument that have absolutely nothing to do with partisan ideology or bias.

Display Name said...

Charming idea, Tom. So which laws are "actual laws". You mean when they say "open records law", it's not a real law?

Wis. Stat. § 19.81(1) says "In recognition of the fact that a representative government of the American type is dependent upon an informed electorate, it is declared to be the policy of this state that the public is entitled to the fullest and most complete information regarding the affairs of government as is compatible with the conduct of governmental business."

Not important, not a "real law"? That's some powerful substance you've got there. Chronic?

Anonymous said...

Tom--"What a surprise, the liberals can't bring themselves to admit they agree with you on the substance of a legal issue."

What a surprise that conservatives can't bring themselves to admit that the GOP, IF the change in venue law occurred on its watch, passed it to give themselves another potential advantage. And, if you read my post at 10:09 p.m., you would have noted that I stated that the Democrats in the same situation would have engaged in the same conduct.

So, what's your point again???

If you carefully read my 10:09 p.m., you would see this "liberal" is ONLY challenging the reasoning behind the professor's interpretation, and NOT the overall point--the change in venue law is flawed.

However, it appears that the professor is hedging his bets--"well, I agree that venue shopping should not happen, but it does, and while the GOP do it, the Democrats do it too, because lawyers want every possible edge imaginable. But, the law does have merit, even though it is being used in a manner that could have undesirable effects".

Spoken like an (R) or (D) partisan.

Tom--"As to why a judge might be more favorable, there are many jurisprudential reasons a judge might be more favorable to your argument that have absolutely nothing to do with partisan ideology or bias."

You really believe what you wrote, Tom? Ok, what pray tell are these "jurisprudential reasons"? Please, I'm all ears...

Tom said...

John, did you even read what I wrote?

I said "challenges to actual laws", so, you know, if you were actually challenging the constitutionality of a state law. Bringing an open records suit is not challenging a law, it's challenging the ACTION of an individual government official.

Anonymous said...

Tom, your last post now makes it clearer what you were trying to say before.

But, let's stick to the point at hand. Care to respond to my inquiries, or did not even read what I wrote at 2:18 p.m.?

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