Nancy Kormanik v. William Brash

2022 WI 67SUPREME COURT OF WISCONSIN
NOTICE
This order is subject to further
editing and modification. The
final version will appear in the
bound volume of the official
reports.
No. 2022AP1736-W
State of Wisconsin ex rel. Nancy Kormanik,
Petitioner,
v. FILED
William Brash, in his official capacity as
OCT 26, 2022
Chief Judge of the Court of Appeals,
Sheila T. Reiff
Respondent, Clerk of Supreme Court
Madison, WI
Wisconsin Elections Commission, Democratic
National Committee, and Rise, Inc.,
Interested Parties.
The Court entered the following order on this date:
¶1 Nancy Kormanik has filed a petition for a supervisory
writ, claiming that petitions for leave to appeal filed by the
Democratic National Committee ("DNC") and Rise, Inc. ("Rise") in
Kormanik v. Wisconsin Elections Commission, Case Nos. 2022AP1720-
LV and 2022AP1727-LV, are pending in the wrong appellate district.
Because we agree with Kormanik, we grant her petition for a
No. 2022AP1736-W
supervisory writ and vacate the appellate order transferring venue
from District II to District IV.
¶2 This case arose out of a lawsuit filed by Kormanik in
Waukesha County circuit court against the Wisconsin Elections
Commission ("WEC"). Generally speaking, the complaint alleged
that two documents provided by the WEC to municipal clerks
erroneously interpreted certain election statutes as permitting a
clerk to "spoil" an absentee ballot at an elector's request. The
complaint asked the circuit court to: (1) declare that municipal
clerks are prohibited from "spoiling" a previously completed and
submitted absentee ballot; (2) declare that any WEC publication
that states otherwise shall be rescinded or otherwise removed from
availability to the public; (3) declare that the WEC failed to
promulgate the documents at issue as administrative rules; and (4)
temporarily and permanently require the WEC to cease offering
incorrect guidance and to promptly issue corrected guidance.
¶3 Rise and the DNC moved to intervene in the matter. The
circuit court granted their motions.
¶4 Kormanik moved the circuit court to issue a temporary
injunction directing the WEC to withdraw the challenged documents
and to cease providing further guidance on the subject. On Friday,
October 7, 2022, after a hearing, the circuit court granted
Kormanik's motion and thereby required the WEC to withdraw the
challenged documents and all similar publications, as well as to
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notify all municipal clerks and local elections officials of their
withdrawal, by 7:00 p.m. on October 10, 2022. The WEC moved the
court to stay the temporary injunction, which the circuit court
denied.
¶5 Later on October 7, 2022, the DNC and Rise filed separate
petitions for leave to appeal and requests for a stay of the
circuit court's temporary injunction pending appeal. The DNC and
Rise directed their petitions and stay requests to appellate
District IV.
¶6 The court of appeals, by Chief Judge William Brash,
ordered the parties to file letter memoranda by Monday, October
10, 2022, regarding the proper appellate district to consider the
petitions and stay requests.
¶7 The letter memoranda subsequently filed by the parties
addressed the following statutes (2019-20):
Wis. Stat. § 752.21(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.
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Wis. Stat. § 801.50(3)(a) and (b)
(a) Except as provided in pars. (b) and (c), 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.
(b) All actions relating to the validity or [invalidity]
of a rule or guidance document shall be venued as
provided in s. 227.40(1).
Wis. Stat. § 227.40(1)
(1) Except as provided in sub. (2), the exclusive means
of judicial review of the validity of a rule or guidance
document shall be an action for declaratory judgment as
to the validity of the rule or guidance document brought
in the circuit court for the county where the party
asserting the invalidity of the rule or guidance
document resides or has its principal place of business
or, if that party is a nonresident or does not have its
principal place of business in this state, in the circuit
court for the county where the dispute arose. The officer
or other agency whose rule or guidance document is
involved shall be the party defendant. . . . The court
shall render a declaratory judgment in the action only
when it appears . . . that the rule or guidance document
or its threatened application interferes with or
impairs, or threatens to interfere with or impair, the
legal rights and privileges of the plaintiff. A
declaratory judgment may be rendered whether or not the
plaintiff has first requested the agency to pass upon
the validity of the rule or guidance document in
question.
¶8 In its legal memorandum to Chief Judge Brash, the DNC
argued that according to precedent——primarily, State ex rel. DNR
v. Wisconsin Court of Appeals, District IV, 2018 WI 25, 380
Wis. 2d 354, 909 N.W.2d 114——Kormanik's complaint fell within the
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scope of § 801.50(3)(a), and therefore triggered the appellate
venue-shifting provision of § 752.21(2). The DNC argued that
because, under DNR, a plaintiff still "designates" a circuit court
venue under § 801.50(3)(a) even though the plaintiff is required
by another statute to lay venue in that particular county, Kormanik
should also be deemed to have designated venue under
§ 801.50(3)(a)——thereby triggering the venue-shifting provision of
§ 752.21(2)——even though her complaint cited § 801.50(3)(b).
Finally, the DNC argued that Kormanik's complaint fell within the
scope of § 801.50(3)(a) because her claim goes beyond that
contemplated by § 801.50(3)(b) in that it is not restricted to a
§ 227.40(1) action relating to the validity or invalidity of a
guidance document, but additionally seeks injunctive relief.
¶9 Like the DNC, Rise argued in its letter memorandum to
Chief Judge Brash that Kormanik's complaint is governed by Wis.
Stat. § 801.50(3)(a) because her complaint was not truly a
challenge to the validity of a guidance document, but instead was
one seeking a declaratory judgment regarding various election
statutes.
¶10 In her letter response to Chief Judge Brash's order,
Kormanik argued that her case was venued as a matter of law under
Wis. Stat. § 801.50(3)(b) because it is a declaratory judgment
action under § 227.40(1) relating to the validity of a guidance
document by the WEC. Because the case was venued under
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§ 801.50(3)(b), Kormanik argued, any appeal from that action had
to be venued in the district encompassing the Waukesha County
circuit court pursuant to § 752.21(1).
¶11 On the same day that the parties filed their letter
memoranda on appellate venue, Chief Judge Brash entered an order
that largely agreed with the DNC's position. Chief Judge Brash
held that, under the reasoning of DNR, even though Wis. Stat.
§ 801.50(3)(b) required Kormanik to designate venue in the circuit
court in accordance with § 227.40(1), she was also designating
venue within the meaning of § 801.50(3)(a). Thus, the venue-
shifting provision of § 752.21(2) applied, such that venue was
appropriate in the appellate district selected by the DNC and Rise—
—District IV.1
¶12 Later in the day on October 10, 2022, District IV issued
an order in both leave matters. Because the circuit court's
injunction order required that the WEC comply with it by 7:00 p.m.
that evening, the court of appeals granted a temporary stay of the
circuit court's injunction pending the court of appeals' decision
on whether to grant leave to appeal.
1 We note that Chief Judge Brash's order was captioned as
applying only to the appeal number associated with the DNC's
petition for leave to appeal, Case No. 2022AP1720-LV. The order
self-evidently also applies to the appeal number associated with
Rise's petition for leave to appeal, Case No. 2022AP1727-LV.
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¶13 The following day, October 11, 2022, Kormanik filed a
petition for a supervisory writ in this court.2 As she did below,
Kormanik argued that Wis. Stat. § 801.50(3)(b) controlled venue in
the circuit court because she filed a declaratory judgment action
under § 227.40(1) that related to the validity or invalidity of a
rule or guidance document. Because venue was proper under
§ 801.50(3)(b), Kormanik argued, this case cannot also fall within
§ 801.50(3)(a). This is so because § 801.50 itself describes
subsection (3)(b) as an exception to subsection (3)(a), and the
court must give that exception meaning. She asked this court to
stay the proceedings in the court of appeals during the pendency
of her writ petition, and to order the leave petitions filed by
the DNC and Rise to be returned to District II.3
¶14 On October 12, 2022, this court ordered responses to
Kormanik's writ petition. It also directed the court of appeals
The caption in this case designates the Court of Appeals,
2
Districts II and IV as respondents. It also designates the
Wisconsin Elections Commission as defendant-respondent and the
Democratic National Committee and Rise, Inc. as intervenor-
defendant-respondents. These designations are in error. The clerk
of this court is directed to amend the caption to remove the Court
of Appeals, Districts II and IV as respondents; to designate Judge
William Brash, in his official capacity as Chief Judge of the Court
of Appeals, as the respondent; and to designate the Wisconsin
Elections Commission, the Democratic National Committee, and Rise,
Inc. as other interested parties. We use this corrected caption
in this order.
Kormanik did not ask this court to vacate the stay of the
3
circuit court injunction order issued by District IV. Because we
have not been requested to address the stay, we do not address it.
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to take no further action in Case Nos. 2022AP1720-LV and
2022AP1727-LV until further order of this court.
¶15 In his response, Chief Judge Brash sets forth two primary
reasons why Kormanik's writ petition should be denied. First, he
argues that he did not violate any plain legal duty because his
venue order was correct under the applicable statutes and the
reasoning of DNR. He asserts that in DNR, this court concluded
that both Wis. Stat. §§ 801.50(3)(a) and 227.53(1)(a)3. could
apply, such that even when § 227.53(1)(a)3. required the plaintiff
to venue the circuit court action in the plaintiff's county of
residence, the plaintiff was still designating venue within the
meaning of § 801.50(3)(a). Here, Chief Judge Brash maintains that
§ 801.50(3)(b) required Kormanik to venue her complaint in
Waukesha County under § 227.40(1), but as in DNR, that requirement
does not mean that Kormanik did not also designate venue under
subsection (3)(a). Second, Chief Judge Brash argues that Kormanik
forfeited any arguments based on DNR because she did not raise
those arguments in her letter memorandum to him regarding appellate
venue.
¶16 DNC and Rise filed responses that largely repeat their
arguments made in their letter memoranda to Chief Judge Brash.
¶17 Kormanik's writ petition and the responses thereto are
now before us to decide whether to grant the requested writ. "A
supervisory writ is 'an extraordinary and drastic remedy that is
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to be issued only upon some grievous exigency.'" DNR, 380
Wis. 2d 354, ¶8 (quoting State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110). "As the
court of original jurisdiction, we have discretion to issue a
supervisory writ." State v. Buchanan, 2013 WI 31, ¶11, 346
Wis. 2d 735, 828 N.W.2d 847. In DNR, this court addressed whether
the requirements for a supervisory writ were satisfied in the
context of an appellate venue challenge under Wis. Stat.
§ 752.21(2). DNR, 380 Wis. 2d 354, ¶2. There, we stated that:
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."
Id., ¶9 (quoting Kalal, 271 Wis. 2d 633, ¶17).
¶18 We will consider only the first three factors identified
above, as there is no dispute that Kormanik "promptly and speedily"
filed her writ petition by doing so the day after the court of
appeals issued its venue order. We address the remaining three
factors in turn.
¶19 The obligation to venue an appeal in the correct district
is a "plain duty" for purposes of the supervisory writ
requirements. We reasoned in DNR that because the general
appellate venue provision in § 752.21 utilizes the mandatory word
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"shall," "the court of appeals has no discretion with respect to
where it must hear the appeal. . . . [T]he 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." 380 Wis. 2d 354, ¶13.
¶20 Having determined that a plain duty existed, the
question becomes whether Chief Judge Brash violated this duty when
he ordered the transfer of appellate venue from District II to
District IV. We conclude that he did.
¶21 To begin, we note that Kormanik's lawsuit clearly
"relat[ed] to the validity or [invalidity] of a rule or guidance
document" within the meaning of Wis. Stat. § 801.50(3)(b). It is
likewise clear that Kormanik's lawsuit remained within the
confines of § 801.50(3)(b) even though she sought injunctive
relief in addition to declaratory relief. See Wis. Stat.
§ 801.50(3)(b) (requiring actions brought thereunder to "be venued
as provided in s. 227.40 (1)"); see also Wis. Stat. § 227.40(1)
(providing that "the exclusive means of judicial review of the
validity of a rule or guidance document shall be an action for
declaratory judgment as to the validity of the rule or guidance
document"). Because Kormanik's claim for injunctive relief was
completely dependent upon a favorable decision on her claim for
declaratory relief, her action is quintessentially one for
declaratory relief. See Wis. Stat. § 806.04(1) ("Courts of record
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within their respective jurisdictions shall have power to declare
rights, status, and other legal relations whether or not further
relief is or could be claimed.").
¶22 Having determined that Kormanik's action "relat[ed] to
the validity or [invalidity] of a rule or guidance document" within
the meaning of § 801.50(3)(b), the question becomes whether, as
Chief Judge Brash reasoned, venue is also proper under
§ 801.50(3)(a). The answer is no. The legislature chose to begin
subsection (3)(a) with the phrase "Except as provided in pars. (b)
and (c), . . . ." Although the DNC argues that this phrase means
that subsection (3)(b) "is incorporated by reference in subsection
(3)(a)," agreeing with this argument would require us to ignore
the plain meaning of that phrase. We will not do so; a statute
cannot incorporate that which it specifically excepts.
¶23 The legislature "expresses its purpose by words. It is
for us to ascertain——neither to add nor to subtract, neither to
delete nor to distort." 62 Cases, More or Less, Each Containing
Six Jars of Jam v. United States, 340 U.S. 593, 596 (1951). The
language of Wis. Stat. § 801.50(3)(a) and (3)(b) is plain, whether
considered alone or in conjunction with the appellate venue
statute, § 752.21. The challenged interpretation of these
statutes is not true to their language.
¶24 We are unpersuaded by alternative arguments raised in
opposition. Although Chief Judge Brash claims that Kormanik has
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forfeited any precedent-based arguments by failing to raise them
in her letter memorandum on appellate venue, this argument is
unpersuasive given that Kormanik's arguments depend not on
precedent but on the plain text of the applicable statutes.
Moreover, the case cited most frequently in the parties' briefing,
DNR, is not as on point as the DNC, Rise, and Chief Judge Brash
suggest. DNR did not involve the interplay between § 801.50(3)(a)
and (3)(b), and indeed made clear that § 801.50(3)(b) was "not
relevant to this case." DNR, 380 Wis. 2d 354, ¶16 n.8. The other
case cited in the parties' briefing, Teigen v. Wisconsin Elections
Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, is
similarly unenlightening. Our decision in Teigen arose from a
Waukesha County case against the Wisconsin Elections Commission
that was venued on appeal in District IV after the appellants
selected that district——without objection——pursuant to Wis. Stat.
§ 752.21(2). However, Teigen came to us on a petition for bypass,
so the issue of proper appellate venue was not presented and was
not litigated. Teigen is not helpful authority on an issue left
unexamined.
¶25 Next, we determine whether an appeal would be an adequate
remedy to address the question of appropriate appellate venue.
Based on our holding in DNR, the answer is no. We explained in
DNR that there is no "appellate pathway" to seek review of
appellate venue questions, and that obtaining review of such
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questions via a petition for review "would depend on a
serendipitous confluence between (1) the venue error, and (2) a
'plus' factor, such as we describe in Wis. Stat. § (Rule)
809.62(1r) (criteria for granting review)." 380 Wis. 2d 354, ¶43.
Thus, we concluded "that a petition to review the court of appeals'
eventual decision on the merits is an inadequate remedy to address
the question of appropriate appellate venue." Id., ¶45. This
rationale clearly applies to Kormanik's writ petition in this case.
¶26 Finally, we determine whether Kormanik would suffer
irreparable harm if this court denies the supervisory writ. Again,
we are guided by our decision in DNR. There, we reasoned that the
right to choice of venue under § 752.21(2) is a "statutorily
granted right" and that it is "nearly tautological to observe that
losing a statutorily-granted right is a harm. Losing the right
with no means to recover it makes the harm irreparable." Id.,
¶47. We further held in DNR that because a petition for review is
not a suitable remedy for correcting an error in appellate venue,
without a supervisory writ, an appellate litigant "would be left
with no sure means by which to remedy the deprivation of its
statutory right. That makes the loss, by definition, irreparable."
Id., ¶47. Thus, for purposes of the irreparable harm requirement
for obtaining a supervisory writ, DNR held that losing the right
to a statutorily mandated appellate venue is itself an irreparable
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harm. Under the rationale of DNR, Kormanik would suffer an
irreparable harm if she were denied a change of appellate venue.
¶27 Whether to issue a supervisory writ is, as we have
repeatedly affirmed, a discretionary decision. Buchanan, 346
Wis. 2d 735, ¶11. While not every appellate venue question is
proper fodder for a supervisory writ, we determine it is
appropriate here in light of our decision in DNR and to facilitate
the efficient administration of justice in the decision on appeal.
We therefore grant the petition for a supervisory writ and vacate
the October 10, 2022 appellate order transferring appellate venue
from District II to District IV. The court of appeals shall hear
these matters in District II.
¶28 IT IS ORDERED that the petition for supervisory writ is
granted, and the October 10, 2022 order of the Chief Judge
transferring appellate venue from District II to District IV of
the court of appeals is vacated; and
¶29 IT IS FURTHER ORDERED that the petitions for leave to
appeal filed by the Democratic National Committee and Rise, Inc.,
respectively, in Kormanik v. Wisconsin Elections Commission, Case
Nos. 2022AP1720-LV and 2022AP1727-LV, shall be heard in District
II of the court of appeals.
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No. 2022AP1736-W.rfd
¶30 REBECCA FRANK DALLET, J. (concurring). I agree with
the court's order granting Kormanik's petition for a supervisory
writ. A straightforward application of the venue statutes, Wis.
Stat. §§ 801.50(3)(b), 752.21(2) and the related statute, Wis.
Stat. § 227.40(1), requires that the petitions for leave to appeal
and motions for temporary stay pending appeal be decided by
District II of the court of appeals, not District IV. And given
the court of appeals' decision on venue in this case, exercising
our equitable discretion to grant the writ is the only way to
ensure that this case is heard in a timely manner and in the proper
venue.
¶31 I write separately, however, because I am concerned that
our decision in State ex rel. DNR v. Wisconsin Court of Appeals,
District IV, 2018 WI 25, 380 Wis. 2d 354, 909 N.W.2d 114 (DNR) may
be written too broadly, and in a way that appears inconsistent
with other decisions regarding the availability of supervisory
writs. A supervisory writ is supposed to be an "extraordinary and
drastic remedy that is to be issued only upon some grievous
exigency." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. Yet DNR appears to
suggest that whenever the court of appeals misapplies the venue
statutes, a per se irreparable harm has occurred which an appeal
cannot adequately remedy, and a supervisory writ must issue as a
result. See DNR, 380 Wis. 2d 354, ¶¶43-48. These conclusions are
hard to square, however, with the equitable discretion we have in
deciding whether to grant such a writ, see, e.g., Kalal, 271
Wis. 2d 633, ¶17, and with the idea that applying the law correctly
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"is not the type of plain legal duty contemplated by the
supervisory writ procedure." State ex rel. Two Unnamed Petitioners
v. Peterson, 2015 WI 85, ¶81, 363 Wis. 2d 1, 866 N.W.2d 165.
Additionally, DNR broadly asserts that "losing a statutorily-
granted right is a harm," and that "[l]osing the right with no
means to recover it makes the harm irreparable." DNR, 380
Wis. 2d 354, ¶47. But not all denials of a statutory right without
a remedy, no matter how trivial within the context of a case, are
the kind of "grave or irreparable harm" our supervisory writ cases
are concerned with. See Alt v. Cline, 224 Wis. 2d 72, ¶52, 589
N.W.2d 21 (1999). Finally, DNR relies on the fact that venue
determinations by the court of appeals are not appealable to this
court as of right in concluding that such appeals are not an
adequate remedy. DNR, 380 Wis. 2d 354, ¶¶43-44. But as DNR
acknowledges, no issue is appealable to us as of right. See id.,¶43 & n.18 ("Strictly speaking, there is no right of appeal to
this court at all."). We only grant review when one or more of
our criteria for review in Wis. Stat. § (Rule) 809.62(1r) are met.
If this language from DNR is read too broadly, it would mean that
an appeal is never an adequate remedy, which would "transform the
writ into an all-purpose alternative to the appellate review
process." Kalal, 271 Wis. 2d 633, ¶24.
¶32 Despite these potential problems with DNR, no party
asked us to revisit it in this case. Nevertheless, in a future
case, we should seriously consider doing so, or possibly clarifying
DNR to bring it more into line with our other cases regarding the
availability of supervisory writs.
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¶33 Additionally, I note that the way in which the venue
issue was litigated in this case and in others may not be the best
practice in all cases. Here, as our order explains, both of the
appellants directed their petitions for leave to appeal and stay
motions to District IV. Nevertheless, Chief Judge Brash sua sponte
ordered the parties to submit letters regarding the proper
appellate venue, and ultimately decided that District IV should
hear this case. Chief Judge Brash explained that he did so because
he views venue as an "administrative matter, not a substantive
matter in the appeal," and therefore that it fell within his
purview as Chief Judge. See Wis. Ct. App. IOP I (Nov. 30, 2009).
But it's not clear to me why that would be the case.
¶34 In any event, that's not how venue issues have come up
in the court of appeals before. In DNR, one judge on District IV
sua sponte rejected the DNR's designation of appellate venue in
District II, and a three-judge panel from District IV subsequently
denied a motion for reconsideration of that decision. DNR, 380
Wis. 2d 354, ¶5; see also Clean Wis., Inc. v. DNR, No. 2016AP1688,
unpublished order, at 2 (Wis. Ct. App. Aug. 31, 2016); Clean Wis.,
Inc. v. DNR, No. 2016AP1688, unpublished order, at 4-5 (Wis. Ct.
App. Sept. 29, 2016). Yet in another case, the parties themselves
raised venue objections, see League of Women Voters v. Evers, No.
2019AP559, unpublished order, at 1 (Wis. Ct. App. Mar. 27, 2019)
(Stark, P.J.), which were ruled on by the presiding judge. Id. at
1 (rejecting a motion for reconsideration of an order "rejecting
[the respondents'] objection to the decision of [the court of
appeals'] clerk to docket this appeal in District III). And in
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others, neither the court of appeals nor the parties seem to have
noticed or raised a potential venue defect. See, e.g., Teigen v.
Wis. Elecs. Comm'n, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519.
¶35 Courts should strive for consistency in process. Yet
there doesn't appear to be any reason why the venue issues in these
cases were treated differently. Although there may be some
situations in which the court of appeals may appropriately raise
a venue issue, I question whether that should be the default
approach. After all, venue is not jurisdictional. See Kett v.
Community Credit Plan, Inc., 228 Wis. 2d 1, 12, 596 N.W.2d 786(1999). We generally leave it to the parties to raise venue
objections in circuit court, see Wis. Stat. § 801.51, and I see no
reason why the general appellate motions statute, Wis. Stat.
§ (Rule) 809.14(1), would not allow parties to an appeal to do the
same thing. Whatever the process is, however, it should be clearly
defined so the court of appeals and the parties know how to raise
and decide venue issues.
¶36 I am authorized to state that Justices BRIAN HAGEDORN
and JILL J. KAROFSKY join this concurrence.
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1