Schroeder v. Register Pub. Corp., s. 84-1320

• Decision Date: 24 June 1985
• Docket Number: Nos. 84-1320,84-1321-W,s. 84-1320
• Court: Wisconsin Supreme Court
• Parties: Daniel SCHROEDER and Victor Schroeder, Plaintiffs-Respondents, v. REGISTER PUBLISHING CORPORATION, Shawano Evening Leader Company, Chippewa Publishing Co., Inc., Baraboo Publishing Co., Inc., John M. Lavine and Greg Smith, Defendants-Appellants. STATE ex rel. REGISTER PUBLISHING CORPORATION, Shawano Evening Leader Company, Chippewa Publishing Co., Inc., Baraboo Publishing Co., Inc., John M. Lavine and Greg Smith, Petitioners, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable Richard W. Bardwell, presiding, Daniel Schroeder and Victor Schroeder, Respondents.

Page 387

369 N.W.2d 387

124 Wis.2d 384

Daniel SCHROEDER and Victor Schroeder, Plaintiffs-Respondents, v. REGISTER PUBLISHING CORPORATION, Shawano Evening Leader

Company, Chippewa Publishing Co., Inc., Baraboo

Publishing Co., Inc., John M. Lavine and

Greg Smith, Defendants-Appellants.

STATE ex rel. REGISTER PUBLISHING CORPORATION, Shawano

Evening Leader Company, Chippewa Publishing Co.,

Inc., Baraboo Publishing Co., Inc., John

M. Lavine and Greg Smith, Petitioners, v. CIRCUIT COURT FOR DANE COUNTY, the Honorable Richard W.

Bardwell, presiding, Daniel Schroeder and Victor

Schroeder, Respondents.

Nos. 84-1320, 84-1321-W.

Supreme Court of Wisconsin.

Argued April 2, 1985.

Decided June 24, 1985.

James P. Brody, Milwaukee (argued), for defendants-appellants and petitioners; Thomas L. Shriner, Jr. and Foley and Lardner, Milwaukee, on briefs.

Gordon James Arnett, Chicago, Ill., for plaintiffs-respondents, Daniel Schroeder and Victor Schroeder.

James H. McDermott, Asst. Atty. Gen. (argued), for respondent, Circuit Court for Dane County; Bronson C. La Follette, Atty. Gen., on briefs.

HEFFERNAN, Chief Justice.

This is an appeal from an order of the circuit court for Dane county, Richard W. Bardwell, circuit judge, refusing to accept venue of a case transferred from Adams county and returning the case to Adams county. We have accepted this appeal on certification from the court of appeals, pursuant to sec. (rule) 809.61, Stats. ¹ 120 Wis.2d 690, 357 N.W.2d 563 (1984). The issue posed on certification is whether a circuit court may refuse to accept venue of a case transferred by order of a circuit court for a different county, pursuant to a stipulation of the parties and in conformity with sec. 801.54(3), Stats.1981-82.

We conclude that the circuit court for Dane county was without authority to refuse to accept the transferred case. We therefore vacate the order of the circuit court for Dane county.

The facts giving rise to this appeal are as follows. On March 22, 1984, Daniel and Victor Schroeder commenced an action for libel and malicious prosecution in the circuit court for Adams county by filing a complaint. The Schroeders named as defendants John M. Lavine, who is the owner of the Portage Daily Register and several other daily newspapers, the newspapers published by Lavine, and several employees of the newspapers.

The Schroeders' allegations of malicious prosecution and libel stem from an encounter between a reporter for the Portage Daily Register and Daniel Schroeder on Schroeder's farm in Columbia county. The Schroeders allege that in December of 1981, the Register reporter, without permission, took several photographs of a school bus parked on Schroeder's farm. Schroeder apparently demanded and received the reporter's undeveloped film. A criminal complaint alleging the theft of the film was filed against Daniel Schroeder in Columbia county by the Columbia county district attorney. The criminal theft charge against Daniel went to trial before Circuit Judge Raymond E. Gieringer. ² Daniel was acquitted of the charge in December, 1982. In the present civil action, the Schroeders allege that the theft prosecution, instigated by Lavine, was malicious and that the Lavine newspapers' coverage of the episode was libelous.

The Schroeders' civil complaint specifically alleges that the Lavine newspaper coverage of the incident involving the Register reporter's photographs and film make it impossible for the plaintiffs, Daniel and Victor Schroeder, to get a fair trial in any county in which the Lavine newspapers are distributed. The complaint states:

"Because of the continuing series of articles in the Lavine newspapers, holding members and alleged members of Posse Comitatus up to ridicule, contempt and scorn, and falsely charging the Schroeders, plaintiffs herein, with being members and leaders, Daniel was unable, and plaintiffs will be unable, to obtain a fair trial in any counties where the Lavine Group newspapers are distributed."

The defendants filed a demand for change of venue from Adams county to Columbia county, pursuant to sec. 801.53, Stats.1981-82, ³ claiming that Adams county was not the proper place for trial under sec. 801.50, while Columbia county was. Columbia county, however, is in the distribution area of one of the Lavine newspapers, the Portage Daily Register, and thus was not acceptable to the plaintiffs as a place of trial, as stated in their complaint. The attorney for the defendant newspaper group wrote a letter, dated April 11, 1984, to the attorney for the Schroeders, asserting that the defendants were prepared to move for a change of venue to Columbia county under sec. 801.53 if the plaintiffs failed to consent to such a change, but suggesting that, as an alternative, the parties stipulate, pursuant to sec. 801.54(3), ⁴ to change the place of trial to Dane county.

The attorney for the Schroeders promptly responded and, by letter dated April 14, 1984, informed Judge Gieringer that the parties wished to compromise on the venue issue by stipulating to trial in Dane county. He enclosed a copy of the stipulation in his letter to Judge Gieringer, and apparently sent the original to the defendants' attorney for signature. The defendants' attorney, by letter dated April 18, 1984, forwarded the original signed stipulation and proposed order to change venue to Judge Gieringer. Meanwhile, in contemplation of the possibility that Judge Gieringer might not approve the parties' stipulation and not order venue changed to Dane county, the Schroeders filed a response to the defendants' original demand for change of venue, entitled "Objections to Demand for Change of Venue," disputing the defendants' claim that Adams county was not a proper place of trial. On April 23, 1984, Judge Gieringer signed an order transferring the case to Dane county for trial, as stipulated by the parties, pursuant to sec. 801.54(3), Stats. The order states that:

"This cause coming on upon defendant's Demand for Change of Venue, and the parties having entered into the above Stipulation to Change the Venue to Dane County, and the Court being advised in the premises;

"IT IS HEREBY ORDERED that Case number 84-CV-30 be transferred to Dane County for Trial, without costs to any party."

On April 25, 1984, the Dane county clerk of circuit court notified the parties that the case was filed in Dane county circuit court on that day and assigned to Judge Richard W. Bardwell. On May 23, 1984, Judge Bardwell wrote to counsel for both parties, informing them that he was "refusing to take jurisdiction of this case and directing the Clerk that she return the file and all supporting papers to the Clerk of Court of Adams County for further proceeding."

In the letter of May 23, 1984, Judge Bardwell explained his reasons for refusing the case:

"I have reviewed the file and can find nothing therein which would indicate that Dane County is the proper place of trial for this action. I immediately telephoned Judge Gieringer and asked him his reason for transferring the case to this county. He stated that there was no basis for venue in Adams County and that the case clearly should have been venued in Columbia County for various reasons. It is true that under sec. 801.54, Stats., (3), counsel may stipulate in writing to change the place of trial of a case, and an order to that effect may be made by a judge. Also subsection (1) provides 'When there is reason to believe that an impartial trial cannot be had in the designated county and when so changed it shall be to a county in which the cause complained of does not exist.' In the instant case there is no basis for the judge having ordered a change of venue from Adams County (which apparently was a county which had venue of the action) to Dane County, which is a county in which venue does not lie for this action.

"In other words, we have a situation where for convenience or some other personal reason counsel have agreed to venue a case in Dane County, which has the highest case count by far of any county in the state. Also it would be unfair to assess the costs of trial, including support staff, to Dane County in a case which never should have been venued here in the first place."

The defendants then brought a motion for reconsideration of Judge Bardwell's decision to return the case to Adams county. A hearing on the motion was held on June 18, 1984, and was attended by counsel for the defendant newspaper group but not by counsel for the plaintiffs. At the hearing, Judge Bardwell denied the motion for reconsideration. He restated his reasons for refusing the transfer of venue:

"Well, when the court, when the court then, this branch, Branch I of the Circuit Court, was assigned the case by the Clerk of Circuit Court by a draw, I looked over the file and I said, well, this is not proper discretionary change of venue for two reasons: One, I think the most important, is that it in effect saddles--the way Gieringer has done it--saddles Dane County with all the costs, including jury fees, if there are jury fees, clerk's fees, everything else that goes with the trial of a lawsuit, even though the case has no logical reason for being here based on this record; and, secondly, of importance because we always have to consider moving cases along, judicial and counsels' economy, Dane County without question is by far the most crowded docketed county in the state.... and so in the, just [as] justice delayed is justice denied, which is an old wise man's saying, this would be a denial of justice to both sides if this Court took it. Plus the fact that the way I read it, and the cases seem to indicate, in Hoppe v. State, 1976, 74 Wis.2d 107, 246 N.W.2d 122, the court stated: The question of change of venue is addressed to the trial judge's discretion and any doubts in the mind of the trial judge should be resolved in favor of the defendant's motion, I suppose for change of venue, where there is a...