State ex rel. Dep't of Natural Res. v. Wis. Court of Appeals
| Decision Date | 03 April 2018 |
| Docket Number | No. 2016AP1980-W,2016AP1980-W |
| Parties | STATE of Wisconsin EX REL. DEPARTMENT OF NATURAL RESOURCES, Petitioner, v. WISCONSIN COURT OF APPEALS, DISTRICT IV, Clean Wisconsin, Inc., Lynda A. Cochart, Amy Cochart, Roger D. DeJardin, Sandra Winnemueller, Chad Cochart and Kinnard Farms, Inc., Respondents. |
| Court | Wisconsin Supreme Court |
For the petitioner, there were briefs filed by Kevin M. LeRoy, deputy solicitor general, with whom on the briefs were Brad D. Schimel, attorney general, and Misha Tseytlin, solicitor general. There was an oral argument by Kevin M. LeRoy.
For the respondents Clean Wisconsin, Inc., Lynda A. Cochart, Amy Cochart, Roger D. DeJardin, Sandra Winnemueller, and Chad Cochart, there was a brief filed by Sarah Geers and Midwest Environmental Advocates, Madison, with whom on the brief were Katie Nekola and Clean Wisconsin, Inc., Madison. There was an oral argument by Sarah Geers.
For the respondent Wisconsin Court of Appeals, District IV, there was a brief filed by John S. Skilton and Perkins Coie LLP, Madison. There was an oral argument by John S. Skilton.
¶1 The Wisconsin Department of Natural Resources ("DNR") says its appeal in Clean Wisconsin, Inc. v. DNR, 2016AP1688 ("Clean Wisconsin") is pending in the wrong district, and asks us to exercise our supervisory authority to shepherd it to the correct venue. Because we agree with the DNR, we grant its petition for a supervisory writ and vacate the order of the Wisconsin Court of Appeals transferring venue for Clean Wisconsin from District II to District IV.
¶2 We accepted review because this case presents an important issue of first impression regarding the right of an appellant to select appellate venue under Wis. Stat. § 752.21(2) (2015-16).1
¶3 The dispute giving rise to this petition for a supervisory writ involves the DNR's decision to reissue a Wisconsin Pollutant Discharge Elimination System ("WPDES") permit to Kinnard Farms, Inc. ("Kinnard Farms"), a dairy farm in Kewaunee County. After a group of five individuals (led by Lynda A. Cochart, hereinafter the "Cochart Petitioners") contested the decision, an administrative law judge concluded the permit should issue, but only with the addition of two conditions to which Kinnard Farms objected.2 Kinnard Farms filed a petition with the DNR requesting removal of the conditions. The DNR initially denied the petition, but upon reconsideration found that "[n]either [of the conditions] may be imposed upon Kinnard [Farms] in this case, and therefore, these conditions will not be added to or modified into the WPDES Permit."
¶4 Clean Wisconsin, Inc. ("Clean Wisconsin") and the Cochart Petitioners each filed petitions seeking judicial review of the DNR's decision. Clean Wisconsin filed in Dane County (the county of its residence), while the Cochart Petitioners filed in Kewaunee County (the county of their residence). The Circuit Court for Dane County, as the court in which the first petition was filed, exercised its statutorily-granted discretion to consolidate the Kewaunee County case into the Dane County case.3 Subsequently, the Dane County Circuit Court entered judgment on the merits in favor of Clean Wisconsin and the Cochart Petitioners, restoring the contested permit conditions that the DNR had rejected. We will refer to Clean Wisconsin and the Cochart Petitioners collectively as the "Administrative Petitioners" so that we may more conveniently distinguish their arguments from those of the Court of Appeals when they diverge.
¶5 The DNR appealed the circuit court's decision, and selected District II as the appellate venue. A single court of appeals judge (sitting in District IV) issued an order, sua sponte, transferring venue from District II to District IV on August 31, 2016. The judge, relying on Wis. Stat. § 752.21(1), wrote that District IV is the proper venue because it encompasses the circuit court that issued the judgment from which the DNR appealed. The DNR moved for reconsideration. It asserted that § 752.21(2) gave it the right to select appellate venue because Clean Wisconsin had designated the circuit court venue. Sitting as a three-judge panel in District IV, the Court of Appeals denied the motion on September 29, 2016.
¶6 Approximately two weeks later, the DNR petitioned this court for a supervisory writ requiring the Court of Appeals to transfer venue back to District II. We stayed the appeal and asked the respondents for a response to the petition. We subsequently ordered full briefing and argument.
¶7 The authority to issue supervisory writs depends on the constitutional grant of jurisdiction to this court. In relevant part, our constitution says:
Wis. Const. art. VII, § 3. We have previously observed that with the grant of jurisdiction come all the writs necessary to give it effect:
The framers of the constitution appear to have well understood that, with appellate jurisdiction, the court took all common law writs applicable to it; and with superintending control, all common law writs applicable to that; and that, failing adequate common law writs, the court might well devise new ones, as Lord Coke tells us, as "a secret in law."
Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425, 515 (1874) (); see State v. Buchanan, 2013 WI 31, ¶ 11, 346 Wis. 2d 735, 828 N.W.2d 847 (); Madison Metro. Sch. Dist. v. Circuit Court for Dane Cty., 2011 WI 72, ¶ 74, 336 Wis. 2d 95, 800 N.W.2d 442 (2011) ().
¶8 "A supervisory writ is ‘a blending of the writ of mandamus and the writ of prohibition.’ " Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶ 74, 800 N.W.2d 442 (citation omitted). The court traditionally uses the writ of prohibition "to keep an inferior court from acting outside its jurisdiction when there [is] no adequate remedy by appeal or otherwise." Id., ¶ 76 (internal marks and citation omitted). The writ of mandamus, on the other hand, directs "a public officer to perform his plain statutory duties." Id., ¶ 75 (citing Menzl v. City of Milwaukee, 32 Wis. 2d 266, 275-76, 145 N.W.2d 198 (1966) ). Thus, the supervisory writ "serves a narrow function: to provide for the direct control of lower courts, judges, and other judicial officers who fail to fulfill non-discretionary duties, causing harm that cannot be remedied through the appellate review process." State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶ 24, 271 Wis. 2d 633, 681 N.W.2d 110. A supervisory writ is "an extraordinary and drastic remedy that is to be issued only upon some grievous exigency." Id., ¶ 17 (internal marks and citation omitted).
¶9 A party may request a supervisory writ from this court by petition.5 Wis. Stat. § (Rule) 809.71. 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." Kalal, 271 Wis. 2d 633, ¶ 17, 681 N.W.2d 110 (citation omitted). Our deliberation on whether to issue the writ "is controlled by equitable principles and, in our discretion, we can consider the rights of the public and third parties." Id. (internal marks and citation omitted).
¶10 We will consider only the first three factors identified above—the respondents do not contest the timeliness of the DNR's petition, and we agree that filing within two weeks of the Court of Appeals' order denying the motion for reconsideration is, under these circumstances, unquestionably "prompt and speedy." For the sake of analytical clarity, our opinion addresses the three factors in the following order. We begin with whether the Court of Appeals will violate a plain duty to hear the DNR's appeal in the proper district if the venue-transfer order stands. Then, we will consider whether an appeal would be an inadequate remedy.
And finally, we will determine whether the DNR will suffer grave hardship or irreparable harm if the writ does not issue.
¶11 We start with determining whether the Court of Appeals has a plain duty to hear the DNR's appeal in the proper venue. A plain duty is one that is "clear and unequivocal and, under the facts, the responsibility to act [is] imperative." Id., ¶ 22 (internal marks and citation omitted). "[C]lear and unequivocal" does not require the duty to be settled or obvious. There may be a plain duty even when it involves "a novel question of law requiring harmonization of several statutory provisions." See Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶ 84, 800 N.W.2d 442.6 ¶12 Appellate venue is governed by Wis. Stat. § 752.21, which provides, in toto:
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