State ex rel. Kormanik v. Brash

• Decision Date: 26 October 2022
• Docket Number: 2022AP1736-W
• Citation: 2022 WI 67
• Parties: State of Wisconsin ex rel. Nancy Kormanik, Petitioner, v. William Brash, in his official capacity as Chief Judge of the Court of Appeals, Respondent, Wisconsin Elections Commission, Democratic National Committee, and Rise, Inc., Interested Parties.
• Court: Wisconsin Supreme Court

2022 WI 67

State of Wisconsin ex rel. Nancy Kormanik, Petitioner, v. William Brash, in his official capacity as Chief Judge of the Court of Appeals, Respondent,

Wisconsin Elections Commission, Democratic National Committee, and Rise, Inc., Interested Parties.

No. 2022AP1736-W

Supreme Court of Wisconsin

October 26, 2022

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 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previously completed and submitted absentee ballot; (2) declare that any WEC publication that states otherwise shall be rescinded or otherwise removed from availability to the public; (3) declare that the WEC failed to promulgate the documents at issue as administrative rules; and (4)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 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.

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 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 § 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.

¶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 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...