Department of Natural Resources v. Wisconsin Court of Appeals, District IV

2018 WI 25, 909 N.W.2d 114, 380 Wis. 2d 354
CourtWisconsin Supreme Court
DecidedApril 3, 2018
Docket2016AP001980-W
StatusPublished
Cited by27 cases

This text of 2018 WI 25 (Department of Natural Resources v. Wisconsin Court of Appeals, District IV) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Natural Resources v. Wisconsin Court of Appeals, District IV, 2018 WI 25, 909 N.W.2d 114, 380 Wis. 2d 354 (Wis. 2018).

Opinions

DANIEL KELLY, J.

*360¶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.

*361¶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

*118I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶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 *362Circuit 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.

*363II. DISCUSSION

A. Supervisory Writs

¶7 The authority to issue supervisory writs depends on the constitutional grant of jurisdiction to this court. In relevant part, our constitution says:

(1) The supreme court shall have superintending and administrative authority over all courts.
(2) The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme *119court may issue all writs necessary in aid of its jurisdiction.
(3) The supreme court may review judgments and orders of the court of appeals, may remove cases from the court of appeals and may accept cases on certification by the court of appeals.

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) (construing our original constitution4 ); see *364State v. Buchanan, 2013 WI 31, ¶ 11, 346 Wis. 2d 735, 828 N.W.2d 847 ("As the court of original jurisdiction, we have discretion to issue a supervisory writ."); Madison Metro. Sch. Dist. v. Circuit Court for Dane Cty., 2011 WI 72, ¶ 74, 336 Wis. 2d 95, 800 N.W.2d 442 (2011) (stating that "a supervisory writ is dedicated to the discretion of the court of original jurisdiction").

¶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,

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Bluebook (online)
2018 WI 25, 909 N.W.2d 114, 380 Wis. 2d 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-natural-resources-v-wisconsin-court-of-appeals-district-iv-wis-2018.