                                                            2018 WI 25

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:              2016AP1980-W
COMPLETE TITLE:        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.

                                 PETITION FOR SUPERVISORY WRIT

OPINION FILED:         April 3, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 15, 2017

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, J. dissents joined by A.W. BRADLEY
                       J. (opinion filed).
  NOT PARTICIPATING:

ATTORNEYS:


       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 Wisonsin, 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.




                                 2
                                                                      2018 WI 25
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.     2016AP1980-W


STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin ex rel. Department of
Natural Resources,

            Petitioner,                                            FILED
       v.
                                                               APR 3, 2018
Wisconsin Court of Appeals, District IV, Clean                   Sheila T. Reiff
Wisconsin, Inc., Lynda A. Cochart, Amy Cochart,                      Clerk of
Roger D. DeJardin, Sandra Winnemueller, Chad                      Supreme Court

Cochart and Kinnard Farms, Inc.,

            Respondents.




       PETITION for supervisory writ.           Granted; rights declared;

and stay on appeal lifted.



       ¶1   DANIEL KELLY, J.     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.
                                                                            No.     2016AP1980-W



      ¶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

                I.    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


      1
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
      2
       The       nature       of   the    conditions         is   not     material     to     our
analysis.


                                                 2
                                                                         No.    2016AP1980-W



(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.


      3
          See Wis. Stat. § 227.53(1)(a)3.


                                             3
                                                               No.   2016AP1980-W



    ¶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.

                              II.   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 court 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."




                                         4
                                                                          No.        2016AP1980-W



Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425, 515 (1874)

(construing our original constitution4); see State 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. Cir. Ct. 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    (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


       4
       The original provision of the 1848 Wisconsin Constitution,
Wis. Const. art. VII, § 3, read:

       The supreme court, except in cases otherwise provided
       in    this   constitution,    shall   have   appellate
       jurisdiction only, which shall be coextensive with the
       state; but in no case removed to the supreme court
       shall a trial by jury be allowed.    The supreme court
       shall have a general superintending control over all
       inferior courts; it shall have power to issue writs of
       habeas corpus, mandamus, injunction, quo warranto,
       certiorari, and other original and remedial writs, and
       to hear and determine the same.


                                                5
                                                                        No.   2016AP1980-W



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. Cir. Ct. 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     (citation       omitted).          Our

deliberation on whether to issue the writ "is controlled by
equitable principles and, in our discretion, we can consider the

       5
       The requirement that an aggrieved party must first seek
such a writ from the court of appeals is excused here, of
course, because the writ, if granted, would lie against that
court.     Wis. Stat. § (Rule) 809.71 ("A person seeking a
supervisory writ from the supreme court shall first file a
petition for a supervisory writ in the court of appeals under s.
809.51 unless it is impractical to seek the writ in the court of
appeals. A petition in the supreme court shall show why it was
impractical to seek the writ in the court of appeals or, if a
petition had been filed in the court of appeals, the disposition
made and reasons given by the court of appeals.").


                                               6
                                                                         No.     2016AP1980-W



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.

                                      B.     Plain Duty

                               1.    Existence of the Duty

     ¶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




                                                7
                                                   No.   2016AP1980-W



provisions."      See Madison Metro. Sch. Dist., 336 Wis. 2d 95,

¶84.6

        ¶12   Appellate venue is governed by Wis. Stat. § 752.21,

which provides, in toto:

        (1) Except as provided in sub. (2), a judgment or
        order appealed to the court of appeals shall be heard


        6
       The dissent suggests this directive is at odds with State
ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶81,
363 Wis. 2d 1, 866 N.W.2d 165.       It asserts that this court
"reaffirmed that the obligation of a judge to correctly apply
the law 'is not the type of plain legal duty contemplated by the
supervisory writ procedure.'" Dissent, ¶64 (quoting Two Unnamed
Petitioners, 363 Wis. 2d 1, ¶81).     The dissent overlooked that
the court was speaking to categories of duties, not the clarity
with which the law imposes them.        The court in Two Unnamed
Petitioners was distinguishing between the court's general
obligation to accurately apply the law to the facts of any given
case, on the one hand, and on the other, those directives aimed
at the court qua judicial tribunal, mandating how it is to carry
out specific aspects of its work. The former category contains
those matters that are the subjects of appeals. With respect to
the latter, however, the court observed that supervisory writs
"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."        Two Unnamed Petitioners, 363
Wis. 2d 1, ¶81 (quoting State ex rel. Kalal v. Cir. Ct. for Dane
Cty., 2004 WI 58, ¶24, 271 Wis. 2d 633, 681 N.W.2d 110)
(emphasis in original).    When the court is under an obligation
to do its business in a specific manner, a supervisory writ can
be a proper method of ensuring it does so.       That is why Two
Unnamed Petitioners can comfortably co-exist with Madison Metro.
The former addresses category, while the latter addresses
clarity.    Consequently, a court's duty, even when it derives
from the "harmonization of several statutory provisions," is
still the proper subject of a supervisory writ so long as it
falls into the proper category.     See Madison Metro. Sch. Dist.
v. Cir. Ct. for Dane Cty., 2011 WI 72, ¶84, 336 Wis. 2d 95, 800
N.W.2d 442.


                                  8
                                                                       No.    2016AP1980-W


      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.
      ¶13      The first subsection of Wis. Stat. § 752.21 contains

the   general     rule       controlling    appellate       venue.           The   second

subsection contains a specific rule, which applies only to the
subset of cases in which the plaintiff designated venue in the

circuit court pursuant to Wis. Stat. § 801.50(3)(a).                            However,

both the general and specific rules speak in mandatory terms.

The general rule uses the mandatory "shall" in requiring the

court     to   hear    the    appeal   in       the   district     encompassing       the

circuit from which the appeal is taken.7                  The specific rule, when

applicable, is no less mandatory in its requirement that the

court hear the appeal in the district selected by the appellant.

Thus,     regardless     of     whether     the       general     or    specific     rule

determines venue, the court of appeals has no discretion with
respect to where it must hear the appeal.                       Further, the correct

venue     does   not   depend     on   uncertain        factual        developments    or


      7
       "The general rule is that the word 'shall' is presumed
mandatory when it appears in a statute."    Karow v. Milwaukee
Cty. Civil Serv. Comm'n, 82 Wis. 2d 565, 570, 263 N.W.2d 214
(1978) (citation omitted); Heritage Farms, Inc. v. Markel Ins.
Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465 (stating
that when construing a statute, "we presume that the word
'shall' is mandatory" (citation omitted)).


                                            9
                                                                           No.     2016AP1980-W



circumstances outside the contemplation of the statute.                                      Nor

does the court of appeals have the option of not acting:                                    The

appeal must be heard somewhere.                      Therefore, the 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.

                            2.     Compliance with the Duty

      ¶14      Whether the Court of Appeals acted consonantly with

its   plain       duty     when     it    transferred        the    DNR's        appeal     from

District II to District IV depends on the requirements of three

statutes, all of which have something to say about venue in this

case.       The statute controlling appellate venue is Wis. Stat.

§ 752.21,      which       we    quoted     above.     Then    there       is     Wis.    Stat.

§ 801.50(3)(a), which governs circuit court venue.                               And finally,

there    is    Wis.       Stat.     § 227.53(1)(a)3.,         which    restricts          venue

eligibility       for      administrative          appeals    such    as     the     one     sub

judice.

      ¶15      We determine the meaning of these statutes by focusing
on    their       text,          context,     and     structure.                 "[S]tatutory

interpretation 'begins with the language of the statute," and we

give that language its "common, ordinary, and accepted meaning."

Kalal,      271      Wis. 2d 633,         ¶¶45-46    ("Context        is     important        to

meaning.       So, too, is the structure of the statute in which the

operative language appears.                   Therefore, statutory language is

interpreted in the context in which it is used; not in isolation

but   as      part    of    a     whole;     in    relation    to     the        language    of
surrounding          or         closely-related       statutes . . . .").                     In
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                                                                                No.        2016AP1980-W



performing        this    analysis,         we        carefully         avoid        ascribing       an

unreasonable        or    absurd          meaning          to    the     text.             Id.,     ¶46

("[S]tatutory language is interpreted . . . reasonably, to avoid

absurd or unreasonable results.").                              We may also look to the

statute's history where, as here, there has been a significant

revision to the language in which we are interested.                                          Cty. of

Dane v. LIRC, 2009 WI 9, ¶27, 315 Wis. 2d 293, 759 N.W.2d 571

("'A review of statutory history is part of a plain meaning

analysis'      because        it    is     part       of    the    context           in     which    we

interpret      statutory           terms."        (citation            omitted)).              If    we

determine the statute's plain meaning through this methodology,

we go no further.             Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning

of    the    statute     is    plain,       we     ordinarily           stop     the        inquiry."

(internal marks and citation omitted)).                           See generally Daniel R.

Suhr, Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969

(2017).

             a.     Applicability of Wis. Stat. § 801.50(3)(a)

       ¶16    The    presenting          question          is    whether       the        general    or
specific      appellate        venue       rule        of       Wis.    Stat.         § 752.21       is

operative in this case.                  According to the express terms of that

statute, the answer depends on whether the circuit court venue

was     "designated       by       the    plaintiff"            pursuant        to     Wis.       Stat.

§ 801.50(3)(a).          This statute, in turn, says that:

       Except as provided in pars. (b) and (c),[8] all actions
       in which the sole defendant is the state, any state
       8
           The exceptions mentioned here are not relevant to this
case:
                                                                                          (continued)
                                                 11
                                                         No.   2016AP1980-W


     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.[9]
     ¶17     The Administrative Petitioners tell us that Wis. Stat.

§ 801.50(3)(a) cannot apply at all to these proceedings for two

reasons.10    First, they say it applies to "actions," not "special

proceedings"    (like   judicial   review   of   administrative       agency

decisions).     And second, they say § 801.50(3)(a) cannot apply

because they were "petitioners" in the circuit court, and the

statute refers only to "plaintiffs."

     ¶18     With respect to the first objection, it is true that

§ 801.50(3)(a)     refers   only   to   "actions."      But    that    term

encompasses "special proceedings" as well:           "Proceedings in the



     (b) All actions relating to the validity or invalidly
     of a rule shall be venued as provided in s. 227.40(1).

     (c) An action commenced by a prisoner, as defined
     under s. 801.02(7)(a)2., 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 Dane County unless another
     venue is specifically authorized by law.

Wis. Stat. § 801.50(3)(b)-(c).
     9
       As an "administrative arm" of the state, the DNR is the
state for purposes of this venue provision.     See Metzger v.
Dep't of Taxation, 35 Wis. 2d 119, 131, 150 N.W.2d 431 (1967)
(stating that the Wisconsin Department of Taxation is "a mere
administrative arm of the state" and, thus, suit against the
Department is an action against "the state" for sovereign
immunity purposes).
     10
          The Court of Appeals did not advance this argument in its
brief.


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                                                                           No.        2016AP1980-W



courts are divided into actions and special proceedings," and

"[i]n chs. 801 to 847, 'action' includes 'special proceeding'

unless a specific provision of procedure in special proceedings

exists."     Wis. Stat. § 801.01(1).                 The rules of civil procedure

apply to both types of proceedings:                   "Chapters 801 to 847 govern

procedure and practice in circuit courts of this state in all

civil   actions      and    special         proceedings         whether     cognizable          as

cases at law, in equity or of statutory origin except where

different     procedure          is     prescribed         by      statute        or      rule."

§ 801.01(2);        Wagner       v.     State        Med.        Examining            Bd.,     181

Wis. 2d 633,       639,    511     N.W.2d 874        (1994)       ("[W]hen        a     conflict

occurs between the rules of civil procedure and ch. 227, the

dictates    of     ch.    227    must   prevail.");         State     ex    rel.        Town    of

Delavan v. Cir. Ct. for Walworth Cty., 167 Wis. 2d 719, 725, 482

N.W.2d 899       (1992)     ("As      chs.     801    to     847    apply        to      special

proceedings,       sec.    801.58(7)         necessarily         applies         to     ch.    227

judicial     reviews,       unless      foreclosed          by     different           procedure

prescribed by ch. 227.").
    ¶19      Therefore, in the absence of a contrary provision in

chapter     227,     it    does       not    matter     that       the      Administrative

Petitioners commenced this case as a "special proceeding" rather

than as an "action."             Nor is this the first time we have used

Wis. Stat. § 801.50 in the specific type of special proceeding

known as "judicial review."                   See, e.g., Drow v. Schwarz, 225

Wis. 2d 362, 367, 592 N.W.2d 623 (1999), as amended on denial of

reconsideration (June 25, 1999) (§ 801.50 controlling venue in
certiorari       review    proceeding);            Aparacor,       Inc.     v.        DILHR,    97
                                              13
                                                                      No.       2016AP1980-W



Wis. 2d 399, 407, 293 N.W.2d 545 (1980) (§ 801.50 controlling

venue in judicial review proceeding); Johnson v. Berge, 2003

WI App 51,       ¶11 n.3,     260     Wis. 2d 758,          N.W.2d 418        ("The    trial

court may consider whether to transfer the entire case to Dane

County pursuant to Wis. Stat. § 801.52, or whether to transfer

Johnson's Wis. Stat. ch. 227 claim to Dane County and itself

resolve        Johnson's      other     issues.").              The       Administrative

Petitioners       provided     no     authority       for    the    proposition          that

§ 801.50(3)       cannot      apply    to    judicial        review      of    an     agency

decision.         Nor   did    they    even      acknowledge        our       opinions    in

Aparacor, Inc. or Drow.

         ¶20   The second objection gives us no reason to doubt the

applicability      of   Wis.    Stat.       § 801.50(3)(a)         because      the     party

denominations have no significance in this case.                         It is standard

practice to refer to the one who files the initiating document

in a special proceeding (such as a petition for judicial review)

as   a    "petitioner."        And    that,      by    itself,     has     never      ousted

chapters 801 through 847 from their authoritative role.                                   See
Wis. Indus. Energy Grp., Inc. v. Pub. Serv. Comm'n, 2012 WI 89,

¶¶1, 13, 342 Wis. 2d 576, 819 N.W.2d 240 (applying Wis. Stat.

§ (Rule) 809.61 to petition for judicial review under both Wis.

Stat. § 196.41 and Wis. Stat. § 227.52); Drow, 225 Wis. 2d at

362-66 (applying Wis. Stat. § 801.50 even though parties were

denominated as "petitioner" and "respondent"); Town of Delavan,

167 Wis. 2d at 721 (holding that Wis. Stat. § 801.58(7) applies

in   a     ch.   227    judicial       review;        also    applying        Wis.     Stat.
§ (Rule) 809.61);          Wis.'s     Envtl.     Decade,      Inc.    v.       DILHR,     104
                                            14
                                                                    No.    2016AP1980-W



Wis. 2d 640,        644,    312    N.W.2d 749    (1981)    (applying      Wis.    Stat.

§ 808.05(1)         in    case     involving     an    underlying      petition     for

review).      The Administrative Petitioners cite no authority for

the proposition that this difference in nomenclature has any

effect   on    the       applicability    of    this    statute.       Consequently,

§ 801.50 applies to judicial review of an agency decision——but

only so long as it does not contradict a relevant chapter 227

provision.

    ¶21       And that brings us to the third venue-related statute

of interest.             The respondents say Wis. Stat. § 227.53(1)(a)3.

conflicts      with,        and    negates,      a     petitioner's       ability    to

"designate"     venue        pursuant     to    Wis.    Stat.    § 801.50(3)(a)      by

requiring that it file its petition in its county of residence.

Specifically, § 227.53(1)(a)3. says that "[i]f the petitioner is

a resident, the proceedings shall be held in the circuit court

for the county where the petitioner resides."                    This is important

because, if the respondents are right, then the Administrative

Petitioners could not have "designated" venue for the circuit
court proceedings, which in turn would mean the general rule for

appellate venue (Wis. Stat. § 752.21(1)) would apply, instead of

the specific rule (§ 752.21(2)).

    ¶22       The    heart    of    the   contest      between   the   DNR   and    the

respondents, therefore, lies in this question:                     Does a plaintiff

"designate" the county for circuit court venue even when Wis.

Stat. § 227.53(1)(a)3. specifies which county that must be?




                                           15
                                                                          No.     2016AP1980-W



                        b.   Does "Designate" Mean "Choose"?

       ¶23    Each of the respondents' arguments circles back to a

central      theme:          The     Administrative       Petitioners            cannot    be

understood to have "designated" a county for venue (within the

meaning      of     Wis.     Stat.    § 801.50(3)(a))       unless         they     had    the

ability      to    choose     the    county   to    designate.            And,    they    say,

because Wis. Stat. § 227.53(1)(a)3. reduced their options to one

(their county of residence), there was no choice to be made, and

so they did no designating.                   To resolve this issue, we must

determine whether a plaintiff can "designate" venue even when

there is only one county in which the matter may be filed.

       ¶24    The operative sentence from Wis. Stat. § 801.50(3)(a)

comprises, as everyone agrees, a rule of general applicability

and an exception.              The general rule is that "all actions in

which the sole defendant is the state . . . shall be venued in

the county designated by the plaintiff."                    § 801.50(3)(a).               That

rule applies "unless another venue is specifically authorized by

law."     Id.       The respondents say the exception is operative in
this    case        because     Wis.       Stat.    § 227.53(1)(a)3.              represents

"another      venue . . . specifically              authorized       by    law,"     thereby

depriving         the   Administrative        Petitioners       of   their        choice   of

county.       The DNR, however, says the general rule remains in

effect.        "Designating,"         it    says,    is   not    the      same     thing   as

"choosing," and § 227.53(1)(a)3. simply told the Administrative

Petitioners which county to "designate."




                                              16
                                                                      No.    2016AP1980-W



       ¶25     Our practice is to give words their natural meaning,

and we often begin with respected dictionaries to find it.11

Here,       they    are   of   little    help.     The        term    "designate"     is

perfectly capable of carrying the meanings proposed by both the

DNR and the respondents.                One definition says the word means

"[t]o point out, indicate; to particularize, specify."                            4 The

Oxford English Dictionary 520 (2d ed. 1989) (first definition).

So,    as    the    DNR   urges,   "designated    by     the    plaintiff"      can   be

reasonably understood to mean "indicated or specified by the

plaintiff," an act that does not necessarily require a choice.

Even if the action must be filed in one specific county, the DNR

says, the plaintiff still indicates or specifies that county

when filing.          But "designated by the plaintiff" could equally

well mean "chosen by the plaintiff," because "designate" can

also mean "select."            Id. at 521 (fifth definition).               And if that

is    what    the    phrase     means,   then    none    of     the    Administrative

Petitioners chose a county inasmuch as the choice was made by

Wis.    Stat.      § 227.53(1)(a)3.        Because      the    definitions      are   in
equipoise, we will have to look elsewhere to determine whether

"designate" must mean "choose."
       11
       "In construing a statute, the general rule is that all
words and phrases should be construed according to common and
approved usage unless a different definition has been designated
by the statutes. We may resort to a dictionary to ascertain the
common and approved usage of a term not defined by the statute."
In re Commitment of Curiel, 227 Wis. 2d 389, 404-05, 597
N.W.2d 697 (1999); see Kalal, 271 Wis. 2d 633, ¶¶45, 54 (stating
that "[s]tatutory language is given its common, ordinary, and
accepted meaning," and looking at The American Heritage
Dictionary to determine plain meaning of statutory text).


                                          17
                                                                 No.   2016AP1980-W



      ¶26   The term "designate" entered our appellate and circuit

court venue statutes at the same time via 2011 Wisconsin Act 61.

So we next consider the text and structure of that act.                        The

entire purpose of the act was to change the treatment of venue

in both the circuit and appellate courts when the state is the

sole defendant, so it is brief and to the point.                  The parts that

interest us are §§ 2 and 3g, which provide in relevant part:

      Section 2.     752.21(2) of the statutes is created to
      read:

      752.21 (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.

      Section 3g. 801.50(3) of the statutes, as affected by
      2011 Wisconsin Act 21, is renumbered 801.50(3)(a) and
      amended to read:

      801.50(3)(a) All Except as provided in this subsection
      pars. (b) and (c), all actions in which the sole
      defendant is the state . . . shall be venued in Dane
      County the county designated by the plaintiff unless
      another venue is specifically authorized by law.
2011 Wis. Act 61, §§ 2, 3g ("Act 61").

      ¶27   "Designate," of course, appears in both § 2 (creating

the   new   appellate   venue   provision)         and    § 3g    (amending    the

circuit court venue provision).           If we viewed § 3g of the act in

isolation,    we   could   easily       conclude   that     "designate"     means

"choose."     Before    Act   61,   a    plaintiff       suing   the   state   was

required to file his case in Dane County.                   With the revision
introduced by Act 61, however, he may file in any county he

                                        18
                                                           No.     2016AP1980-W



wishes.   Thus, he must necessarily choose which it will be, and

"designate" is quite capable of describing that act.                  But when

we look at the act as a whole, which we are bound to do,12 we see

that the act of choosing is assumed as a predicate to the act of

designating.

    ¶28   When the legislature used the term "designated" in the

appellate venue section of the act (2011 Wis. Act 61, § 2), it

juxtaposed     it   against   the     term   "selected."         Whereas   the

plaintiff "designates" venue in the circuit court, the appellant

"selects" venue in the court of appeals.            When the legislature

uses different terms in the same act, we generally do not afford

them the same meaning.        See Gister v. Am. Family Mut. Ins. Co.,

2012 WI 86, ¶33, 342 Wis. 2d 496, 818 N.W.2d 880 ("[W]here the

legislature    uses   similar   but    different   terms   in     a   statute,

particularly within the same section, we may presume it intended

the terms to have different meanings." (brackets in original)

(internal marks and citation omitted)); see Antonin Scalia &

Bryan A. Garner, Reading Law:         The Interpretation of Legal Texts
170 (2012) (defining canon of "Presumption of Consistent Usage"

as requiring, inter alia, that "a material variation in terms

suggests a variation in meaning").           So "designate" cannot mean

"select" in the context of § 2 of Act 61.



    12
       Kalal, 271 Wis. 2d 633, ¶46; see Antonin Scalia & Bryan
A. Garner, Reading Law:   The Interpretation of Legal Texts 167
(2012) (defining "Whole-Text Canon" as requiring that "[t]he
text must be construed as a whole").


                                      19
                                                           No.    2016AP1980-W



     ¶29    Unlike   "designate,"    "select"       does   not     carry    a

troubling multiplicity of definitions.            In its transitive verb

form, it means one thing, and one thing only:              "[t]o choose."

14 The Oxford English Dictionary 901 (2d ed. 1989).              These terms

are not just in related statutes.        They are in the same act, the

same section, and the same sentence.        And the words were chosen

by the same legislature.      With this degree of specificity and

particularity, we will not understand them to bear the same

meaning.      Because   "select"    means   "to    choose,"      "designate"

cannot.13




     13
       The Court of Appeals agreed the words "designate" and
"select" must carry different meanings, but attempted to explain
the distinction between them without identifying any substantive
difference. Its brief said:

     [I]n this interpretation the words do have different
     meanings:   "designate" is something that a plaintiff
     does in circuit court, while "select" is something
     that an appellant does in the court of appeals. It is
     entirely reasonable that the legislature would choose
     two different words for these different acts, so as to
     avoid any potential confusion or commingling of the
     two concepts.   No further explanation is required to
     explain why different words were used.

                                                                 (continued)
                                    20
                                                                  No.    2016AP1980-W



       ¶30   This    provides          significant      insight         into    what

"designated" means in the context of Wis. Stat. § 801.50(3)(a).

When the legislature uses a particular word more than once in an

act,   we    understand   it     to    carry   the   same   meaning     each   time,

absent textual or structural clues to the contrary.                        State ex

rel. Gebarski v. Cir. Ct. for Milwaukee Cty., 80 Wis. 2d 489,

495, 259 N.W.2d 531 (1977) (stating that "there is a natural

presumption that identical words used in different parts of the

same act are intended to have the same meaning" (quoting Atl.

Cleaners     &   Dyers,   Inc.    v.    United   States,    286    U.S. 427,     433

(1932)); see Bank Mut. v. S.J. Boyer Const., Inc., 2010 WI 74,

¶31, 326 Wis. 2d 521, 785 N.W.2d 462 ("When the same term is

used throughout a chapter of the statutes, it is a reasonable

deduction that the legislature intended that the term possess an

identical meaning each time it appears."); DaimlerChrysler v.

LIRC, 2007 WI 15, ¶29, 299 Wis. 2d 1, 727 N.W.2d 311 ("It is a


     Some further explanation would have been helpful.      This
case turns on whether these words have distinct meanings, so
understanding how they describe different concepts is essential
to our analysis.    But the Court of Appeals tells us only that
"designate"   means   "something,"  that  "select"   also  means
"something," and that they are different depending on the court
in which they occur. That's not much to go on, especially when
the Court of Appeals, elsewhere in its brief, suggests the two
actually mean the same thing: "[T]he statutes at issue allow an
appellant to have a choice of forum when the plaintiff has a
choice of forum . . . ." If both "designate" and "select" mean
"choose," then the plaintiff in the circuit court and the
appellant in the court of appeals are doing the exact same
thing.   So the Court of Appeals has not, in fact, offered an
explanation of how the act of "designating" differs from the act
of "selecting."


                                          21
                                                    No.    2016AP1980-W



basic rule of construction that we attribute the same definition

to a word both times it is used in the same statute . . . .");

Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 663, 539 N.W.2d 98

(1995) ("[A]ttributing the same definition to a word both times

it is used in the same statute follows another basic principle

of statutory construction."); Scalia & Garner, supra ¶28, at 170

(defining   canon   of   "Presumption   of   Consistent   Usage"    as

requiring, inter alia, that "[a] word or phrase is presumed to

bear the same meaning throughout a text").     We see no textual or

contextual reason to believe the legislature assigned the word

"designate" one meaning with respect to § 2 of the act, and a

different meaning in § 3g.     Thus, because "designate" does not

mean "choose" in § 2, it cannot mean "choose" in § 3g either.14




     14
       The dissent says we should understand "designate" to mean
"choose" because that's how the Legislative Reference Bureau
understood it, and the Bureau forwarded its understanding of
Act 61 (then 2011 S.B. 117) to members of the legislature. See
dissent, ¶59.   The dissent says the Bureau "explained that the
bill 'permitted' plaintiffs to designate the county within which
to bring an action." Id. Presumably, the dissent wishes us to
analyze the statute as though the legislature had adopted the
Bureau's language instead of the language upon which it actually
voted.   Even if this substitution would justify the dissent's
preferred construction (on which we express no opinion), there
is nothing to suggest we should engage in this post hoc
transformation of Act 61.

                                                          (continued)
                                 22
                                                            No.   2016AP1980-W



       ¶31     Therefore, when a plaintiff "designates" venue in the

circuit court, it means he is specifying venue, not choosing it.

The     fact     that   Wis.    Stat.    § 227.53(1)(a)3.    eliminates     a

plaintiff's choice of venue would be of some moment only if Wis.

Stat. § 801.50(3)(a) speaks to the plaintiff's choice.               It does

not.        The choosing, if there is any choosing to be done, takes

place          before     the       plaintiff      designates         venue;

section 801.50(3)(a) is not cognizant at all of whether a choice

preceded the designation.15        Because there is no conflict between


     We can assume all legislators received the Bureau's memo.
But we have no idea how many read it, or whether the Bureau's
use of "permit" caught their attention or influenced their
understanding of the bill, or whether (assuming it did) the
Bureau's word-choice influenced their votes, and if it did,
whether a majority of each chamber was persuaded to adopt the
dissent's understanding of the language they enacted because the
Bureau used the word "permit" in its memo.       So the dissent
raises an interesting historical question (to which we will
never know the answer), but it is a question that has nothing to
do with the plain meaning of Act 61.    The same is true of the
"Fiscal Estimate Narrative" to which the dissent refers in
paragraph 60.

     The dissent says we would show greater respect for the
legislators if we assumed the Bureau's memo changed their
understanding of their own bill.    See dissent, ¶¶62-63.   That
would seem an odd mark of respect. We believe it is much more
respectful to assume they are capable of adopting language that
expresses their intent, and that they did not adopt the Bureau's
language because they did not wish to.
       15
       The dissent says the phrase "designated by the plaintiff"
should have the same meaning in Wis. Stat. § 801.50(3)(a) as it
does in § 801.50(2)(d).   Dissent, ¶54.  We have no occasion to
construe paragraph (2)(d) today, and the dissent identified no
construction thereof that is at odds with our understanding of
paragraph (3)(a).


                                        23
                                                                            No.      2016AP1980-W



§ 801.50(3)(a)         and     § 227.53(1)(a)3.,             we    apply    them      both    and

conclude       that    even       when       the    latter      statute     eliminates        any

opportunity to choose a county, the plaintiff still designates

venue within the meaning of § 801.50(3)(a).

       ¶32     This, however, is only one step in the process of

understanding          the     interrelationship             among    the       three     venue-

related      statutes.            When    two      or   more    petitions       challenge      an

agency's       decision,          and    when       they     are    filed       in    different

counties, Wis. Stat. § 227.53(1)(a)3. gives the circuit court

authority to determine venue.                      Therefore, we must decide whether

the circuit court's exercise of that authority in this case

caused       Dane     County       to    be     "another        venue . . . specifically

authorized by law."

                             c.    Other Authorized Venues

       ¶33     As we have already seen, the plaintiff's designation

controls       venue    in    a    case       solely    against      the    state,       "unless

another venue is specifically authorized by law."                                    Wis. Stat.

§ 801.50(3)(a).          There is, indeed, a law relevant to this case
that     can    authorize          a     different         venue——it       is     Wis.      Stat.

§ 227.53(1)(a)3.,            albeit      a    different        provision    from      the    text

discussed above.         This part of the statute says:

       If 2 or more petitions for review of the same decision
       are filed in different counties, the circuit judge for
       the county in which a petition for review of the
       decision was first filed shall determine the venue for
       judicial review of the decision, and shall order
       transfer or consolidation where appropriate.
Wis. Stat. § 227.53(1)(a)3.



                                                   24
                                                                      No.     2016AP1980-W



    ¶34     This     provision     was    operative      in    the     circuit      court

because Clean Wisconsin and the Cochart Petitioners both filed

petitions for judicial review of the same DNR decision, but in

different counties.         So the statute gives the circuit court the

authority to override the plaintiff's designation inasmuch as it

specifically instructs the court to "determine the venue for

judicial    review    of    the   decision."       And    it    grants        the   court

authority to transfer or consolidate the cases to actualize that

determination.        The court's discretion is broad here——it may

transfer one of the cases so they are both pending in the same

county; or it may transfer both cases to a third county, and it

may consolidate the cases instead of allowing them to proceed as

separate matters.

    ¶35     Here,     the    circuit      court   consolidated              the   Cochart

Petitioners'    case       into   Clean   Wisconsin's         case,     and       left   it

venued in Dane County.             After consolidation, only the Clean

Wisconsin    petition       remained,     although      it     then     included         the

Cochart    Petitioners       as   parties.        See    Seventeen           Seventy-Six
Peachtree Corp. v. Miller, 41 Wis. 2d 410, 414, 164 N.W.2d 278

(1969) (stating that consolidation "contemplates only one action

and one set of pleadings after consolidation"); E. Wis. Ry. &

Light Co. v. Hackett, 135 Wis. 464, 472-73, 115 N.W. 376 (1908)

(same); Harrigan v. Gilchrist, 121 Wis. 127, 309, 99 N.W. 909

(1904) (stating that in consolidating cases, "[n]ecessarily, the

first one properly commenced superseded the other"); Eau Claire

Fuel & Supply Co. v. Laycock, 92 Wis. 81, 83, 65 N.W. 732 (1896)


                                          25
                                                                                No.   2016AP1980-W



(stating that consequent upon an order of consolidation, "[t]he

second action, under the circumstances, merged in the first").

      ¶36      By   leaving      the       Clean       Wisconsin       petition       pending     in

Dane County, the circuit court determined its venue, but only in

the negative sense of not having ousted the designation already

made.       So      the    question         is     whether           not     disturbing        Clean

Wisconsin's designation actually negates it.                                On this point, the

structure of Act 61 advances our understanding of its plain

meaning.        The    portion        in    which       we    are     now    interested        says:

"[A]ll      actions        in     which           the         sole     defendant          is     the

state . . . shall          be    venued       in       the    county       designated      by    the

plaintiff      unless     another          venue       is    specifically         authorized      by

law."    2011 Wis. Act 61 § 3g; Wis. Stat. § 801.50(3)(a).                                       The

sentence    speaks        of    two    possible             venues.        It    prescribes      the

"county designated by the plaintiff" as the general rule, and

allows an exception only if there is another venue "specifically

authorized by law."

      ¶37      Because     Wis.       Stat.       § 227.53(1)(a)3.              authorizes       the
circuit court to determine venue, it holds out at least the

possibility of "another venue."                         However, it does not, of its

own   force,        establish     "another          venue."           The       phrase    "another

venue," of course, stands in opposition to the one designated by

the   plaintiff.           That       is,    if    the        plaintiff         designates      Dane

County, "another venue" must be any county but that.                                     Here, the

circuit court determined that Dane County would continue as the

venue    for     the   Clean      Wisconsin            case.         This    is    not    "another
venue," but the very same.                    Although the circuit court could
                                                  26
                                                                        No.    2016AP1980-W



have    determined       another     venue,      it    did    not     actually          do   so.

Paragraph          801.50(3)(a)     operates       not   on      possibilities,              but

actualities.          If the circuit court had transferred venue to a

county different from the one designated by Clean Wisconsin,

there would have been "another venue" within the meaning of Wis.

Stat. § 801.50(3)(a).             Thus, we conclude that "another venue is

specifically         authorized    by    law"    only    when       venue     is    lawfully

transferred to a county different from the one designated by the

plaintiff.          Here, the circuit court did not transfer venue to a

county different from the one Clean Wisconsin had designated;

the venue remained as designated by Clean Wisconsin.                                So Dane

County cannot be "another venue."

       ¶38     The respondents came to a different conclusion based,

at least in part, on their understanding of the "unless" clause

as it existed prior to Act 61.                   However, their interpretation

does   not     account    for     the    significant         change    to     the       statute

occasioned by Act 61.              Prior to Act 61, the relevant part of

Wis. Stat. § 801.50(3) said this:                     "All actions in which the
sole defendant is the state . . . shall be venued in Dane County

unless       another     venue     is    specifically         authorized           by    law."

§ 801.50(3) (2009-10).             Contrary to the respondents' argument,

Act    61    significantly        changed    the      structure       of    the     statute.

Before       the    amendment,     the    main     clause      of     subsec. 801.50(3)

mandated venue in Dane County, while the "unless" clause held

out the possibility that a law might make an alternative venue

available.          Thus, the function of the "unless" clause (pre-Act
61)    was    to     potentially    extend       venue-eligibility            to    counties
                                            27
                                                                               No.     2016AP1980-W



other       than    Dane.           It    no   longer       serves      that      purpose.       By

eliminating Dane County as the required venue, Act 61 made all

counties potentially venue-eligible.                         As a result, the "unless"

clause       no     longer       serves        as    a     means     of     extending       venue-

eligibility as it once did.                     As discussed above, it now serves

only    as    a    mechanism         by   which      to    oust     the    plaintiff's        venue

designation.16

                               d.    The Cochart Petitioners

       ¶39     There is still the matter of the Cochart Petitioners.

Their petition designated Kewaunee County, but they litigated in

Dane    County.           If   their      petition         had    arrived      in    Dane   County

Circuit       Court        via      a     simple         transfer-of-venue           order,     the

exception          to    the     venue-designation               rule     might      have   become

operative.              Dane   County      is       "another      venue"     in      relation   to


       16
       The Court of Appeals essentially argues that we must give
the "unless" clause the same meaning it had prior to Act 61.
But when the legislature changes the structure of a statute, we
must construe it anew.    See State ex rel. Dep't of Agric. v.
Marriott, 237 Wis. 607, 625, 296 N.W. 622 (1941) ("[A]n amended
statute is to be given the meaning that it would have had if it
had read from the beginning as amended."); see also Wis. Stat.
§ 990.001(7) ("A revised statute is to be understood in the same
sense as the original unless the change in language indicates a
different   meaning   so   clearly  as   to    preclude judicial
construction."). The change to the structure and terms of Wis.
Stat. § 801.50(3) (2009-10) so clearly changes the statute's
meaning (as described, supra) that it is impossible to maintain
the pre-Act 61 meaning of the "unless" clause.

     The dissent agrees with the Court of Appeals, but neither
of them account for the significant structural changes wrought
by Act 61. See dissent, ¶¶6-9. Nor do either of them offer any
reason we should ignore those changes.


                                                    28
                                                                    No.     2016AP1980-W



Kewaunee County, and if this hypothetical had come to pass, it

would have been specifically authorized by law.                      An appeal from

that case may have engaged Wis. Stat. § 752.21(1), meaning the

DNR may not have had its selection of appellate venue; the court

of appeals may have been obliged to hear one of the appeals in

District IV.       But the circuit court did not simply transfer the

Cochart   Petitioners'        case——it    consolidated       it     with    the    Clean

Wisconsin    case.       So    there     is    no   longer   a    Kewaunee        County

designation       to   compare   against       venue   in    Dane    County.        And

because     the    surviving     case     still      bears    Clean        Wisconsin's

designation, that is the point of reference in deciding whether

the circuit court determined "another venue" within the meaning

of Wis. Stat. § 801.50(3)(a).             It did not.        So we must conclude

that Clean Wisconsin's designation remains in effect for this

case.

    ¶40     That brings us back to venue for the appeal.                       Because

Clean Wisconsin designated the circuit court venue within the

meaning of Wis. Stat. § 801.50(3)(a), appellate venue must lie
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. § 752.21(2).             The DNR selected

District II, which is a permissible selection because District

IV contains the Dane County Circuit Court.                   Consequently, it is

the court of appeals' plain duty to hear the DNR's appeal in

District II.


                                          29
                                                                     No.     2016AP1980-W



                                 C.    Inadequate Remedy

       ¶41   Next,       we   determine       whether      an   appeal   would   be   an

inadequate remedy.            We will not issue a supervisory writ when an

appeal provides an adequate remedy.                        Kalal, 271 Wis. 2d 633,

¶17;    State      ex     rel.        Lynch   v.    Cty.    Ct.,    Branch     III,    82

Wis. 2d 454, 460, 262 N.W.2d 773 (1978) (stating that a party

must show that "ordinary remedies, by appeal or otherwise, are

inadequate").           Sometimes appellate review in the normal course

of events is inadequate for the simple fact that it comes after

the proceeding has already occurred:                       "The inadequacy of the

remedy of appeal may arise from the fact that appeal would come

too late for effective redress."                   Lynch, 82 Wis. 2d at 461.          And

sometimes     an     appeal       is     inadequate     because     even     post-trial

appellate review is so limited that the error is effectively

insulated from correction.                This case implicates both varieties

of inadequacy.

       ¶42   We have previously recognized that trial court venue

can present an issue requiring review before entry of final
judgment.     The pathway to that review has varied over the years,

and has depended largely on what our rules of civil procedure

have said at the time.                  For example, it was once possible to

appeal a venue order before entry of final judgment.17                             Under


       17
       W. Bank of Scotland v. Tallman, 15 Wis. 101, 101 (1862)
("It is claimed by the respondents' counsel that the order
[denying change of venue] was not appealable.   But we clearly
think it is, upon the ground stated in the opinion of Justice
Cole in the case of Oatman v. Bond.").


                                              30
                                                                           No.    2016AP1980-W



that circumstance, we said mandamus was an inappropriate remedy

because we could timely reach the issue via an appeal.                              State ex

rel. Johnson v. Washburn, 22 Wis. 95, 97 (1867) ("[B]ecause an

order improperly refusing to change the place of trial is an

appealable order, we deny the application for the writ in this

case.").     But once interlocutory appeals of venue orders were no

longer   available         as    a    matter        of   course,     we    concluded       that

mandamus     could    be    a    proper        pathway      for    addressing       improper

venue.      In State ex rel. Spence v. Dick, 103 Wis. 407, 409, 79

N.W. 421 (1899), we observed that "[u]nder the present statute

regulating     appeals      from          orders,    however,      orders       changing    the

venue are not appealable."                  Id. (citations omitted). This meant

that "the reason of the decision in State ex rel. Johnson v.

Washburn     disappear[ed],           and     mandamus      [became]       an    appropriate

remedy."       Id.;    see       State       ex     rel.    Arthur    v.     Proctor,       255

Wis. 355, 357, 38 N.W.2d 505 (1949) ("[B]ecause an order denying

a   motion    for    change          of    venue     was    nonappealable         under     the

statutes, mandamus was the proper remedy."); State ex rel. T. L.
Smith Co. v. Super. Ct. of Dane Cty., 170 Wis. 385, 385, 175

N.W. 927 (1920) (same).

      ¶43    The    lack    of       an    appellate       pathway    in    this    case     is

analogous to Spence.                 That is to say, our rules of appellate

procedure do not give the DNR the right to appeal the Court of

Appeals' venue order.                Strictly speaking, there is no right of




                                               31
                                                                  No.     2016AP1980-W



appeal to this court at all.18            We are not, primarily, an error-

correcting tribunal,19 and we normally hear only those cases that

present something more than just an error of law.                        If the DNR

must wait for the court of appeals to issue a decision on the

merits, its error-correcting recourse would be a petition for

review.    The criteria for granting such a petition, however, do

not encompass correcting an appellate tribunal's simple error of

law.20     And     even       though   those    criteria    do    not    cabin       our

discretion, they fairly represent the most common reasons we

grant review.       Therefore, a successful petition for review in

this case 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).

     ¶44    Because       a    petition   for   review     in    this    case    would

require a "plus" factor just to bring the venue issue before us,

     18
       "Supreme court review is a matter of judicial discretion,
not of right . . . ." Wis. Stat. § (Rule) 809.62(1r).
     19
       The court of appeals' "primary function is error
correcting"; "the supreme court's primary function is that of
law defining and law development."          Cook v. Cook, 208
Wis. 2d 166, 188-89, 560 N.W.2d 246 (1997).
     20
       We generally do not review a case unless it presents a
"real   and   significant   question   of   federal   or   state
constitutional law," or we see a need to "establish[],
implement[] or chang[e] a policy within" our authority, or we
need to "develop, clarify or harmonize the law," or the court of
appeals' decision either conflicts with controlling authority or
is in need of re-examination "due to the passage of time or
changing circumstances." Wis. Stat. § (Rule) 809.62(1r).


                                          32
                                                                  No.        2016AP1980-W



it is a mechanism too chancy to constitute an adequate remedy.

Faced with a similar conundrum, at least one other court came to

the same conclusion.         In In re Volkswagen of America, Inc., 545

F.3d 304 (5th Cir. 2008), the Fifth Circuit considered whether

to issue a writ of mandamus requiring transfer of venue on forum

non conveniens grounds.            Id. at 308-09.          The court noted that

interlocutory     review     of    the   district     court's        order     was    not

available, and that a new trial following appeal from the final

judgment    would     be     possible     only   if        the   appellant        could

demonstrate it would have prevailed in the proper forum.                              See

id. at 318-19.       Consequently, the context of the venue question

on post-trial appellate review would effectively shield it from

resolution.         The    court     concluded      an      appeal      under     those

circumstances     would      be    inadequate,     and      ordered      a     writ   of

mandamus requiring transfer of venue.                 Id.; see In re Lloyd's

Register N. Am., Inc., 780 F.3d 283 (5th Cir.), cert. denied sub

nom. Pearl Seas Cruises, LLC v. Lloyd's Register N. Am., Inc.,

136   S. Ct. 64     (mem.)    (2015)     (same);      In    re   EMC     Corp.,       677
F.3d 1351, 1355 (Fed. Cir. 2012) (same); In re Apple, Inc., 602

F.3d 909, 912 (8th Cir. 2010); In re Nat'l Presto Indus., Inc.,

347 F.3d 662, 663 (7th Cir. 2003) (applying this analysis under

the irreparable harm rubric).

      ¶45   We conclude 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.                               Our

review of that question should not depend on the existence of an


                                         33
                                                                                No.     2016AP1980-W



additional      "plus"         factor       that      would    support        a      petition        for

review.

                                    D.     Irreparable Harm

       ¶46    Finally,         we     determine        whether      the     DNR      would     suffer

irreparable        harm    if       this    court      denies       the     supervisory            writ.

Kalal, 271 Wis. 2d 633, ¶17 (stating that a supervisory writ

will issue only upon a showing of "grave hardship or irreparable

harm" in its absence).                   We conclude that it would——for largely

the same reasons that make a petition for review an inadequate

remedy.

       ¶47    The    legislature               granted      appellants            in    the        DNR's

procedural posture the right to select appellate venue.                                        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.                     As described above, a petition for

review is an uncertain and ill-suited vehicle for addressing

whether      the    court        of      appeals      heard     a    case       in     the     proper

district.       Because the question would, therefore, be unlikely to
receive appellate attention at all, the DNR would be left with

no   sure    means        by     which      to     remedy      the    deprivation             of     its

statutory       right.              That       makes     the        loss,       by     definition,

irreparable.         See, e.g., Proctor, 255 Wis. at 357 (concluding

that    petition      for       writ      of    mandamus       is    the    proper          procedure

because the venue order is non-appealable); Super. Ct. of Dane

Cty.,     170      Wis.     at      385     (same);       Spence,         103        Wis.     at     409

(indicating that the denial of an "absolute" right to change of


                                                 34
                                                                      No.     2016AP1980-W



venue in a different county constituted "substantial damage,"

making mandamus appropriate).

       ¶48     The dissent would conduct what it characterizes as a

"mandatory harmless error analysis," dissent, ¶51, which would

deny    the    appellant     its    statutorily-granted             right    unless       the

choice    of    venue   is   outcome-determinative.                 The   dissent        says

that,    because    District       IV's    judges      are   just    as     fair    as   the

judges of any other district, the DNR cannot demonstrate the

appeal would resolve differently if heard elsewhere.                               See id.,

¶52.     So the dissent would make Wis. Stat. § 752.21(2) a dead

letter.       If an appellant does not have the right to select venue

unless it can demonstrate a panel's judges are "unfair," then

this is just a species of recusal statute.                      Functionally, that

would mean the choice of venue lies with the court of appeals

(as     occurred    here),      not     the     appellant——an        exceedingly          odd

outcome for a statute that says the exact opposite.                          But we have

no need or occasion to question the fairness of District IV's

judges because § 752.21 is a venue selection statute, not a
recusal      statute.      We   will      not   read    it   out     of   existence        by

recasting it as one.

                                 III.     CONCLUSION

       ¶49     We conclude that the DNR has met the requirements for

the issuance of a supervisory writ.                     We, therefore, grant the

petition for a supervisory writ and vacate the August 31, 2016,

Court of Appeals order transferring the appeal in this case from

District II to District IV.               The Court of Appeals shall hear the
appeal in District II.
                                           35
                                                       No.     2016AP1980-W



    By   the   Court.—The   petition   for   a   supervisory     writ   is

granted; the rights are declared as stated; and the stay on

appeal is lifted.




                                 36
                                                                 No.   2016AP1980-W.ssa


      ¶50    SHIRLEY     S.     ABRAHAMSON,        J.     (dissenting).             The

majority     contravenes      (1)    the       court's    duty    to    undertake    a

mandatory harmless error analysis; (2) the statute's text; (3)

the statutory history; (4) the legislative history; and (5) the

meaning of "plain legal duty."

      ¶51    First,    the    majority     does    not    undertake     a    mandatory

harmless error analysis as required by our case law.                         See State

v.   Reyes   Fuerte,    2017    WI   104,       ¶31-33,   378    Wis. 2d 504,       904

N.W.2d 773    (justifying       requiring        the   application      of    harmless

error analysis to a statutory violation because the harmless

error statute predated the statute that was violated).1

      ¶52    No one court of appeals district is more fair than any

other, and when the state is the appellant, it does not appear

that any one court of appeals district is more convenient than

any other.     Where, then, is the harm that justifies an expensive

appeal in the instant case paid for by taxpayers when District

IV is just as fair and arguably more convenient for the DNR than

District II?
      ¶53    This court is barred from picking and choosing when it

will engage in a mandatory harmless error analysis and when it

will not.     The court has explicitly declared that harmless error

      1
       See also State v. Reyes Fuerte, 2017 WI 104, ¶¶57-58, 378
Wis. 2d 504,   904   N.W.2d 773  (Abrahamson,    J., dissenting)
("Apparently, hereafter, every statute enacted and every case
decided after 1897 is subject to a mandatory harmless error
analysis . . . ."); State v. Harvey, 2002 WI 93, ¶47 n.12, 254
Wis. 2d 442, 647 N.W.2d 189 (citing Wis. Stat. § 805.18(2) and
concluding: "The harmless error rule, however, is an injunction
on the courts, which, if applicable, the courts are required to
address regardless of whether the parties do.").


                                           1
                                                                           No.   2016AP1980-W.ssa


"is   an    injunction        on     the   courts,         which,     if     applicable,       the

courts are required to address"2 and is mandatory for violations

of statutes that were passed after 1897.3                          The majority offers no

explanation for failing to engage in a harmless error analysis

in the instant case.

      ¶54     Second,       the     majority's            statutory       interpretation          is

contrary to the statute's text.                           "When the same term is used

throughout        a    chapter      of     the   statutes,          it     is    a    reasonable

deduction that the legislature intended that the term possess an

identical meaning each time it appears."                                 Bank Mut. v. S.J.

Boyer      Const.,      Inc.,      2010    WI    74,       ¶31,    326     Wis. 2d 521,        785

N.W.2d 462.           The phrase "designated by the plaintiff" appears

twice in Wis. Stat. § 801.50.                        In § 801.50(2)(d), the phrase

appears in order to indicate that if none of the situations

outlined     in       § 801.50(2)(a)-(c)             applies       directing         venue   to    a

particular county, "venue shall be in any county designated by

the plaintiff."             In § 801.50(2)(d), the phrase "designated by

the plaintiff" clearly contemplates a choice being made by the
plaintiff.            The   phrase    should         be    given    the     same     meaning      in

§ 801.50(2)(d)4 and § 801.50(3)(a).5

      2
          Harvey, 254 Wis. 2d 442, ¶47 n.12.
      3
          Reyes Fuerte, 378 Wis. 2d 504, ¶31-33.
      4
       "If the provisions under par. (a) to (c) do not apply,
then venue shall be in any county designated by the plaintiff."
      5
       "Except as provided in pars. (b) and (c), all actions in
which the sole defendant is the state . . . shall be venued in
the county designated by the plaintiff unless another venue is
specifically authorized by law."


                                                 2
                                                                    No.    2016AP1980-W.ssa


    ¶55        Third,    the       majority       opinion    is    contrary          to        the

statutory      history       of    Wis.    Stat.    § 801.50(3).          In    2011,          the

statute was amended to change the default venue for actions in

which the sole defendant is the state from Dane County to the

venue    "designated         by    the     plaintiff."       However,       the       amended

statute       retained       the     language       "unless       another       venue           is

specifically authorized by law," a phrase that appeared in the

prior statute.          Wis. Stat. § 801.50(3) (2009-10) ("All actions

in which the sole defendant is the state . . . shall be venued

in Dane County unless another venue is specifically authorized

by law.").

    ¶56        Prior    to   the    amendment,       the    phrase    "unless         another

venue    is    specifically        authorized       by   law"     operated      to    direct

Chapter 227 actions in which the state was the sole defendant to

be venued in Dane County unless some other statute directed

venue to be elsewhere.6              The majority flips the "unless" clause

in Wis. Stat. § 801.50(3)(a) on its head.                     Now, according to the

majority,       a   plaintiff       may      designate      the    venue       even       if     a
particular venue is mandated by statute, and the "unless" clause

means that there can be a lawful venue change after the case is

filed.

    ¶57        The majority claims that the analysis of the statutory

history       set   forth    above        ignores   "the    significant         structural


    6
       For example, Wis. Stat. § 227.53(1)(a)3. provides:  "If
the petitioner is a resident, the proceedings shall be held in
the circuit court for the county where the petitioner
resides . . . ."


                                              3
                                                                    No.    2016AP1980-W.ssa


changes   wrought     by    Act      61."        Majority    op.,    ¶38     n.16.       The

"significant structural changes" are of the court's own making,

not the legislature's.              Did the legislature intend, by changing

"shall be venued in Dane County" to "shall be venued in the

county designated by the plaintiff" in Wis. Stat. § 801.50(3),

to establish a framework wherein a plaintiff will practically

never have a choice of venue,7 but appellants will almost always

have a choice of venue?             This result appears absurd.

    ¶58     It is much more likely that the legislature did not

intend to create such a lopsided framework and instead intended

to create a framework wherein an appellant's ability to choose

the venue is necessarily tied to the plaintiff's having a choice

of venue at the trial court level.                         Interpreting Wis. Stat.

§ 801.50(3)(a)      to     entail     a     choice    of    venue     by    a     plaintiff

accomplishes    two      objectives:             First,     it    avoids     the     absurd

framework that the court now establishes.                        Second, it does not

disturb   the   meaning        of    the    "unless"       clause,        which    was   not

altered by the legislature's amendment.
    ¶59     Fourth,      the      majority        opinion    is     contrary       to    the

statute's    legislative            history.         The    Legislative           Reference

Bureau's analysis of 2011 S.B. 117, a document distributed to

all legislators, explained that the bill "permitted" plaintiffs

to designate the county within which to bring an action.                                 The


    7
       A review of the Wisconsin Statutes reveals that in many
situations a statute directs that venue be in a particular
county.    See, e.g., Wis. Stat. §§ 801.50(2), 801.50(3)(b),
801.50(3)(c), 227.40(1).


                                             4
                                                                        No.    2016AP1980-W.ssa


use   of       the    word    "permit"    is        telling.        The       word    "permits"

contemplates a choice.                 How can the Administrative Petitioners

be said to have been "permitted" to designate venue when by

operation        of    Wis.    Stat.    § 227.53(1)(a)3.,           the       Administrative

Petitioners had but one choice——file their respective petitions

in the county in which they reside?                            The legislative history

reflects a reciprocity of choice between a plaintiff and an

appellant such that only if a plaintiff is allowed to choose

venue     in    the     circuit   court     will         an   appellant       be     allowed    to

choose venue on appeal.

      ¶60       The     Fiscal    Estimate      Narrative         for     2011       S.B.    117,

another        document        circulated       to       all    lawmakers,           explicitly

described the operation of the bill as allowing plaintiffs to

choose their venue under the statute.

      ¶61       The majority faults a court's reliance on documents

such as the Legislative Reference Bureau's analysis of the bill

and the Fiscal Estimate Narrative, suggesting that nobody has

the slightest idea what impact these documents had on individual
legislators           and    casting    doubt       on    whether    anyone          reads     the

documents.

      ¶62       Co-equal branches of government owe respect to each

other.8        I do not join the majority in belittling the legislative


      8
       Courts presume that the legislature respects the work of
the courts.   Thus, this court presumes that the legislature is
aware of existing case law when it passes legislation, Czapinski
v. St. Francis Hosp., Inc., 2000 WI 80, ¶22, 236 Wis. 2d 316,
613 N.W.2d 120 ("[T]he legislature is presumed to act with
knowledge of the existing case law.").

                                                                                   (continued)
                                                5
                                                                No.   2016AP1980-W.ssa


branch, disparagingly portraying legislators as having little if

any knowledge about the laws they enact.

      ¶63    At a minimum, a court should presume that legislators

are aware of the explanatory material the Legislative Reference

Bureau must set forth in each bill.9                  The legislature requires

the Legislative Reference Bureau to draft the language of each

and every bill to be introduced in the legislature and generate

explanatory material for each bill in plain English, explaining

the bill's impact and effect.10           Although explanatory material in

a   bill    is   not   dispositive   in       a   court's   interpretation        of   a

statute, the explanatory material required to be available to

all legislators has been relied upon by this court in statutory

interpretation.          The   interpretation          of   a    statute     in    the


     This court respects the work of the legislature.          A
judicial construction of a statute is entitled to more weight
when the legislature has not acted to change that judicial
construction, Estate of Miller v. Storey, 2017 WI 99, ¶52, 378
Wis. 2d 358, 903 N.W.2d 759 (upholding a judicial interpretation
of a statute because "the legislature had ample opportunity to
act   on   or   repeal  the   judicial  interpretation   of   [a
statute] . . . [b]ut the legislature did not act on or repeal
the interpreted language").

     It is, of course, one of the judicial branch's legal
fictions to declare that the legislature is aware of existing
case law when enacting legislation.   The court itself may not
always be aware of its own existing case law when it decides a
case.
      9
       The Legislative Reference Bureau is required to prepare
Prefatory Notes (Analysis to Bills) for each bill.    Wis. Stat.
§ 13.92(1)(b)2.   For a description of the work of the Bureau,
see Wisconsin Legislative Reference Bureau, Bill Drafting Manual
2017-2018, ch. 4.
      10
           Wis. Stat. §§ 13.92(1)(b)1., 13.92(1)(b)2.


                                          6
                                                         No.   2016AP1980-W.ssa


explanatory note prepared by the legislative staff that drafted

the   text   of   the   statute   should   not,   in   every   instance,    be

totally ignored by a court.11

      ¶64    Fifth and finally, the majority errs in its discussion

of "plain legal duty."        Quoting State ex rel. Kalal v. Circuit

Court for Dane County, 2004 WI 58, ¶22, 271 Wis. 2d 633, 681

N.W.2d 110, the majority acknowledges that "[a] plain duty is

one that is 'clear and unequivocal and, under the facts, the

responsibility to act [is] imperative.'"               Majority op., ¶11.

The majority then concludes that "clear and unequivocal" and

"the responsibility to act is imperative" do "not require the

duty to be settled or obvious," quoting Madison Metropolitan

School District v. Circuit Court for Dane County, 2011 WI 72,

¶84, 336 Wis. 2d 95, 800 N.W.2d 442.12            Majority op., ¶11.       The

majority and Madison Metropolitan School District's defining of

"plain duty" in this way is not supported by the case law.                  In

State ex rel. Two Unnamed Petitioners v. Peterson, the court

reaffirmed that the obligation of a judge to correctly apply the
law "is not the type of plain legal duty contemplated by the

supervisory writ procedure."         2015 WI 85, ¶81, 363 Wis. 2d 1,

      11
       See State ex rel. Kalal v. Cir. Ct. for            Dane Cnty., 2004
WI 58, ¶69, 271 Wis. 2d 633, 681 N.W.2d 110               (Abrahamson, J.,
concurring) (positing a non-exhaustive list of            various forms of
history that have been helpful to courts                  in interpreting
statutes).
      12
       "'[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.'"    Majority op., ¶11 (citation
omitted).


                                      7
                                                            No.   2016AP1980-W.ssa


866 N.W.2d 165.          The Two Unnamed Petitioners court declared that

for a duty to be plain, clear, and unequivocal, it must also be

settled and obvious.          Id., ¶81 (quoting Kalal, 271 Wis. 2d 633,

¶24).      To hold otherwise "would extend supervisory jurisdiction

to   a    virtually      unlimited    range    of   decisions     involving     the

finding        of   facts   and   application       of   law."       Kalal,     271

Wis. 2d 633, ¶24.           How can the majority square this language

from Kalal, which was reaffirmed in Two Unnamed Petitioners,

with Madison Metropolitan School District?                 I do not think it

can.

         ¶65   For these reasons, I dissent.

         ¶66   I    am   authorized   to   state    that   Justice    ANN     WALSH

BRADLEY joins this dissenting opinion.




                                           8
    No.   2016AP1980-W.ssa




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