STATE OF WISCONSIN
CIRCUIT COURT Branch 6
CITY OF MILWAUKEE,
ASSOCIATION OF LAW ENFORCEMENT
ALLIED SERVICES PERSONNEL, LOCAL
218, IUPA, AFL-CIO;
MILWAUKEE POLICE ASSOCIATION, and
AFSCME DISTRICT COUNCIL 48, AFL-CIO,
MEMORANDUM DECISION AND ORDER
(Mot. to Dismiss)
Case No. 99-CV-0769
[Decision No. 29547-A]
[NOTE: This document was re-keyed by WERC. Original pagination has been
The City of Milwaukee petitions for judicial review of a decision by the Wisconsin
Relations Commission (WERC). The interested parties move to dismiss the petition on the
grounds that it was
filed in the wrong court. The Court concludes that venue in Dane County Circuit Court is
improper and orders
the action certified to Milwaukee County Circuit Court.
Milwaukee's petition alleges that on February 24, 1998, it filed a petition with
declaratory ruling as to its duty to bargain with interested party Milwaukee Police
Association (MPA) on
pension benefits and other issues. WERC allowed interested parties Association of Law
Services Personnel (ALEASP) and AFSCME to intervene on the pension benefits issue. On
March 3, 1999,
WERC held against Milwaukee, ruling that MPA's proposal could be funded from existing
assets in the
Milwaukee Employes' Retirement System without violating the constitutional rights of
participants in that system.
Milwaukee filed a petition for judicial review in Dane County Circuit Court on April
Interested parties MPA, ALEASP and AFSCME all move to dismiss the petition on the
it should have been filed in Milwaukee County Circuit Court. WERC has not taken an
Chapter 227, Stats., governs judicial review of WERC's decisions involving
employment relations. Secs. 111.70(4) (a), 111.07(8), Stats. Chapter 227 Stats., confers
matter on all circuit courts to review administrative decisions. Shopper Advertiser,
Inc. v. DOR, 117
Wis.2d 223, 230 (1984). Though bringing a judicial review in an improper circuit court
does not result
in a lack of subject matter jurisdiction, the improper court will lack competence to render a
judgment. 117 Wis.2d at 231.
Sec. 227.53(1) (a)3, Stats., provides in pertinent part:
If the petitioner is a resident, the proceedings shall be held in the circuit court
for the county where the petitioner resides, except that if the petitioner is an agency,
the proceedings shall be in the circuit court for the county where the respondent
resides and except as provided in ss. 77.59(6) (b), 182.70(6) and 182.71(5)(g). The
proceedings shall be in the circuit court for Dane County if the petitioner is a
nonresident. If all parties stipulate and the court to which the parties desire to transfer
the proceedings agrees, the proceedings may be held in the county designated by the
parties. . . . .
The parties have not stipulated to holding judicial review proceedings here and the City
a municipal body, is not an agency within the meaning of sec. 227.01(1), Stats. See
State ex rel. Wasilewski v. Board of School Directors, 14 Wis.2d 243,
263-64 (1961). Thus, the question
is whether Milwaukee is a "resident" which must commence proceedings in Milwaukee
Court or a "nonresident" which must commence proceedings in Dane County.
The term "resident" has long embraced both real persons and corporate entities, such
corporations. E.g, State ex rel. Atty. Gen. v. Milwaukee, L. S. & W. Ry.
Co., 45 Wis. 579, 593 (1878);
State ex rel. Webster Mfg. Co. v. Risjord, 201 Wis. 26, 27 (1930). The
Wisconsin Supreme Court "has
repeatedly held that a city is a municipal corporation." City of Madison
v. Hyland, Hall & Co., 73 Wis.2d
364, 370 (1976) (emphasis added). Indeed, Milwaukee's own city charter identifies it as a
corporation. Milw. City Charter, sec. 1-01.
Section 227.53(1)(a)3, Stats., distinguishes between "residents" and "nonresidents",
who are real persons and non-human entities. The obvious and sole rationale for the
residents and non-residents in sec. 227.53(1)(a)3, Stats., is that it allows non-resident
petitioners, who do
not reside in any Wisconsin county, to have a venue for judicial review. Compare
Black's Law Dictionary
at 1309 (6th ed. 1990) (a "resident" is a person "who occupies a dwelling
within the State") with Id. at
1057 (a "non-resident" is [o]ne who does not reside within jurisdiction in question; not an
inhabitant of the
state of the forum."). A reasonable person reading the statute
would not understand a municipal entity like the city of Milwaukee to be a
"nonresident" of Wisconsin.
Milwaukee notes the affidavit of WERC's attorney, ¶4, which asserts that
Milwaukee is neither
a resident nor a non-resident within the meaning of sec. 227.53(1)(a)3, Stats. However,
of 'decisions and orders of administrative agencies' must be had 'as set forth in ch. 227.'"
Greyhound Mgt. Corp. v. Racing Bd., 157 Wis.2d 678, 697-98 (Ct. App. 1990). It
is simply incredible
to believe that the legislature would set up an exclusive procedure for judicial review only to
procedure be completely silent as to the proper venue for a large class of petitioners, private
corporations, especially when doing so requires disregarding more than a century's worth of
which clearly applies the concept of residence to corporate entities.
Section 227.53(1)(a)3, Stats., is clearly intended to govern venue in all chapter 227
unless some other statute expressly governs. It creates three categories--residents,
agencies. As noted, Milwaukee as a municipality is not an agency, nor does it contend to
be. Thus, it must
be either a resident or a non-resident. Milwaukee does not reside outside of Wisconsin, nor
does it reside
in Dane County. Venue here is improper.1
1Milwaukee contends that it is not a resident of Milwaukee County
because it has territory in other
counties. However, Milwaukee's petition, ¶1, alleges a Milwaukee County address.
At any rate,
Milwaukee is neither a non-resident of Wisconsin nor a resident of Dane County, the
Without citing any other authority, Milwaukee contends that venue here is proper
801.50(3), Stats., which provides that Dane County is the proper venue for actions against
However, the rules of civil procedure apply to chapter 227 reviews only where they do not
the provisions of chapter 227. State ex rel. town of Delavan v. Walworth County
Circuit Court, 167
Wis.2d 719, 727 (1992). Unlike the venue statute at issue in Shopper
Advertiser, 117 Wis.2d at 231, sec.
801.50(3), Stats., does not specifically apply to reviews of administrative decisions in general
employment decisions of WERC in particular. To the contrary, chapter 227 applies by
Secs. 111.70(4)(a), 111.07(8), Stats. Because applying sec. 801.50(3), Stats., here
would create a conflict
with sec. 227.53(1)(a)3, Stats., "the civil procedures must give way to the dictates of ch.
227." Town of
Delavan, 167 Wis.2d at 727.
Under sec. 807.07(2), Stats., circuit courts in which judicial reviews are erroneously
certify the case to the proper court "provided that the error arose from mistake." See
Shopper, 117 Wis.2d
at 233. This rule of civil procedure does apply to judicial reviews brought in the wrong
Because this Court does have subject jurisdiction, certification would not be made untimely
time for filing in the proper venue had lapsed. Id., 117 Wis.2d at 235-36.
Unlike Shopper Advertiser, 117 Wis.2d at 235, this does not appear to
be a case in which a
petitioner, faced with a choice
between two potential forums and ambiguous laws, innocently chose the wrong venue.
parties present an affidavit from WERC's attorney which at least suggest that Milwaukee was
to forum shop and knew that the interested parties would not stipulate to venue in Dane
County. Rice Aff.,
¶¶2, 5. Milwaukee's position calls for unreasonably strained application of the
statutes and principals
involved. Nevertheless, there are no cases directly on point and, though Milwaukee may
motivated to gain an advantage against its adversaries, the court does not see any evidence
that arises to
the level of bad faith. See Shopper Advertiser, 117 Wis.2d at 235. The
Milwaukee city attorney did
discuss the matter with WERC's attorney who did no more than indicate that he was
probably wrong. See
Rice Aff., ¶4. Moreover, dismissal is an extreme sanction for an error in venue
where, as discussed, the
Court's subject matter jurisdiction has been properly invoked. Thus, the Court will not
dismiss the action,
but will order it certified to Milwaukee County Circuit Court, the proper venue.
IT IS HEREBY ORDERED that the motions to dismiss of interested parties
Law Enforcement Personnel, Milwaukee Police Association and AFSCME are GRANTED to
extent that the Court rules that venue in Dane County Circuit Court is improper, but
motions are DENIED;
IT IS FURTHER ORDERED that the above-captioned action be CERTIFIED to
County Circuit Court pursuant to sec. 807.07(2), Stats.
Dated, at Madison, Wisconsin, this 15th day of November, 1999.
BY THE COURT
Richard J. Callaway /s/
Richard J. Callaway, Judge
Circuit Court, Branch 6
cc: Assistant City Attorney Thomas J. Beamish (Milwaukee)
Assistant Attorney General David C. Rice (WERC)
Attorney Jeffrey P. Sweetland (ALEASP)
Attorney Laurie A. Eggert (MPA)
Attorney Alvin R. Ugent (AFSCME)