Vol. 70,
No. 3, March
1997
Supreme Court Orders
Venue in prisoner cases
In the Matter of the Amendment of Supreme Court Rules: (Proposed) SCR
70.40 - Venue in Prisoner Case
Order 96-14
On Dec. 3, 1996, the Committee of Chief Judges filed a petition requesting
the
creation of a rule of court administration to establish a procedure by which
proper venue in inmate conditions of confinement and grievance proceedings
would be determined by the court in which the proceeding is filed and if
an evidentiary hearing is deemed likely to be required and a county other
than where the proceeding was filed appears more convenient for the parties
and witnesses, the case would be sent to the more convenient county by the
court in which the proceeding was filed. The rule would further provide
that indigency determination and a decision on the arguable merit of the
proceeding would be made by the court to which the proceeding is sent or
the court in which it remains.
IT IS ORDERED that a public hearing on the petition be held in the Supreme
Court Room in the State Capitol, Madison, Wis., on April 15, 1997, at 1:30
p.m.
IT IS FURTHER ORDERED that the court's conference in the matter shall
be held promptly following the public hearing.
IT IS FURTHER ORDERED that notice of the hearing be given by a single
publication of a copy of this order and of the petition in the official
state newspaper and in an official publication of the State Bar of Wisconsin
not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 22nd day of January, 1997.
By the court:
Marilyn L. Graves, Clerk
Petition
WHEREAS, in the State of Wisconsin, there are now 11 adult correctional
facilities located in nine counties, and 18 adult correctional centers located
in an additional seven counties; and
WHEREAS, the Department of Corrections is currently in the process of
expanding existing prisons and building a new "super max" prison
that will add 1,050 new beds by November 1997, and have also requested funds
in the 1997-99 budget for an additional 1,100 new beds; and
WHEREAS, it is estimated the increase in prisoner-generated litigation
will keep pace with, if not exceed, the growth in prison population, and
that filings will occur in a greater number of counties; and
WHEREAS, during the current calendar year an estimated 600 cases are
expected to be initiated in Wisconsin circuit courts by inmates of Wisconsin
prisons; cases such as writs of certiori, mandamus and habeas corpus, actions
filed under 42 U.S.C. 1983 and tort actions for property loss, damages,
slander or negligence; and
WHEREAS, inmates are often in error with their assumptions of correct
or convenient venue and attempt to file cases in inappropriate and/or multiple
courts, leading to delays in processing and misunderstanding among judges
and court personnel; and
WHEREAS, a Supreme Court Rule will provide guidance to judges and court
personnel and consistent treatment of these cases, which is good public
policy; and
WHEREAS, on Aug. 9, 1996, the chief judges agreed in concept on how venue
should be addressed in these cases, and at the suggestion of the Director
of State Courts, agreed that a rulemaking petition to the court was the
appropriate course to pursue to implement these concepts;
THEREFORE, the chief judges hereby petition the supreme court to create
the following rule effective Jan. 1, 1997, or as soon thereafter as practicable:
SCR 70.40 Venue in Prisoner Cases
The Incarcerated Person (IP) case type designation shall be used by a
Clerk of Circuit Court to identify pleadings filed by any jail or prison
inmate when the intention is to initiate a court case dealing with conditions
of imprisonment or other grievance matters not including family, small claims,
or criminal post-judgment issues related to conviction. The only issues
before the court at this stage of the proceedings are whether the petitioner
is indigent and whether the pleadings state a claim for which relief might
be granted. Upon determination that a case has merit and states a cause
of action, and after resolution of indigency and/or filing fee questions,
the IP case shall be transferred and assigned a civil (CV) case type designation
and number and shall proceed before the assigned judge. The IP case designation
is not intended to replace family, criminal or civil case type designations
when those designations are appropriate.
When an Incarcerated Person (IP) case is initiated, the circuit court
shall determine on the pleadings, in the following order:
- 1)if venue is statutorily proper;
- 2)if venue is proper in more than one county;
- 3)if an evidentiary hearing is likely to be needed; and,
- 4)if another county is more convenient for parties and witnesses.
If 2), 3) and 4) are all answered in the affirmative, then the case shall
be forwarded to the Clerk of Circuit Court in the more convenient county,
with notice to the parties. The judge ultimately responsible for the case
shall determine indigency and merit.
If a case is forwarded to another circuit court and the judge of the
receiving court believes an error has been made in establishing venue, the
matter shall be referred to the chief judge(s) of the district(s) involved
who shall resolve the dispute. The chief judge of the receiving jurisdiction
shall have the final authority.
COMMENT: This rule is intended to have three positive results. Circuit
judges will determine proper venue in a consistent manner throughout the
state. The IP case designation will be used in a standard manner, permitting
statewide analysis of prisoner litigation workloads. Finally, only the judge
in the jurisdiction where the case is filed after all changes in venue have
been made will make the determinations as to merit and indigency.
Respectfully submitted this 3rd day of December, 1996.
Committee of Chief Judges
J. Denis Moran
Director of State Courts
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