A courtroom and a judge’s gavel. (Getty Images creative)
A pair of Republican legislators have introduced a proposal that would allow the parties in lawsuits against state officials filed in Wisconsin’s largest, and most Democratic, counties to have the venue changed to another county court. Critics of the proposal say it amounts to an attempt to gerrymander the court system.
The legislation from Rep. David Steffen (R-Howard) and Sen. Jesse James (R-Thorp) is currently circulating for co-sponsorship. Under the “Court Fairness Bill,” if a lawsuit against certain government officials is filed in a county with a first or second class city — the designation given to cities with more than 39,500 residents — any party to the lawsuit can request a venue change to a different circuit court. The second court would be chosen randomly and no further venue changes would be allowed.
Steffen told the Wisconsin Examiner that the bill was designed to allow Republicans to move lawsuits out of Dane County court because they believe they don’t “get a fair shake” when arguing in front of judges elected by the state’s most Democratic voting county. Current law doesn’t require lawsuits against the state government to be filed in Madison, but because most state government offices are in the capital city, many of those lawsuits are heard in the Dane County Circuit Court.
“If you are a liberal entity or individual, you increase your chance of success substantially by filing that case in the Dane County Circuit,” Steffen said. “That type of judge shopping should not only be discouraged but prevented when possible, and so I don’t believe that that is the way our Founding Fathers, both at the national or state level, envisioned courts to work where individuals or organizations are making decisions where they file based on the chance of it being a more favorable outcome.”
Steffen added that he thinks the number of lawsuits filed against state government would decrease if people thought they might be heard by judges outside of Dane County.
“So by providing an option for either party to request a random selection to another circuit, we increase the public’s perception and support of the decision that is made, and we decrease the number of frivolous and politically motivated lawsuits and decisions,” he said.
Current law already allows parties to a lawsuit to change the venue at the appellate level. Wisconsin is divided into four appeals court districts. If a case is heard at the circuit court level in Dane County, its appeal would generally be heard in the District IV Court of Appeals, which covers 24 counties across most of southwestern and central Wisconsin. In 2011, Republicans enacted a law that allows a party in a lawsuit to request that an appeal be heard in a different district.
Jeff Mandell, general counsel of the voting rights focused firm Law Forward, told the Examiner the proposal is an attempt to disenfranchise voters in cities that Republicans don’t like because of the people they elect to be judges.
“It’s a further attempt to gerrymander the courts,” he said. “The gerrymandered Legislature has already gerrymandered the appellate courts and now it’s trying to gerrymander the circuit courts. It is anti-democratic. It is anti-rule of law, it is inappropriate, it is inefficient, and there’s no good reason for it, and here, fascinatingly, they only want it to apply to lawsuits that are filed in counties that have cities of the first or second class. So they’re really just targeting counties that have larger populations or that they don’t like. It’s a very weird thing.”
While the proposal would allow venue changes in Milwaukee County and more than a dozen counties with second class cities, Steffen said it’s targeted at Dane County because he believes Republicans lose 90-95% of their cases there.
“There is no place other than downtown Madison that has a 91% concentration of a party,” he said.
Mandell said Steffen is exaggerating how poorly conservative causes do in Dane County court and there’s no requirement right now that lawsuits against the state be filed there. Wisconsin’s judges are elected for a reason, Mandell said, and this bill would nullify the choices of hundreds of thousands of Dane County voters.
“We have elected judges in Wisconsin, and one of the theories is that we do that because our judges are responsive to and come from the community,” he said. “So if I have an issue with the way that a local election official, or any other local official is doing something in my local area, part of the reason to bring the suit where I live is because the judge knows and understands the conditions of my local area. To then send it someplace completely different is truly bizarre.”
He added that if someone were trying to sue their member of Congress, the proposal would allow that suit to get moved to another side of the state where there is less knowledge about that representative and the community that elected them.
“You are looking to the court to give you relief, but you are probably also looking for other people who are constituents of your member of Congress to know about this and be able to follow the case,” he said. “But now the venue is going to be randomly reassigned, and it could be assigned well outside of the congressional district. The judge is no longer a constituent or doesn’t know as much about the member of Congress and the local media no longer has the same kind of access. The whole thing is just really, really bizarre.”
Experts also say there are a number of logistical concerns with the proposal.
Bree Grossi Wilde, executive director of UW-Madison’s State Democracy Research Initiative, said because of Wisconsin’s political geography, the proposal wouldn’t make things even. Moving a case out of Dane County doesn’t give a 50-50 shot at landing that case in a conservative or liberal county because a higher number of Wisconsin’s 72 counties lean conservative.
“If the concern is to try to level the playing field and have a more diverse kind of set of circuit court judges deciding these important cases that are brought against state or federal officials, or whatever it might be, then actually, it’s going to swing in the opposite direction,” she said. “It’s not going to be more level. It’s going to be likely more conservative judges deciding these cases.”
She added that a similar bill authored by Republicans in Kentucky was struck down by that state’s Supreme Court. Steffen said he’s not concerned about that happening here if the bill were passed — though it’s unlikely it would be signed by Democratic Gov. Tony Evers.
Plus, Grossi Wilde said, because Dane County has been the venue for many of these cases for so long, there’s a level of expertise and institutional knowledge in cases involving complex areas of state law such as elections.
“Sometimes it’s more about expertise … these are judges that are familiar with these claims and are able to sort of manage them more efficiently,” she said, adding that “Dane County Circuit Court has built up that bench, has built up this sort of expertise, because they’re used to managing these type of cases.”
Sending cases out around the state to judges who deal with many issues and are not particularly familiar with certain areas of the law — “whether it be … civil, criminal, family, juvenile, probate … [or] complicated or constitutional claims” could burden courts and cause them not to work as well, she said.
Steffen said he hadn’t nailed down the details of how the new venue would be randomly selected, but suggested drawing cards or names out of a hat.
But Mandell questioned what would happen if a case was filed in Milwaukee County and the name drawn out of the hat was far-away Bayfield County.
“It’s highly inefficient,” he said. “I mean … every time the court wants to hold a hearing, everybody might have to, you know, schlep all the way to Bayfield. For what purpose?”
The deadline for lawmakers to sign on to the bill as co-sponsors is Feb. 18.