SUPREME COURT OF WISCONSIN
In the
Matter of the Amendment of
Supreme
Court Rules: (Proposed) ORDER
SCR 70.40 –- Venue in Prisoner Cases No.
96-14
The court held a
public hearing April 15, 1997 on the petition of the Committee of Chief Judges
requesting the creation of a rule of court administration to establish a
procedure by which the most appropriate venue in prisoner conditions of
confinement and grievance proceedings would be determined by the court to which
the proceeding is submitted and if an evidentiary hearing is deemed likely to
be required and a county other than where the proceeding was submitted appears
more convenient for the parties and witnesses at that hearing, the court where
the proceeding was submitted would send the case to the circuit court in the
more convenient county. Pursuant to the proposed procedure, if the proceeding
is sent to the court in another county, that court would determine the
indigency of the prisoner and decide whether it states a claim upon which the
court may grant relief.
The court has
considered the petition, the presentation at the public hearing, and the
materials filed with the court thereafter.
IT IS ORDERED
that, effective the date of this order, SCR 70.40 is created to read:
SCR 70.40 Venue in incarcerated
person cases.
(1) The clerk of circuit court shall
use the incarcerated person case type designation to identify pleadings and
papers submitted by any jail or prison inmate seeking to commence, prosecute or
defend an action or proceeding under section 814.29(1) of the statutes if the
pleadings and papers submitted appear to deal with the fact, duration or
conditions of imprisonment or with other confinement matters not including
criminal postjudgment issues related to conviction. The incarcerated person
case designation is not intended to replace family, criminal or civil case type
designations when those designations are appropriate.
(2) When
pleadings and papers are designated an incarcerated person case, the court
shall determine all of the following, based on the pleadings and papers
submitted, in the following order:
(a) Whether the
venue where the pleadings and papers are submitted is proper.
(b) Whether
venue is also proper in another county.
(c) Whether an
evidentiary hearing is likely to be needed.
(d) Whether
another county where venue is proper is more convenient for the parties and the
witnesses.
(3) If
sub. (2) (b), (c) and (d) are all answered in the affirmative, the court on its
own motion shall change venue to the more convenient county under section
801.52 of the statutes. The clerk of the circuit court shall forward the case
to the clerk of circuit court in the more convenient county and shall give
notice of that action to the parties. The court to which the case is forwarded
shall determine indigency and whether the case presents a claim upon which the
court may grant relief and shall issue an appropriate order under section
814.29(1) of the statutes.
(4) If
the court to which the case is forwarded under sub. (3) believes an error has
been made in the determination that venue is proper in that court, the court
shall refer the matter to the chief judge of the district in which that court
is located to resolve the matter.
(5) If the court to which the
pleadings and papers are submitted or the court to which the case is forwarded
determines that the case has merit and states a claim, defense or appeal upon
which the court may grant relief, resolves any issues related to indigency or
filing fees and orders the case commenced under section 814.29(1) of the
statutes, the incarcerated person case shall be assigned a civil case type
designation and number and shall proceed before the assigned judge.
IT IS FURTHER
ORDERED that notice of this amendment of the Supreme Court Rules shall be given
by a single publication of a copy of this order in the official state
newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wisconsin, this
2nd day of July, 1997.
BY
THE COURT:
___________________________
Cornelia G. Clark
Chief Deputy Clerk