Judicial Council Note, 1983: Sub. (1) is designed to separate questions of venue from questions of jurisdiction and competency. A defect in venue is not jurisdictional and does not affect the competence of the court. The cure for a defect in venue is to change the place of trial.
Sub. (2) liberalizes the present venue statute by providing the plaintiff with a broader range of initial venue choices. This subsection also deletes many of the archaic distinctions in the former statute.
The following list contains many, but not all, of the specialized venue provisions not found in chapter 801: s. 48.185 (children's code proceedings); s. 48.83 (adoption of minors); s. 51.45 (13) (n) (civil mental commitments); s. 52.10 (11) (proceedings under the uniform reciprocal enforcement of support act) [s. 52.10 (11) was renumbered s. 767.65 (11) and subsequently repealed by 1993 Wis. Act 326
, which created ch. 769, the uniform interstate family support act]; s. 77.12 (forest croplands tax act); s. 111.60 (Wisconsin employment relations act); s. 144.73 (4) [now s. 291.95 (4)] (hazardous waste act); s. 185.44 (1) (cooperative contracts); s. 195.07 (railroad regulation act); s. 196.44 (3) (public utilities regulation act); s. 198.12 (2) (municipal power and water district act); s. 215.02 (5) (savings and loan association act); s. 227.16 (1) (administrative procedure act); s. 232.38 (solid waste recycling authority act); s. 234.22 (housing finance authority act); s. 345.31 (motor vehicle act); s. 421.401 (Wisconsin consumer act); s. 645.04 (1) (insurers rehabilitation and liquidation act); [s. 655.19 (health care liability and patients compensation)]; s. 701.14 (4) (living trusts); s. 752.21 (court of appeals); s. 753.065 (naturalization proceedings); s. 757.89 (Wisconsin judicial commission); s. 776.13 (annulment of corporate charters); s. 779.20 (log liens); s. 799.11 (small claims actions); s. 800.15 (municipal court appeals); s. 880.05 (guardianship actions); s. 882.03 (adult adoptions); s. 971.19 (criminal proceedings); s. 979.01 (inquests of the dead); s. 23.90 (conservation act); s. 45.50 (3) (soldiers and sailors civil relief); and s. 753.34 (5) (Menominee and Shawano counties).
Sub. (3) remains the same in substance.
Subs. (4) and (5) remain unchanged.
Sub. (6) recognizes the authority of the judge to change venue under s. 801.52. [Bill 324-S]
Discussing “substantial business" under sub. (2) (c). Enpro Assessment Corp. v. Enpro Plus, Inc., 171 Wis. 2d 542
, 492 N.W.2d 325
(Ct. App. 1992).
“Where the liberty of the plaintiff is restrained" under sub. (4) (b) is the county where the plaintiff is confined. State ex rel. Frederick v. McCaugherty, 173 Wis. 2d 222
, 496 N.W.2d 327
(Ct. App. 1992).
A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be heard by the same branch. Drow v. Schwarz, 225 Wis. 2d 362
, 592 N.W.2d 623
This section and s. 801.51, the general venue statutes, do not apply to actions arising from consumer credit transactions. Rather, the venue provision in s. 421.401 applies. Brunton v. Nuvell Credit Corp., 2010 WI 50
, 325 Wis. 2d 135
, 785 N.W.2d 302
By requiring that a petitioner file its petition in the petitioner's county of residence, s. 227.53 (1) (a) 3. does not conflict with or negate the petitioner's ability to designate venue under sub. (3) (a). When a plaintiff designates the county for circuit court venue under sub. (3) (a), it means that the plaintiff is specifying venue, not choosing it. Even when s. 227.53 (1) (a) 3. eliminates any opportunity to choose a county, the plaintiff still designates venue within the meaning of sub. (3) (a). DNR v. Wisconsin Court of Appeals, District IV, 2018 WI 25
, 380 Wis. 2d 354
, 909 N.W.2d 114
Another venue “is specifically authorized by law" under sub. (3) (a) only when venue is lawfully transferred to a county different from the one designated by the plaintiff. After 2011 Wis. Act 61
, the “unless" clause in sub. (3) (a) serves only as a mechanism by which to oust the plaintiff's venue designation. DNR v. Wisconsin Court of Appeals, District IV, 2018 WI 25
, 380 Wis. 2d 354
, 909 N.W.2d 114
A plaintiff must first comply with the requirements for venue in sub. (2). If venue is proper, only then may a circuit court exercise its discretion under s. 801.52 to change venue to another county. In this case, because venue was not proper in Milwaukee County, the circuit court erred when it applied s. 801.52 to keep the case in Milwaukee County. Salachna v. Edgebrook Radiology, 2021 WI App 76
, 399 Wis. 2d 759
, 966 N.W.2d 923
Wisconsin's revised venue statutes. Fullin. WBB Sept. 1984.
Challenges to improper venue.
Any party may challenge venue, on the grounds of noncompliance with s. 801.50
or any other statute designating proper venue, by filing a motion for change of venue:
At or before the time the party serves his or her first motion or responsive pleading in the action.
After the time set forth in sub. (1)
, upon a showing that despite reasonable diligence, the party did not discover the grounds therefor at or before that time.
History: 1983 a. 228
Judicial Council Note, 1983: This section sets forth the procedure for challenging the plaintiff's initial choice of venue on the grounds that it fails to comply with the provisions of s. 801.50 or any other statute specifying proper venue. The former statute's 2-stage proceeding was unnecessary and tended to create confusion for unwary litigants. [Bill 324-S]
This section and s. 801.50, the general venue statutes, do not apply to actions arising from consumer credit transactions. Rather, the venue provision in s. 421.401 applies. Brunton v. Nuvell Credit Corp., 2010 WI 50
, 325 Wis. 2d 135
, 785 N.W.2d 302
Discretionary change of venue.
The court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses, except that venue in a civil action to impose a forfeiture for a violation of chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5
, subch. III of ch. 13
, or subch. III of ch. 19
, may be changed only as provided in s. 971.223 (1)
or in the same manner that is authorized for a change in the venue of a criminal trial under s. 971.22
. This section does not apply to proceedings under ch. 980
Judicial Council Note, 1983: This section authorizes grounds for changing venue beyond the failure to comply with s. 801.50. It permits the court to apply traditional forum non conveniens principles to requests for discretionary change of venue. The court has discretion to change venue to any county in the state. [Bill 324-S]
A plaintiff must first comply with the requirements for venue in s. 801.50 (2). If venue is proper, only then may a circuit court exercise its discretion under this section to change venue to another county. In this case, because venue was not proper in Milwaukee County, the circuit court erred when it applied this section to keep the case in Milwaukee County. Salachna v. Edgebrook Radiology, 2021 WI App 76
, 399 Wis. 2d 759
, 966 N.W.2d 923
Determination of motion for change of venue.
Motions under ss. 801.51
shall be determined on the basis of proofs submitted by the parties unless the court orders a hearing or oral argument. Oral argument shall be heard by telephonic conference unless the court otherwise orders for cause shown.
History: 1983 a. 228
Judicial Council Note, 1983: The provisions of the prior statute are revised in new s. 801.51. Motions under s. 801.51 are rarely contested and usually decided on affidavit. As on other nonevidentiary motions, oral argument should, if desired, be heard by 3-way or conference telephone call. Motions under s. 801.52, while requiring a factual foundation, usually are based not on dispute of fact but on balance of equities. Unless good cause to the contrary is advanced, arguments should be heard by 3-way or telephonic conference call. [Bill 324-S]
Discretionary transfer of civil actions to tribal court. 801.54(1)(1)
In a civil action where a circuit court and a court or judicial system of a federally recognized American Indian tribe or band in Wisconsin (“tribal court") have concurrent jurisdiction, this rule authorizes the circuit court, in its discretion, to transfer the action to the tribal court under sub. (2m)
or when transfer is warranted under the factors set forth in sub. (2)
. This rule does not apply to any action in which controlling law grants exclusive jurisdiction to either the circuit court or the tribal court.
(2) Discretionary transfer.
When a civil action is brought in the circuit court of any county of this state, and when, under the laws of the United States, a tribal court has concurrent jurisdiction of the matter in controversy, the circuit court may, on its own motion or the motion of any party and after notice and hearing on the record on the issue of the transfer, cause such action to be transferred to the tribal court. The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, unless all parties stipulate to the transfer, in the exercise of its discretion the circuit court shall consider all relevant factors, including but not limited to:
Whether issues in the action require interpretation of the tribe's laws, including the tribe's constitution, statutes, bylaws, ordinances, resolutions, or case law.
Whether the action involves traditional or cultural matters of the tribe.
Whether the action is one in which the tribe is a party, or whether tribal sovereignty, jurisdiction, or territory is an issue in the action.
The tribal membership status of the parties.
Whether the parties have by contract chosen a forum or the law to be applied in the event of a dispute.
The timing of any motion to transfer, taking into account the parties' and court's expenditure of time and resources, and compliance with any applicable provisions of the circuit court's scheduling orders.
The court in which the action can be decided most expeditiously.
The institutional and administrative interests of each court.
The relative burdens on the parties, including cost, access to and admissibility of evidence, and matters of process, practice, and procedure, including where the action will be heard and decided most promptly.
Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
(2m) Tribal child support programs.
The circuit court may, on its own motion or the motion of any party, after notice to the parties of their right to object, transfer a post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205 (2)
to a tribal court located in Wisconsin that is receiving funding from the federal government to operate a child support program under Title IV-D of the federal Social Security Act (42 U.S.C. 654
et al.). The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, the transfer will occur unless a party objects in a timely manner. Upon the filing of a timely objection to the transfer the circuit court shall conduct a hearing on the record considering all the relevant factors set forth in sub. (2)
(3) Stay of proceeding in circuit court.
When a circuit court transfers an action to tribal court under this rule, the circuit court shall enter an order to stay further proceedings on the action in circuit court. Jurisdiction of the circuit court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.
The decision of a circuit court to transfer an action to tribal court may be appealed as a matter of right under s. 808.03 (1)
(5) Effect of transfer.
When a circuit court orders the transfer of an action to tribal court under this rule, the circuit court shall retain the circuit court filing fee and shall transmit to the tribal court a copy of all circuit court records in the action.
(6) Powers, rights and obligations unaffected.
Nothing in this rule is intended to alter, diminish, or expand the jurisdiction of the circuit courts or any tribal court, the sovereignty of the state or any federally recognized American Indian tribe or band, or the rights or obligations of parties under state, tribal, or federal law.
Sup. Ct. Order No. 07-11
, 2008 WI 114, 307 Wis. 2d xvii; Sup. Ct. Order No. 07-11A
, 2009 WI 63, 307 Wis. 2d xxi.
Sup. Ct. Order No. 07-11
The following Comment to Wis. Stat. s. 801.54 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute:"
Comment, 2008. The purpose of this rule is to enable circuit courts to transfer civil actions to tribal courts in Wisconsin as efficiently as possible where appropriate. In considering the factors under sub. (2), the circuit court shall give particular weight to the constitutional rights of the litigants and their rights to assert all available claims and defenses.
A court that is considering transferring a case to a tribal court under the tribal transfer statute must conduct a two-part analysis. It must make a clear record of its findings and conclusions regarding concurrent jurisdiction, as well as an analysis of all of the rule's relevant factors on the facts presented. Kroner v. Oneida Seven Generations Corp., 2012 WI 88
, 342 Wis. 2d 626
, 819 N.W.2d 264
Change of venue if judge disqualified by interest.
When the judge is a party or interested in any action in the judge's court or is related to or has been of counsel for either party, the court or the presiding judge thereof shall, upon application of either party, and may without such application, change the place of trial or call in another judge as provided in s. 801.58
. The fact that the judge is a taxpayer does not disqualify the judge.
Sup. Ct. Order, 67 Wis. 2d 585, 757, 777 (1975); 1975 c. 218
; Stats. 1975 s. 801.56.
Substitution of judge. 801.58(1)(1)
Any party to a civil action or proceeding may file a written request, signed personally or by his or her attorney, with the clerk of courts for a substitution of a new judge for the judge assigned to the case. The written request shall be filed preceding the hearing of any preliminary contested matters and, if by the plaintiff, not later than 60 days after the summons and complaint are filed or, if by any other party, not later than 60 days after service of a summons and complaint upon that party. If a new judge is assigned to the trial of a case, a request for substitution must be made within 10 days of receipt of notice of assignment, provided that if the notice of assignment is received less than 10 days prior to trial, the request for substitution must be made within 24 hours of receipt of the notice and provided that if notification is received less than 24 hours prior to trial, the action shall proceed to trial only upon stipulation of the parties that the assigned judge may preside at the trial of the action. Upon filing the written request, the filing party shall forthwith serve a copy thereof on all parties to the action and in the manner provided in s. 801.18 (6) (a)
When the clerk receives a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If the request is found to be timely and in proper form, the judge named in the request has no further jurisdiction and the clerk shall request the assignment of another judge under s. 751.03
. If the judge named in the substitution request finds that the request was not timely and in proper form, that determination may be reviewed by the chief judge of the judicial administrative district, or by the chief judge of an adjoining judicial administrative district if the judge named in the request is the chief judge, if the party who made the substitution request files a written request for review with the clerk no later than 10 days after the determination by the judge named in the request. If no determination is made by the judge named in the request within 7 days, the clerk shall refer the matter to the chief judge of the judicial administrative district or to the chief judge of an adjoining judicial administrative district, if the judge named in the request is the chief judge, for determination of whether the request was made timely and in proper form and reassignment as necessary. The newly assigned judge shall proceed under s. 802.10 (1)
If, under sub. (2)
, the judge determines that the request for substitution was made timely and in proper form, any ex parte order granted by the original judge remains in effect according to the terms, except that a temporary restraining order issued under s. 813.12 (3)
, 813.122 (4)
, 813.123 (4)
, or 813.125 (3)
by the original judge is extended until the newly assigned judge holds a hearing on the issuance of an injunction. The newly assigned judge shall hear any subsequent motion to modify or vacate any ex parte order granted by the original judge.
Except as provided in sub. (7)
, no party may file more than one such written request in any one action, nor may any single such request name more than one judge. For purposes of this subsection parties united in interest and pleading together shall be considered as a single party, but the consent of all such parties is not needed for the filing by one of such party of a written request.
Upon the filing of an agreement signed by all parties to a civil action or proceeding, by the original judge for which a substitution of a new judge has been made, and by the new judge, the civil action or proceeding and pertinent records shall be transferred back to the original judge.
In addition to other substitution of judge procedures, in probate matters a party may file a written request specifically stating the issue in a probate proceeding for which a request for substitution of a new judge has been made. The judge shall thereupon be substituted in relation to that issue but after resolution of the issue shall continue with the administration of the estate. If a person wishes to file a written request for substitution of a new judge for the entire proceeding, subs. (1)
In probate matters ss. 801.59
apply, except that upon the substitution of any judge, the case shall be referred to the register in probate, who shall request assignment of another judge under s. 751.03
to attend and hold court in such matter.
Ex parte orders, letters, bonds, petitions and affidavits may be presented to the assigned judge, by mail or in person, for signing or approving, wherever the judge may be holding court, who shall execute or approve the same and forthwith transmit the same to the attorney who presented it, for filing with the circuit court of the county where the records and files of the matter are kept.
If upon an appeal from a judgment or order or upon a writ of error the appellate court orders a new trial or reverses or modifies the judgment or order as to any or all of the parties in a manner such that further proceedings in the trial court are necessary, any party may file a request under sub. (1)
within 20 days after the filing of the remittitur in the trial court whether or not another request was filed prior to the time the appeal or writ of error was taken.
History: 1971 c. 46
; Sup. Ct. Order, 67 Wis. 2d 585, 757 (1975); Stats. 1975 s. 801.58; 1977 c. 135
; 1977 c. 187
; Sup. Ct. Order, 82 Wis. 2d ix (1978); 1977 c. 449
; 1979 c. 175
; 1981 c. 137
; 1987 a. 68
; 2013 a. 322
; Sup. Ct. Order No. 20-07
, 2021 WI 37, filed 4-23-21, eff. 7-1-21.
Judicial Council Note, 1977:
Section 801.58 of the statutes has been changed in a number of significant ways. The statute states that a substitution of judge request in a civil action or proceeding is timely only if made before the hearing of a preliminary contested matter, codifying Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241
A new provision has been added to allow the parties to a criminal action or proceeding, the prosecuting attorney, and the original and the new judge to agree to have the matter referred back to the original judge. This will aid the administration of justice in those cases where it is advantageous for everyone concerned to have the original judge take back the matter. [Bill 74-S]
Judicial Council Committee's Note, 1977: Sub. (1) is amended to give a plaintiff 60 days from the time the summons and complaint are filed or a defendant or any added party 60 days after service of a summons and complaint upon them to request a substitution of a new judge, provided no preliminary contested matters have been argued by the requester. The previous time periods for requesting a substitution of judge (i.e., 10 days after the date of notice for a scheduling conference or 10 days after service of a standard scheduling order) are repealed as the use of such a conference or order is no longer mandatory under s. 802.10. [Re Order effective July 1, 1978]
Judicial Council Note, 1981: Sub. (2) has been revised to allow the clerk to refer the substitution request to the chief judge of the judicial administrative district when the judge whose substitution has been requested fails to determine within 7 days whether the request is timely made and in proper form.
Sub. (7) has been amended to clarify that the 20-day time period for filing a substitution request after an appellate remand commences upon the filing of the remittitur in the trial court. Rohl v. State, 97 Wis. 2d 514
(1980). [Bill 163-S]
A right can be waived by participation in preliminary motions in which the judge is allowed to receive evidence that of necessity is used and weighed in deciding ultimate issues. Pure Milk Products Cooperative v. National Farmers Organization, 64 Wis. 2d 241
, 219 N.W.2d 564
rule, which interprets this section to bar substitution in proceedings to modify support or custody orders, applies only to cases in which the judge has been previously involved. State ex rel. Tarney v. McCormack, 99 Wis. 2d 220
, 298 N.W.2d 552
A substitution of judge request may be filed with a deputy clerk. In Matter of Civil Contempt of Kroll, 101 Wis. 2d 296
, 304 N.W.2d 175
(Ct. App. 1981).
An added party may request a substitution within 60 days of service if the added party has not actually participated in preliminary contested matters. City of La Crosse v. Jiracek Cos., 108 Wis. 2d 684
, 324 N.W.2d 440
(Ct. App. 1982).
The ten-day period for substitution under sub. (1) is triggered by receipt of actual notice that the new judge has been assigned. State ex rel. Laborers Union v. Kenosha Circuit Court, 112 Wis. 2d 337
, 332 N.W.2d 832
(Ct. App. 1983).
Sub. (7) creates an unqualified right to substitution when further trial court proceedings are necessary after remand from an appellate court. State ex rel. Oman v. Hunkins, 120 Wis. 2d 86
, 352 N.W.2d 220
(Ct. App. 1984).
“Further proceedings" under sub. (7) and s. 808.08 (3) have the same definition. State ex rel. Ondrasek v. Circuit Court, 133 Wis. 2d 177
, 394 N.W.2d 912
(Ct. App. 1986).
When the trial court is ordered to clarify its ruling in a divorce matter on remand, the Bacon-Bahr
rule applies, and no substitution under sub. (7) is permitted. Parrish v. Kenosha County Circuit Court, 148 Wis. 2d 700
, 436 N.W.2d 608
Because an ex parte restraining order is not issued in the context of a contested proceeding, a substitution request may be granted subsequent to the entry of an order and prior to a hearing on the merits. Threlfall v. Town of Muscoda, 152 Wis. 2d 308
, 448 N.W.2d 274
(Ct. App. 1989).
A request for substitution is not allowed when a recommitment hearing under s. 51.20 (13) (g) 3. is before the same judge who conducted the original commitment proceeding. Serocki v. Clark County Circuit Court, 163 Wis. 2d 152
, 471 N.W.2d 49
The requirement of sub. (1) that substitution requests be filed preceding the hearing of any “preliminary contested matters" applies to requests filed under sub. (5). A motion to compel discovery constitutes a “preliminary contested matter." State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101
, 499 N.W.2d 651
A nonsummary contempt motion is a part of the underlying action from which it arises, and the time allowed for requesting judicial substitution runs from the commencement of the action not from receipt of notice of the contempt proceeding. James L.J. v. Walworth County Circuit Court, 200 Wis. 2d 496
, 546 N.W.2d 460
The court of appeals is authorized to exercise its supervisory authority over a chief judge who is ruling on a substitution request. James L.J. v. Walworth County Circuit Court, 200 Wis. 2d 496
, 546 N.W.2d 460
When a judge normally presides in one county but is assigned by substitution to a case filed in another county, the filing and entry for appeal purposes occur when the document comes into the possession of the clerk of court in the county in which the case was commenced. State v. Williams, 230 Wis. 2d 50
, 601 N.W.2d 838
(Ct. App. 1999), 98-3338
The only time a chief judge may become involved in the substitution process under sub. (2) is if a circuit court denies a substitution request for not being timely or properly filed. State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30
, 233 Wis. 2d 428
, 608 N.W.2d 679
If a circuit court may exercise discretion in discharging its duties on remand, the court must engage in “further proceedings" under sub. (7), entitling the parties to the right of substitution. If the remand requires a specific action that requires no exercise of discretion by the trial court, no substitution is allowed. State ex rel. J.H. Findorff v. Circuit Court for Milwaukee County, 2000 WI 30
, 233 Wis. 2d 428
, 608 N.W.2d 679
Review by the chief judge under sub. (2) is a prerequisite to appeal a denial of a request for substitution. A chief judge may review a denial only if a timely request for review is made. Paternity of Daniel L.G., 2002 WI App 47
, 250 Wis. 2d 667
, 641 N.W.2d 175