2022 WI 67

SUPREME COURT OF WISCONSIN

NOTICE

This order is subject to further 

editing and modification. The 

final version will appear in the 

bound volume of the official 

reports. 

No. 2022AP1736-W

State of Wisconsin ex rel. Nancy Kormanik,

 Petitioner,

 v.

William Brash, in his official capacity as 

Chief Judge of the Court of Appeals,

 Respondent, 

Wisconsin Elections Commission, Democratic 

National Committee, and Rise, Inc.,

 Interested Parties. 

FILED

OCT 26, 2022

Sheila T. Reiff

Clerk of Supreme Court

Madison, WI

The Court entered the following order on this date:

¶1 Nancy Kormanik has filed a petition for a supervisory 

writ, claiming that petitions for leave to appeal filed by the 

Democratic National Committee ("DNC") and Rise, Inc. ("Rise") in 

Kormanik v. Wisconsin Elections Commission, Case Nos. 2022AP1720-

LV and 2022AP1727-LV, are pending in the wrong appellate district. 

Because we agree with Kormanik, we grant her petition for a 
No. 2022AP1736-W

2

supervisory writ and vacate the appellate order transferring venue 

from District II to District IV.

¶2 This case arose out of a lawsuit filed by Kormanik in 

Waukesha County circuit court against the Wisconsin Elections 

Commission ("WEC"). Generally speaking, the complaint alleged 

that two documents provided by the WEC to municipal clerks 

erroneously interpreted certain election statutes as permitting a 

clerk to "spoil" an absentee ballot at an elector's request. The 

complaint asked the circuit court to: (1) declare that municipal 

clerks are prohibited from "spoiling" a previously completed and 

submitted absentee ballot; (2) declare that any WEC publication 

that states otherwise shall be rescinded or otherwise removed from 

availability to the public; (3) declare that the WEC failed to 

promulgate the documents at issue as administrative rules; and (4) 

temporarily and permanently require the WEC to cease offering 

incorrect guidance and to promptly issue corrected guidance.

¶3 Rise and the DNC moved to intervene in the matter. The 

circuit court granted their motions.

¶4 Kormanik moved the circuit court to issue a temporary 

injunction directing the WEC to withdraw the challenged documents 

and to cease providing further guidance on the subject. On Friday, 

October 7, 2022, after a hearing, the circuit court granted 

Kormanik's motion and thereby required the WEC to withdraw the 

challenged documents and all similar publications, as well as to 
No. 2022AP1736-W

3

notify all municipal clerks and local elections officials of their 

withdrawal, by 7:00 p.m. on October 10, 2022. The WEC moved the 

court to stay the temporary injunction, which the circuit court 

denied.

¶5 Later on October 7, 2022, the DNC and Rise filed separate 

petitions for leave to appeal and requests for a stay of the 

circuit court's temporary injunction pending appeal. The DNC and 

Rise directed their petitions and stay requests to appellate 

District IV.

¶6 The court of appeals, by Chief Judge William Brash, 

ordered the parties to file letter memoranda by Monday, October 

10, 2022, regarding the proper appellate district to consider the 

petitions and stay requests. 

¶7 The letter memoranda subsequently filed by the parties 

addressed the following statutes (2019-20):

Wis. Stat. § 752.21

(1) Except as provided in sub. (2), a judgment or order 

appealed to the court of appeals shall be heard in the 

court of appeals district which contains the court from 

which the judgment or order is appealed.

(2) A judgment or order appealed from an action venued 

in a county designated by the plaintiff to the action as 

provided under s. 801.50(3)(a) shall be heard in a court 

of appeals district selected by the appellant but the 

court of appeals district may not be the court of appeals

district that contains the court from which the judgment 

or order is appealed.
No. 2022AP1736-W

4

Wis. Stat. § 801.50(3)(a) and (b)

(a) Except as provided in pars. (b) and (c), all actions 

in which the sole defendant is the state, any state board 

or commission, or any state officer, employee, or agent 

in an official capacity shall be venued in the county 

designated by the plaintiff unless another venue is 

specifically authorized by law.

(b) All actions relating to the validity or [invalidity] 

of a rule or guidance document shall be venued as 

provided in s. 227.40(1).

Wis. Stat. § 227.40(1)

(1) Except as provided in sub. (2), the exclusive means 

of judicial review of the validity of a rule or guidance 

document shall be an action for declaratory judgment as 

to the validity of the rule or guidance document brought 

in the circuit court for the county where the party 

asserting the invalidity of the rule or guidance 

document resides or has its principal place of business 

or, if that party is a nonresident or does not have its 

principal place of business in this state, in the circuit 

court for the county where the dispute arose. The officer 

or other agency whose rule or guidance document is 

involved shall be the party defendant. . . . The court 

shall render a declaratory judgment in the action only 

when it appears . . . that the rule or guidance document 

or its threatened application interferes with or 

impairs, or threatens to interfere with or impair, the 

legal rights and privileges of the plaintiff. A 

declaratory judgment may be rendered whether or not the 

plaintiff has first requested the agency to pass upon 

the validity of the rule or guidance document in 

question.

¶8 In its legal memorandum to Chief Judge Brash, the DNC 

argued that according to precedent——primarily, State ex rel. DNR 

v. Wisconsin Court of Appeals, District IV, 2018 WI 25, 380 

Wis. 2d 354, 909 N.W.2d 114——Kormanik's complaint fell within the 
No. 2022AP1736-W

5

scope of § 801.50(3)(a), and therefore triggered the appellate 

venue-shifting provision of § 752.21(2). The DNC argued that 

because, under DNR, a plaintiff still "designates" a circuit court 

venue under § 801.50(3)(a) even though the plaintiff is required 

by another statute to lay venue in that particular county, Kormanik 

should also be deemed to have designated venue under 

§ 801.50(3)(a)——thereby triggering the venue-shifting provision of 

§ 752.21(2)——even though her complaint cited § 801.50(3)(b). 

Finally, the DNC argued that Kormanik's complaint fell within the 

scope of § 801.50(3)(a) because her claim goes beyond that 

contemplated by § 801.50(3)(b) in that it is not restricted to a 

§ 227.40(1) action relating to the validity or invalidity of a 

guidance document, but additionally seeks injunctive relief.

¶9 Like the DNC, Rise argued in its letter memorandum to 

Chief Judge Brash that Kormanik's complaint is governed by Wis. 

Stat. § 801.50(3)(a) because her complaint was not truly a 

challenge to the validity of a guidance document, but instead was 

one seeking a declaratory judgment regarding various election 

statutes.

¶10 In her letter response to Chief Judge Brash's order, 

Kormanik argued that her case was venued as a matter of law under 

Wis. Stat. § 801.50(3)(b) because it is a declaratory judgment 

action under § 227.40(1) relating to the validity of a guidance 

document by the WEC. Because the case was venued under 
No. 2022AP1736-W

6

§ 801.50(3)(b), Kormanik argued, any appeal from that action had 

to be venued in the district encompassing the Waukesha County 

circuit court pursuant to § 752.21(1).

¶11 On the same day that the parties filed their letter 

memoranda on appellate venue, Chief Judge Brash entered an order 

that largely agreed with the DNC's position. Chief Judge Brash 

held that, under the reasoning of DNR, even though Wis. Stat. 

§ 801.50(3)(b) required Kormanik to designate venue in the circuit 

court in accordance with § 227.40(1), she was also designating 

venue within the meaning of § 801.50(3)(a). Thus, the venueshifting provision of § 752.21(2) applied, such that venue was 

appropriate in the appellate district selected by the DNC and Rise—

—District IV.1

¶12 Later in the day on October 10, 2022, District IV issued 

an order in both leave matters. Because the circuit court's 

injunction order required that the WEC comply with it by 7:00 p.m. 

that evening, the court of appeals granted a temporary stay of the 

circuit court's injunction pending the court of appeals' decision 

on whether to grant leave to appeal.

 

1 We note that Chief Judge Brash's order was captioned as 

applying only to the appeal number associated with the DNC's 

petition for leave to appeal, Case No. 2022AP1720-LV. The order 

self-evidently also applies to the appeal number associated with 

Rise's petition for leave to appeal, Case No. 2022AP1727-LV.
No. 2022AP1736-W

7

¶13 The following day, October 11, 2022, Kormanik filed a 

petition for a supervisory writ in this court.2 As she did below, 

Kormanik argued that Wis. Stat. § 801.50(3)(b) controlled venue in 

the circuit court because she filed a declaratory judgment action 

under § 227.40(1) that related to the validity or invalidity of a 

rule or guidance document. Because venue was proper under 

§ 801.50(3)(b), Kormanik argued, this case cannot also fall within 

§ 801.50(3)(a). This is so because § 801.50 itself describes 

subsection (3)(b) as an exception to subsection (3)(a), and the 

court must give that exception meaning. She asked this court to 

stay the proceedings in the court of appeals during the pendency 

of her writ petition, and to order the leave petitions filed by 

the DNC and Rise to be returned to District II.3

¶14 On October 12, 2022, this court ordered responses to 

Kormanik's writ petition. It also directed the court of appeals 

 

2 The caption in this case designates the Court of Appeals, 

Districts II and IV as respondents. It also designates the 

Wisconsin Elections Commission as defendant-respondent and the 

Democratic National Committee and Rise, Inc. as intervenordefendant-respondents. These designations are in error. The clerk 

of this court is directed to amend the caption to remove the Court 

of Appeals, Districts II and IV as respondents; to designate Judge 

William Brash, in his official capacity as Chief Judge of the Court 

of Appeals, as the respondent; and to designate the Wisconsin 

Elections Commission, the Democratic National Committee, and Rise, 

Inc. as other interested parties. We use this corrected caption 

in this order.

3 Kormanik did not ask this court to vacate the stay of the 

circuit court injunction order issued by District IV. Because we 

have not been requested to address the stay, we do not address it. 
No. 2022AP1736-W

8

to take no further action in Case Nos. 2022AP1720-LV and 

2022AP1727-LV until further order of this court.

¶15 In his response, Chief Judge Brash sets forth two primary 

reasons why Kormanik's writ petition should be denied. First, he 

argues that he did not violate any plain legal duty because his 

venue order was correct under the applicable statutes and the 

reasoning of DNR. He asserts that in DNR, this court concluded 

that both Wis. Stat. §§ 801.50(3)(a) and 227.53(1)(a)3. could 

apply, such that even when § 227.53(1)(a)3. required the plaintiff 

to venue the circuit court action in the plaintiff's county of 

residence, the plaintiff was still designating venue within the 

meaning of § 801.50(3)(a). Here, Chief Judge Brash maintains that

§ 801.50(3)(b) required Kormanik to venue her complaint in 

Waukesha County under § 227.40(1), but as in DNR, that requirement 

does not mean that Kormanik did not also designate venue under 

subsection (3)(a). Second, Chief Judge Brash argues that Kormanik 

forfeited any arguments based on DNR because she did not raise 

those arguments in her letter memorandum to him regarding appellate 

venue.

¶16 DNC and Rise filed responses that largely repeat their 

arguments made in their letter memoranda to Chief Judge Brash.

¶17 Kormanik's writ petition and the responses thereto are 

now before us to decide whether to grant the requested writ. "A 

supervisory writ is 'an extraordinary and drastic remedy that is 
No. 2022AP1736-W

9

to be issued only upon some grievous exigency.'" DNR, 380 

Wis. 2d 354, ¶8 (quoting State ex rel. Kalal v. Cir. Ct. for Dane 

Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110). "As the 

court of original jurisdiction, we have discretion to issue a 

supervisory writ." State v. Buchanan, 2013 WI 31, ¶11, 346 

Wis. 2d 735, 828 N.W.2d 847. In DNR, this court addressed whether 

the requirements for a supervisory writ were satisfied in the 

context of an appellate venue challenge under Wis. Stat. 

§ 752.21(2). DNR, 380 Wis. 2d 354, ¶2. There, we stated that:

To justify the writ, a petitioner must demonstrate that: 

"(1) an appeal is an inadequate remedy; (2) grave 

hardship or irreparable harm will result; (3) the duty 

of the trial court is plain and it . . . acted or intends 

to act in violation of that duty; and (4) the request 

for relief is made promptly and speedily."

Id., ¶9 (quoting Kalal, 271 Wis. 2d 633, ¶17). 

¶18 We will consider only the first three factors identified 

above, as there is no dispute that Kormanik "promptly and speedily" 

filed her writ petition by doing so the day after the court of 

appeals issued its venue order. We address the remaining three 

factors in turn.

¶19 The obligation to venue an appeal in the correct district 

is a "plain duty" for purposes of the supervisory writ 

requirements. We reasoned in DNR that because the general 

appellate venue provision in § 752.21 utilizes the mandatory word 
No. 2022AP1736-W

10

"shall," "the court of appeals has no discretion with respect to 

where it must hear the appeal. . . . [T]he obligation to venue the 

appeal in the correct district is clear, unequivocal, and 

mandatory. It is, therefore, a 'plain duty' within the meaning 

of our supervisory writ jurisprudence." 380 Wis. 2d 354, ¶13. 

¶20 Having determined that a plain duty existed, the 

question becomes whether Chief Judge Brash violated this duty when 

he ordered the transfer of appellate venue from District II to 

District IV. We conclude that he did. 

¶21 To begin, we note that Kormanik's lawsuit clearly 

"relat[ed] to the validity or [invalidity] of a rule or guidance 

document" within the meaning of Wis. Stat. § 801.50(3)(b). It is 

likewise clear that Kormanik's lawsuit remained within the 

confines of § 801.50(3)(b) even though she sought injunctive 

relief in addition to declaratory relief. See Wis. Stat. 

§ 801.50(3)(b) (requiring actions brought thereunder to "be venued 

as provided in s. 227.40 (1)"); see also Wis. Stat. § 227.40(1) 

(providing that "the exclusive means of judicial review of the 

validity of a rule or guidance document shall be an action for 

declaratory judgment as to the validity of the rule or guidance 

document"). Because Kormanik's claim for injunctive relief was 

completely dependent upon a favorable decision on her claim for 

declaratory relief, her action is quintessentially one for 

declaratory relief. See Wis. Stat. § 806.04(1) ("Courts of record 
No. 2022AP1736-W

11

within their respective jurisdictions shall have power to declare 

rights, status, and other legal relations whether or not further 

relief is or could be claimed.").

¶22 Having determined that Kormanik's action "relat[ed] to 

the validity or [invalidity] of a rule or guidance document" within 

the meaning of § 801.50(3)(b), the question becomes whether, as 

Chief Judge Brash reasoned, venue is also proper under 

§ 801.50(3)(a). The answer is no. The legislature chose to begin 

subsection (3)(a) with the phrase "Except as provided in pars. (b) 

and (c), . . . ." Although the DNC argues that this phrase means 

that subsection (3)(b) "is incorporated by reference in subsection 

(3)(a)," agreeing with this argument would require us to ignore 

the plain meaning of that phrase. We will not do so; a statute 

cannot incorporate that which it specifically excepts.

¶23 The legislature "expresses its purpose by words. It is 

for us to ascertain——neither to add nor to subtract, neither to 

delete nor to distort." 62 Cases, More or Less, Each Containing 

Six Jars of Jam v. United States, 340 U.S. 593, 596 (1951). The 

language of Wis. Stat. § 801.50(3)(a) and (3)(b) is plain, whether 

considered alone or in conjunction with the appellate venue 

statute, § 752.21. The challenged interpretation of these 

statutes is not true to their language. 

¶24 We are unpersuaded by alternative arguments raised in 

opposition. Although Chief Judge Brash claims that Kormanik has 
No. 2022AP1736-W

12

forfeited any precedent-based arguments by failing to raise them 

in her letter memorandum on appellate venue, this argument is 

unpersuasive given that Kormanik's arguments depend not on 

precedent but on the plain text of the applicable statutes. 

Moreover, the case cited most frequently in the parties' briefing, 

DNR, is not as on point as the DNC, Rise, and Chief Judge Brash 

suggest. DNR did not involve the interplay between § 801.50(3)(a) 

and (3)(b), and indeed made clear that § 801.50(3)(b) was "not 

relevant to this case." DNR, 380 Wis. 2d 354, ¶16 n.8. The other 

case cited in the parties' briefing, Teigen v. Wisconsin Elections 

Commission, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519, is 

similarly unenlightening. Our decision in Teigen arose from a 

Waukesha County case against the Wisconsin Elections Commission 

that was venued on appeal in District IV after the appellants 

selected that district——without objection——pursuant to Wis. Stat. 

§ 752.21(2). However, Teigen came to us on a petition for bypass, 

so the issue of proper appellate venue was not presented and was 

not litigated. Teigen is not helpful authority on an issue left 

unexamined. 

¶25 Next, we determine whether an appeal would be an adequate 

remedy to address the question of appropriate appellate venue. 

Based on our holding in DNR, the answer is no. We explained in 

DNR that there is no "appellate pathway" to seek review of 

appellate venue questions, and that obtaining review of such 
No. 2022AP1736-W

13

questions via a petition for review "would depend on a 

serendipitous confluence between (1) the venue error, and (2) a 

'plus' factor, such as we describe in Wis. Stat. § (Rule) 

809.62(1r) (criteria for granting review)." 380 Wis. 2d 354, ¶43. 

Thus, we concluded "that a petition to review the court of appeals' 

eventual decision on the merits is an inadequate remedy to address 

the question of appropriate appellate venue." Id., ¶45. This 

rationale clearly applies to Kormanik's writ petition in this case.

¶26 Finally, we determine whether Kormanik would suffer 

irreparable harm if this court denies the supervisory writ. Again, 

we are guided by our decision in DNR. There, we reasoned that the 

right to choice of venue under § 752.21(2) is a "statutorily 

granted right" and that it is "nearly tautological to observe that 

losing a statutorily-granted right is a harm. Losing the right 

with no means to recover it makes the harm irreparable." Id., 

¶47. We further held in DNR that because a petition for review is 

not a suitable remedy for correcting an error in appellate venue, 

without a supervisory writ, an appellate litigant "would be left 

with no sure means by which to remedy the deprivation of its 

statutory right. That makes the loss, by definition, irreparable." 

Id., ¶47. Thus, for purposes of the irreparable harm requirement 

for obtaining a supervisory writ, DNR held that losing the right 

to a statutorily mandated appellate venue is itself an irreparable 
No. 2022AP1736-W

14

harm. Under the rationale of DNR, Kormanik would suffer an 

irreparable harm if she were denied a change of appellate venue.

¶27 Whether to issue a supervisory writ is, as we have 

repeatedly affirmed, a discretionary decision. Buchanan, 346 

Wis. 2d 735, ¶11. While not every appellate venue question is 

proper fodder for a supervisory writ, we determine it is 

appropriate here in light of our decision in DNR and to facilitate 

the efficient administration of justice in the decision on appeal. 

We therefore grant the petition for a supervisory writ and vacate 

the October 10, 2022 appellate order transferring appellate venue 

from District II to District IV. The court of appeals shall hear 

these matters in District II.

¶28 IT IS ORDERED that the petition for supervisory writ is 

granted, and the October 10, 2022 order of the Chief Judge 

transferring appellate venue from District II to District IV of 

the court of appeals is vacated; and

¶29 IT IS FURTHER ORDERED that the petitions for leave to 

appeal filed by the Democratic National Committee and Rise, Inc.,

respectively, in Kormanik v. Wisconsin Elections Commission, Case 

Nos. 2022AP1720-LV and 2022AP1727-LV, shall be heard in District 

II of the court of appeals.
No. 2022AP1736-W.rfd

15

¶30 REBECCA FRANK DALLET, J. (concurring). I agree with 

the court's order granting Kormanik's petition for a supervisory 

writ. A straightforward application of the venue statutes, Wis. 

Stat. §§ 801.50(3)(b), 752.21(2) and the related statute, Wis. 

Stat. § 227.40(1), requires that the petitions for leave to appeal 

and motions for temporary stay pending appeal be decided by 

District II of the court of appeals, not District IV. And given 

the court of appeals' decision on venue in this case, exercising 

our equitable discretion to grant the writ is the only way to 

ensure that this case is heard in a timely manner and in the proper 

venue. 

¶31 I write separately, however, because I am concerned that 

our decision in State ex rel. DNR v. Wisconsin Court of Appeals, 

District IV, 2018 WI 25, 380 Wis. 2d 354, 909 N.W.2d 114 (DNR) may 

be written too broadly, and in a way that appears inconsistent 

with other decisions regarding the availability of supervisory 

writs. A supervisory writ is supposed to be an "extraordinary and 

drastic remedy that is to be issued only upon some grievous 

exigency." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 

WI 58, ¶17, 271 Wis. 2d 633, 681 N.W.2d 110. Yet DNR appears to 

suggest that whenever the court of appeals misapplies the venue 

statutes, a per se irreparable harm has occurred which an appeal 

cannot adequately remedy, and a supervisory writ must issue as a 

result. See DNR, 380 Wis. 2d 354, ¶¶43-48. These conclusions are 

hard to square, however, with the equitable discretion we have in 

deciding whether to grant such a writ, see, e.g., Kalal, 271 

Wis. 2d 633, ¶17, and with the idea that applying the law correctly 
No. 2022AP1736-W.rfd

16

"is not the type of plain legal duty contemplated by the 

supervisory writ procedure." State ex rel. Two Unnamed Petitioners 

v. Peterson, 2015 WI 85, ¶81, 363 Wis. 2d 1, 866 N.W.2d 165. 

Additionally, DNR broadly asserts that "losing a statutorilygranted right is a harm," and that "[l]osing the right with no 

means to recover it makes the harm irreparable." DNR, 380 

Wis. 2d 354, ¶47. But not all denials of a statutory right without 

a remedy, no matter how trivial within the context of a case, are 

the kind of "grave or irreparable harm" our supervisory writ cases 

are concerned with. See Alt v. Cline, 224 Wis. 2d 72, ¶52, 589 

N.W.2d 21 (1999). Finally, DNR relies on the fact that venue 

determinations by the court of appeals are not appealable to this 

court as of right in concluding that such appeals are not an 

adequate remedy. DNR, 380 Wis. 2d 354, ¶¶43-44. But as DNR

acknowledges, no issue is appealable to us as of right. See id., 

¶43 & n.18 ("Strictly speaking, there is no right of appeal to 

this court at all."). We only grant review when one or more of 

our criteria for review in Wis. Stat. § (Rule) 809.62(1r) are met. 

If this language from DNR is read too broadly, it would mean that 

an appeal is never an adequate remedy, which would "transform the 

writ into an all-purpose alternative to the appellate review 

process." Kalal, 271 Wis. 2d 633, ¶24. 

¶32 Despite these potential problems with DNR, no party 

asked us to revisit it in this case. Nevertheless, in a future 

case, we should seriously consider doing so, or possibly clarifying 

DNR to bring it more into line with our other cases regarding the 

availability of supervisory writs. 
No. 2022AP1736-W.rfd

17

¶33 Additionally, I note that the way in which the venue 

issue was litigated in this case and in others may not be the best 

practice in all cases. Here, as our order explains, both of the 

appellants directed their petitions for leave to appeal and stay 

motions to District IV. Nevertheless, Chief Judge Brash sua sponte

ordered the parties to submit letters regarding the proper 

appellate venue, and ultimately decided that District IV should 

hear this case. Chief Judge Brash explained that he did so because 

he views venue as an "administrative matter, not a substantive 

matter in the appeal," and therefore that it fell within his 

purview as Chief Judge. See Wis. Ct. App. IOP I (Nov. 30, 2009). 

But it's not clear to me why that would be the case. 

¶34 In any event, that's not how venue issues have come up 

in the court of appeals before. In DNR, one judge on District IV 

sua sponte rejected the DNR's designation of appellate venue in 

District II, and a three-judge panel from District IV subsequently 

denied a motion for reconsideration of that decision. DNR, 380 

Wis. 2d 354, ¶5; see also Clean Wis., Inc. v. DNR, No. 2016AP1688, 

unpublished order, at 2 (Wis. Ct. App. Aug. 31, 2016); Clean Wis., 

Inc. v. DNR, No. 2016AP1688, unpublished order, at 4-5 (Wis. Ct. 

App. Sept. 29, 2016). Yet in another case, the parties themselves 

raised venue objections, see League of Women Voters v. Evers, No. 

2019AP559, unpublished order, at 1 (Wis. Ct. App. Mar. 27, 2019) 

(Stark, P.J.), which were ruled on by the presiding judge. Id. at 

1 (rejecting a motion for reconsideration of an order "rejecting 

[the respondents'] objection to the decision of [the court of 

appeals'] clerk to docket this appeal in District III). And in 
No. 2022AP1736-W.rfd

18

others, neither the court of appeals nor the parties seem to have 

noticed or raised a potential venue defect. See, e.g., Teigen v. 

Wis. Elecs. Comm'n, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519.

¶35 Courts should strive for consistency in process. Yet 

there doesn't appear to be any reason why the venue issues in these 

cases were treated differently. Although there may be some 

situations in which the court of appeals may appropriately raise 

a venue issue, I question whether that should be the default 

approach. After all, venue is not jurisdictional. See Kett v. 

Community Credit Plan, Inc., 228 Wis. 2d 1, 12, 596 N.W.2d 786 

(1999). We generally leave it to the parties to raise venue 

objections in circuit court, see Wis. Stat. § 801.51, and I see no 

reason why the general appellate motions statute, Wis. Stat. 

§ (Rule) 809.14(1), would not allow parties to an appeal to do the 

same thing. Whatever the process is, however, it should be clearly 

defined so the court of appeals and the parties know how to raise 

and decide venue issues. 

¶36 I am authorized to state that Justices BRIAN HAGEDORN

and JILL J. KAROFSKY join this concurrence. 
No. 2022AP1736-W.rfd

1