Vail Daily column: Understanding venue and jurisdiction
Venue is where it’s at. Quite literally. When lawyers speak of “venue,” what they are talking about is location, location, location.
Formerly referred to as visne (no, not Visine, the stuff you put in your eyes), the term derives from vicinage which, in antiquity, stood for “da hood,” as in da neighborhood. Vicinage, in turn, meant the area nearby, that is, “in the vicinity,” and in modern usage means the county where a trial is had, a crime committed or a similar locational designation.
Venue, then, deals with the locality of suit, as in a lawsuit rather than a fancy set of togs. In other words, which court or courts possess adequate personal and subject matter jurisdiction to hear the specific suit in question. Whoa. Hold on a sec. Personal and subject matter jurisdiction? What the heck are those and how do they related to the stuff “that takes the red out?”
OK, a quick diversion.
Essentially, jurisdiction means who gets to place themselves in the path of the onrushing buzzsaw of a particular dispute. It is the power and authority of a court to hear and determine a particular judicial proceeding. For our purposes here, jurisdiction comes in chocolate and vanilla. There is jurisdiction in personam (chocolate) and jurisdiction in rem (vanilla).
In personam jurisdiction is the power which a court has over the defendant’s person or being. In rem jurisdiction is the power of a court over a thing so that the court’s judgment is valid as against the rights of every person in that thing.
When a party (the plaintiff) is suing another party (the defendant) for, say, punching the plaintiff in the nose, the required jurisdiction is in personam. In other words, the court will exert its power over the defendant to hear the details of the dirty deed and sort out the equities between the parties
An example of in rem jurisdiction might be where a dispute has arisen over a particular morsel of real estate. The court hearing the matter will exercise its power and authority over the thing, in this instance the real estate, and the determination of the court will affect the disputants’ various claims of right to or in the real estate.
SUBJECT MATTER JURISDICTION
OK, I fibbed. Jurisdiction comes in strawberry, too. For the sake of our discussion, call strawberry jurisdiction subject matter jurisdiction. It is the power of a particular court to hear the type of case that is then before it. A bankruptcy court can’t hear a divorce case, for example. A water court can’t resolve a dispute over the probate of an estate. Essentially, is the particular court one entrusted with the authority to hear and decide a particular dispute? If not, then the court lacks subject matter jurisdiction and the matter must be heard by another court properly invested with authority to sort out and resolve the matters in dispute.
In order to hear a matter, the particular court must have both personal and subject matter jurisdiction. That is, the court must properly be able to get its arms around the person or thing and draw it in and the court must be invested with authority to hear and resolve the subject matter of the particular dispute.
Venue, then, is the cosmic convergence of personal and subject matter jurisdiction. In the Zen of law, venue is the proper place where an action may and must be heard. Although venue does not refer to jurisdiction, the two are related in that in order for venue to be proper, the court in that venue must have jurisdiction over the dispute. Easy, huh?
Venue deals with the locality of suit, that is, with the question of which court, or courts, of those that possess adequate personal and subject matter jurisdiction may hear the specific suit in question. It relates only to the place where (or territory within which) either party may require a case to be tried.
Jurisdiction of the court means the inherent power to decide a case, whereas venue designates the particular county or city in which a court with jurisdiction may hear and determine the case. Accordingly, while a defect in venue may be waived by the parties, lack of jurisdiction may not.
Under Colorado statute, if either party fears that he/she will not receive a fair trial in the county in which an action is pending, because the adverse party has an undue influence over the minds of its inhabitants, or that the inhabitants there are prejudiced against him/her so that he/she cannot expect a fair trial, then he/she may file a motion for a change of venue. Essentially, the motion says “move this thing, please” to another location where a fair and impartial hearing may be had and justice may, hopefully, prevail.
Oops, one thing we left out is quasi in rem jurisdiction, which is sort of a vanilla toffee flavor. But let’s leave that for another day.
As I began, venue is where it’s at. In the most literal sense imaginable.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.