Using Business Courts to Enhance Commercial Law in Wisconsin

11 Minute Read

Last month, the Wisconsin Supreme Court extended for an additional two years its pilot program involving dedicated trial court judicial dockets for large claim business and commercial cases (the “Business Court Pilot Project”).[1] The original project, established by Supreme Court Order on April 11, 2017,[2] established so-called “Business Courts” in two Wisconsin venues: one in Waukesha County (part of the Third Judicial Administrative District) and the other in seven counties making up the Eighth Judicial Administrative District (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, and Waupaca). Once the project got underway, the Supreme Court opened those two dockets to litigants statewide; practically, this meant business litigants in Wisconsin’s other counties could bring qualifying disputes to the established Business Courts.[3]

The Court’s recent February 22, 2020 Order doubled the number of dockets and establishes additional Business Court venues in the Second Judicial Administrative District (Walworth, Racine, and Kenosha Counties) and Tenth Judicial Administrative District (Ashland, Bayfield, Douglas, Burnett, Washburn, Sawyer, Polk, Barron, Rusk, St. Croix, Dunn, Chippewa and Eau Claire Counties). About a month later, the Supreme Court added Dane County to the mix, causing a dispute between some judges in Dane County and Chief Justice Roggensack.[4] In fact, Dane County Circuit Court Judge Richard Niess resigned his leadership position as presiding civil judge in protest, calling the Business Court program “a direct threat to the independence of our judiciary.”[5]

Judging by the reaction of some, one would think that the Supreme Court is out on a limb trying to establish a specialized business court in Wisconsin or is otherwise rigging the justice system to the detriment of non-business interests. Former Supreme Court Chief Justice Shirley Abrahamson lamented in 2017 that a special docket to serve business interests would create “significant mischief” by “its message that circuit court judges are not capable of handling complex civil cases and that business, above all, deserves the fastest, most cost-effective, most predictable and fairest disposition of cases.”[6] Echoing this complaint, Judge Niess recently declared that all of Dane County’s judges “have the capacity and skill” to handle commercial cases.[7]

We think there are plenty of judges capable of deciding commercial cases, Judge Niess himself being an excellent example. Nevertheless, we also think that establishing an exclusive forum for litigating complex business matters, allowing judges assigned to the docket to focus on that body of law, and promoting the publication of written trial court decisions on commercial issues will benefit the bench, bar, litigants, and Wisconsin overall. Business Courts are meant to streamline efficiency, educate the judiciary and business litigants, and create predictable commercial case law that will inform dispute resolution on business matters going forward.

The basis for our promotion of the Business Court Pilot Project is pretty simple.

First, while Delaware had a lock on laying claim to courts with expertise in resolving business issues through its Chancery Court for more than 100 years, the idea of specialty business courts has blossomed in the United States since the early 1990s. Indeed, as of 2018 there were at least 27 states that had some form of business court in practice (be it for the entire state or some portion of it as is the case in Wisconsin).[8] We take that as evidence of a need for specialized business courts. Indeed, the uptick in usage of such courts reflects success in those states that pioneered the concept.

Second, Justice Abrahamson’s 2017 dissent to the project asserted that business interests were trying to garner greater predictability in commercial matters by the creation of the Business Court. That’s correct, but it is hardly grounds for cynicism. The judges sitting as Business Court judges issue written decisions that will inform litigants and other judges on commercial matters; by specializing the circuit court we can ensure a body of case law that will inform generations to come and with time help reduce the number and length of business disputes.[9] Irrespective of what kinds of cases are appealed in Wisconsin (some kinds of cases are simply appealed more than others for a number of reasons), can we all agree that it is frustrating to find an appellate decision on point from our Court of Appeals only to find out that it is unpublished and thus of no precedential value (or, worse, it is too old to be cited at all)? The Court of Appeals’ crowded docket is well-known, so why not instead create a body of published trial court decisions to guide commercial litigants in the absence of published appellate authority?

In our view, Wisconsin has long failed to publish enough case law affecting commercial matters. Consider this: according to Westlaw there are 102 “recreational tort immunity” cases in Wisconsin and 1291 setting forth how to approach a writ of mandamus. Worthy issues, for sure. Further consider that there are 23 published cases involving the sale of franchises (even though Wisconsin is one of 15 states with a franchise sales statute), a mere 40 dealing with shareholder derivative actions, and only 9 dealing with the topic of shareholder oppression even though the concept has been the subject of multi-volume treatises for more than 40 years.

While you may accuse us of taking these numbers out of context, and it’s certainly fair to say not all kinds of cases are created equal (some cases by their nature automatically result in an appeal), anyone who has practiced commercial law in Wisconsin for any period of time is frustrated by the dearth of published appellate case law on business issues. By establishing a Business Court in Wisconsin and requiring trial judges in those courts to publish their rulings, business litigants will have access to an immediate body of law governing their approach to issues that they and their lawyers confront daily.

Third, by appointing judges to the Business Court, we are assured that those with commercial backgrounds help build that case law. For example, Judge Michael Aprahamian, the presiding Business Court judge in Waukesha County, was a commercial trial lawyer for years at our state’s largest law firm before taking the bench. That experience provides him with unique insight into the often complex matters affecting business interests. While voters could complain that such appointments run contrary to their electing a judge to a court of general jurisdiction, this is a contrived problem. Every major metropolitan area has enough caseload to require some level of specialization in the courts. How is establishing a Business Court any different?

“After all, we have specialized courts that handle family law, probate, bankruptcy, tax, drug convictions, and juvenile issues . . . Why is it so hard to wrap our hands around the idea that commercial law would benefit from having dedicated judges on commercial disputes?”

Finally, the use of the Business Court is not a knock on our circuit court judges. The idea here is to elevate certain kinds of disputes for specialized treatment to ensure that they get the proper attention they deserve without calendar rotations (a routine occurrence in Milwaukee County) and the disruptions of other non-commercial disputes.[10] Antitrust fights, partnership, fiduciary, and other internal business operational disputes, franchise and dealership cases, and intellectual property disputes deserve special attention. After all, we have specialized courts that handle family law, probate, bankruptcy, tax, drug convictions, and juvenile issues. Similarly, the federal system created a specialized appellate circuit just to hear patent disputes. Why is it so hard to wrap our hands around the idea that commercial law would benefit from having dedicated judges on commercial disputes?

Our cheerleading for the Business Court Pilot Project aside, we do think the process for the permanent creation of such a court requires less fiat from the Wisconsin Supreme Court and its current Chief Justice and more, well, democracy. We think the Business Court in Wisconsin should ultimately be created by statute (right now it is all a product of Supreme Court rule-making). While Chief Justice Roggensack has said any permanent implementation of the project will result in public hearings, the project would benefit from public study and analysis to ensure buy-in by all constituents.[11] Judges, trial lawyers, members of the business community, and others served by our judiciary should have the opportunity to chime in on the value and concerns of a specialized Business Court.

Public comment might consider, for example, a monetary case value threshold as a jurisdictional requirement. We don’t advocate that run-of-the mill contract disputes for $58,000 be tried in Business Court. Rather, we think that these courts should be reserved for complex, factually involved, and economically enhanced disputes. We also don’t need a judge in every one of Wisconsin’s 72 counties to be designated as a Business Court judge. It’s easier than that, we think. Establish the system. Appoint quality judges to serve as Business Court judges and have them ride a circuit. Recent experiences we have had in business courts outside Wisconsin show that this works.

Let’s stop fighting about it and get on with a program that elevates commercial law in Wisconsin. By requiring Business Court judges in Wisconsin to issue written decisions, our whole justice system will be elevated. Heck, maybe it would be contagious and other circuit court judges in Wisconsin would follow the trend.

[1] Feb. 22, 2020 S. Ct. Order found at https://wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=254091.  (return)

[2] April 11, 2017 S. Ct. Order found at https://www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=188391.  (return)

[3] Appendix A to the Supreme Court’s April 11, 2017 Order outlines the seven types of cases that currently qualify for Business Court designation in Wisconsin. When seeking Business Court designation at the time of filing, a plaintiff must complete the Commercial Docket Cover Sheet identifying which of the seven applies. Alternatively, parties can jointly petition a circuit court for Business Court designation after filing. (return)

[4] March 13, 2020 S. Ct. Order, found at https://wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=256657 (return)

[5] Ed Treleven, “Dane County Judge Warns of ‘Direct Threat’ to Judicial Independence in Business Court Plan,” March 2, 2020, Wisconsin State Journal, available at https://madison.com/wsj/news/local/crime-and-courts/dane-county-judge-warns-of-direct-threat-to-judicial-independence/article_1cec36dd-5a60-5580-ba4c-2032d9a2cbdb.html (return)

[6] April 11, 2017 S. Ct. Order, Dissent at p. 1 (return)

[7] Steve Elbow, “Judge Blasts Roggensack Over Move to ‘Cherry Pick’ Business Court Judges for Special Interests, Feb. 29, 2020, The Capital Times, available at https://madison.com/ct/news/local/govt-and-politics/judge-blasts-roggensack-over-move-to-cherry-pick-business-court/article_9e1653d2-1a86-51c2-b199-c3155943180d.html (return)

[8] Michael J. Aprahamian, “The Need for Speed: Commercial Court Now Open for Business,” Jan. 1, 2018, The Wisconsin Lawyer, available at https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?Volume=91&Issue=1&ArticleID=26094 (return)

[9] This is a link to recent Business Court decisions in Wisconsin: https://www.wicourts.gov/services/attorney/comcourtpilot.htm (return)

[10] This link takes you to the Business Court Pilot Project website, which provides forms and links to those forms for use in Business Court litigation: https://www.wicourts.gov/services/attorney/comcourtpilot.htm The Commercial Docket Cover Sheet found on this page is to be used when filing a Complaint seeking Business Court designation. When seeking such designation at the time of filing, the case must qualify under one of the seven types of disputes identified for Business Court treatment. (return)

[11] Indeed, the lack of public hearings and opportunity for input from interested parties in part prompted Justice Abrahamson’s dissent from the April 11, 2017 Order. (return)