CityDeck Landing LLC v. Circuit Court for Brown County , 385 Wis. 2d 516 ( 2019 )

2019 WI 15
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP291-W
COMPLETE TITLE: State of Wisconsin ex rel. CityDeck Landing LLC,
Petitioner,
v.
Circuit Court for Brown County, the Honorable
Thomas J. Walsh, presiding, Society Insurance,
Smet Construction Services Corporation and GB
Builders, LLC,
Respondents.
PETITION FOR SUPERVISORY WRIT
OPINION FILED: February 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 10, 2018
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed)
NOT PARTICIPATING: DALLET, J. did not participate.
ATTORNEYS:
For the petitioner, there were briefs filed by Eric M.
McLeod, Paul D. Cranley, Katherine Smith Polich, Joseph S.
Diedrich, and Husch Blackwell LLP, Madison.
For the respondents, Circuit Court for Brown County and the
Honorable Thomas J. Walsh, there was a brief filed by Brian P.
Keenan, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general.
For the respondent, Society Insurance, there was a brief
filed by Jeffrey Leavell, Danielle N. Rousset, Brandon L. Parks,
and Jeffrey Leavell, S.C., Racine.
2
2019 WI 15
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP291-W
(L.C. No. 2017CV1324)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin ex rel. CityDeck Landing
LLC,
Petitioner,
FILED
v.
FEB 21, 2019
Circuit Court for Brown County, the Honorable
Thomas J. Walsh, presiding, Society Insurance, Sheila T. Reiff
Smet Construction Services Corporation and GB Clerk of Supreme Court
Builders, LLC,
Respondents.
PETITION for supervisory writ. Granted; stay order
vacated.
¶1 REBECCA GRASSL BRADLEY, J. The circuit court ordered
the arbitration of a private construction dispute stayed until
it could decide an insurance coverage dispute between one of the
contractors connected to the arbitration and the contractor's
insurer. CityDeck Landing LLC petitions this court, pursuant to
Wis. Stat. § (Rule) 809.71 (2015-16),1 for a supervisory writ.
1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
No. 2018AP291-W
CityDeck asks this court to exercise its superintending
constitutional authority to vacate the circuit court's2 order.
CityDeck asserts the circuit court exceeded its jurisdiction by
putting the private arbitration3 on hold, and that a supervisory
writ is necessary to correct the circuit court's extra-
jurisdictional act. We hold the circuit court lacked the
authority to issue the order staying the arbitration, the
requirements necessary to issue a supervisory writ have been
satisfied, and the stay order must be vacated.
I. BACKGROUND
¶2 In December 2013, CityDeck hired Smet Construction
Services Corporation as its general contractor to construct an
apartment building called "CityDeck Residences" in Green Bay.
Smet hired subcontractors, including GB Builders of Northeastern
Wisconsin, LLC; Lunda Construction Company; Security-Luebke
Roofing, Inc.; and Lakeland Construction, Inc. The construction
contract required any disputes to be resolved by arbitration. A
dispute arose and in May 2016, CityDeck filed for arbitration
against Smet, alleging breach of the construction contract and
theft by contractor. It filed an amended demand for arbitration
in November 2016. In July 2017, Smet sought to bring the
subcontractors into the arbitration because it contended the
2 Brown County Circuit Court, Thomas J. Walsh, Judge.
3
The parties independently initiated the arbitration in
this case pursuant to a private contract, without involvement by
the court system.
2
No. 2018AP291-W
subcontractors were responsible for the problems and each of the
subcontracts contained an indemnity provision requiring the
subcontractor to "defend, indemnify and hold [Smet] harmless."
Most of the subcontractors voluntarily joined the arbitration.
GB Builders notified its insurer, Society Insurance, of the
claim, and Society hired an attorney to represent GB Builders
under a reservation of rights. In August 2017, Smet tendered
the defense of the CityDeck claim to Society, asserting it was
an additional insured under the insurance policy Society issued
to GB Builders. In October 2017, GB Builders filed an answer to
Smet's demand for arbitration, asking the arbitrator for
dismissal. The arbitrator scheduled the arbitration hearing for
March 1, 2018.
¶3 In October 2017, however, Society Insurance filed a
declaratory judgment complaint in Brown County Circuit Court
against CityDeck, Smet, and GB Builders. Society sought a
declaration "on the scope of its insurance duties" to Smet and
GB Builders with respect to CityDeck's construction claims under
arbitration. Society asked the circuit court to stay the
arbitration until it could decide the insurance coverage issue.
The circuit court granted Society's request and ordered the
arbitration stayed on January 2, 2018.
¶4 CityDeck asserted the circuit court lacked
jurisdiction to order a private arbitration stayed, particularly
when the circuit court action and the arbitration involved
different issues and different parties; three subcontractors who
were parties to the arbitration were not named in the circuit
3
No. 2018AP291-W
court suit. CityDeck filed a motion asking the circuit court to
reconsider its decision. The circuit court ignored CityDeck's
motion to reconsider, and CityDeck filed a petition for a
supervisory writ in the court of appeals. The court of appeals
construed the petition as an appeal from a non-final order and
denied the petition. CityDeck filed a petition for a
supervisory writ with this court. We accepted jurisdiction over
CityDeck's petition and heard oral argument.
II. ANALYSIS
A. Historical Analysis
¶5 Wisconsin cases contain inconsistencies regarding writ
procedure, terminology, and the standards applicable to the
exercise of our constitutional superintending authority. For
the sake of clarity, we set forth the history of writs requested
under our superintending authority, the origin of the term
"supervisory writ," and an unexplained discrepancy in our cases
illuminated in State ex rel. Beaudry v. Panosian, 35 Wis. 2d
418, 151 N.W.2d 48 (1967).
1. History of writ procedure
¶6 Article VII, § 3 of the Wisconsin Constitution gives
the supreme court "superintending and administrative authority
over all courts" and the ability to "issue all writs necessary
4
No. 2018AP291-W
in aid of its jurisdiction."4 Interpreting this provision, this
court held that "[the supreme court] was endowed with a separate
and independent jurisdiction, which enables and requires it in a
proper case to control the course of ordinary litigation in such
inferior courts, and was also endowed with all the common-law
writs applicable to that jurisdiction." State ex rel. Fourth
Nat'l Bank of Phila. v. Johnson, 103 Wis. 591, 613, 79 N.W. 1081
(1899). This court concluded that "when the makers of the
constitution used the words 'superintending control over all
inferior courts' they definitely referred to that well-known
superintending jurisdiction of the court of king's bench." Id.
at 614. "The two great writs by which this superintending
jurisdiction was principally exercised by the court of King's
bench were the writs of mandamus and prohibition; the one
directing action by the inferior court, and the other forbidding
action." Id.
¶7 A writ of prohibition "restrain[s] a court in the
exercise of judicial functions outside or beyond its
jurisdiction, and when there is no other adequate remedy."
State ex rel. Attorney Gen. v. Circuit Court of Eau Claire Cty.,
4In 1899, the provision read, in relevant part, "The
supreme court shall have a general superintending control over
all inferior courts; it shall have power to issue writs of
habeas corpus, mandamus, injunction, quo warranto, certiorari,
and other original and remedial writs, and to hear and determine
the same." State ex rel. Fourth Nat'l Bank of Phila. v.
Johnson, 103 Wis. 591, 610, 79 N.W. 1081 (1899) (emphasis
omitted).
5
No. 2018AP291-W
97 Wis. 1, 15, 72 N.W. 193 (1897). See also State ex rel.
De Puy v. Evans, 88 Wis. 255, 263, 60 N.W. 433 (1894) ("So this
court has repeatedly held that under our statutes such writ
issues only to restrain the acts of a court or other inferior
tribunal exercising some judicial power which it has no legal
authority to exercise at all."); State ex rel. Kellogg v. Gary,
33 Wis. 93, 98 (1873) ("It does not issue to restrain the acts
of either executive or administrative officers, but only those
of a court or other inferior tribunal engaged in the exercise of
some judicial power, and that not merely in a manner not
authorized by law, but it must also be in defiance of law, or
without any legal authority whatever for that purpose.").
¶8 Prior to 1921, it was the rule in Wisconsin "that
prohibition will not lie against a judge of a lower court except
in a situation where such judge is exceeding his jurisdiction."
State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90
N.W.2d 790 (1958). However, the rule changed so that
"prohibition may be invoked in case of a non-jurisdictional
error in a situation where appeal from the judgment would come
too late for effective redress and great hardship would result
if such writ were not issued." Id. See also In re Inland Steel
Co., 174 Wis. 140, 143, 182 N.W. 917 (1921) ("[I]t is the
opinion of the court that jurisdiction may properly be exercised
though the duty of the court below may not be so plain as to
permit of but one conclusion, if a careful consideration of all
the facts shows that a valid service has not been made."); State
ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis.
6
 No. 2018AP291-W
366, 370, 243 N.W. 763 (1932) ("Neither the power nor the
exercise of it as a matter of policy is limited to keeping the
lower court within its jurisdiction or compelling it to act.");
State ex rel. Gaynon v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d
437 (1966) ("Traditionally, this writ was used to keep an
inferior court from acting outside its jurisdiction when there
was no adequate remedy by appeal or otherwise. But, . . . the
writ has been expanded to cover cases of 'nonjurisdictional
error when the appeal may come too late for effective redress,
or be inadequate and there is a need for such intervention to
avoid grave hardship or a complete denial of the rights of a
litigant.'") (internal citations and quoted source omitted).
¶9 In Fourth National Bank, this court acknowledged it
granted a writ of prohibition in Attorney General, to prevent
"the further prosecution of certain contempt proceedings in the
circuit court because such court was acting in excess of its
jurisdiction." Fourth Nat'l Bank, 103 Wis. at 617. This court
explained in Attorney General: "Having held that the attempt to
punish the publication in question as contempt was in excess of
the jurisdiction of the circuit court, no reason is seen why the
writ is not an apt and proper remedy, unless, indeed, there be
other adequate remedies." Attorney Gen., 97 Wis. at 15. The
court proceeded to rule out the use of other writs and concluded
that a writ of prohibition was appropriate. Id.
¶10 While Fourth National Bank explained the court's
superintending power, it specifically dealt with the issuance of
a writ of mandamus. 103 Wis. at 618. The court stated that
7
No. 2018AP291-W
"unless there be adequate remedy for such denial in the regular
exercise of the appellate jurisdiction of this court, it is
difficult to see why the superintending jurisdiction should not
be exercised to quash the neglect or refusal of the circuit
court, and compel it to act within its jurisdiction." Id. at
621.
¶11 In addition, Fourth National Bank created several
principles for issuing a writ of mandamus. First, "[t]he
general rule of law undoubtedly is that mandamus will not lie
where there is a remedy by appeal or writ of error. But the
remedy by appeal must be substantially adequate in order to
prevent relief by mandamus." Id. at 622 (internal citations
omitted). Second, "[i]t is very plain that, if the creditors
are to exercise their rights with any prospect of benefit, they
must exercise them promptly." Id. Third, "reliance is placed
upon the well-known principle that mandamus will not lie to
control the exercise of discretion." Id. Fourth, "[w]here it
clearly appears that discretion has been not merely abused, but
not exercised at all, or that the action taken by the inferior
court is without semblance of legal cause, and no other adequate
remedy exists, mandamus will lie to compel the specific action
which should have been taken." Id. at 623. Fifth, "[t]he duty
of the court must be plain, the refusal to proceed within its
jurisdiction to perform that duty must be clear, the results of
such refusal prejudicial, the remedy, if any, by appeal or writ
of error utterly inadequate, and the application for relief by
8
No. 2018AP291-W
mandamus speedy and prompt, in order to justify the issuance of
the writ." Id. at 623-24.
¶12 It appears, however, that the requirements outlined in
Fourth National Bank for a writ of mandamus became requirements
for all writs issued under the court's supervisory powers. In
1907, in a mandamus case, the court wrote that it would apply
its supervisory control only "where the duty of the inferior
court to act within its jurisdiction or to refrain from going
beyond its jurisdiction is plain and imperative, where such
court threatens to violate that duty to the substantial
prejudice of the rights of the petitioner, where all other
remedies are inadequate, and the application for relief [is]
prompt." State ex rel. Milwaukee Elec. Ry. & Light Co. v.
Circuit Court for Rock Cty., 133 Wis. 442, 444, 113 N.W. 722
(1907) (citing Fourth Nat'l Bank). That case, Fourth National
Bank, and two other mandamus cases,5 were then cited in State ex
rel. Pierce-Arrow Motor Car Co. v. Circuit Court of Milwaukee
Cty., 143 Wis. 282, 127 N.W. 998 (1910), as principles for
exercising general superintending control. The court stated:
Those principles in substance are that this
[superintending] jurisdiction is not to be exercised
upon light occasion, but only upon some grave
exigency; that the writs by which it is exercised will
not be used to perform the ordinary functions of an
appeal or writ of error; that the duty of the court
below must be plain; its refusal to proceed within the
5 State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226,
82 N.W. 158 (1900); State ex rel. Umbreit v. Helms, 136 Wis.
432, 118 N.W. 158 (1908).
9
No. 2018AP291-W
line of such duty, or, on the other hand, its intent
to proceed in violation of such duty must be clear;
the results must be not only prejudicial, but must
involve extraordinary hardship; the remedy by appeal
or writ of error must be utterly inadequate; and the
application for the exercise of the power of
superintending control must be speedy and prompt.
Id. at 285. Pierce-Arrow, however, was a prohibition case——not
a mandamus case.
¶13 Nonetheless, the principles outlined in Pierce-Arrow
were reiterated in a later prohibition case, State ex rel. Pabst
v. Circuit Court for Milwaukee Cty., 184 Wis. 301, 304, 199 N.W.
213 (1924). However, that court went on to apply only some of
the Pierce-Arrow principles, stating "[i]f the duty of the
circuit court to abate the action against the Pabst Brewing
Company were clear, and the relator did suffer extraordinary
hardship by reason of the court's failure to perform its duty,
and if he had no other adequate remedy, the duty of this court
to assume jurisdiction is well settled." Id. Notably, the
court did not address the factor requiring that "the application
for the exercise of the power of superintending control must be
speedy and prompt."
¶14 Likewise, other cases did not uniformly or
consistently apply the Pierce-Arrow principles. Some cases
utilized only two. First, "[i]n order to entitle a party to a
writ of prohibition, the results of the error attacked must not
only be prejudicial to him but must [also] involve extraordinary
hardship." Kiekhaefer, 4 Wis. 2d at 490 (emphasis omitted)
(citing Pierce-Arrow). Second, "[i]t is a further well
established principle that prohibition will not lie where there
10
No. 2018AP291-W
is an adequate remedy by appeal." Id. at 491. See also State
ex rel. Mitchell v. Superior Court of Dane Cty., 14 Wis. 2d 77,
81, 109 N.W.2d 522 (1961) ("Ordinarily such a writ should be
issued only to prevent an inferior court from exercising
jurisdiction in a case where i[t] should not be exercised or
assumed. Nor should a writ of prohibition be issued if there is
an adequate remedy by way of appeal, except where great hardship
would result.") (internal citations omitted). However, other
cases referenced all of the principles from Pierce-Arrow. For
example, in State ex rel. Beaudry v. Panosian, the court cited
Pierce-Arrow and affirmed a motion to quash a petition for a
writ of prohibition because "from this record it cannot be said
that the justice court's 'duty' to refrain from exercising
jurisdiction was plain." Beaudry, 35 Wis. 2d at 425-26; see
also State ex rel. Lang v. Municipal Justice Court of Cudahy, 50
Wis. 2d 21, 23-24, 183 N.W.2d 43 (1971) (citing Pierce-Arrow);
State ex rel. Prentice v. Cty. Court, Milwaukee Cty., 70
Wis. 2d 230, 234-35, 234 N.W.2d 283 (1975) (citing Pierce Arrow
and Beaudry).
¶15 Eventually, the principles developed in Pierce-Arrow
and cited in Beaudry merged into a four-factor test:
A petition for a supervisory writ will not be granted
unless: (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 must have
acted or intends to act in violation of that duty[;]
and (4) the request for relief is made promptly and
speedily.
11
No. 2018AP291-W
State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d
220 (Ct. App. 1984) (citing Beaudry). This court subsequently
endorsed these four factors, and routinely applies them whenever
a party petitions for a supervisory writ. See Burnett v. Alt,
224 Wis. 2d 72, 96-97, 589 N.W.2d 21 (1999); State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶17, 271
Wis. 2d 633, 681 N.W.2d 110; DNR v. Wis. Court of Appeals, Dist.
IV., 2018 WI 25, ¶9, 380 Wis. 2d 354, 909 N.W.2d 114. This was
not always the case.
¶16 Before adoption of the modern four-factor test, Wis.
Stat. ch. 817 (1975-76) provided guidance for writs of errors
and appeals. Parties asking the supreme court to exercise its
superintending authority did so via an application or a petition
for a particular writ——typically a writ of mandamus or a writ of
prohibition. In 1978, the typical practice changed when
Wisconsin revamped its court system, adding the intermediate
appellate court——the Wisconsin Court of Appeals. The newly
revised appellate court structure required revisions to
appellate rules. The Judicial Council drafted new rules of
appellate procedure, which this court enacted. Sup. Ct. Order,
83 Wis. 2d xxvii (1978). Two Rules, 809.51 and 809.71, created
procedural and filing guidance regarding writ practice in the
appellate courts. Rule 809.51 applied to the newly-created
court of appeals, and Rule 809.71 applied to this court. Both
Rules were titled "Supervisory Writ" although this term did not
appear in the text of the original statutes. See Wis. Stat.
§§ (Rules) 809.51 & 809.71 (1977-78).
12
No. 2018AP291-W
¶17 The text of the court of appeals' rule said: "A
person may request the court to exercise its supervisory
jurisdiction over a court . . . by filing a petition and
supporting memorandum." The text of the supreme court rule
said: "A person may request the supreme court to exercise its
supervisory jurisdiction . . . by filing a petition in
accordance with Rule 809.51." The term "supervisory writ" does
appear in the second sentence of our current Rule 809.71: "A
person seeking a supervisory writ from the supreme court shall
first file a petition for a supervisory writ in the court of
appeals[,]" but the term still does not appear in the text of
Rule 809.51.6
6 The full text of current Wis. Stat. §§ (Rules) 809.51 and
809.71 provides:
809.51 Rule (Supervisory writ and original
jurisdiction to issue prerogative writ).
(1) A person may request the court to exercise its
supervisory jurisdiction or its original jurisdiction
to issue a prerogative writ over a court and the
presiding judge, or other person or body, by filing a
petition and supporting memorandum. The petition and
memorandum combined may not exceed 35 pages if a
monospaced font is used or 8,000 words if a
proportional serif font is used. The petitioner shall
name as respondents the court and judge, or other
person or body, and all other parties in the action or
proceeding. The petition shall contain:
(a) A statement of the issues presented by the
controversy;
(b) A statement of the facts necessary to an
understanding of the issues;
(c) The relief sought; and
(continued)
13
No. 2018AP291-W
(d) The reasons why the court should take
jurisdiction.
(2) The court may deny the petition ex parte or may
order the respondents to file a response with a
supporting memorandum, if any, and may order oral
argument on the merits of the petition. The response
and memorandum combined may not exceed 35 pages if a
monospaced font is used or 8,000 words if a
proportional serif font is used. The respondents
shall respond with supporting memorandum within 14
days after service of the order. A respondent may
file a letter stating that he or she does not intend
to file a response, but the petition is not thereby
admitted.
(3) The court, upon a consideration of the petition,
responses, supporting memoranda and argument, may
grant or deny the petition or order such additional
proceedings as it considers appropriate. Costs and
fees may be awarded against any party in a writ
proceeding.
(4) A person filing a petition under this section
shall append to the petition a statement identifying
whether the petition is produced with a monospaced
font or with a proportional serif font. If produced
with a proportional serif font, the person shall set
forth the word count of the petition.
809.71 Rule (Supervisory writ). A person may request
the supreme court to exercise its supervisory
jurisdiction over a court and the judge presiding
therein or other person or body by filing a petition
in accordance with s. 809.51. A person seeking a
supervisory writ from the supreme court shall first
file a petition for a supervisory writ in the court of
appeals under s. 809.51 unless it is impractical to
seek the writ in the court of appeals. A petition in
the supreme court shall show why it was impractical to
seek the writ in the court of appeals or, if a
petition had been filed in the court of appeals, the
disposition made and reasons given by the court of
appeals.
14
No. 2018AP291-W
¶18 With the introduction of the term "supervisory writ"
via the new appellate rules, post-1978 cases attempted to draw
from both the old, existing terminology and the new rules. The
term "supervisory writ" appears for the first time in Wisconsin
cases in State v. Whitty, 86 Wis. 2d 380, 385, 272 N.W.2d 842
(1978), which references Wis. Stat. §§ (Rules) 809.51 and
809.71. Six years later, the current four-factor "supervisory
writ" test was explicitly declared in a 1984 court of appeals'
per curiam opinion in Oman, 120 Wis. 2d at 91. Oman lists the
test with a citation to Beaudry. Beaudry, as noted, does not
explicitly denominate a four-factor test, but instead cites to
the general principles set forth in Pierce-Arrow.
¶19 Dissecting the relevant paragraph in Pierce-Arrow
results in a list of seven factors guiding the exercise of
superintending authority:
(1) This jurisdiction is not to be exercised upon
light occasion, but only upon some grave exigency;
(2) The writs by which it is exercised will not be
used to perform the ordinary functions of an appeal or
writ of error;
(3) The duty of the court below must be plain;
(4) Its refusal to proceed within the line of such
duty or, on the other hand, its intent to proceed in
violation of such duty must be clear;
(5) The results must be not only prejudicial but must
involve extraordinary hardship;
(6) The remedy by appeal or writ of error must be
utterly inadequate;
(7) The application for the exercise of the power of
superintending control must be speedy and prompt.
15
No. 2018AP291-W
Pierce-Arrow, 143 Wis. at 285.
¶20 While the Oman court did not say how it arrived at the
four factors, it likely condensed these seven principles into
four factors given their overlap:
(1) An appeal is an inadequate remedy (see #2 and #6
of Pierce-Arrow);
(2) Grave hardship or irreparable harm will result
(see #1 and #5 of Pierce-Arrow);
(3) The duty of the trial court is plain and the court
must have acted or intend to act in violation of that
duty (see #3 and #4 of Pierce-Arrow);
(4) The request for relief is made promptly and
speedily (see #7 of Pierce-Arrow).
¶21 Alternatively, because the party in Oman sought two
writs——a writ of mandamus and a writ of prohibition——the Oman
court may have applied factors derived from each of the tests
tied to those writs, respectively. Mandamus requires: "(1) a
clear legal right; (2) a plain and positive duty; (3)
substantial damages or injury should the relief not be granted,
and (4) no other adequate remedy at law." Oman, 120 Wis. 2d at
88 (citing Law Enf't Standards Bd. v. Village of Lyndon Station,
101 Wis. 2d 472, 493-94, 305 N.W.2d 89 (1981), which actually
lists two additional factors not mentioned, including "no
laches" and "no special reasons" making the remedy
"inequitable.").
¶22 As Wisconsin appellate courts grappled with the
language of the older cases, together with the post-1978 body of
cases, profuse variations of both terminology and tests appeared
16
No. 2018AP291-W
in our modern writ cases. Cases sometimes referred to
"supervisory writs" and sometimes referred to a specific common
law writ. Some courts combined the old and new terminology into
"supervisory writ of prohibition." See State ex rel. Godfrey &
Kahn, S.C. v. Circuit Court for Milwaukee Cty., 2012 WI App 120,
¶¶48-50, 344 Wis. 2d 610, 823 N.W.2d 816 (granting a
"supervisory writ of prohibition" after applying four-factor
test because trial judge exceeded authority); State ex rel.
Individual Subpoenaed to Appear at Waukesha Cty. v. Davis, 2005
WI 70, 281 Wis. 2d 431, 697 N.W.2d 803 (court granted a "writ of
prohibition," but did not apply four-factor test); State ex rel.
Garibay v. Circuit Court for Kenosha Cty., 2002 WI App 164, ¶2,
256 Wis. 2d 438, 647 N.W.2d 455 (denied petition for
"supervisory writ.").
¶23 Attempting to define "supervisory writ," the court of
appeals described it as "a blending of the writ of mandamus and
the writ of prohibition." State ex rel. Dressler v. Circuit
Court for Racine Cty., 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct.
App. 1991) (citing Oman). This court likewise adopted this
definition. See Madison Metro. Sch. Dist. v. Circuit Court for
Dane Cty., 2011 WI 72, ¶74, 336 Wis. 2d 95, 800 N.W.2d 442; DNR,
380 Wis. 2d 354, ¶8. Nevertheless, courts continued to
distinguish between writs of prohibition and writs of mandamus.
See Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶1, 75-76. This
historical review reveals inconsistencies in writ law and the
standards governing our exercise of superintending authority.
17
No. 2018AP291-W
2. Supervisory Writ
¶24 With the introduction of the term "supervisory writ"
in 1978, our cases became less clear. The cases are silent as
to whether the "supervisory writ" was an intentional invention
or resulted fortuitously from the title the Judicial Council
drafters chose for Rules 809.51 and 809.71. It is also unclear
whether a supervisory writ existed as an independent writ under
which this court exercised its superintending authority or
whether it was simply a generic term providing the mechanism by
which parties reached the appellate courts when seeking the
exercise of supervisory (court of appeals) or superintending
(supreme court) authority.
¶25 Notably, just last term, in DNR, we referenced an 1874
case empowering this court to use both the traditional common
law writs when exercising superintending jurisdiction or
"devise" any new writs we might deem necessary:
We have previously observed that with the grant of
[art. VII, § 3 superintending] jurisdiction [over all
courts] come all the writs necessary to give it
effect:
The framers of the constitution appear to have
well understood that, with appellate
jurisdiction, the court took all common law writs
applicable to it; and with superintending
control, all common law writs applicable to that;
and that, failing adequate common law writs, the
court might well devise new ones, as Lord Coke
tells us, as "a secret in law."
Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425,
515 (1874) (construing our original constitution); see
State v. Buchanan, 2013 WI 31, ¶11, 346 Wis. 2d 735,
828 N.W.2d 847 ("As the court of original
18
No. 2018AP291-W
jurisdiction, we have discretion to issue a
supervisory writ.").
DNR, 380 Wis. 2d 354, ¶7 (footnote omitted).
¶26 This suggests our "supervisory writ" may in fact be a
new writ devised to exercise our superintending constitutional
authority. But, the term "supervisory writ" also bears a second
meaning. Since its appearance in 1978, a supervisory writ is
commonly known as the general term used when petitioning
Wisconsin appellate courts under Rules 809.51 and 809.71. This
terminology, regardless of whether it entered the law
intentionally or fortuitously, is firmly entrenched in our
jurisprudence, and we have never explained or addressed its
purpose or presence. This historical analysis does not provide
clear answers, but the court takes this opportunity to clarify
and acknowledge the dual purpose of the term supervisory writ.
It is both: (1) the general term used in petitioning the court
of appeals to exercise its constitutional supervisory authority7
and in petitioning this court to exercise its constitutional
7 Article VII, § 5 of the Wisconsin Constitution gives the
court of appeals "supervisory authority":
(3) The appeals court shall have such appellate
jurisdiction in the district, including jurisdiction
to review administrative proceedings, as the
legislature may provide by law, but shall have no
original jurisdiction other than by prerogative writ.
The appeals court may issue all writs necessary in aid
of its jurisdiction and shall have supervisory
authority over all actions and proceedings in the
courts in the district.
19
No. 2018AP291-W
superintending authority;8 and (2) a new writ this court devised
independent of the traditional common law writs.
3. Beaudry's jurisdictional distinction
¶27 Our last consideration in this historical analysis
addresses the unexplained discrepancy in our case law
illuminated in State ex rel. Beaudry v. Panosian, 35
Wis. 2d 418, 151 N.W.2d 48 (1967). Beaudry makes a distinction
between jurisdictional and non-jurisdictional cases requesting
the exercise of this court's superintending authority.9 The
court in Beaudry recognized that this court's constitutional
superintending authority includes "the power to issue writs
prohibiting inferior courts from acting outside their
jurisdiction" and explained that "[t]raditionally, this writ was
used to keep an inferior court from acting outside its
jurisdiction when there was no adequate remedy by appeal or
otherwise" but the "use of the writ to prohibit action by
inferior courts and tribunals in cases of nonjurisdictional
error" was historically limited to situations "where 'the appeal
8
The term "supervisory" is used in both Wis. Stat. § (Rule)
809.51 (court of appeals) and Wis. Stat. § (Rule) 809.71
(supreme court), but the Wisconsin Constitution uses the term
"supervisory authority" with respect to the court of appeals and
the term "superintending authority" with respect to this court.
9
State ex rel. Beaudry v. Panosian, 35 Wis. 2d 418, 151
N.W.2d 48 (1967), was not the only case to recognize the
distinction. State ex rel. Kiekhaefer v. Anderson, 4
Wis. 2d 485, 490, 90 N.W.2d 790 (1958) and State ex rel. Gaynon
v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d 437 (1966) similarly
acknowledge a jurisdictional and non-jurisdictional distinction.
20
No. 2018AP291-W
may come too late for effective redress, or be inadequate and
there is a need for such intervention to avoid grave hardship or
a complete denial of the rights of a litigant.'" Id. at 421-22
(quoted source omitted). Beaudry, at least implicitly,
suggested a lesser burden to secure superintending assistance
from this court when addressing a jurisdictional error and a
greater burden when the case presents a non-jurisdictional
error. This makes sense, of course, because non-jurisdictional
errors are more likely to be remedied through the normal appeal
process than purely jurisdictional errors, as this case
illustrates well. Indeed, as recently as 2005, this court
dispensed with the four-factor supervisory writ test in Davis,
281 Wis. 2d 431, ¶17, holding that "the requested writ of
prohibition will issue if the John Doe judge acted in excess of
his powers." In that case, the court concluded "a John Doe
judge does not have statutory or inherent power to require a
witness's counsel to take an oath of secrecy" and on that basis
alone granted the writ of prohibition. Id., ¶¶32-34. Despite
this distinction, this court largely ignored any substantive
differences between jurisdictional and non-jurisdictional errors
post-Beaudry and continued to blur the general principles
involved in the writ cases.
¶28 Although Beaudry has never been overruled, it appears
time, lack of precision, and perhaps the commonplace use of the
supervisory writ has eroded any distinction between
jurisdictional and non-jurisdictional categories of error.
Parties seeking a supervisory writ——regardless of which category
21
No. 2018AP291-W
of error——must satisfy the four-criteria supervisory writ test.
This test is well-known, easy to apply, and firmly entrenched in
Wisconsin law.
B. Application
¶29 This court's authority to issue a supervisory writ
arises from the constitutional grant of jurisdiction in Article
VII, § 3 of the Wisconsin Constitution, which provides:
(1) The supreme court shall have superintending and
administrative authority over all courts.
(2) The supreme court has appellate jurisdiction over
all courts and may hear original actions and
proceedings. The supreme court may issue all writs
necessary in aid of its jurisdiction.
(3) The supreme court may review judgments and orders
of the court of appeals, may remove cases from the
court of appeals and may accept cases on certification
by the court of appeals.
We do not exercise this authority lightly; instead, we reserve
this jurisdiction for extraordinary circumstances. See DNR, 380
Wis. 2d 354, ¶8; Dressler, 163 Wis. 2d at 630.
¶30 A party seeking the issuance of a supervisory writ
must establish four factors: (1) a circuit court had a plain
duty and either acted or intends to act in violation of that
duty; (2) "an appeal is an inadequate remedy;" (3) "grave
hardship or irreparable harm will result;" and (4) the party
requested relief "promptly and speedily." DNR, 380 Wis. 2d 354,
¶9 (quoting Kalal, 271 Wis. 2d 633, ¶17).
¶31 In deciding whether to grant the writ requested by
CityDeck, we consider the four criteria in turn. First, there
22
No. 2018AP291-W
must be a plain duty violated by the Brown County Circuit Court—
—in this case, the duty to refrain from exercising jurisdiction
over a private arbitration with which it had no authority to
interfere. We conclude the circuit court had a plain duty to
act within its jurisdiction and a concomitant duty to refrain
from acting beyond it.
¶32 Article VII, § 8 of the Wisconsin Constitution confers
broad jurisdiction on Wisconsin circuit courts to hear "all
matters civil and criminal within this state," but not without
exception:
Except as otherwise provided by law, the circuit court
shall have original jurisdiction in all matters civil
and criminal within this state and such appellate
jurisdiction in the circuit as the legislature may
prescribe by law. The circuit court may issue all
writs necessary in aid of its jurisdiction.
(Emphasis added.) The Wisconsin Arbitration Act, Wis. Stat. ch.
788, comprises one constitutionally-permissible exception to a
circuit court's original jurisdiction:
A provision in any written contract to settle by
arbitration a controversy thereafter arising out of
the contract, or out of the refusal to perform the
whole or any part of the contract, or an agreement in
writing between 2 or more persons to submit to
arbitration any controversy existing between them at
the time of the agreement to submit, shall be valid,
irrevocable and enforceable except upon such grounds
as exist at law or in equity for the revocation of any
contract.
Wis. Stat. § 788.01. In this Act, the Wisconsin legislature
recognizes the freedom of persons to agree to resolve their
disputes outside of the state's court system, via arbitration.
23
No. 2018AP291-W
¶33 A circuit court possesses only limited, statutorily
enumerated powers with respect to a private arbitration. See
Midwest Neurosciences Assocs. v. Great Lakes Neurosurgical
Assocs., LLC, 2018 WI 112, ¶¶47-49, 384 Wis. 2d 669, 920
N.W.2d 767. Nothing in the Wisconsin Arbitration Act permits a
circuit court to stay or otherwise intermeddle with a private
arbitration proceeding. A fundamental canon of statutory
construction provides that "[n]othing is to be added to what the
text states or reasonably implies[.]" Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 93
(2012); see also Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336
Wis. 2d 318, 801 N.W.2d 316 ("We decline to read into the
statute words the legislature did not see fit to write."). By
specifying particular powers of a circuit court to act with
respect to an arbitration proceeding, the legislature has
circumscribed the authority of the circuit court, which may not
arrogate to itself any additional powers.
¶34 A circuit court's role in arbitration is restricted
because parties who contract for arbitration do so to avoid the
court system altogether. Borst v. Allstate Ins. Co., 2006 WI
70, ¶61, 291 Wis. 2d 361, 717 N.W.2d 42 ("[T]he goal of
arbitration is 'to resolve the entire controversy out of court
without the formality and expense that normally attaches to the
judicial process.'" (quoted source and emphasis omitted));
Midwest Neurosciences Assocs., LLC, 384 Wis. 2d 669, ¶41 ("When
parties agree to arbitration, a court's role is limited because
a different forum of dispute resolution has been selected.").
24
No. 2018AP291-W
¶35 Arbitration is a matter of contract between private
parties who enjoy that freedom. McAdams v. Marquette Univ.,
2018 WI 88, ¶25, 383 Wis. 2d 358, 914 N.W.2d 708; Parsons v.
Associated Banc-Corp, 2017 WI 37, ¶31, 374 Wis. 2d 513, 893
N.W.2d 212 ("Wisconsin courts have long recognized the
importance of freedom of contract and have endeavored to protect
the right to contract." (quoted source omitted)). The circuit
court has no authority to halt a contractually agreed upon
arbitration. Consistent with Wisconsin's arbitration statute,
the circuit court may act only to ensure the parties who
contracted for arbitration abide by their contractual agreement.
See generally First Weber Grp., Inc. v. Synergy Real Estate
Grp., LLC, 2015 WI 34, ¶¶30-31, 361 Wis. 2d 496, 860 N.W.2d 498
("The legislature has determined that the courts have a limited
role in the context of arbitration."); Midwest Neurosciences
Assocs., LLC, 384 Wis. 2d 669, ¶77 ("Courts should remain
mindful of the limited role endowed to them under chapter 788
and not endeavor into the province of the parties' contractual
choice to arbitrate.").
¶36 Nothing in the statutes or the cases authorizes a
circuit court to halt a private arbitration so that an insurance
company can litigate whether its policy provides coverage to an
insured. Although Wisconsin cases do allow insurance companies
to bifurcate coverage from liability when both coverage and
liability are being decided in the courts, see, e.g., Newhouse
by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 836,
501 N.W.2d 1 (1993), no legal authority confers on a circuit
25
No. 2018AP291-W
court the power to interfere with a liability claim when the
parties have contracted to resolve it in arbitration. An
insurer may file a declaratory judgment action seeking a
coverage determination when the insurer has not been named as a
party in a lawsuit involving its insured, see, e.g., Fire Ins.
Exch. v. Basten, 202 Wis. 2d 74, 78, 549 N.W.2d 690 (1996), but
the declaratory judgment statute does not authorize a circuit
court to obstruct a scheduled arbitration over the liability
claims pending the circuit court's coverage determination.
¶37 Society suggests American Family Mut. Ins. Co. v.
American Girl, Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65
and Delta Group, Inc. v. DBI, Inc., 204 Wis. 2d 515, 555
N.W.2d 162 (Ct. App. 1996), authorize a circuit court to stay a
private arbitration. We disagree. In American Girl, the
circuit court did not order a stay of the arbitration. Rather,
the insurer intervened in the arbitration and asked the
arbitrator to stay the arbitration until coverage could be
determined. 268 Wis. 2d 16, ¶109 (Roggensack, J., dissenting).
Society's reliance on American Girl is inapposite. The same is
true for its reliance on Delta Group. In that case, the parties
filed suit in court and then agreed to stay the court case to
allow for mediation and arbitration. Delta Group, 204
Wis. 2d at 519. The court of appeals decided the insurer
breached its duty to defend its insured and was therefore
obligated to pay the arbitration award. Id. at 525-26. The
insurer had denied the claim entirely and never sought a
coverage determination. Id. Although Delta Group reiterates
26
No. 2018AP291-W
general rules about bifurcation and an insurer's duty to resolve
coverage disputes, it does not establish a circuit court's
authority to stay a private arbitration.
¶38 We conclude the circuit court violated its plain duty
when it stepped outside its original jurisdiction under Article
VII, § 8 of the Wisconsin Constitution by issuing an order it
had no authority to make. The circuit court compounded its
error by stopping an arbitration proceeding involving three
parties who were not participating in the court case at all and
therefore had no opportunity to be heard on an order that
affected their rights. Accordingly, the first criterion for a
supervisory writ is met.
¶39 The second criterion for granting a supervisory writ
requires a showing that CityDeck cannot receive an adequate
remedy through the ordinary appeal process. This criterion is
also met. Here, the circuit court acted beyond its original
jurisdiction under Article VII, § 8 of the Wisconsin
Constitution and halted a private arbitration to decide a
separate coverage issue in the circuit court involving different
parties. There is no adequate appellate remedy for the circuit
court's unlawful act because any "appeal comes too late for
effective redress" and the damage——stopping the parties from
resolving their dispute in arbitration——is not reparable or
compensable. See DNR, 380 Wis. 2d 354, ¶41 (quoted source
omitted). Challenging the circuit court's exercise of power via
a regular appeal would be futile. CityDeck would have to wait
until the coverage issue was resolved before it could appeal and
27
No. 2018AP291-W
ask an appellate court to declare the circuit court had no
authority to stay the arbitration. At that point, the wrongful
exercise of authority over the arbitration either becomes moot
if the circuit court allows the arbitration to proceed during
the appeal, or if the circuit court continues the stay pending
the appeal, CityDeck continues to be wrongly subjected to the
circuit court's exercise of authority it lacks. Either way, a
regular appeal is inadequate as it comes "too late for effective
redress." Id. (quoted source omitted).
¶40 Significantly, the appeal process continues to subject
the parties to the court system for resolving their dispute,
effectively trampling their agreement to avoid court altogether.
Rather than serving as a vehicle for vindicating a party's
rights, the appeal exacerbates the injury. The damage is done
and cannot be reversed.
¶41 Third, we consider whether grave hardship or
irreparable harm will result if we do not issue the supervisory
writ. We conclude that it would. A litigant's right to be free
from the exercise of the court's power has been completely
denied. The circuit court's unlawful stay order halted attempts
by these private parties to resolve a construction dispute in
their contractually-selected forum of arbitration. CityDeck was
deprived of the benefits of its bargained-for method of dispute
resolution: rather than avoiding the court system, it was
subjected to an order issuing from it, and instead of its
contractually agreed-upon arbitration progressing, it was
indefinitely delayed by a court acting without authority.
28
No. 2018AP291-W
Additionally, CityDeck was forced into public proceedings in a
matter it had contracted to resolve privately. These factors
satisfy the grave hardship/irreparable harm criterion.
¶42 Finally, CityDeck met the fourth criterion by acting
promptly and speedily. Although Society asserts that the 21
days between the issuance of the unlawful stay order and
CityDeck's writ filing is neither prompt nor speedy, we
disagree. The circuit court issued the stay order on January 2,
2018. Two days later, on January 4, 2018, CityDeck filed a
motion for reconsideration with the circuit court, which the
circuit court ignored. On January 11, 2018, the circuit court
issued an order giving the parties permission to proceed with a
planned mediation. Twelve days after that order, CityDeck filed
its writ petition in the court of appeals. This timeline
satisfies the "prompt and speedy" criterion.
¶43 CityDeck's petition fulfills all four criteria for
issuance of a supervisory writ; therefore, we grant CityDeck's
request and vacate the circuit court's order staying the
arbitration.
By the Court.—The petition for a supervisory writ is
granted; the stay order is vacated.
¶44 REBECCA FRANK DALLET, J., withdrew from participation.
29
No. 2018AP291-W.awb
¶45 ANN WALSH BRADLEY, J. (dissenting). Until now, it
has been well settled that a supervisory writ is intended to be
"an extraordinary and drastic remedy[,]" reserved for rare
situations involving "some grievous exigency." State ex rel.
Kalal v. Circuit Ct. for Dane Cty., 2004 WI 58, ¶17, 271
Wis. 2d 633, 681 N.W.2d 110; see Matter of Civil Contempt of
Kroll, 101 Wis. 2d 296, 304, 304 N.W.2d 175 (Ct. App. 1981)
(denominating a supervisory writ an "extraordinary remed[y]");
State ex rel. Kenneth S. v. Circuit Ct. for Dane Cty., 2008 WI
App 120, ¶8, 313 Wis. 2d 508, 756 N.W.2d 573 (referring to a
supervisory writ as an "extraordinary and drastic remedy that is
to be issued only upon some grievous exigency") (citation
omitted).
¶46 Ignoring this admonishment, the majority greatly
expands the application of our supervisory writ jurisprudence.
Throwing caution to the wind, it elevates jurisdictional errors
above all others as deserving of special treatment under
Wisconsin's supervisory writ procedures.
¶47 In doing so, the majority pays lip service to the
familiar and well-established four-factor test used to determine
whether a supervisory writ is an appropriate remedy under the
circumstances, but fails to apply it correctly. Adopting an
argument that CityDeck did not make, the majority's result is
that a supervisory writ, which is supposed to be reserved for
the most "extraordinary" or "grievous" situations, may become
commonplace.
1
No. 2018AP291-W.awb
¶48 In my view, CityDeck has not met a necessary
prerequisite for the issuance of a supervisory writ. Mere delay
in arbitration proceedings is not the type of "grave hardship"
or "irreparable harm" that entitles a party to such a writ.
¶49 Accordingly, I respectfully dissent.
I
¶50 Although the majority spills a great deal of ink
exploring the history of writ procedures in Wisconsin, it
ultimately purports to reaffirm and apply the familiar and well-
established four-factor test for determining whether a
supervisory writ is an appropriate remedy under the
circumstances.
¶51 As the majority correctly explains, "[a] party seeking
the issuance of a supervisory writ must establish four factors:
(1) a circuit court had a plain duty and either acted or intends
to act in violation of that duty; (2) 'an appeal is an
inadequate remedy;' (3) 'grave hardship or irreparable harm will
result;' and (4) the party requested relief 'promptly and
speedily.'" Majority op., ¶30 (citing DNR. v. Wis. Court of
Appeals, Dist. IV, 2018 WI 25, ¶9, 380 Wis. 2d 354, 909
N.W.2d 114). If any one of these factors is not present, the
writ must be denied. Kalal, 271 Wis. 2d 633, ¶17; see also
State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90
N.W.2d 790 (1958) (explaining that where the "petition fails to
allege any facts which disclose that he would suffer great
hardship[,]" a writ of prohibition may not be granted).
2
No. 2018AP291-W.awb
¶52 I focus my analysis on the third supervisory writ
factor: grave hardship or irreparable harm. The irreparable
harm claimed by CityDeck is a simple delay in its arbitration
proceedings. In my view, the fact that CityDeck's arbitration
is delayed, without more, is insufficient to show grave hardship
or irreparable harm.
¶53 The harm caused by any such delay is not similar to
the harm suffered by parties that previously sought and obtained
supervisory writs. In prior cases, the petitioner would have
suffered a complete denial of a right in a way that could not be
undone or remedied in the absence of a supervisory writ——that
is, the "bells" in those cases could not be "unrung."
¶54 For example, courts have determined that the failure
to substitute a judge when required by law constitutes
irreparable harm. State ex rel. J.H. Findorff & Son, Inc. v.
Circuit Ct. for Milwaukee Cty., 2000 WI 30, ¶37, 233 Wis. 2d
428, 608 N.W.2d 679 (2000); State ex rel. Laborers Int'l Union
of N. Am., AFL-CIO v. Circuit Ct. for Kenosha Cty., 112 Wis. 2d
337, 342, 332 N.W.2d 832 (Ct. App. 1983); State ex rel. Oman v.
Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984).
Similarly, the potential disclosure of information subject to
the attorney-client privilege is irreparable harm sufficient to
support the issuance of a supervisory writ. State ex rel.
Godfrey & Kahn, S.C. v. Circuit Ct. for Milwaukee Cty., 2012 WI
App 120, ¶52, 344 Wis. 2d 610, 823 N.W.2d 816 (Ct. App. 2012).
Finally, in DNR, 380 Wis. 2d 354, ¶47, this court determined
3
No. 2018AP291-W.awb
that the failure to honor an appellant's statutory right to
choice of venue constituted irreparable harm.
¶55 Ignoring this case law, CityDeck fails to make any
persuasive argument that the delay caused by the circuit court's
stay of the arbitration proceedings constitutes grave hardship
or irreparable harm. CityDeck's "argument" with regard to this
factor is tucked away in the very last paragraph of its 28-page
brief-in-chief.1
¶56 It baldly asserts that, in the absence of a
supervisory writ, it will incur unspecified "substantial damages
for which there is no adequate remedy." CityDeck further
complains that "[t]he inability to resolve the arbitration and
the indefinite delay resulting from the Stay Order has already
caused substantial damage to CityDeck's interests and will
continue to do so until it is lifted."
¶57 In my view, CityDeck is not being denied its right to
arbitrate its claims. Arbitration is merely delayed, not
denied.2 CityDeck loses no statutory right and it loses no
contractual right.
¶58 What about the delay in the arbitration proceedings
cannot be remedied with money, such as interest on CityDeck's
1 CityDeck did not supplement its argument in its reply
brief.
2
This is an important distinction that is either lost on,
or ignored by, the majority. See, e.g., majority op., ¶39
(characterizing the "damage" in the instant case as "stopping
the parties from resolving their dispute in arbitration")
(emphasis added).
4
No. 2018AP291-W.awb
judgment if it is successful in arbitration? Indeed, at oral
argument, CityDeck asserted that "the irreparable harm is that
we continue to lose money that we will not recover because of
the delay associated with our arbitration proceedings." Exactly
how will the loss of money from delay result in grave hardship
or irreparable harm? CityDeck does not explain, so the majority
conjures its own justification.
¶59 Putting on its advocacy hat, the majority sua sponte
discovers a new type of irreparable harm. In the majority's
broad view, CityDeck suffers irreparable harm by the delay of
arbitration proceedings because "[a] litigant's right to be free
from the exercise of the court's power has been completely
denied." Majority op., ¶41.
¶60 If this is the thrust of the injury (i.e., being
subject to a court's power despite that court's lack of
jurisdiction), then the majority has short-circuited Wisconsin's
supervisory writ procedure. It treats jurisdictional errors as
a special class of errors for which the issuance of a
supervisory writ appears to be all but a certainty.3
¶61 Following the majority's logic, would a defendant be
entitled to a supervisory writ if a motion to dismiss for lack
of subject matter jurisdiction was erroneously denied? See
Richards v. Young, 150 Wis. 2d 549, 557, 441 N.W.2d 742 (1989)
3
Although the majority expressly rejects the proposition
that jurisdictional errors are treated differently under our
writ procedure than non-jurisdictional errors, its analysis
belies that assertion. See majority op., ¶27.
5
No. 2018AP291-W.awb
("This court has previously held that if the statutory
requirements for obtaining judicial review are not fully
complied with, the subject matter jurisdiction of the circuit
court cannot be invoked.").
¶62 Is a supervisory writ to be employed whenever it is
asserted that a circuit court exercised personal jurisdiction
despite a fundamental defect in service? See Johnson v. Cintas
Corp. No. 2, 2012 WI 31, ¶50, 339 Wis. 2d 493, 811 N.W.2d 756.
Could a party turn to a supervisory writ to resolve a question
of whether a juvenile court could exercise personal
jurisdiction? See State v. Aufderhaar, 2005 WI 108, ¶27, 283
Wis. 2d 336, 700 N.W.2d 4.
¶63 It appears that in each of these situations, for the
entirety of the case, the circuit court would be "stepp[ing]
outside its original jurisdiction" and issuing orders "it ha[s]
no authority to make" that would bind the defendant. See
majority op., ¶38. Further, the ordinary appeals process will
be inadequate because an appeal would always "come[] too late"
to effectively redress the error. Id., ¶39 (quoted source
omitted). The harm to the defendant would be considered
irreparable because, for the duration of the case, the defendant
would be "completely denied" the "right to be free from the
exercise of the court's power." Id., ¶41.
¶64 If there is a principle under which the majority's
analysis would not apply to all jurisdictional errors, that
principle is well hidden. Such an expansion of the availability
of supervisory writs is anathema to the limitations provided in
6
No. 2018AP291-W.awb
our supervisory writ jurisprudence. A supervisory writ should
be a last resort, not a first option.
¶65 In sum, the majority has placed itself in the role of
CityDeck's attorneys, relying on arguments not made in order to
issue a writ to which CityDeck is not entitled. In doing so,
the majority improperly elevates jurisdictional errors as a
special class of errors that can always be redressed via a
supervisory writ regardless of the specific facts of any
particular case. The majority's reasoning is incompatible with
Wisconsin's supervisory writ jurisprudence that has consistently
described a supervisory writ as an "extraordinary and drastic
remedy" reserved for only the most "grievous exigenc[ies]."
Kalal, 271 Wis. 2d 633, ¶17.
¶66 For the reasons set forth, I respectfully dissent.
¶67 I am authorized to state that SHIRLEY S. ABRAHAMSON
joins this dissent.
7
No. 2018AP291-W.awb
1