Chief justice creates new business court amid objections from judges
MADISON – The head of the state Supreme Court is making Dane County change how it handles some business lawsuits — and personally selecting the judges who will hear the cases.
Chief Justice Patience Roggensack could eventually do the same in Milwaukee County.
The issue has caused a stir in Dane County, with judges questioning why businesses are being given a special court. Angered by the move, Dane County Circuit Judge Richard Niess last month resigned as the presiding judge for the court’s civil division.
“Special business interests now collaborate with our chief justice to handpick those judges they want to decide their cases,” Niess wrote in an email last week to local lawyers. “The Dane County Circuit Court will now be required to implement a two-tiered system of justice; one for the privileged few and one for the rest of us.”
In a statement, Roggensack downplayed the criticism and said the Supreme Court was expanding the business court to Dane County — and elsewhere — because it has been successful as a pilot project.
The fight pits the judges in the state’s most liberal county against the conservative who has led the state’s most powerful court since 2015.
The Supreme Court in 2017 started the pilot project to hear commercial cases in a new way in Waukesha County and eight counties in northeastern Wisconsin. Under the pilot project, certain types of business cases — such as those involving large sums, mergers, corporate governance or unfair competition claims — are heard by judges chosen by Roggensack.
Supporters say the commercial court allows business cases to be handled more quickly because the judges are familiar with business law. Detractors say there’s no evidence to support that claim and argue businesses should be treated like all other litigants.
The Supreme Court last month expanded the business court to two new areas — a judicial district that includes Racine, Kenosha and Walworth counties in southeastern Wisconsin and a district covering 13 counties in northwestern Wisconsin. The high court also set a rule allowing Roggensack to establish the business court anywhere else.
That’s the authority she is using to bring the business court to Dane County.
She made a similar effort late last year to establish a business court in Milwaukee County, records show. Maxine White, who was chief judge for Milwaukee County at the time, in December
declined to participate in the program because the business court’s rules conflict with local court rules, according to a memo by White.
So far, the move to put a business court in Milwaukee County has not reemerged, as it has in Dane County.
“I have not been asked to start a such a docket here since being appointed chief judge,” said Judge Mary Triggiano, who took over as Milwaukee County’s chief judge in February after White became an appeals judge.
Dane County fights effort
Dane County Chief Judge William Hanrahan learned of the plan to bring the business court to Dane County in November, records show.
Over the following weeks, Hanrahan worked out a compromise with Marinette County Chief Judge Jim Morrison, who leads the state’s chief judges and is known as the “chief of chiefs.” Under their agreement, Dane County would use the business court’s rules but would allow those cases to be randomly assigned to all judges handling civil cases, rather than only ones chosen by the chief justice.
Roggensack nixed that arrangement and said if the business court were created in Dane County she would choose the judges to handle the business
cases, records show. With the backing of the Dane County judges, Hanrahan in December told Morrison that Dane County didn’t want to participate in what Morrison had told him was a voluntary program.
But last month Roggensack told Hanrahan in a hastily called, 45-minute meeting that she would require Dane County to join the program and she would choose which judges would participate.
Five days later, the Supreme Court issued its order allowing the business court to expand to more counties. Roggensack assigned judges Valerie Bailey-Rihn,
Julie Genovese and Frank Remington to the business court in Dane County.
Remington said he did not see a need for the business court but recognized the Supreme Court’s ability to create it. He said he was willing to accept the appointment to the business court when he was asked.
“I think every one of the 17 judges in Dane County would be fine choices to be assigned to handle commercial cases,” Remington told the Journal Sentinel by email.
Bailey-Rihn and Genovese did not immediately respond to questions Monday.
The dispute over the business court underscores the inherent tensions in how Wisconsin’s courts are run. Judges and justices are elected and have broad authority, but under the state constitution the chief justice is the administrative head of the court system.
In an email last month, Niess told his fellow judges he was immediately stepping down as the presiding judge for the court’s civil division because of the formation of the commercial court.
“We have now acquiesced in allowing special business interests to collaborate with our chief justice to reach down and hand-pick the specific judges to decide their cases,” wrote Niess, who plans to retire this summer.
“I can think of no other cases where litigants can do this, and for good reason. The right and authority to elect judges of general jurisdiction belong to the people of this state and county, as a check and balance designed, in part, to avoid the very result we have here — allowing special interest groups and litigants to put their thumbs on the scales of justice.”
Supporters of the new commercial court say many other states have taken the same approach to more efficiently handle the unique aspects of business litigation. They note other specialty courts have been created around the country, such as ones for veterans or drug cases.
In her statement, Roggensack said there are other examples of only certain judges hearing certain types of cases, such as family law cases. (In those instances, however, it is not the chief justice who decides which judges hear the cases.)
The business court is being expanded because it has gone well so far, Roggensack said in her statement.
“The pilot has been helpful to the people of Wisconsin and therefore, the (Supreme Court) decided to expand the pilot into other circuit courts,” she said.