High court: Milwaukee trial judge’s appointment of special master violates constitution

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The Wisconsin Supreme Court has found that a Milwaukee trial judge improperly appointed a special master to preside over a case and reversed all the special master’s orders and rulings except for unchallenged discovery decisions.

The justices’ majority decision on Wednesday was written by Justice Shirley Abrahamson. Justice Rebecca Bradley, joined by Justice Dan Kelly, concurred and dissented. Justice Annette Ziegler concurred and dissented separately.

At issue in Universal Processing Services v. Circuit Court of Milwaukee County was whether Milwaukee County Circuit Court Judge John DiMotto properly appointed a special master to handle a dispute between the Wisconsin-based bank card processing service Newtek and a former independent contractor, Samuel Hicks.

Judge DiMotto appointed a special master, retired judge Michael Skwierawski, to handle discovery motions. DiMotto also decided to have the parties pay Skwierawski $450 an hour plus expenses. About a year later, Newtek challenged the appointment in the Court of Appeals, which denied the petition. It then petitioned the Wisconsin Supreme Court to weigh in on the matter.

The court’s majority on Wednesday denied Newtek’s petition for a supervisory writ, noting it had not been first filed in the state Court of Appeals and failed to show it had been impractical to do so.

However, the court used its authority stemming from the state Constitution to find DiMotto’s order appointing Skwierawski unconstitutional because it gave Skwierawski judicial power reserved only for the state courts. The court also reversed all discovery decisions the parties had challenged.

“We express our concern that the use of referees increases the costs of litigation and may cause delay and, as a practical matter, may deprive litigants of access to the courts,” according to Wednesday’s decision.

All three justices who concurred and dissented agreed with the majority’s decision to deny the supervisory writ.

Bradley and Kelly took issue with the majority reversing Skwierawski’s discovery decisions that were challenged by the parties because Newtek waited too long to object to Skwierawski’s appointment and did not follow the proper procedures in petitioning the justices.

This story has been edited to clarify that the Wisconsin Supreme Court reversed the special master’s decisions on challenged discovery issues as well all dispositive orders and rulings on the parties’ motions. Follow @erikastrebel