STAIN ON OUR COURTS: The unnecessary commercial docket

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By Richard Niess

Ruder Ware’s March 2 paean to the Wisconsin commercial docket and business court is long on cheerleading but devoid of meaningful evidentiary support.

Counsel provided zero data demonstrating that the business court is a qualitative or quantitative improvement over what it has replaced. Undoubtedly this is because, from the beginning, no effort to systematically analyze the handling of commercial cases by circuit courts occurred before the business court was precipitously established. Nor has such an analysis been conducted since.

At best, our Chief Justice repeatedly offers the whole-cloth assertion that pre-business-court commercial cases languished in the circuit courts for 36 months on average before disposition. An open-records request for the documentary support of this statement, which is wholly at odds with my more than 15 years of experience on the Dane County bench, produced no such data.

Instead, the authors provide dated case-disposition times from the business court, some 80 cases through December 2019 – statistics that are meaningless for several reasons.

First, again, no pre-business court data exist for comparison. Second, without more data, the time period for case resolution tells us nothing about why a case was resolved or, as relevant here, whether the business court itself played any role in the disposition. Nor does it provide us a basis for an apples-to-apples comparisons with commercial cases that preceded the business court or with current commercial cases not included in the pilot project.

To illustrate: The public CCAP records on all Dane County Circuit Court commercial-docket cases (21 by my count) reveal that five, or about 25%, were resolved within 8 months—an impressive result if it was aided by the adoption of the business court. Upon closer examination, however, we see that four of these cases were voluntarily dismissed by the plaintiff’s counsel with little or no court involvement. The fifth was removed to federal court—hardly a ringing endorsement for the state’s business court.

Of the remaining sixteen cases, one was stayed and referred to arbitration because of a contractual arbitration clause and Chapter 788. Several are in the process of being settled by the parties outside of court, which is no different from what occurred before the business court was established. The rest remain pending in various stages.

Notwithstanding the dearth of evidentiary support, the authors urge legislation to cement the business court throughout the state, apparently so that big business interests can continue to collaborate with our Chief Justice to select and influence the judges who will hear their cases.

The authors wrongly invoke specialty treatment courts as precedent, ignoring the many differences between, say, a mental health court and this business court—the most pertinent here being that litigants in treatment courts do not participate in selecting and indoctrinating their judges.

Finally, the authors argue that the business court is needed “…to provide support to Wisconsin’s existing work to retain, attract and generally increase commercial activity and jobs for its citizens.”

No doubt these are worthy goals, but it is a real stretch to conclude that any entity in the world is making decisions on where to conduct its commercial affairs or operate its business by taking into account whether a particular state’s trial courts have a dedicated commercial docket.

Again, where are the data bolstering this contention? In Dane County, commerce was burgeoning long before the business court was imposed involuntarily on the Dane County Circuit Court by Chief Justice fiat.

In short, it is simply wrong to proclaim, as the authors do, that the business court “has achieved its objectives and performed beyond expectations,” unless those objectives and expectations are other than as stated. More accurately assessed, the business court remains an unsupported, claimed solution to a problem that has not been shown to exist.

The stain upon the independence of our court system inheres in providing big-business interests with unparalleled influence over the Chief Justice in selecting the judges to sit on their cases. The blot will become indelible if, as urged, the Legislature permanently establishes the business court in its current form.

Compounding this insult to our courts’ integrity, the authors boast that the selected judges now receive “specialized training from the American College of Business Court Judges”, an organization established at the Antonin Scalia School of Law at Virginia’s George Mason University, an institution hugely endowed by the Koch brothers.

If, as the facts suggest, granting big-business interests unparalleled, outsized influence over Wisconsin circuit courts is the ulterior motive for establishing the dedicated commercial-court docket, the authors correctly state that the business court “has achieved its objectives and performed beyond expectations”.

To be clear, I am not anti-big business. For years, I represented large national corporations in civil litigation throughout Wisconsin. I presided over large, complicated commercial lawsuits for over fifteen years on the Dane County bench.

Rather, I am for having judicial impartiality and fair courts, goals that can be fully compatible with big-business interests if handled correctly, which the current business court does not. I have always welcomed proposals to improve civil litigation in Wisconsin courts as long as they are tailored to the subject matter of the cases adjudicated, including big business.

As I stated a year ago, big business’s ability to place its thumb on the scales of justice under Wisconsin’s current, unnecessary business-court structure is a bridge too far—an unacceptable intrusion into the circuit courts’ judicial independence.

Richard Niess is a retired judge who served on Dane County Circuit Court from 2004 to 2020.