The Sconi

Advocates for a business court system operating since 2017 in Wisconsin are concerned that a politicized state Supreme Court may dissolve the successful pilot program this fall.

The Commercial Docket Pilot Project has the support of Chief Justice Annette Ziegler, and the court agreed to consider a petition filed by the Wisconsin Business Court Advisory Committee to continue the courts through July 2026 after a public comment period ending on Sept. 23.

Decision-making by the high court has shifted considerably since it last approved extending the pilot in June 2022. With the election of Justice Janet Protasiewicz last year giving the court its first liberal majority since 2008, judges who have volunteered to hear business cases for the project express concern that politics might undermine what they consider a valuable judicial service.

So far, neither Protasiewicz nor the other three justices in the progressive bloc have spoken publicly about the business court pilot, and it is unlikely they will with a petition hearing pending. At the time of the pilot's extension, liberal Justice Ann Walsh Bradley voted against it, stating in her dissent that there was insufficient data to determine its success.

Supporters are emphasizing that the business court program is apolitical and enjoys bipartisan support. They argue that an efficiently run business court is crucial for economic development in Wisconsin.

“People on the right and the left are in favor of this court,” said Michael Aprahamian, a Waukesha County circuit court judge with eight business cases on his docket. “This is just one of many specialty courts in this state. I see it as a way for the courts to be more effective and efficient.”

Circuit Judge James Morrison, who runs the program for seven northeastern counties in the Eighth Judicial Administrative District, said surveys conducted by judges show satisfaction from all parties involved. These surveys indicate overwhelming support for making the pilot program permanent; litigants believe their cases were resolved at lower costs and in less time, with reduced delays and continuations.

“I think people don’t realize that those most affected by these cases are not fat-cat business owners but suppliers and customers,” Morrison said. “This is a volunteer assignment for me. I do it because I like it; it’s challenging, and it needs to be done. I’m just trying to be effective.”

The petition filed on May 30 by Laura Brenner, Business Court Advisory Committee chair, highlights positive feedback from parties involved in cases heard so far.

“We’ve heard from practitioners of all political bents saying this court is really helpful,” Brenner said. “Somehow, there was an erroneous impression created that people were picking political sides, which is not true.”

The petition also notes that data gathering suffered due to more than a year of pandemic disruptions. The request for extension includes a seven-point plan to promote and explain the business court.

“All of our work has been volunteer,” Morrison said. “We didn’t have funding for data gathering. We feel like we just need more time to make our case.”

A hearing before the state Supreme Court gains importance following a failed bill in the Legislature this past session that would have codified business courts akin to roughly 100 other specialty courts in Wisconsin dealing with mental health, domestic violence, and veterans’ affairs.

Former Chief Justice Pat Roggensack supported legislative efforts to pass a business courts bill. Assembly Speaker Robin Vos also supports maintaining these courts.

Despite efforts from authors of twin bills in both chambers, Democrats did not sign on, leading to its demise in committee.

“This program had strong early bipartisan support,” Vos said. “But I think it says something about our current political climate that we can’t extend a clearly non-partisan pilot program.”

Political tensions surfaced notably in March 2022 when former Dane County Circuit Court Judge Richard Niess called for disbanding business courts via an editorial published by Badger Institute. Niess alleged that big businesses secretly created these courts' pilots.

Paul Swanson, former president of Wisconsin's State Bar rebutted Niess' claims through another editorial; however, some misperceptions persist among judiciary members according to Morrison.

Delaware hosts America's most successful business court system—President Biden’s home state historically governed by Democrats—serving as precedence-setter informing corporate law across 25 states including Wisconsin while new Texas & Utah-based counterparts expect case hearings later this year.

Approximately two-thirds S&P/Fortune500 companies incorporate within Delaware attributing success towards predictability/stability/efficiency avoiding partisanship/politics noted two veteran lawyers highlighting "predictability" paramount trait behind Chancery's longstanding success now tested recently amidst Elon Musk reincorporating Tesla into Texas ahead September launch statewide commercial dockets anticipated saving $250K annually franchise taxes alongside freeing company undue meddling between board/shareholders reported Wall Street Journal earlier week prompting Delaware General Assembly considering bill exempting firms altering charters/articles incorporation shareholder agreements cited McCormick head Chancery calling rushed reaction assembly remarking neutrality/balance managerial/public investor relations upheld Fleming Boston-based Equity Litigation Group partner per WSJ coverage paralleling efficiency-driven model inspiring Gov Greg Abbott signing Texas bill establishing commercial judiciary appointing specialized judges enhancing dispute resolution predictability/economic growth noted press release post-signature event echoed Vos uncertain progressive-majority Wisconsin Supreme Court embracing standalone commercial judiciary principles pledging legislative resuscitation if required needing gubernatorial assent previously vetoed politically motivated instances attributed Governor Tony Evers recognized Brenner acknowledging changed judicial dynamics hopeful unbiased evidence-based consideration forthcoming remarks Lisheron managing editor Badger Institute permission reprint granted proper citation author/institute