Legislature says "yes" to specialty business court

Entrance to the Wisconsin Senate in the Wisconsin State Capitol. Photograph by Margo Kirchner.

​By Alexandria Staubach
 
The Wisconsin Senate recently voted along party lines to codify several types of specialty courts, including a controversial business court.
 
The bill, having previously passed in the Assembly along party lines, now heads to Gov. Tony Evers for signature or veto.
 
Treatment courts, such as drug courts and mental health courts, have long held bipartisan support.
 
The creation of special civil courts to deal with large business and commercial case has been more controversial. Passage of the bill puts the Legislature’s stamp of approval on them.
 
At the bill’s May 15 reading in the full Senate, Sen. Kelda Roys (D-Madison), criticized the bill as creating a “rocket docket for guys like Elon Musk,” without providing funding for any of the specialty courts, especially the treatment courts.
 
“We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters,” said Roys.
 
To date, specialty courts have generally been created by the courts themselves. For instance, Milwaukee County Circuit Court last summer started a specialty court for cases in which a defendant’s competency is at issue. Specific judges have been assigned to a specific type of case, sometimes with training in that legal area.
 
AB 73 would recognize in statute the following specialty courts: adult drug treatment court, juvenile drug treatment court, operating-while-intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans’ treatment court, hybrid treatment court, and tribal healing-to-wellness court. Treatment courts have long been used throughout the state.
 
The bill also statutorily recognizes a specialized docket for commercial cases, the subject of Roys’ concern. A special court for business interests is relatively newer and will not immediately affect every county in Wisconsin.

We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters. Wisconsin Sen. Kelda Roys (D-Madison)

Wisconsin’s commercial courts were born out of a 2017 Supreme Court rule that characterized the specialty docket as a “pilot project.” That pilot project lasted more than seven years in only certain trial courts in the state.
 
Last year, the Supreme Court evaluated the pilot project and declined to extend it for another two years. The court divided along ideological lines.
 
Referencing the same courts that were part of the pilot project, the bill provides procedures for establishing commercial courts in the following judicial districts and their corresponding counties: the second district (Kenosha, Racine, Walworth), the third district (Dodge, Jefferson, Ozaukee, Washington, Waukesha), the fifth district (Columbia, Dane, Green, Lafayette, Rock, Sauk), the eighth district (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, Waupaca), and the tenth district (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Iron, Polk, Rusk, St. Croix, Sawyer, Washburn).
 
Judges would be assigned to those counties with prior or existing commercial courts by the chief justice of the Supreme Court, “after considering the recommendation of the chief judge of the encompassing judicial administrative district,” according to the bill.
 
The bill can be retroactively applied to any county that chooses to develop a commercial court. The first district, composed solely of Milwaukee County Circuit Court, which is the busiest judicial district, was not part of the pilot program and does not currently have a commercial court.
 
Roys at the May 15 floor session strongly supported recognition of treatment and diversion courts, saying that they were “win-win.”
 
She suggested that the Legislature dedicate state funds to run them. “Without an appropriation, without money, programs can’t run,” she said. Recognition and funding of the treatment courts is “one step that we can take to address the shameful fact that Wisconsin incarcerates two to three times more people than our neighboring state of Minnesota, and I refuse to believe that Wisconsinites are two to three times worse than Minnesotans,” Roys said.
 
But she proposed that the Legislature delete the provision recognizing business courts. The commercial courts do “nothing to help everyday Wisconsinites,” she said.
 
Sen. André Jacque (R-New Franken) disagreed with Roys, saying the bill “was not about creating a rocket docket for anything” and that “these are all specialty courts that have been in operation in Wisconsin, and very successfully I might add.”
 
Jacque sponsored the bill in the Senate, along with Sen. Van Wanggaard (R-Racine), Sen. Dan Feyen (R-Fond du Lac), and Sen. Steve Nass (R-Whitewater).
 
In written testimony filed with the bill, Jacque said the commercial courts would “aid the effective resolution of commercial disputes and help provide more certainty for our economy.”
 
Before declining to extend the pilot project last year, the Supreme Court held a public hearing in September 2024 at which those involved in commercial litigation overwhelmingly supported continuing the business court.
 
Retired Judge Richard G. Ness was a rare voice against the project. Ness said at the September hearing that the program is the “creation of a solution for a problem that doesn’t exist.” He said that in his 13 years on the bench, he never encountered an inability to effectively deal with civil business cases.
 
Justice Rebecca Grassl Bradley asked how business court differed from juvenile court, sexual assault court, probate court, criminal courts, and other civil courts. She told Ness that he was holding the commercial courts to a “very different standard” than the other specialty courts.
 
Ness, who testified that he also spent 26 years representing big business, previously said in an op-ed for Wisconsin Watch that the project “has granted large commercial interests outsized influence over our court system’s handling of their cases, exactly as intended.”