                                                                       2019 WI 15

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:               2018AP291-W
COMPLETE TITLE:         State of Wisconsin ex rel. CityDeck Landing LLC,
                                  Petitioner,
                             v.
                        Circuit Court for Brown County, the Honorable
                        Thomas J. Walsh, presiding, Society Insurance,
                        Smet Construction Services Corporation and GB
                        Builders, LLC,
                                  Respondents.

                                   PETITION FOR SUPERVISORY WRIT

OPINION FILED:          February 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 10, 2018

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:           A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                        J. (opinion filed)
  NOT PARTICIPATING:    DALLET, J. did not participate.

ATTORNEYS:


       For the petitioner,             there   were briefs filed      by   Eric   M.
McLeod,      Paul      D.   Cranley,    Katherine   Smith   Polich,    Joseph     S.
Diedrich, and Husch Blackwell LLP, Madison.


       For the respondents, Circuit Court for Brown County and the
Honorable Thomas J. Walsh, there was a brief filed by Brian P.
Keenan, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general.
     For the respondent, Society Insurance, there was a brief
filed by Jeffrey Leavell, Danielle N. Rousset, Brandon L. Parks,
and Jeffrey Leavell, S.C., Racine.




                                2
                                                                      2019 WI 15
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.   2018AP291-W
(L.C. No.   2017CV1324)

STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin ex rel. CityDeck Landing
LLC,

            Petitioner,
                                                                   FILED
      v.
                                                              FEB 21, 2019
Circuit Court for Brown County, the Honorable
Thomas J. Walsh, presiding, Society Insurance,                   Sheila T. Reiff
Smet Construction Services Corporation and GB                 Clerk of Supreme Court
Builders, LLC,

            Respondents.




      PETITION    for     supervisory   writ.        Granted;       stay     order
vacated.

      ¶1    REBECCA GRASSL BRADLEY, J.          The circuit court ordered
the arbitration of a private construction dispute stayed until
it could decide an insurance coverage dispute between one of the
contractors connected to the arbitration and the contractor's
insurer.    CityDeck Landing LLC petitions this court, pursuant to
Wis. Stat. § (Rule) 809.71 (2015-16),1 for a supervisory writ.

      1All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
                                                                                   No.   2018AP291-W



CityDeck        asks        this    court        to       exercise        its     superintending
constitutional authority to vacate the circuit court's2 order.
CityDeck asserts the circuit court exceeded its jurisdiction by
putting the private arbitration3 on hold, and that a supervisory
writ       is   necessary          to     correct         the     circuit        court's    extra-
jurisdictional          act.         We       hold       the    circuit     court       lacked   the
authority        to    issue       the     order         staying      the   arbitration,         the
requirements necessary to issue a supervisory writ have been
satisfied, and the stay order must be vacated.
                                         I.    BACKGROUND
       ¶2       In    December       2013,      CityDeck         hired      Smet    Construction
Services Corporation as its general contractor to construct an

apartment building called "CityDeck Residences" in Green Bay.
Smet hired subcontractors, including GB Builders of Northeastern
Wisconsin,           LLC;    Lunda       Construction            Company;        Security-Luebke
Roofing, Inc.; and Lakeland Construction, Inc.                                  The construction
contract required any disputes to be resolved by arbitration.                                     A
dispute arose and in May 2016, CityDeck filed for arbitration

against Smet, alleging breach of the construction contract and
theft by contractor.               It filed an amended demand for arbitration
in   November         2016.        In    July    2017,         Smet   sought       to    bring   the
subcontractors          into       the    arbitration           because     it     contended     the


       2   Brown County Circuit Court, Thomas J. Walsh, Judge.
       3
       The parties independently initiated the arbitration in
this case pursuant to a private contract, without involvement by
the court system.


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                                                                             No.   2018AP291-W



subcontractors were responsible for the problems and each of the
subcontracts      contained        an    indemnity       provision        requiring       the
subcontractor to "defend, indemnify and hold [Smet] harmless."
Most of the subcontractors voluntarily joined the arbitration.
GB    Builders    notified     its      insurer,       Society    Insurance,         of   the
claim, and Society hired an attorney to represent GB Builders
under a reservation of rights.                   In August 2017, Smet tendered
the defense of the CityDeck claim to Society, asserting it was
an additional insured under the insurance policy Society issued
to GB Builders.       In October 2017, GB Builders filed an answer to
Smet's      demand   for     arbitration,            asking     the      arbitrator       for
dismissal.       The arbitrator scheduled the arbitration hearing for

March 1, 2018.
       ¶3     In October 2017, however, Society Insurance filed a
declaratory      judgment    complaint          in    Brown     County    Circuit       Court
against     CityDeck,     Smet,      and   GB    Builders.            Society      sought   a
declaration "on the scope of its insurance duties" to Smet and
GB Builders with respect to CityDeck's construction claims under

arbitration.         Society       asked   the        circuit    court       to    stay   the
arbitration until it could decide the insurance coverage issue.
The    circuit    court    granted      Society's        request       and    ordered     the
arbitration stayed on January 2, 2018.
       ¶4     CityDeck       asserted           the      circuit         court        lacked
jurisdiction to order a private arbitration stayed, particularly
when    the   circuit      court     action      and    the     arbitration         involved
different issues and different parties; three subcontractors who
were parties to the arbitration were not named in the circuit
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                                                                      No.   2018AP291-W



court suit.       CityDeck filed a motion asking the circuit court to
reconsider its decision.          The circuit court ignored CityDeck's
motion    to    reconsider,     and    CityDeck    filed       a   petition       for   a
supervisory writ in the court of appeals.                  The court of appeals
construed the petition as an appeal from a non-final order and
denied    the     petition.       CityDeck        filed    a       petition    for      a
supervisory writ with this court.             We accepted jurisdiction over
CityDeck's petition and heard oral argument.
                                 II.    ANALYSIS
                           A.    Historical Analysis
     ¶5        Wisconsin cases contain inconsistencies regarding writ
procedure,      terminology,     and    the   standards        applicable     to     the

exercise of our constitutional superintending authority.                             For
the sake of clarity, we set forth the history of writs requested
under    our    superintending    authority,       the    origin      of    the    term
"supervisory writ," and an unexplained discrepancy in our cases
illuminated in State ex rel. Beaudry v. Panosian, 35 Wis. 2d

418, 151 N.W.2d 48 (1967).
                      1.   History of writ procedure
     ¶6        Article VII, § 3 of the Wisconsin Constitution gives
the supreme court "superintending and administrative authority
over all courts" and the ability to "issue all writs necessary




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                                                                              No.   2018AP291-W



in aid of its jurisdiction."4               Interpreting this provision, this
court held that "[the supreme court] was endowed with a separate
and independent jurisdiction, which enables and requires it in a
proper case to control the course of ordinary litigation in such
inferior courts, and was also endowed with all the common-law
writs applicable to that jurisdiction."                          State ex rel. Fourth

Nat'l Bank of Phila. v. Johnson, 103 Wis. 591, 613, 79 N.W. 1081
(1899).      This       court    concluded       that    "when     the       makers    of   the
constitution       used    the     words    'superintending         control          over   all
inferior    courts'       they     definitely       referred       to    that       well-known
superintending jurisdiction of the court of king's bench."                                  Id.
at   614.        "The    two    great    writs    by     which    this       superintending

jurisdiction was principally exercised by the court of King's
bench     were    the    writs     of    mandamus       and   prohibition;            the   one
directing action by the inferior court, and the other forbidding
action."     Id.
      ¶7     A    writ    of    prohibition       "restrain[s]          a    court     in   the
exercise     of         judicial        functions        outside        or     beyond       its
jurisdiction,       and     when    there    is     no    other     adequate          remedy."
State ex rel. Attorney Gen. v. Circuit Court of Eau Claire Cty.,


      4In 1899, the provision read, in relevant part, "The
supreme court shall have a general superintending control over
all inferior courts; it shall have power to issue writs of
habeas corpus, mandamus, injunction, quo warranto, certiorari,
and other original and remedial writs, and to hear and determine
the same."    State ex rel. Fourth Nat'l Bank of Phila. v.
Johnson, 103 Wis. 591, 610, 79 N.W. 1081 (1899) (emphasis
omitted).


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                                                                          No.   2018AP291-W



97 Wis. 1, 15, 72 N.W. 193 (1897).                       See also State ex rel.

De Puy v. Evans, 88 Wis. 255, 263, 60 N.W. 433 (1894) ("So this
court    has repeatedly held          that under         our       statutes     such writ
issues only to restrain the acts of a court or other inferior
tribunal exercising some judicial power which it has no legal
authority to exercise at all."); State ex rel. Kellogg v. Gary,
33 Wis. 93, 98 (1873) ("It does not issue to restrain the acts
of either executive or administrative officers, but only those
of a court or other inferior tribunal engaged in the exercise of
some    judicial     power,    and    that      not     merely      in   a    manner     not
authorized by law, but it must also be in defiance of law, or
without any legal authority whatever for that purpose.").

       ¶8     Prior to 1921,         it was the         rule in Wisconsin              "that
prohibition will not lie against a judge of a lower court except
in a situation where such judge is exceeding his jurisdiction."
State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90
N.W.2d      790   (1958).        However,         the    rule       changed       so    that
"prohibition      may   be    invoked      in   case     of    a    non-jurisdictional
error in a situation where appeal from the judgment would come
too late for effective redress and great hardship would result
if such writ were not issued."              Id.       See also In re Inland Steel
Co.,    174   Wis.   140,     143,   182    N.W.      917     (1921)     ("[I]t    is    the
opinion of the court that jurisdiction may properly be exercised
though the duty of the court below may not be so plain as to
permit of but one conclusion, if a careful consideration of all
the facts shows that a valid service has not been made."); State
ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis.
                                            6
                                                                       No.    2018AP291-W



366,   370,     243   N.W.   763    (1932)      ("Neither      the   power     nor    the
exercise of it as a matter of policy is limited to keeping the
lower court within its jurisdiction or compelling it to act.");
State ex rel. Gaynon v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d

437    (1966)    ("Traditionally,        this    writ    was    used    to     keep    an
inferior court from acting outside its jurisdiction when there
was no adequate remedy by appeal or otherwise.                       But, . . . the
writ   has    been    expanded     to   cover    cases    of    'nonjurisdictional
error when the appeal may come too late for effective redress,
or be inadequate and there is a need for such intervention to
avoid grave hardship or a complete denial of the rights of a
litigant.'") (internal citations and quoted source omitted).

       ¶9     In Fourth National Bank, this court acknowledged it
granted a writ of prohibition in Attorney General, to prevent
"the further prosecution of certain contempt proceedings in the
circuit court because such court was acting in excess of its
jurisdiction."        Fourth Nat'l Bank, 103 Wis. at 617.                    This court
explained in Attorney General:             "Having held that the attempt to
punish the publication in question as contempt was in excess of
the jurisdiction of the circuit court, no reason is seen why the
writ is not an apt and proper remedy, unless, indeed, there be
other adequate remedies."               Attorney Gen., 97 Wis. at 15. The
court proceeded to rule out the use of other writs and concluded
that a writ of prohibition was appropriate.                 Id.
       ¶10    While   Fourth       National     Bank     explained      the     court's
superintending power, it specifically dealt with the issuance of
a writ of mandamus.          103 Wis. at 618.             The court stated that
                                          7
                                                                   No.   2018AP291-W



"unless there be adequate remedy for such denial in the regular
exercise     of the appellate       jurisdiction of        this court,       it   is
difficult to see why the superintending jurisdiction should not
be exercised to quash the neglect or refusal of the circuit
court, and compel it to act within its jurisdiction."                       Id. at

621.
       ¶11   In   addition,    Fourth      National     Bank   created      several
principles     for   issuing    a   writ    of   mandamus.         First,    "[t]he
general rule of law undoubtedly is that mandamus will not lie
where there is a remedy by appeal or writ of error.                         But the
remedy   by appeal must        be   substantially       adequate    in   order    to
prevent relief by mandamus."               Id. at 622 (internal citations
omitted).     Second, "[i]t is very plain that, if the creditors
are to exercise their rights with any prospect of benefit, they
must exercise them promptly."           Id.      Third, "reliance is placed
upon the     well-known   principle        that mandamus will        not    lie   to
control the exercise of discretion."              Id.     Fourth, "[w]here it
clearly appears that discretion has been not merely abused, but
not exercised at all, or that the action taken by the inferior
court is without semblance of legal cause, and no other adequate
remedy exists, mandamus will lie to compel the specific action
which should have been taken."             Id. at 623.     Fifth, "[t]he duty
of the court must be plain, the refusal to proceed within its
jurisdiction to perform that duty must be clear, the results of
such refusal prejudicial, the remedy, if any, by appeal or writ
of error utterly inadequate, and the application for relief by


                                        8
                                                                             No.    2018AP291-W



mandamus speedy and prompt, in order to justify the issuance of
the writ."       Id. at 623-24.

     ¶12       It appears, however, that the requirements outlined in
Fourth National Bank for a writ of mandamus became requirements
for all writs issued under the court's supervisory powers.                                   In
1907, in a mandamus case, the court wrote that it would apply
its supervisory control only "where the duty of the inferior
court to act within its jurisdiction or to refrain from going
beyond    its    jurisdiction         is   plain        and   imperative,          where   such
court    threatens         to   violate       that       duty    to        the   substantial
prejudice       of   the   rights     of   the      petitioner,        where       all     other
remedies are inadequate, and the application for relief [is]

prompt."        State ex rel. Milwaukee Elec. Ry. & Light Co. v.
Circuit Court for Rock Cty., 133 Wis. 442, 444, 113 N.W. 722
(1907) (citing Fourth Nat'l Bank).                       That case, Fourth National
Bank, and two other mandamus cases,5 were then cited in State ex
rel. Pierce-Arrow Motor Car Co. v. Circuit Court of Milwaukee
Cty.,    143    Wis.   282,     127    N.W.       998    (1910),      as    principles      for
exercising general superintending control.                      The court stated:

     Those   principles   in   substance  are   that   this
     [superintending] jurisdiction is not to be exercised
     upon light occasion, but only upon some grave
     exigency; that the writs by which it is exercised will
     not be used to perform the ordinary functions of an
     appeal or writ of error; that the duty of the court
     below must be plain; its refusal to proceed within the

     5 State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226,
82 N.W. 158 (1900); State ex rel. Umbreit v. Helms, 136 Wis.
432, 118 N.W. 158 (1908).


                                              9
                                                                  No.   2018AP291-W


      line of such duty, or, on the other hand, its intent
      to proceed in violation of such duty must be clear;
      the results must be not only prejudicial, but must
      involve extraordinary hardship; the remedy by appeal
      or writ of error must be utterly inadequate; and the
      application   for  the   exercise  of   the  power of
      superintending control must be speedy and prompt.
Id. at 285.     Pierce-Arrow, however, was a prohibition case——not

a mandamus case.
      ¶13    Nonetheless, the principles outlined in Pierce-Arrow
were reiterated in a later prohibition case, State ex rel. Pabst
v. Circuit Court for Milwaukee Cty., 184 Wis. 301, 304, 199 N.W.
213 (1924).     However, that court went on to apply only some of
the   Pierce-Arrow   principles,      stating      "[i]f    the    duty   of   the
circuit     court to abate     the   action against        the    Pabst   Brewing

Company were clear, and the relator did suffer extraordinary
hardship by reason of the court's failure to perform its duty,
and if he had no other adequate remedy, the duty of this court
to assume jurisdiction is well settled."                   Id.     Notably, the
court did not address the factor requiring that "the application
for the exercise of the power of superintending control must be
speedy and prompt."
      ¶14    Likewise,    other      cases    did      not        uniformly     or
consistently    apply    the   Pierce-Arrow     principles.          Some     cases

utilized only two.       First, "[i]n order to entitle a party to a
writ of prohibition, the results of the error attacked must not
only be prejudicial to him but must [also] involve extraordinary
hardship."      Kiekhaefer, 4     Wis. 2d     at    490    (emphasis omitted)
(citing     Pierce-Arrow).        Second,    "[i]t    is     a    further      well
established principle that prohibition will not lie where there

                                      10
                                                                  No.   2018AP291-W



is an adequate remedy by appeal."                Id. at 491.     See also State

ex rel. Mitchell v. Superior Court of Dane Cty., 14 Wis. 2d 77,
81, 109 N.W.2d 522 (1961) ("Ordinarily such a writ should be
issued       only   to    prevent    an   inferior     court    from    exercising
jurisdiction in a case where i[t] should not be exercised or
assumed.       Nor should a writ of prohibition be issued if there is
an adequate remedy by way of appeal, except where great hardship
would result.") (internal citations omitted).                    However, other
cases referenced all of the principles from Pierce-Arrow.                        For
example, in State ex rel. Beaudry v. Panosian, the court cited
Pierce-Arrow and affirmed a motion to quash a petition for a
writ of prohibition because "from this record it cannot be said

that    the    justice     court's    'duty'     to   refrain   from    exercising
jurisdiction was plain."             Beaudry, 35 Wis. 2d at 425-26; see
also State ex rel. Lang v. Municipal Justice Court of Cudahy, 50
Wis. 2d 21, 23-24, 183 N.W.2d 43 (1971) (citing Pierce-Arrow);
State    ex    rel.      Prentice    v.   Cty.   Court,   Milwaukee      Cty.,    70
Wis. 2d 230, 234-35, 234 N.W.2d 283 (1975) (citing Pierce Arrow
and Beaudry).
       ¶15    Eventually, the principles developed in Pierce-Arrow
and cited in Beaudry merged into a four-factor test:

       A petition for a supervisory writ will not be granted
       unless:   (1) an appeal is an inadequate remedy; (2)
       grave hardship or irreparable harm will result; (3)
       the duty of the trial court is plain and it must have
       acted or intends to act in violation of that duty[;]
       and (4) the request for relief is made promptly and
       speedily.



                                          11
                                                                        No.   2018AP291-W



State ex rel. Oman v. Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d

220 (Ct. App. 1984) (citing Beaudry).               This court subsequently
endorsed these four factors, and routinely applies them whenever
a party petitions for a supervisory writ.                 See Burnett v. Alt,
224 Wis. 2d 72, 96-97, 589 N.W.2d 21 (1999); State ex rel. Kalal
v.   Circuit   Court      for    Dane    Cty.,     2004      WI     58,       ¶17,    271
Wis. 2d 633, 681 N.W.2d 110; DNR v. Wis. Court of Appeals, Dist.
IV., 2018 WI 25, ¶9, 380 Wis. 2d 354, 909 N.W.2d 114.                          This was
not always the case.
     ¶16    Before adoption of the modern four-factor test, Wis.
Stat. ch. 817 (1975-76) provided guidance for writs of errors
and appeals.     Parties asking the supreme court to exercise its

superintending authority did so via an application or a petition
for a particular writ——typically a writ of mandamus or a writ of
prohibition.      In    1978,     the    typical    practice            changed      when
Wisconsin    revamped   its     court   system,    adding         the    intermediate
appellate    court——the    Wisconsin       Court   of   Appeals.              The    newly
revised     appellate     court     structure      required             revisions      to
appellate    rules.     The     Judicial Council        drafted new rules              of
appellate procedure, which this court enacted.                     Sup. Ct. Order,
83 Wis. 2d xxvii (1978).          Two Rules, 809.51 and 809.71, created
procedural and filing guidance regarding writ practice in the
appellate    courts.      Rule    809.51     applied    to    the       newly-created
court of appeals, and Rule 809.71 applied to this court.                             Both
Rules were titled "Supervisory Writ" although this term did not
appear in the text of the original statutes.                       See Wis. Stat.
§§ (Rules) 809.51 & 809.71 (1977-78).
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                                                                           No.       2018AP291-W



     ¶17    The    text     of   the    court       of    appeals'       rule    said:       "A
person     may    request       the    court        to    exercise       its    supervisory
jurisdiction       over     a    court . . . by             filing   a     petition         and
supporting memorandum."                The text          of the   supreme court             rule
said:    "A person may request the supreme court to exercise its
supervisory       jurisdiction . . . by                  filing      a     petition          in
accordance with Rule 809.51."                 The term "supervisory writ" does
appear in the second sentence of our current Rule 809.71:                                     "A
person seeking a supervisory writ from the supreme court shall
first file a petition for a supervisory writ in the court of
appeals[,]" but the term still does not appear in the text of
Rule 809.51.6

     6 The full text of current Wis. Stat. §§ (Rules) 809.51 and
809.71 provides:

     809.51 Rule    (Supervisory    writ     and                               original
     jurisdiction to issue prerogative writ).

     (1) A person may request the court to exercise its
     supervisory jurisdiction or its original jurisdiction
     to issue a prerogative writ over a court and the
     presiding judge, or other person or body, by filing a
     petition and supporting memorandum.   The petition and
     memorandum combined may not exceed 35 pages if a
     monospaced font is used or 8,000 words if            a
     proportional serif font is used. The petitioner shall
     name as respondents the court and judge, or other
     person or body, and all other parties in the action or
     proceeding. The petition shall contain:

     (a) A statement              of    the        issues    presented         by     the
     controversy;

     (b) A statement of the                         facts     necessary         to     an
     understanding of the issues;

     (c) The relief sought; and
                                                                                 (continued)
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                                               No.   2018AP291-W




(d)   The   reasons   why    the   court   should    take
jurisdiction.

(2) The court may deny the petition ex parte or may
order the respondents to file a response with a
supporting memorandum, if any, and may order oral
argument on the merits of the petition. The response
and memorandum combined may not exceed 35 pages if a
monospaced font is used or 8,000 words if           a
proportional serif font is used.      The respondents
shall respond with supporting memorandum within 14
days after service of the order.     A respondent may
file a letter stating that he or she does not intend
to file a response, but the petition is not thereby
admitted.

(3) The court, upon a consideration of the petition,
responses, supporting memoranda and argument, may
grant or deny the petition or order such additional
proceedings as it considers appropriate.   Costs and
fees may be awarded against any party in a writ
proceeding.

(4) A person filing a petition under this section
shall append to the petition a statement identifying
whether the petition is produced with a monospaced
font or with a proportional serif font.  If produced
with a proportional serif font, the person shall set
forth the word count of the petition.

809.71 Rule (Supervisory writ). A person may request
the   supreme  court   to  exercise   its  supervisory
jurisdiction over a court and the judge presiding
therein or other person or body by filing a petition
in accordance with s. 809.51.     A person seeking a
supervisory writ from the supreme court shall first
file a petition for a supervisory writ in the court of
appeals under s. 809.51 unless it is impractical to
seek the writ in the court of appeals. A petition in
the supreme court shall show why it was impractical to
seek the writ in the court of appeals or, if a
petition had been filed in the court of appeals, the
disposition made and reasons given by the court of
appeals.


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                                                                     No.   2018AP291-W



     ¶18    With the introduction of the term "supervisory writ"
via the new appellate rules, post-1978 cases attempted to draw
from both the old, existing terminology and the new rules.                        The
term "supervisory writ" appears for the first time in Wisconsin
cases in State v. Whitty, 86 Wis. 2d 380, 385, 272 N.W.2d 842

(1978),    which     references    Wis.      Stat.    §§ (Rules)       809.51     and
809.71.     Six years later, the current four-factor "supervisory
writ" test was explicitly declared in a 1984 court of appeals'
per curiam opinion in Oman, 120 Wis. 2d at 91.                  Oman lists the
test with a citation to Beaudry.               Beaudry, as noted, does not
explicitly denominate a four-factor test, but instead cites to
the general principles set forth in Pierce-Arrow.

     ¶19    Dissecting      the   relevant      paragraph      in     Pierce-Arrow
results    in   a   list   of   seven   factors      guiding   the    exercise     of
superintending authority:

     (1) This jurisdiction is not to be exercised upon
     light occasion, but only upon some grave exigency;

     (2) The writs by which it is exercised will not be
     used to perform the ordinary functions of an appeal or
     writ of error;

     (3) The duty of the court below must be plain;

     (4) Its refusal to proceed within the line of such
     duty or, on the other hand, its intent to proceed in
     violation of such duty must be clear;

     (5) The results must be not only prejudicial but must
     involve extraordinary hardship;

     (6) The remedy by appeal or writ of error must be
     utterly inadequate;

     (7) The application for the exercise of the power of
     superintending control must be speedy and prompt.
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                                                                          No.    2018AP291-W



Pierce-Arrow, 143 Wis. at 285.

     ¶20    While the Oman court did not say how it arrived at the
four factors, it likely condensed these seven principles into
four factors given their overlap:

     (1) An appeal is an inadequate remedy (see #2 and #6
     of Pierce-Arrow);

     (2) Grave hardship or irreparable                         harm    will    result
     (see #1 and #5 of Pierce-Arrow);

     (3) The duty of the trial court is plain and the court
     must have acted or intend to act in violation of that
     duty (see #3 and #4 of Pierce-Arrow);

     (4) The request for relief is                         made       promptly      and
     speedily (see #7 of Pierce-Arrow).
     ¶21    Alternatively, because the party in Oman sought two
writs——a writ of mandamus and a writ of prohibition——the Oman
court may have applied factors derived from each of the tests
tied to those writs, respectively.                     Mandamus requires:            "(1) a
clear     legal       right;   (2)   a      plain        and    positive        duty;     (3)
substantial damages or injury should the relief not be granted,
and (4) no other adequate remedy at law."                        Oman, 120 Wis. 2d at
88 (citing Law Enf't Standards Bd. v. Village of Lyndon Station,
101 Wis. 2d 472, 493-94, 305 N.W.2d 89 (1981), which actually
lists     two     additional      factors        not    mentioned,       including        "no
laches"         and    "no     special       reasons"           making        the     remedy
"inequitable.").
     ¶22    As        Wisconsin    appellate           courts     grappled       with     the
language of the older cases, together with the post-1978 body of
cases, profuse variations of both terminology and tests appeared


                                            16
                                                                         No.    2018AP291-W



in     our   modern      writ        cases.         Cases   sometimes      referred     to
"supervisory writs" and sometimes referred to a specific common
law writ.       Some courts combined the old and new terminology into
"supervisory writ of prohibition."                    See State ex rel. Godfrey &

Kahn, S.C. v. Circuit Court for Milwaukee Cty., 2012 WI App 120,
¶¶48-50,        344     Wis. 2d 610,           823     N.W.2d     816    (granting       a
"supervisory      writ        of    prohibition"      after     applying    four-factor
test    because       trial    judge     exceeded      authority);      State    ex   rel.
Individual Subpoenaed to Appear at Waukesha Cty. v. Davis, 2005
WI 70, 281 Wis. 2d 431, 697 N.W.2d 803 (court granted a "writ of
prohibition," but did not apply four-factor test); State ex rel.
Garibay v. Circuit Court for Kenosha Cty., 2002 WI App 164, ¶2,

256     Wis. 2d 438,           647     N.W.2d        455    (denied      petition      for
"supervisory writ.").
       ¶23   Attempting to define "supervisory writ," the court of
appeals described it as "a blending of the writ of mandamus and
the writ of prohibition."                 State ex rel. Dressler v. Circuit
Court for Racine Cty., 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct.
App.    1991)    (citing Oman).               This court      likewise     adopted    this
definition.       See Madison Metro. Sch. Dist. v. Circuit Court for
Dane Cty., 2011 WI 72, ¶74, 336 Wis. 2d 95, 800 N.W.2d 442; DNR,
380     Wis. 2d 354,          ¶8.       Nevertheless,         courts     continued      to
distinguish between writs of prohibition and writs of mandamus.
See Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶1, 75-76.                            This
historical review reveals inconsistencies in writ law and the
standards governing our exercise of superintending authority.


                                               17
                                                                     No.   2018AP291-W



                            2.   Supervisory Writ
      ¶24   With the introduction of the term "supervisory writ"
in 1978, our cases became less clear.                 The cases are silent as
to whether the "supervisory writ" was an intentional invention
or resulted fortuitously from the title the Judicial Council
drafters chose for Rules 809.51 and 809.71.                  It is also unclear
whether a supervisory writ existed as an independent writ under
which    this    court   exercised    its        superintending      authority     or
whether it was simply a generic term providing the mechanism by
which    parties   reached   the     appellate      courts    when    seeking     the
exercise    of   supervisory     (court     of    appeals)   or   superintending
(supreme court) authority.

      ¶25   Notably, just last term, in DNR, we referenced an 1874

case empowering this court to use both the traditional common
law     writs    when    exercising     superintending         jurisdiction        or
"devise" any new writs we might deem necessary:

      We have previously observed that with the grant of
      [art. VII, § 3 superintending] jurisdiction [over all
      courts] come all the writs necessary to give it
      effect:

            The framers of the constitution appear to have
            well     understood    that,    with     appellate
            jurisdiction, the court took all common law writs
            applicable   to   it;  and   with   superintending
            control, all common law writs applicable to that;
            and that, failing adequate common law writs, the
            court might well devise new ones, as Lord Coke
            tells us, as "a secret in law."

      Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425,
      515 (1874) (construing our original constitution); see
      State v. Buchanan, 2013 WI 31, ¶11, 346 Wis. 2d 735,
      828   N.W.2d   847   ("As  the   court   of   original

                                       18
                                                                       No.   2018AP291-W


     jurisdiction,   we   have              discretion           to    issue     a
     supervisory writ.").
DNR, 380 Wis. 2d 354, ¶7 (footnote omitted).

     ¶26   This suggests our "supervisory writ" may in fact be a
new writ devised to exercise our superintending constitutional
authority.     But, the term "supervisory writ" also bears a second
meaning.     Since its appearance in 1978, a supervisory writ is
commonly     known    as     the    general       term   used     when     petitioning
Wisconsin appellate courts under Rules 809.51 and 809.71.                            This

terminology,     regardless          of     whether       it     entered       the    law
intentionally    or        fortuitously,        is    firmly     entrenched     in    our
jurisprudence,       and    we    have    never      explained    or   addressed      its
purpose or presence.             This historical analysis does not provide
clear answers, but the court takes this opportunity to clarify
and acknowledge the dual purpose of the term supervisory writ.
It is both:     (1) the general term used in petitioning the court
of appeals to exercise its constitutional supervisory authority7
and in petitioning this court to exercise its constitutional




     7 Article VII, § 5 of the Wisconsin Constitution gives the
court of appeals "supervisory authority":

     (3) The appeals court shall have such appellate
     jurisdiction in the district, including jurisdiction
     to   review   administrative   proceedings,   as   the
     legislature may provide by law, but shall have no
     original jurisdiction other than by prerogative writ.
     The appeals court may issue all writs necessary in aid
     of its jurisdiction and shall have supervisory
     authority over all actions and proceedings in the
     courts in the district.


                                           19
                                                                                   No.   2018AP291-W



superintending authority;8 and (2) a new writ this court devised
independent of the traditional common law writs.
                  3.       Beaudry's jurisdictional distinction

       ¶27      Our    last      consideration         in   this     historical           analysis
addresses        the        unexplained         discrepancy          in       our        case     law
illuminated           in     State       ex    rel.     Beaudry          v.        Panosian,      35
Wis. 2d 418, 151 N.W.2d 48 (1967).                      Beaudry makes a distinction
between jurisdictional and non-jurisdictional cases requesting
the    exercise of this court's superintending                             authority.9            The
court      in   Beaudry         recognized     that     this    court's        constitutional
superintending             authority     includes       "the       power      to    issue       writs
prohibiting           inferior         courts        from      acting         outside           their

jurisdiction" and explained that "[t]raditionally, this writ was
used       to   keep       an     inferior      court       from     acting         outside       its
jurisdiction when there was no adequate                             remedy by            appeal    or
otherwise"       but       the    "use    of   the     writ    to    prohibit            action   by
inferior        courts      and    tribunals      in    cases       of     nonjurisdictional
error" was historically limited to situations "where 'the appeal


       8
       The term "supervisory" is used in both Wis. Stat. § (Rule)
809.51 (court of appeals) and Wis. Stat. § (Rule) 809.71
(supreme court), but the Wisconsin Constitution uses the term
"supervisory authority" with respect to the court of appeals and
the term "superintending authority" with respect to this court.
       9
       State ex rel. Beaudry v. Panosian, 35 Wis. 2d 418, 151
N.W.2d 48 (1967), was not the only case to recognize the
distinction.     State ex rel. Kiekhaefer v. Anderson,           4
Wis. 2d 485, 490, 90 N.W.2d 790 (1958) and State ex rel. Gaynon
v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d 437 (1966) similarly
acknowledge a jurisdictional and non-jurisdictional distinction.


                                                20
                                                                             No.    2018AP291-W



may come too late for effective redress, or be inadequate and
there is a need for such intervention to avoid grave hardship or
a complete denial of the rights of a litigant.'"                             Id. at 421-22

(quoted      source       omitted).          Beaudry,        at      least     implicitly,
suggested a lesser burden to secure superintending assistance
from this court when addressing a jurisdictional error and a
greater      burden    when       the   case      presents       a    non-jurisdictional
error.       This makes sense, of course, because non-jurisdictional
errors are more likely to be remedied through the normal appeal
process      than     purely       jurisdictional          errors,       as        this        case
illustrates      well.        Indeed,     as      recently    as      2005,        this    court
dispensed with the four-factor supervisory writ test in Davis,
281    Wis. 2d 431,        ¶17,     holding       that   "the        requested          writ    of
prohibition will issue if the John Doe judge acted in excess of
his powers."          In that case, the court concluded "a John Doe
judge does not have statutory or inherent power to require a
witness's counsel to take an oath of secrecy" and on that basis
alone granted the writ of prohibition.                       Id., ¶¶32-34.              Despite
this   distinction,         this    court    largely       ignored      any    substantive
differences between jurisdictional and non-jurisdictional errors
post-Beaudry        and    continued        to    blur     the       general       principles
involved in the writ cases.
       ¶28    Although Beaudry has never been overruled, it appears
time, lack of precision, and perhaps the commonplace use of the
supervisory         writ      has       eroded       any      distinction                between
jurisdictional        and     non-jurisdictional             categories            of     error.
Parties seeking a supervisory writ——regardless of which category
                                             21
                                                                   No.   2018AP291-W



of error——must satisfy the four-criteria supervisory writ test.
This test is well-known, easy to apply, and firmly entrenched in
Wisconsin law.
                               B.   Application
     ¶29      This   court's   authority      to   issue    a   supervisory    writ
arises from the constitutional grant of jurisdiction in Article
VII, § 3 of the Wisconsin Constitution, which provides:

     (1) The supreme court shall have superintending and
     administrative authority over all courts.

     (2) The supreme court has appellate jurisdiction over
     all   courts  and   may  hear   original actions  and
     proceedings.   The supreme court may issue all writs
     necessary in aid of its jurisdiction.

     (3) The supreme court may review judgments and orders
     of the court of appeals, may remove cases from the
     court of appeals and may accept cases on certification
     by the court of appeals.
We do not exercise this authority lightly; instead, we reserve
this jurisdiction for extraordinary circumstances.                    See DNR, 380
Wis. 2d 354, ¶8; Dressler, 163 Wis. 2d at 630.
     ¶30      A party seeking the issuance of a supervisory writ
must establish four factors:             (1) a circuit court had a plain
duty and either acted or intends to act in violation of that
duty;   (2)    "an   appeal    is   an   inadequate        remedy;"    (3)   "grave
hardship or irreparable harm will result;" and (4) the party
requested relief "promptly and speedily."              DNR, 380 Wis. 2d 354,
¶9 (quoting Kalal, 271 Wis. 2d 633, ¶17).

     ¶31      In deciding whether to grant the writ requested by
CityDeck, we consider the four criteria in turn.                      First, there


                                         22
                                                            No.   2018AP291-W



must be a plain duty violated by the Brown County Circuit Court—
—in this case, the duty to refrain from exercising jurisdiction
over a private arbitration with which it had no authority to
interfere.   We conclude the circuit court had a plain duty to
act within its jurisdiction and a concomitant duty to refrain
from acting beyond it.
     ¶32   Article VII, § 8 of the Wisconsin Constitution confers
broad   jurisdiction    on   Wisconsin   circuit   courts   to    hear   "all
matters civil and criminal within this state," but not without
exception:

     Except as otherwise provided by law, the circuit court
     shall have original jurisdiction in all matters civil
     and criminal within this state and such appellate
     jurisdiction in the circuit as the legislature may
     prescribe by law.    The circuit court may issue all
     writs necessary in aid of its jurisdiction.
(Emphasis added.)      The Wisconsin Arbitration Act, Wis. Stat. ch.

788, comprises one constitutionally-permissible exception to a
circuit court's original jurisdiction:

     A provision in any written contract to settle by
     arbitration a controversy thereafter arising out of
     the contract, or out of the refusal to perform the
     whole or any part of the contract, or an agreement in
     writing between 2 or more persons to submit to
     arbitration any controversy existing between them at
     the time of the agreement to submit, shall be valid,
     irrevocable and enforceable except upon such grounds
     as exist at law or in equity for the revocation of any
     contract.
Wis. Stat. § 788.01.         In this Act, the Wisconsin legislature
recognizes the   freedom     of   persons   to agree to     resolve      their
disputes outside of the state's court system, via arbitration.


                                    23
                                                                                 No.   2018AP291-W



      ¶33    A circuit court           possesses            only limited, statutorily
enumerated powers with respect to a private arbitration.                                        See

Midwest     Neurosciences         Assocs.            v.    Great     Lakes       Neurosurgical
Assocs.,     LLC,      2018     WI    112,       ¶¶47-49,          384     Wis. 2d 669,         920
N.W.2d 767.       Nothing in the Wisconsin Arbitration Act permits a
circuit court to stay or otherwise intermeddle with a private
arbitration       proceeding.              A    fundamental          canon       of     statutory
construction provides that "[n]othing is to be added to what the
text states or reasonably implies[.]"                        Antonin Scalia & Bryan A.
Garner,     Reading      Law:        The       Interpretation         of      Legal     Texts    93
(2012); see also Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336
Wis. 2d 318,       801    N.W.2d 316            ("We      decline        to    read    into     the

statute words the legislature did not see fit to write.").                                       By
specifying particular powers of a                          circuit       court    to act with
respect     to    an     arbitration           proceeding,         the        legislature       has
circumscribed the authority of the circuit court, which may not
arrogate to itself any additional powers.
      ¶34    A circuit court's role in arbitration is restricted
because parties who contract for arbitration do so to avoid the
court system altogether.               Borst v. Allstate Ins. Co., 2006 WI
70,   ¶61,       291   Wis. 2d 361,             717       N.W.2d 42       ("[T]he       goal     of
arbitration is 'to resolve the entire controversy out of court
without the formality and expense that normally attaches to the
judicial     process.'"         (quoted         source       and     emphasis          omitted));
Midwest Neurosciences Assocs., LLC, 384 Wis. 2d 669, ¶41 ("When
parties agree to arbitration, a court's role is limited because
a different forum of dispute resolution has been selected.").
                                                24
                                                                                  No.   2018AP291-W



       ¶35     Arbitration is a matter of contract between private
parties who enjoy that freedom.                          McAdams v. Marquette Univ.,

2018 WI 88, ¶25, 383 Wis. 2d 358, 914 N.W.2d 708; Parsons v.
Associated      Banc-Corp,        2017       WI    37,     ¶31,      374    Wis. 2d 513,       893
N.W.2d 212         ("Wisconsin          courts         have       long       recognized        the
importance of freedom of contract and have endeavored to protect
the right to contract." (quoted source omitted)).                                   The circuit
court    has    no     authority       to    halt      a      contractually         agreed    upon
arbitration.          Consistent with Wisconsin's arbitration statute,
the    circuit       court    may      act    only       to     ensure      the     parties    who
contracted for arbitration abide by their contractual agreement.
See    generally First Weber Grp., Inc.                         v.    Synergy Real         Estate
Grp., LLC, 2015 WI 34, ¶¶30-31, 361 Wis. 2d 496, 860 N.W.2d 498
("The legislature has determined that the courts have a limited
role    in   the      context    of    arbitration.");               Midwest       Neurosciences
Assocs.,       LLC,     384     Wis. 2d 669,           ¶77      ("Courts          should   remain
mindful of the limited role endowed to them under chapter 788
and not endeavor into the province of the parties' contractual
choice to arbitrate.").
       ¶36     Nothing    in     the    statutes           or   the    cases       authorizes    a
circuit court to halt a private arbitration so that an insurance
company can litigate whether its policy provides coverage to an
insured.       Although Wisconsin cases do allow insurance companies
to    bifurcate       coverage      from     liability          when       both    coverage    and
liability are being decided in the courts, see, e.g., Newhouse
by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 836,
501 N.W.2d 1 (1993), no legal authority confers on a circuit
                                                  25
                                                                                     No.    2018AP291-W



court the power to interfere with a liability claim when the
parties     have     contracted           to       resolve    it        in    arbitration.              An
insurer     may      file     a    declaratory             judgment          action        seeking       a
coverage determination when the insurer has not been named as a
party in a lawsuit involving its insured, see, e.g., Fire Ins.

Exch. v. Basten, 202 Wis. 2d 74, 78, 549 N.W.2d 690 (1996), but
the declaratory judgment statute does not authorize a circuit
court to obstruct a scheduled arbitration over the liability
claims pending the circuit court's coverage determination.
      ¶37    Society        suggests           American      Family          Mut.    Ins.        Co.    v.
American Girl, Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65
and   Delta     Group,       Inc.        v.       DBI,     Inc.,    204       Wis. 2d 515,             555

N.W.2d 162 (Ct. App. 1996), authorize a circuit court to stay a
private     arbitration.                We    disagree.            In    American          Girl,       the
circuit court did not order a stay of the arbitration.                                          Rather,
the     insurer      intervened              in    the     arbitration             and     asked       the
arbitrator      to    stay        the    arbitration          until          coverage          could    be
determined.        268 Wis. 2d 16, ¶109 (Roggensack, J., dissenting).
Society's reliance on American Girl is inapposite.                                       The same is
true for its reliance on Delta Group.                         In that case, the parties
filed suit in court and then agreed to stay the court case to
allow     for     mediation         and           arbitration.               Delta       Group,        204
Wis. 2d at      519.        The     court          of     appeals       decided          the    insurer
breached     its     duty     to    defend           its    insured          and    was     therefore
obligated to pay the arbitration award.                                 Id. at 525-26.                 The
insurer     had      denied       the        claim       entirely       and    never        sought       a
coverage determination.                  Id.         Although Delta Group reiterates
                                                    26
                                                                                   No.      2018AP291-W



general rules about bifurcation and an insurer's duty to resolve
coverage     disputes,          it    does    not    establish          a    circuit          court's
authority to stay a private arbitration.
     ¶38     We conclude the circuit court violated its plain duty
when it stepped outside its original jurisdiction under Article
VII, § 8 of the Wisconsin Constitution by issuing an order it
had no authority to make.                     The circuit court compounded its
error   by   stopping          an    arbitration        proceeding           involving           three
parties who were not participating in the court case at all and
therefore        had    no    opportunity       to    be       heard    on        an     order    that
affected their rights.                 Accordingly, the first criterion for a
supervisory writ is met.

     ¶39     The second criterion for granting a supervisory writ
requires     a    showing       that    CityDeck      cannot         receive           an    adequate
remedy through the ordinary appeal process.                                 This criterion is
also met.         Here, the circuit court acted beyond its original
jurisdiction           under     Article       VII,        §     8     of         the       Wisconsin
Constitution           and    halted    a     private      arbitration             to       decide   a

separate coverage issue in the circuit court involving different
parties.     There is no adequate appellate remedy for the circuit
court's    unlawful act because                any    "appeal          comes too            late for
effective    redress"          and     the    damage——stopping              the    parties        from
resolving        their       dispute    in    arbitration——is               not    reparable         or
compensable.            See    DNR,     380    Wis. 2d 354,            ¶41    (quoted          source
omitted).        Challenging the circuit court's exercise of power via
a regular appeal would be futile.                     CityDeck would have to wait
until the coverage issue was resolved before it could appeal and
                                               27
                                                                             No.   2018AP291-W



ask    an    appellate    court      to      declare       the    circuit    court     had    no
authority to stay the arbitration.                     At that point, the wrongful
exercise of authority over the arbitration either becomes moot
if the circuit court allows the arbitration to proceed during
the appeal, or if the circuit court continues the stay pending
the appeal, CityDeck continues to be wrongly subjected to the
circuit court's exercise of authority it lacks.                             Either way, a
regular appeal is inadequate as it comes "too late for effective
redress."      Id. (quoted source omitted).

       ¶40    Significantly, the appeal process continues to subject
the parties to the court system for resolving their dispute,
effectively trampling their agreement to avoid court altogether.

Rather      than    serving    as    a       vehicle    for      vindicating       a   party's
rights, the appeal exacerbates the injury.                           The damage is done
and cannot be reversed.
       ¶41    Third,      we      consider          whether        grave     hardship        or
irreparable harm will result if we do not issue the supervisory
writ.       We conclude that it would.                A litigant's right to be free
from    the    exercise    of     the        court's    power      has   been      completely
denied.       The circuit court's unlawful stay order halted attempts
by these private parties to resolve a construction dispute in
their contractually-selected forum of arbitration.                            CityDeck was
deprived of the benefits of its bargained-for method of dispute
resolution:          rather    than       avoiding      the      court     system,     it    was
subjected      to    an   order     issuing         from    it,    and     instead     of    its
contractually         agreed-upon            arbitration         progressing,          it    was
indefinitely        delayed     by       a    court     acting      without        authority.
                                               28
                                                                          No.   2018AP291-W



Additionally, CityDeck was forced into public proceedings in a
matter it had contracted to resolve privately.                            These factors
satisfy the grave hardship/irreparable harm criterion.
       ¶42    Finally, CityDeck met the fourth criterion by acting
promptly and speedily.               Although Society asserts that the 21
days    between       the    issuance      of     the   unlawful    stay        order   and
CityDeck's          writ    filing    is    neither      prompt     nor     speedy,      we
disagree.       The circuit court issued the stay order on January 2,
2018.        Two days later, on January 4, 2018, CityDeck filed a
motion for reconsideration with the circuit court, which the
circuit court ignored.               On January 11, 2018, the circuit court
issued an order giving the parties permission to proceed with a

planned mediation.            Twelve days after that order, CityDeck filed
its    writ    petition       in   the     court   of   appeals.         This    timeline
satisfies the "prompt and speedy" criterion.
       ¶43    CityDeck's       petition      fulfills     all     four    criteria      for
issuance of a supervisory writ; therefore, we grant CityDeck's
request       and    vacate    the       circuit    court's     order      staying      the

arbitration.
       By the Court.—The petition for a supervisory writ is
granted; the stay order is vacated.
       ¶44    REBECCA FRANK DALLET, J., withdrew from participation.




                                             29
                                                                      No.    2018AP291-W.awb


      ¶45       ANN WALSH BRADLEY, J.               (dissenting).           Until now, it
has been well settled that a supervisory writ is intended to be
"an    extraordinary       and      drastic        remedy[,]"       reserved      for    rare
situations involving "some grievous exigency."                              State ex rel.

Kalal      v.    Circuit   Ct.    for    Dane      Cty.,   2004      WI     58,   ¶17,   271
Wis. 2d 633, 681 N.W.2d 110; see Matter of Civil Contempt of
Kroll,     101    Wis. 2d 296,       304,   304      N.W.2d 175       (Ct.     App.     1981)
(denominating a supervisory writ an "extraordinary remed[y]");
State ex rel. Kenneth S. v. Circuit Ct. for Dane Cty., 2008 WI

App 120, ¶8, 313 Wis. 2d 508, 756 N.W.2d 573 (referring to a
supervisory writ as an "extraordinary and drastic remedy that is
to    be    issued    only    upon      some       grievous    exigency")         (citation
omitted).
      ¶46       Ignoring     this     admonishment,           the    majority       greatly
expands the application of our supervisory writ jurisprudence.
Throwing caution to the wind, it elevates jurisdictional errors
above      all    others     as     deserving       of   special      treatment         under

Wisconsin's supervisory writ procedures.
      ¶47       In doing     so, the     majority        pays lip         service     to the
familiar and well-established four-factor test used to determine
whether a supervisory writ is an appropriate remedy under the
circumstances, but fails to apply it correctly.                               Adopting an
argument that CityDeck did not make, the majority's result is
that a supervisory writ, which is supposed to be reserved for
the most "extraordinary" or "grievous" situations, may become
commonplace.



                                               1
                                                                                No.    2018AP291-W.awb


     ¶48     In        my     view,         CityDeck         has       not     met     a    necessary
prerequisite for the issuance of a supervisory writ.                                       Mere delay
in arbitration proceedings is not the type of "grave hardship"
or "irreparable harm" that entitles a party to such a writ.
     ¶49     Accordingly, I respectfully dissent.
                                                       I
     ¶50     Although          the     majority            spills       a    great     deal    of       ink
exploring        the    history         of       writ       procedures         in     Wisconsin,         it
ultimately purports to reaffirm and apply the familiar and well-

established        four-factor               test          for      determining            whether        a
supervisory            writ       is        an        appropriate            remedy        under        the
circumstances.
     ¶51     As the majority correctly explains, "[a] party seeking
the issuance of a supervisory writ must establish four factors:
(1) a circuit court had a plain duty and either acted or intends
to   act    in    violation            of    that          duty;       (2)    'an     appeal       is    an
inadequate remedy;' (3) 'grave hardship or irreparable harm will

result;'     and       (4)     the      party          requested         relief       'promptly         and
speedily.'"         Majority op., ¶30 (citing DNR. v. Wis. Court of

Appeals,     Dist.          IV,    2018          WI    25,       ¶9,    380    Wis. 2d 354,             909
N.W.2d 114).           If any one of these factors is not present, the
writ must be denied.                    Kalal, 271 Wis. 2d 633, ¶17; see also
State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90
N.W.2d 790 (1958) (explaining that where the "petition fails to
allege     any    facts       which         disclose         that      he    would     suffer       great
hardship[,]" a writ of prohibition may not be granted).



                                                       2
                                                                 No.   2018AP291-W.awb


     ¶52    I    focus   my   analysis    on    the   third      supervisory     writ
factor:     grave hardship or irreparable harm.                   The irreparable
harm claimed by CityDeck is a simple delay in its arbitration
proceedings.      In my view, the fact that CityDeck's arbitration
is delayed, without more, is insufficient to show grave hardship
or irreparable harm.
     ¶53    The harm caused by any such delay is not similar to
the harm suffered by parties that previously sought and obtained
supervisory writs.        In prior cases, the petitioner would have

suffered a complete denial of a right in a way that could not be
undone or remedied in the absence of a supervisory writ——that
is, the "bells" in those cases could not be "unrung."
     ¶54    For example, courts have determined that the failure
to   substitute      a   judge     when       required     by    law    constitutes
irreparable harm.        State ex rel. J.H. Findorff & Son, Inc. v.

Circuit Ct. for Milwaukee Cty., 2000 WI 30, ¶37, 233 Wis. 2d
428, 608 N.W.2d 679 (2000); State ex rel. Laborers Int'l Union

of N. Am., AFL-CIO v. Circuit Ct. for Kenosha Cty., 112 Wis. 2d
337, 342, 332 N.W.2d 832 (Ct. App. 1983); State ex rel. Oman v.
Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984).
Similarly, the potential disclosure of information subject to
the attorney-client privilege is irreparable harm sufficient to
support    the   issuance     of   a   supervisory       writ.     State    ex   rel.
Godfrey & Kahn, S.C. v. Circuit Ct. for Milwaukee Cty., 2012 WI
App 120, ¶52, 344 Wis. 2d 610, 823 N.W.2d 816 (Ct. App. 2012).
Finally, in DNR, 380 Wis. 2d 354, ¶47, this court determined



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that   the failure to honor an                appellant's statutory           right      to
choice of venue constituted irreparable harm.
       ¶55     Ignoring this case law, CityDeck fails to make any
persuasive argument that the delay caused by the circuit court's
stay of the arbitration proceedings constitutes grave hardship
or irreparable harm.            CityDeck's "argument" with regard to this
factor is tucked away in the very last paragraph of its 28-page
brief-in-chief.1
       ¶56     It     baldly    asserts       that,   in     the     absence       of    a

supervisory writ, it will incur unspecified "substantial damages
for    which    there     is    no   adequate     remedy."         CityDeck    further
complains that "[t]he inability to resolve the arbitration and
the indefinite delay resulting from the Stay Order has already
caused       substantial       damage    to   CityDeck's     interests       and     will
continue to do so until it is lifted."
       ¶57     In my view, CityDeck is not being denied its right to
arbitrate       its    claims.          Arbitration   is   merely        delayed,       not

denied.2       CityDeck loses no statutory right and it loses no
contractual right.
       ¶58     What about the delay in the arbitration proceedings
cannot be remedied with money, such as interest on CityDeck's


       1   CityDeck did not          supplement its argument in             its     reply
brief.
       2
       This is an important distinction that is either lost on,
or ignored by, the majority.      See, e.g., majority op., ¶39
(characterizing the "damage" in the instant case as "stopping
the parties from resolving their dispute in arbitration")
(emphasis added).


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judgment if it is successful in arbitration?                            Indeed, at oral
argument, CityDeck asserted that "the irreparable harm is that
we continue to lose money that we will not recover because of
the delay associated with our arbitration proceedings."                            Exactly
how will the loss of money from delay result in grave hardship
or irreparable harm?                CityDeck does not explain, so the majority

conjures its own justification.
       ¶59       Putting on its advocacy hat, the majority sua sponte
discovers a new type of irreparable harm.                           In the majority's

broad view, CityDeck suffers irreparable harm by the delay of
arbitration proceedings because "[a] litigant's right to be free
from       the    exercise     of    the   court's       power   has    been     completely
denied."         Majority op., ¶41.
       ¶60       If    this    is   the    thrust    of    the   injury      (i.e.,    being
subject          to   a   court's      power    despite      that      court's    lack       of
jurisdiction), then the majority has short-circuited Wisconsin's
supervisory writ procedure.                   It treats jurisdictional errors as

a    special          class    of    errors    for       which   the    issuance       of     a
supervisory writ appears to be all but a certainty.3
       ¶61       Following the majority's logic, would a defendant be
entitled to a supervisory writ if a motion to dismiss for lack
of   subject          matter   jurisdiction        was    erroneously        denied?        See
Richards v. Young, 150 Wis. 2d 549, 557, 441 N.W.2d 742 (1989)


       3
       Although the majority expressly rejects the proposition
that jurisdictional errors are treated differently under our
writ procedure than non-jurisdictional errors, its analysis
belies that assertion. See majority op., ¶27.


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("This      court    has        previously        held     that     if     the       statutory
requirements        for        obtaining     judicial       review        are       not   fully
complied with, the subject matter jurisdiction of the circuit
court cannot be invoked.").
      ¶62    Is a supervisory writ to be employed whenever it is
asserted that a circuit court exercised personal jurisdiction
despite a fundamental defect in service?                         See Johnson v. Cintas

Corp. No. 2, 2012 WI 31, ¶50, 339 Wis. 2d 493, 811 N.W.2d 756.
Could a party turn to a supervisory writ to resolve a question

of    whether        a     juvenile        court         could      exercise          personal
jurisdiction?        See State v. Aufderhaar, 2005 WI 108, ¶27, 283

Wis. 2d 336, 700 N.W.2d 4.
      ¶63    It appears that in each of these situations, for the
entirety of the case, the circuit court would be "stepp[ing]
outside its original jurisdiction" and issuing orders "it ha[s]
no   authority      to    make"     that      would      bind    the     defendant.         See
majority op., ¶38.              Further, the ordinary appeals process will

be inadequate because an appeal would always "come[] too late"
to   effectively         redress    the      error.       Id.,     ¶39     (quoted        source
omitted).        The      harm     to   the    defendant          would        be   considered
irreparable because, for the duration of the case, the defendant
would be "completely denied" the "right to be free from the
exercise of the court's power."                Id., ¶41.
      ¶64    If there is a principle under which the majority's
analysis     would       not    apply   to    all     jurisdictional            errors,    that
principle is well hidden.               Such an expansion of the availability
of supervisory writs is anathema to the limitations provided in

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our supervisory writ jurisprudence.                  A supervisory writ should
be a last resort, not a first option.
      ¶65    In sum, the majority has placed itself in the role of
CityDeck's attorneys, relying on arguments not made in order to
issue a writ to which CityDeck is not entitled.                        In doing so,
the   majority      improperly    elevates        jurisdictional       errors     as   a
special     class   of   errors   that      can   always   be   redressed       via    a
supervisory      writ    regardless      of    the    specific     facts     of    any
particular case.         The majority's reasoning is incompatible with

Wisconsin's supervisory writ jurisprudence that has consistently
described a supervisory writ as an "extraordinary and drastic
remedy"     reserved     for   only   the     most    "grievous       exigenc[ies]."
Kalal, 271 Wis. 2d 633, ¶17.

      ¶66    For the reasons set forth, I respectfully dissent.
      ¶67    I am authorized to state that SHIRLEY S. ABRAHAMSON
joins this dissent.




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