                                                                 2018 WI 6

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:              2015AP1530
COMPLETE TITLE:        The Manitowoc Company, Inc.,
                                  Plaintiff-Respondent-Petitioner,
                            v.
                       John M. Lanning,
                                  Defendant-Appellant.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 371 Wis. 2d 696, 885 N.W.2d 798
                                PDC No: 2016 WI App 72 - Published

OPINION FILED:         January 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 5, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Manitowoc
   JUDGE:              Gary L. Bendix

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J. concurs, joined by GABLEMAN, J.
                       and KELLY, J. (opinion filed).
  DISSENTED:           ROGGENSACK, C.J. dissents, joined by ZIEGLER, J.
                       (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-respondent-petitioner, there were briefs
filed by Suzanne M. Glisch, Joel S. Aziere, and Buelow Vetter
Buikema      Olson     &   Vilet,   LLC,   Waukesha.   There   was   an    oral
argument by Joel S. Aziere.


       For the defendant-appellant, there was a brief filed by
Oyvind Wistrom and Lindner & Marsack, S.C., Milwaukee.                    There
was an oral argument by Oyvind Wistrom.
                                                                                 2018 WI 6
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2015AP1530
(L.C. No.     2011CV216)

STATE OF WISCONSIN                                 :              IN SUPREME COURT

The Manitowoc Company, Inc.,

              Plaintiff-Respondent-Petitioner,
                                                                           FILED
      v.
                                                                     JAN 19, 2018
John M. Lanning,
                                                                       Diane M. Fremgen
                                                                    Acting Clerk of Supreme
              Defendant-Appellant.                                           Court




      REVIEW of a decision of the Court of Appeals.                      Affirmed.



      ¶1      SHIRLEY      S.   ABRAHAMSON,   J.       This    is    a    review       of   a
published decision of the court of appeals reversing a judgment

of the Circuit Court, Manitowoc County, Gary L. Bendix, Judge.1

The circuit court granted the motion of The Manitowoc Company,

Inc., the plaintiff, for summary judgment and denied the cross-

motion for summary judgment of the defendant, John M. Lanning.

After     a   bench    trial     on   damages,     the    circuit        court    awarded


      1
       Manitowoc Co., Inc. v.              Lanning,        2016     WI    App    72,    371
Wis. 2d 696, 885 N.W.2d 798.
                                                                             No.    2015AP1530



Manitowoc Company $97,844.78 in damages, $1,000,000 in attorney

fees, and $37,246.82 in costs against Lanning.

       ¶2      The       court    of       appeals     reversed     the      circuit    court

judgment       in    favor       of   Manitowoc       Company.       It   concluded      that

Lanning's          non-solicitation          of   employees        provision       (sometimes

referred to herein as an NSE provision) imposed by Manitowoc

Company as part of Lanning's employment agreement is governed by

Wis.       Stat.    § 103.465         (2013-14)       and   that   it   is    unenforceable

under the statute.2

       ¶3      The non-solicitation of employees provision prohibits

Lanning      from     directly        or    indirectly      soliciting,       inducing,    or

encouraging any employee of Manitowoc Company to terminate his

or her employment with Manitowoc Company or to accept employment

with a competitor, supplier, or customer of Manitowoc Company.

The    scope        of    the     non-solicitation           of    employees       provision

includes all of Manitowoc Company's 13,000 world-wide employees

regardless of an employee's position within Manitowoc Company or

the employee's connection to Lanning.
       ¶4      Two issues of law are presented on the cross-motions

for summary judgment:3

       1. Does Wis. Stat. § 103.465, which explicitly refers to a

            "covenant not to compete," apply to the non-solicitation

       2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
       3
       For a discussion of cross-motions for summary judgment,
see Ziegler Co., Inc. v. Rexnord, Inc., 139 Wis. 2d 593, 595
n.1, 407 N.W.2d 873 (1987).


                                                  2
                                                                 No.   2015AP1530



        of   employees        provision      prohibiting       Lanning      from

        soliciting,    inducing,      or    encouraging    any    employee     of

        Manitowoc Company to terminate his or her employment with

        Manitowoc     Company    or    to    accept   employment        with   a

        competitor, supplier, or customer of Manitowoc Company?

    2. If    Wis.     Stat.     § 103.465      governs     Lanning's        non-

        solicitation    of    employees     provision,    is     the   provision

        enforceable under § 103.465?4


    4
       Manitowoc Company set forth five issues in its petition
for review as follows:

    1. Whether Wis. Stat. § 103.465, which refers to a
    "covenant by an assistant, servant or agent not to
    compete with his or her employer or principal during
    the term of the employment or agency, or after the
    termination of that employment or agency," governs
    non-solicitation of employees ("NSE") clauses, which
    do not prohibit any individual from competing with
    his/her former employer.

    2. Assuming, arguendo, Wis. Stat. § 103.465 governs
    NSE clauses, whether an NSE clause, which does not
    prohibit competition with the former employer, should
    be evaluated under the same legal standard(s) as a
    non-compete clause, and whether the Court of Appeals
    erred in equating a 2-year restriction on the
    solicitation  of   employees,  which   permitted  any
    individual to leave the employer and work for a
    competitor (as Lanning did in this case), to a 3-year
    restriction from working for a competitor in any
    capacity.

    3. Assuming, arguendo, Wis. Stat. § 103.465 governs
    NSE clauses, whether Lanning's NSE provision, which
    permitted him to work for Manitowoc's largest Chinese
    competitor, unreasonably restrains trade.

    4. Assuming, arguendo, Wis. Stat. § 103.465 governs
    NSE clauses, whether Lanning's NSE provision, which
                                                 (continued)
                                      3
                                                    No.   2015AP1530



    ¶5   In response to the first issue, the particular terms

of the non-solicitation of employees provision at issue in the

instant case do not appear to have been analyzed by any prior

Wisconsin court decision.5   We conclude, as prior cases have

concluded, that although Wis. Stat. § 103.465 explicitly refers

to a covenant not to compete, the plain meaning of § 103.465 is


    merely   prevented   Lanning  from   raiding    Manitowoc
    employees,   is   "reasonably  necessary"    to   protect
    Manitowoc's legitimate business interests.

    5. Assuming, arguendo, Wis. Stat. § 103.465 governs
    NSE clauses, whether the constitutional right to
    contract may be infringed upon through the use of
    aggrandized hypothetical scenarios rather than the
    undisputed facts of a case to invalidate an NSE clause
    in a contract between an employer and employee.

     The two issues we address are dispositive and in effect
address the issues Manitowoc Company set forth.
    5
       In Equity Enterprises, Inc. v. Milosch, 2001 WI App 186,
247 Wis. 2d 172, 633 N.W.2d 662, the court of appeals analyzed
an employment agreement containing restrictive covenants.     In
one of those covenants, the employee agreed that he would not,
after the termination of his employment, entice any sales
representative of the employer to terminate his or her
employment with the employer.   However, the parties in Milosch
did not raise or dispute whether Wis. Stat. § 103.465 applied to
the employee's non-solicitation provision.        The court of
appeals' decision did not discuss or rule on the validity of the
employee's non-solicitation provision.   Instead, it invalidated
another restrictive covenant because it was overbroad.      That
provision of the agreement barred the employee from doing
business with customers of the employer after termination of
employment.   Thus, the court of appeals invalidated the entire
agreement.

     Lanning's contention that Milosch determined that a non-
solicitation of employee provision was governed by § 103.465 is
not persuasive.


                               4
                                                                             No.    2015AP1530



not limited to a covenant in which an employee agrees not to

compete     with    a     former    employer.6        This      court    has       explicitly

stated that "it would be an exercise in semantics to overlook

§ 103.465 merely because [a provision] of the agreement is not

labeled a 'covenant not to compete.'"7                       Rather, § 103.465 has

been applied to agreements viewed as restraints of trade.

       ¶6     Indeed, this court has acknowledged that "the explicit

purpose     of     Wis.    Stat.    § 103.465,      as    plainly        stated       in    the

statute,     is    to     invalidate      covenants      that    impose       unreasonable

restraints on employees" and that § 103.465 "essentially deals

with       restraint       of      trade . . . regardless               of     whether        a

restriction        is     labeled     a    'non-disclosure'         provision          or    a

'covenant not to compete.'"8

       ¶7     The court has repeatedly recognized that a restraint

of trade may take many forms.                    The court has interpreted Wis.

Stat. § 103.465 as applying not only to traditional covenants in




       6
       See, e.g., Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98
N.W.2d 415 (1959).
       7
       Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 112, 579
N.W.2d 217 (1998).
       8
       Heyde Cos., Inc. v. Dove Healthcare, LLC, 2002 WI 131,
¶13, 258 Wis. 2d 28, 654 N.W.2d 830 (citing Tatge, 219 Wis. 2d
at 111-12; see also Gary Van Zeeland Talent, Inc. v. Sandas, 84
Wis. 2d 202, 218-21, 267 N.W.2d 242 (1978).


                                             5
                                                                 No.    2015AP1530



which an employee agrees not to compete with a former employer,9

but also to other terms of an agreement including provisions

barring the solicitation of the employer's customers or former

customers,10        non-disclosure/confidentiality       agreements      between

employers and employees,11 and a no-hire provision between two

employers.12

      ¶8        These cases clearly demonstrate that the application

of   Wis.       Stat.   § 103.465   depends   upon   whether   the     particular

terms      of    the    agreement   constitute   a   restraint   of     trade   by

restricting competition or imposing an unreasonable restraint on


      9
       "A covenant [not to compete] typically provides that the
employee shall not work for a competitor or set up a competitive
business for himself for a specified period of time in a
designated geographical area."       Harlan M. Blake, Employee
Agreements Not to Compete, 73 Harv. L. Rev. 625, 626 (1960).

     For an example of such a traditional covenant not to
compete, see, e.g., Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157,
98 N.W.2d 415 (1959).
      10
       See, e.g., Star Direct, Inc. v. Dal Pra, 2009 WI 76,
¶¶19-41, 319 Wis. 2d 274, 767 N.W.2d 898 (holding that a
provision barring solicitation of an employer's customers was a
restraint of trade under Wis. Stat. § 103.465).
      11
       See, e.g., Gary Van Zeeland Talent, Inc. v. Sandas, 84
Wis. 2d 202, 218, 267 N.W.2d 242 (1978) (concluding that a non-
disclosure/confidentiality agreement between an employer and
employee was an unreasonable restraint of trade governed by Wis.
Stat. § 103.465).
      12
       Heyde Cos., 258 Wis. 2d 28, ¶¶13-16 (concluding that an
agreement between two employers in which one employer agreed not
to hire employees of the other employer was a restraint of trade
because "[t]he effect of the no-hire provision [was] to
restrict" employees' employment opportunities).


                                         6
                                                                          No.     2015AP1530



employees.       These cases focused on the effect of the restraint

rather than its label.13

     ¶9     We     conclude        that     Lanning's       non-solicitation             of

employees provision restricts Lanning's ability to engage in the

ordinary competition attendant to a free market, specifically

restricting Lanning's freely competing for the best talent in

the labor pool.           In addition, the limitation on Lanning also

affects access to the labor pool by a competitor of Manitowoc

Company (including         Lanning's current employer,               SANY America).

Accordingly,       we   conclude     that       Lanning's   non-solicitation             of

employees provision is a restraint of trade governed by Wis.

Stat. § 103.465.

     ¶10    With    regard    to    the     second     issue,   we    conclude         that

Lanning's        non-solicitation           of     employees         provision           is

unenforceable under Wis. Stat. § 103.465.                   It does not meet the

statutory     requirement      that       the     restriction        be     "reasonably

necessary    for    the    protection       of   the   employer."               Wis.   Stat.

§ 103.465.
     ¶11    Accordingly, we affirm the decision of the court of

appeals and remand the cause, as did the court of appeals, to

the circuit court with instructions to enter judgment in favor

of Lanning.

                                            I




     13
          Heyde Cos., 258 Wis. 2d 28, ¶¶13-14.


                                            7
                                                                      No.    2015AP1530



    ¶12     To the extent that the facts affect the issues before

the court, no genuine dispute about material facts is presented.

    ¶13     Manitowoc        Company       is     a     manufacturer        with     two

divisions:       a food service equipment division and a construction

crane division.            Lanning began his employment with Manitowoc

Company in 1985 as a chief engineer in Manitowoc Company's crane

division.        Lanning worked for Manitowoc Company for over                        25

years.          Lanning    was     successful,        knowledgeable,        and    well-

connected within Manitowoc Company.

    ¶14     In 2008, Lanning signed an employment agreement with

Manitowoc        Company     that       included       provisions      relating       to

confidential        information,        intellectual        property,       and     non-

solicitation       of    employees.14      The     validity    of    only    the    non-

solicitation of employees provision is challenged in the instant

case.

    ¶15     Lanning        terminated      his     employment       with     Manitowoc

Company effective January 6, 2010.                     Beginning on January 8,

2010,    Lanning        became    the   director      of    engineering      for    SANY
America,    a     direct    competitor     with       Manitowoc     Company's      crane

division.        Manitowoc Company claims that Lanning engaged in a

number     of     actions        that   violated      the    non-solicitation         of

employees provision.


    14
       Over the course of his employment, Lanning signed
multiple employment agreements with Manitowoc Company. The 2008
employment   agreement   explicitly   superseded  all  previous
agreements, and the parties agree that the 2008 employment
agreement is applicable in the instant case.


                                           8
                                                                                     No.    2015AP1530



       ¶16     For example, Manitowoc Company asserts that Lanning

communicated            with       at    least       nine     Manitowoc        Company      employees

about       potential          employment            opportunities        at    SANY,       took    one

Manitowoc Company employee out to lunch in connection with SANY

recruitment efforts, took another Manitowoc Company employee on

a   tour      of    a     SANY      crane        manufacturing          plant     in    China,      and

participated            in     a        third     Manitowoc       Company        employee's         job

interview with SANY.

       ¶17     Lanning's            non-solicitation              of     employees          provision

prohibits          him,      for        two     years       following     termination         of    his

employment,          from          soliciting,           inducing,       or     encouraging         any

Manitowoc Company employee to terminate his or her employment

with        Manitowoc          Company          or      to    accept      employment         with     a

competitor, supplier, or customer of Manitowoc Company.

       ¶18     The      circuit          court       concluded     that       even     if   Lanning's

non-solicitation provision is viewed as a restriction on trade

or competition subject to Wis. Stat. § 103.465, the provision

was reasonable and enforceable under the statute.
       ¶19     The      court       of        appeals       concluded    that     Lanning's        non-

solicitation of employees provision was a restraint of trade

governed by Wis. Stat. § 103.465.15                             It further concluded that

because the provision was not reasonable, it was not enforceable

under the statute.                  The court of appeals reversed the judgment

of the circuit court in favor of Manitowoc Company.


       15
            Manitowoc Co., 371 Wis. 2d 696, ¶17.


                                                        9
                                                                                         No.    2015AP1530



                                                        II

       ¶20    We first address the standard of review.                                         This court

applies the same method of analysis to a motion for summary

judgment      as          does      a     circuit          court.             Summary     judgment        is

appropriate           where,             based        on        the     pleadings,        depositions,

interrogatories, and affidavits on file, there is no genuine

dispute as to any material fact, and a party is entitled to

judgment      as      a       matter      of     law.           Wis.    Stat.       § 802.08(2);        Star

Direct, 319 Wis. 2d 274, ¶18; Belding v. Demoulin, 2014 WI 8,

¶13,    352    Wis. 2d 359,               843       N.W.2d 373;             Green    Spring     Farms     v.

Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987); Mut.

Serv.     Cas.        Ins.         Co.     v.       Brass,       2001        WI    App   92,     ¶4,    242

Wis. 2d 733, 625 N.W.2d 648, overruled on other grounds by Star

Direct, 319 Wis. 2d 274, ¶78 n.12.

       ¶21    The         instant         case        requires         us    to     interpret      both    a

statute       and         a    written          contract.               The       interpretation         and

enforceability                of    both        a     statute          and    a     written      contract

ordinarily present questions of law that this court determines
independently             of       the    circuit          court       and    court      appeals       while

benefiting         from        the       analyses          of    these       courts.       See,        e.g.,

Moustakis        v.       DOJ,       2016        WI     42,       ¶16,       368    Wis. 2d 677,         880

N.W.2d 142; Star Direct, 319 Wis. 2d 274, ¶18; Streiff v. Am.

Family Mut. Ins. Co., 118 Wis. 2d 602, 603 n.1, 348 N.W.2d 505

(1984).

                                                       III




                                                        10
                                                               No.   2015AP1530



    ¶22     The first issue of law presented is whether Wis. Stat.

§ 103.465    applies    to    Lanning's     non-solicitation    of   employees

provision.

    ¶23     We begin our discussion by setting forth the texts of

Wis. Stat. § 103.465 and Lanning's non-solicitation of employees

provision.

    ¶24     Wisconsin        Stat.   § 103.465     is   broadly        entitled

"Restrictive    covenants       in   employment    contracts"    and     refers

explicitly to a covenant by an employee not to compete with the

employer during or after the term of employment.                It states as

follows that "any covenant" described in § 103.465 imposing an

"unreasonable restraint is illegal" even as to any part of the

covenant that would be a reasonable restraint:

    A covenant by an assistant, servant or agent not to
    compete with his or her employer or principal during
    the term of the employment or agency, or after the
    termination of that employment or agency, within a
    specified territory and during a specified time is
    lawful and enforceable only if the restrictions
    imposed are reasonably necessary for the protection of
    the employer or principal. Any covenant, described in
    this section, imposing an unreasonable restraint is
    illegal, void and unenforceable even as to any part of
    the covenant or performance that would be a reasonable
    restraint.
Wis. Stat. § 103.465.

    ¶25     The agreement between Manitowoc Company and Lanning is

entitled     "Agreement         Regarding      Confidential     Information,

Intellectual Property and Non-Solicitation of Employees."                   The

non-solicitation of employees provision at issue does not use
the words "covenant not to compete."            Rather, Lanning agrees not


                                       11
                                                                 No.   2015AP1530



to solicit, induce, or encourage any employee(s) of Manitowoc

Company to terminate their employment with the Company.                      The

provision states as follows:

      I agree that during my Employment by Manitowoc and for
      a period of two years from the date my Employment by
      Manitowoc ends for any reason, including termination
      by Manitowoc with or without cause, I will not (either
      directly or indirectly) solicit, induce or encourage
      any employee(s) to terminate their employment with
      Manitowoc or to accept employment with any competitor,
      supplier or customer of Manitowoc.       As used herein,
      the term "solicit, induce or encourage" includes, but
      is not limited to, any of the following: (a)
      initiating    communications     with  an   employee   of
      Manitowoc    relating    to   possible  employment;   (b)
      offering    bonuses   or    additional  compensation   to
      encourage employees of Manitowoc to terminate their
      employment therewith and accept employment with a
      competitor, supplier or customer of Manitowoc; (c)
      referring employees of Manitowoc to personnel or
      agents employed or engaged by competitors, suppliers
      or customers of Manitowoc; or (d) referring personnel
      or   agents    employed   or   engaged  by   competitors,
      suppliers or customers of Manitowoc to employees of
      Manitowoc.
      ¶26    Lanning's non-solicitation of employees provision does

not conform to "textbook examples" of a covenant not to compete
in which the employee is prohibited from engaging in competition

with a former employer.          In contrast to a traditional covenant

not to compete, Lanning is free to obtain employment with a

competitor of Manitowoc Company.             Manitowoc Company employees

are   free   to   terminate     employment   with    Manitowoc    Company,    be

employed     by   any   other   employer,    and    compete   with     Manitowoc

Company.      Lanning is restricted from "poaching" any Manitowoc




                                      12
                                                                 No.        2015AP1530



Company employee.16          The provision restricting Lanning restrains

competition by limiting a competitor's access to the labor pool.

     ¶27     Manitowoc    Company      argues   that    Wis.   Stat.    § 103.465

applies only to traditional covenants not to compete wherein an

employee agrees not to engage in business activities that are

competitive     with     those    of    the     employer.       As     we     stated

previously, however, our cases reveal that § 103.465 has been

applied to provisions that constitute restraints of trade other

than traditional covenants not to compete.

     ¶28     Time and again, the case law has focused on the effect

of the provision of an employment agreement rather than its

label to determine whether it constitutes a restraint of trade

governed by Wis. Stat. § 103.465.17

     ¶29     The cases state that "the explicit purpose of Wis.

Stat.     § 103.465,    as    plainly    stated    in   the    statute,       is   to

invalidate    covenants       that   impose     unreasonable     restraints        on

employees"18 and that § 103.465 "essentially deals with restraint

of trade . . . regardless of whether a restriction is labeled a
'non-disclosure'       provision or a         'covenant not to compete.'"19
     16
          Manitowoc Co., 371 Wis. 2d 696, ¶17.
     17
          See supra ¶¶6-8.
     18
       Wisconsin Stat. § 103.465 "evidences a strong public
policy against enforcement of trade restraints which are
determined to be unreasonable upon all employees". Tatge, 219
Wis. 2d at 114-15.
     19
       Heyde Cos., 258 Wis. 2d 28, ¶13 (citing Tatge v. Chambers
& Owen, Inc., 219 Wis. 2d , 99, 111-12, 579 N.W.2d 217 (1998);
Gary Van Zeeland Talent, 84 Wis. 2d at 218-21.


                                        13
                                                        No.   2015AP1530



Whether a particular agreement constitutes a restraint of trade

is based not upon how the agreement is labeled but upon the

effect of the agreement on employees and competition.20

     ¶30    Accordingly, courts have applied Wis. Stat. § 103.465

to   traditional    non-compete    agreements,   non-solicitation    of

customer      agreements,    and        non-disclosure/confidentiality

agreements between employers and employees as well as a no-hire

provision between two employers.21

     ¶31    In 1995,22 1997,23 and 2015,24 the legislature amended

Wis. Stat. § 103.465 but chose not to amend the statute in such

     20
       Heyde Cos., 258 Wis. 2d 28, ¶¶13-14 ("[A] restrictive
covenant may be made between employers that acts as a covenant
not to compete on the employees. . . .   The effect of the no-
hire provision is to restrict the employment of Greenbriar's
employees; it is inconsequential whether the restriction is
termed a 'no-hire' provision between Dove and Greenbriar or a
'covenant   not  to  compete'   between   Greenbriar  and  its
employees.").
     21
          See supra ¶¶6-8.
     22
       As adopted in 1957, Wis. Stat. § 103.465 (1957-58) read
as follows:

     A covenant by an assistant, servant or agent not to
     compete with his employer or principal during the term
     of the employment or agency, or thereafter, within a
     specified territory and during a specified time is
     lawful and enforceable only if the restrictions
     imposed are reasonably necessary for the protection of
     the employer or principal.       Any such restrictive
     covenant   imposing  an   unreasonable  restraint   is
     illegal, void and unenforceable even as to so much of
     the covenant or performance as would be a reasonable
     restraint.

Ch. 444, Laws of 1957.

                                                           (continued)
                                   14
                                                                No.    2015AP1530



a   way    as   to   undermine   the   court's   broad   application     of    the

statute.        Legislative acquiescence to a judicial construction of

a statute gives rise to a presumption, albeit sometimes a weak

one, that an earlier judicial construction should stand.25                    This

precept of statutory interpretation reinforces the principle of


A 1995 amendment replaced "his employer"                 with   "his     or    her
employer." 1995 Wis. Act 225, § 347.
      23
       Wisconsin Stat. § 103.465 was amended by 1997 Wis. Act
253, § 81. The changes are shown in italics:

      A covenant by an assistant, servant or agent not to
      compete with his or her employer or principal during
      the term of the employment or agency, or after the
      termination of that employment or agency, within a
      specified territory and during a specified time is
      lawful and enforceable only if the restrictions
      imposed are reasonably necessary for the protection of
      the employer or principal. Any covenant, described in
      this subsection, imposing an unreasonable restraint is
      illegal, void and unenforceable even as to any part of
      the covenant or performance that would be a reasonable
      restraint.

     The note to § 81 of the Act explains:                             "Replaces
nonspecific references with specific references                  for     greater
readability and conformity with current style."
      24
       In 2015, Wis. Stat. § 103.465 was amended by the
Legislative Reference Bureau pursuant to § 35.17(2) to correct
obvious nonsubstantive errors.   The words "in this subsection"
were changed to "in this section." See 2015 Wis. Act 197, § 51.
      25
       See, e.g., Force ex rel. Welcenbach v. Am. Family Mut.
Ins. Co., 2014 WI 82, ¶124 n.76, 356 Wis. 2d 582, 850
N.W.2d 866; Milwaukee Journal Sentinel v. City of Milwaukee,
2012 WI 65, ¶43 n.21, 341 Wis. 2d 607, 815 N.W.2d 367; Wenke v.
Gehl Co., 2004 WI 103, ¶¶32, 33, 35, 274 Wis. 2d 220, 682
N.W.2d 405; State v. Hansen, 2001 WI 53, ¶38, 243 Wis. 2d 328,
627 N.W.2d 195; Reiter v. Dyken, 95 Wis. 2d 461, 471-72, 290
N.W.2d 510 (1980).


                                        15
                                                             No.     2015AP1530



stare decisis and supports the interpretation of the statute set

forth herein.26

     ¶32   Manitowoc Company maintains that the non-solicitation

provision does not restrict competition by Lanning or restrain

employees.    Lanning and Manitowoc Company employees are free to

work for anyone, including a competitor, and competitors are

"free to hire any Manitowoc employee(s) to take any job at their

company . . . . By     the      plain       language . . . it       was      not

Manitowoc's   intent   to    prevent    any   employees   from     leaving   or

     26
       In interpreting and applying Wis. Stat. § 103.465, the
concurrence renounces reliance on prior judicial interpretations
of the statute, interprets the statute anew, and would overrule
the decision in Heyde, a decision interpreting the statute that
has stood for 15 years and has never been repudiated by the
legislature.   Neither Manitowoc Company nor Lanning has asked
this court to overrule Heyde.

     The    concurrence    advocates   an    interpretive    rule
significantly different from the generally accepted rule that
when    a   court   interprets    a  statute,   prior    judicial
interpretations of the statute become "as much a part of the
statute as if plainly written into it originally."      State ex
rel. Klinger v. Baird, 56 Wis. 2d 460, 468, 202 N.W.2d 31
(1972).   See also Champlin v. State, 84 Wis. 2d 621, 624, 267
N.W.2d 295 (1978) (quoting Klinger); Clean Water Action Council
of N.E. Wis. v. DNR, 2014 WI App 61, ¶16, 354 Wis. 2d 286, 848
N.W.2d 336 (quoting Klinger).

     Ordinarily (and in the instant case), this court should not
reach beyond the issues presented in the petition for review and
should not overrule a prior judicial decision that the parties
accept as pertinent, without at least affording the parties an
opportunity to brief the issue of the continued validity of the
decision. This approach to judicial interpretation of a statute
comports with the important concepts of precedent and finality.
Stare decisis, although not an absolute rule, is important to
promote finality and predictability in the law and is undermined
by the concurrence's reasoning.


                                       16
                                                                         No.    2015AP1530



joining another employer, and/or to restrict their mobility or

ability to practice and earn a living in their chosen field.

Rather, the intent of the clause was to limit a key employee

like        Lanning     from     raiding        Manitowoc        employees. . . ."27

According to Manitowoc Company, "the harm [to the Company] is

the loss of the employee itself——not any potential competition

that employee could provide against Manitowoc after leaving."28

       ¶33    The effect of Lanning's non-solicitation provision is

to   prevent       Lanning     and   a   Manitowoc    Company         competitor       from

competing fully with Manitowoc Company in the labor pool by

soliciting Manitowoc Company employees.                    The provision prevents

Lanning      from     taking    steps    to     persuade    a    Manitowoc       Company

employee      to    leave    Manitowoc     Company,    which          would    limit   the

ability of Lanning and other Manitowoc Company employees from

working together in the future.                  Thus, the provision prevents

employees of Manitowoc Company from having complete information

regarding      employment       opportunities       elsewhere.           It     limits    a

potentially         valuable     professional        resource          Lanning     would
otherwise       have    regarding        resources    in        the     labor    market.

Although the law encourages the mobility of workers, Lanning's

non-solicitation of employees provision hinders the mobility of




       27
       Brief of Plaintiff-Respondent-Petitioner                         The     Manitowoc
Company, Inc. at 31-32 (emphasis in brief).
       28
       Brief of Plaintiff-Respondent-Petitioner                         The     Manitowoc
Company, Inc. at 39-40.


                                           17
                                                                No.   2015AP1530



Manitowoc Company employees.29         This court has stated that "the

fundamental right of a person to make choices about his or her

own employment is well-established."30

     ¶34    In   sum,   the   cases        have   interpreted     Wis.   Stat.

§ 103.465 as including more than the "textbook example" of an

employee covenant not to compete with his or her employer.                   In

the instant case, the effect of Lanning's non-solicitation of


     29
       "The law, however, does not protect against the raiding
of a competitor's employees. Rather, it encourages the mobility
of workers." Mut. Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92,
¶17, 242 Wis. 2d 733, 625 N.W.2d 648, overruled on other grounds
by Star Direct, 319 Wis. 2d at ¶78 n.12; see also Genzyme Corp.
v. Bishop, 460 F. Supp. 2d 939, 947 (W.D. Wis. 2006) ("[T]he
public policy underlying Wis. Stat. § 103.465 is that Wisconsin
law favors the mobility of workers.").
     30
          Heyde Cos., 258 Wis. 2d 28, ¶22.

     As the Supreme Court has recognized, the ability to make
choices about one's own employment "is an elementary part of the
rights of personal liberty . . . ." Prudential Ins. Co. of Am.
v. Cheek, 259 U.S. 530, 536 (1922).

     Judge Learned Hand wrote regarding an employer's ability to
offer a job to a competitor's employee and the employee's
ability to take the job as follows:

     Nobody has ever thought, so far as we can find, that
     in the absence of some monopolistic purpose every one
     has not the right to offer better terms to another's
     employe, so long as the latter is free to leave. The
     result of the contrary would be intolerable, both to
     such   employers  as  could  use   the  employe  more
     effectively and to such employes as might receive
     added pay.     It would put an end to any kind of
     competition.

Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981, 982
(2d Cir. 1918).


                                      18
                                                                 No.   2015AP1530



employees provision is clear.         The provision restricts one form

of competition with Manitowoc Company.               It restricts Lanning

(and any employee of Manitowoc Company) from freely competing

against Manitowoc Company in the labor market by insulating any

Manitowoc Company employee from Lanning's solicitations.

       ¶35   We agree with the reasoning of the court of appeals

that    Lanning's    non-solicitation      of   employees   provision      is   a

restraint of trade governed by Wis. Stat. § 103.465.                     As the

court of appeals explained:

       It is no leap of logic to conclude that a provision
       aimed   at   restricting  a   former   employee  from
       "systematically poaching" the valuable and talented
       employees of his former employer is a restraint of
       trade.   Lanning may not, among other things, compete
       with Manitowoc by attempting to recruit Manitowoc's
       best employees.    While the NSE provision does not
       circumscribe Lanning's own employment opportunities,
       it nevertheless limits how Lanning——now employed by a
       direct competitor——can compete with Manitowoc.     In
       short, the NSE provision does not allow for the
       ordinary sort of competition attendant to a free
       market, which includes recruiting employees from
       competitors.
Lanning, 371 Wis. 2d 696, ¶17.

       ¶36   Our    reasoning   and   conclusion     are    in    accord    with

federal courts interpreting Wisconsin law31 and with cases in


       31
       In Corporate Express Office Products, Inc. v. Brown, 2001
WL 34381111 (W.D. Wis. July 18, 2001), the non-solicitation of
employees provision was similar to Lanning's provision.      The
federal district court held that although the employer had an
interest   in   retaining  experienced   employees,   the   non-
solicitation provision was not necessary to advance that
interest. Corporate Express, 2001 WL 34381111, at *7-8.


                                      19
                                                      No.   2015AP1530



other jurisdictions interpreting non-solicitation of employees

provisions.32   These decisions have determined that similar non-

solicitation of employees provisions constitute restraints of

trade.     These decisions are not binding on this court but are

persuasive.

     ¶37    For the reasons set forth, we conclude that the non-

solicitation of employees provision at issue is a restraint of

trade governed by Wis. Stat. § 103.465.

                                 IV

     ¶38    Having concluded that Wis. Stat. § 103.465 applies to

Lanning's non-solicitation of employees provision, we        address


     32
        See, e.g., Golder Assocs., Inc. v. Edge Envt'l, Inc.,
2007 WL 987458 (D. Colo. 2007), (finding that a similar non-
solicitation of employees agreement was governed by a Colorado
statute prohibiting "any covenant not to compete which restricts
the right of any person to receive compensation for performance
of skilled or unskilled labor" because "the non-solicitation
clause at issue in this case could be interpreted to as [sic]
having the effect of preventing the [employees] from working
together at [competitor] and, therefore, it is covered by
restraint   [sic]   of   trade   prohibition    contained   in   [the
statute]"); Schmersahl, Treloar & Co., P.C. v. McHugh, 28
S.W.3d 345, 348-51 (Mo. Ct. App. 2000) (holding that a non-
solicitation of employees provision was a restraint of trade
because    "[c]ompetition    in    the    marketplace     encompasses
competition in the labor market" and the provision can be used
to restrict the flow of competitive information about the labor
market, including the availability of opportunities and offers
of employment to an employer's at-will workforce and has the
effect of reducing competition in the labor market and is a
restrictive    covenant);    Lazer   Inc.    v.    Kesselring,    823
N.Y.S.2d 834, 836-39 (N.Y. Sup. Ct. 2005) (concluding that "a
covenant not to solicit former co-employees is a species, albeit
a limited one, of a covenant not to compete in the broad
sense . . .").


                                 20
                                                                   No.    2015AP1530



the second issue of law presented, namely, whether the provision

is enforceable under § 103.465.

       ¶39    Beginning    in     Lakeside     Oil    Co.     v.    Slutsky,       8

Wis. 2d 157, 162-67, 98 N.W.2d 415 (1959), and continuing in the

case    law    thereafter,      the   court   has    interpreted     Wis.    Stat.

§ 103.465 as "establishing five prerequisites that a restrictive

covenant must meet in order to be enforceable."33

       ¶40    The   five   "prerequisites"     that    must   be    met     are   as

follows.      The restraint must:

       (1) be necessary for the protection of the employer,
       that is, the employer must have a protectable interest
       justifying the restriction imposed on the activity of
       the employee;

       (2) provide a reasonable time limit;

       (3) provide a reasonable territorial limit;

       (4) not be harsh or oppressive as to the employee; and

       (5) not be contrary to public policy.
Star Direct, 319 Wis. 2d 274, ¶20.

       ¶41    If Lanning's non-solicitation of employees provision

fails to satisfy even one of these "prerequisites," the entire

non-solicitation of employees provision is invalid.                  By enacting

Wis. Stat. § 103.465, the legislature made a policy choice to

place the burden of drafting a reasonable restrictive covenant

on the employer, who often wields greater bargaining power and




       33
            Star Direct, 319 Wis. 2d 274, ¶20.


                                        21
                                                    No.   2015AP1530



is generally in a better position to show that a restraint is no

broader than is necessary to protect the employer's business.34

     34
       In Streiff v. American Family Mutual Insurance Co., 118
Wis. 2d 602, 608-09, 614-15, 348 N.W.2d 505 (1984), the supreme
court described the background of Wis. Stat. § 103.465 in 1957.
It was enacted at the suggestion of a legislator who was
critical of our decision in the second Fullerton Lumber case,
Fullerton Lumber Co. v. Torborg, 274 Wis. 478, 80 N.W.2d 461
(1957), in which the court "blue-penciled," that is, judicially
modified, an unreasonable restrictive covenant by giving it
effect to the extent that it might be reasonable:

     The legislator wanted a restraint containing overly
     broad and invalid provisions to be struck down in its
     entirety; he apparently did not want the court to give
     effect to an unreasonable restraint to the extent it
     might be reasonable.   The objection to the "Torberg"
     practice, as the legislator noted, is that it tends to
     encourage   employers   possessing   bargaining  power
     superior to that of the employees to insist upon
     unreasonable and excessive restrictions, secure in the
     knowledge that the promise will be upheld in part, if
     not in full.

          * * * *

     Courts and commentators have engaged in debate over
     the equities of giving effect to reasonable aspects of
     restraints in a covenant.     An argument for giving
     effect to reasonable aspects of a restraint is the
     business need for restrictive covenants and the
     difficulty for larger businesses to tailor each
     covenant to the particular requirements of the
     individual employee.    A principal argument against
     giving effect to reasonable aspects of a restraint is
     that the employer can fashion ominous covenants which
     affect the mobility of employees because of their in
     terrorem effect on employees who respect contractual
     obligations and their effect on competitors who do not
     wish to risk legal difficulties.   At least where the
     restraint is indivisible, it is clear that our
     legislature has balanced the employer's business needs
     and the employee's interest in personal liberty and
     has, by the adoption of sec. 103.465, opted not to
                                                     (continued)
                               22
                                                                    No.     2015AP1530



      ¶42   We begin with the first prerequisite, that is, that

the   Manitowoc      Company      must     have     a    protectable        interest

justifying the restriction on Lanning's employee's activities.

      ¶43   Manitowoc Company asserts that it has an interest in

protecting itself from "the loss of the employee(s) it trained

and   invested      time   and    capital     in,       and   the   institutional

understanding,       experience,        and   intellectual          capital       they

possess."35

      ¶44   The     text   of     the     non-solicitation          of     employees

provision bars solicitation by Lanning of "any employee(s)" to

terminate     employment       with     Manitowoc       Company.          The   court

interprets    and    applies     this    language   in    accordance       with   the

maxims adopted for the interpretation of restrictive covenants.



      give effect even to so much of the covenant as would
      be a reasonable restraint.        The legislature has in
      sec. 103.465 instructed the court as to the equities
      between the parties.        Under sec. 103.465 if an
      indivisible    covenant     imposes      an   unreasonable
      restraint,   the   covenant    is    illegal,  void,   and
      unenforceable even as to so much of the covenant as
      would be a reasonable restraint.

See also Harlan M. Blake, Employee Agreements Not to Compete, 73
Harv. L. Rev. 625, 648 n.76 (1960) ("The employer, having a
fuller 'picture' of the company's interests and needs than any
employee, should be in a much better position to show that a
restraint is no more burdensome than needed to protect the
employer's legitimate interest.    The employee, on the other
hand, would find it difficult to show that the restrain is
unreasonable.").
      35
       Brief of Plaintiff-Respondent-Petitioner                     The    Manitowoc
Company, Inc. at 39.


                                         23
                                                                            No.    2015AP1530



     ¶45     A restraint of trade to which Wis. Stat. § 103.465

applies is interpreted in a reasonable way to give the words

their plain meaning, to give effect where possible to the entire

provision,       and    to   avoid       absurd      results.        Star       Direct,   319

Wis. 2d 274, ¶62.            Within this maxim, restrictive covenants are

disfavored at law, subject to close scrutiny, and are read in

favor of the employee.             Star Direct, 319 Wis. 2d 274, ¶62.

     ¶46    The words "any employee" in the non-solicitation of

employees provision prohibits Lanning from soliciting every one

of Manitowoc Company's 13,000 world-wide employees.                               The words

"any employee" mean, in common parlance, every employee.                                  The

court has in a number of cases explained that a phrase modified

by the word "any" indicates broad application.36

     ¶47    The non-solicitation provision contains no limitations

based     upon    the     nature         of    the    employee's        position      within

Manitowoc    Company.             No    limitations     are     based    upon      Lanning's

personal     familiarity           with       or    influence    over       a     particular

employee.         There      is    no     limit      based    upon   the        geographical
location in which the employee works.

     36
       State v. Jensen, 2010 WI 38, ¶29, 324 Wis. 2d 586, 782
N.W.2d 415   (noting  in   its  interpretation   of  Wis.  Stat.
§ 971.19(12) that "a phrase modified by the word 'any' indicates
broad application.") (internal quotation marks and citation
omitted); Marotz v. Hallman, 2007 WI 89, ¶25, 302 Wis. 2d 428,
734   N.W.2d 411   (the   word   "any"   modifying  "person   or
"organization" in Wis. Stat. § 632.32(5)(i)1. indicates broad
application); Burbank Grease Servs., LLC v. Sokolowski, 2006
103, ¶22, 294 Wis. 2d 274, 717 N.W.2d 781 (the broad dictionary
definition of word "any" is used to define "any" in Wis. Stat.
§ 134.90(6)(b)2.).


                                               24
                                                                           No.    2015AP1530



    ¶48    Manitowoc Company asserts a protectable interest in

protecting     its    investment      of     time     and       capital     involved      in

recruiting,       training,     and   developing          its    employee        base   from

"poaching" by a "former employee who ha[s] full awareness of the

talent   and      skill   set   of    said       employee       base."37         At   trial,

Manitowoc Company presented evidence to establish the financial

and non-monetary costs and harm it experienced in losing and

trying to replace employees.38                   Manitowoc Company asserts that

the loss of employees harms the Company regardless of whether

the employee goes to work for a competitor or a non-competitor

of Manitowoc Company.

    ¶49    The argument that Manitowoc Company has a protectable

interest     in     maintaining       its        entire     workforce        flouts      the

generally recognized principle that the law "does not protect

against the raiding of a competitor's employees."39                              The cases




    37
       Brief of Plaintiff-Respondent-Petitioner                           The    Manitowoc
Company, Inc. at 39.
    38
       Brief of Plaintiff-Respondent-Petitioner                           The    Manitowoc
Company, Inc. at 13-14.
    39
       Brass, 242 Wis. 2d 733, ¶17, overruled on other grounds
by Star Direct, 319 Wis. 2d 274, ¶78 n.12.; see also Gary Van
Zeeland Talent, 84 Wis. 2d at 214 ("[S]o long as a departing
employee takes with him no more than his experience and
intellectual development that has ensued while being trained by
another, and no trade secrets or processes are wrongfully
appropriated, the law affords no recourse.").

                                                                             (continued)
                                            25
                                                               No.   2015AP1530



and literature explain that ordinarily an employer's protectable

interest is limited to retaining top-level employees, employees

who have special skills or special knowledge important to the

employer's   business,    or   employees   who       have   skills   that   are

difficult    to   replace.40    Ordinarily,      a    stranger   may   entice


     The Gary Van Zeeland Talent case cites Abbott Laboratories
v. Norse Chemical Corp., 33 Wis. 2d 445, 463, 147 N.W.2d 529
(1967) (setting forth the factors a court must consider when
determining whether certain material qualifies as a "trade
secret") and K.H. Larsen, Annotation, Former employee's duty, in
absence of express contract, not to solicit former employer's
customers or otherwise use his knowledge of customer lists
acquired in earlier employment,     28 A.L.R. 3d 7, § 4 (1969)
(collecting cases regarding the right of an employee to use
general knowledge and experience gained in former employment).
    40
       K.H. Larsen, Annotation, Former employee's duty, in
absence of express contract, not to solicit former employer's
customers or otherwise use his knowledge of customer lists
acquired in earlier employment, 28 A.L.R. 3d 7, § 4[a]
(Cumulative Supp.):

    Courts   have   universally   recognized   the   former
    employee's right to use, in competition with his
    former   employer,   general  knowledge,   skill,   and
    experience acquired in the former employment.

     Harlan M. Blake, Employee Agreements Not to Compete, 73
Harv. L. Rev. 625, 652 (1960) (footnotes omitted):

    It has been uniformly held that general knowledge,
    skill, or facility acquired through training or
    experience while working for an employer appertain
    exclusively to the employee. The fact that they were
    acquired or developed during the employment does not,
    by itself, give the employer a sufficient interest to
    support a restraining covenant, even though the on-
    the-job training has been extensive and costly.    In
    the absence of special circumstances the risk of
    future competition from the employee falls upon the
    employer and cannot be shifted, even though the
                                                   (continued)
                                   26
                                                           No.   2015AP1530



Manitowoc     Company   employees    to   accept    employment    with   a

competitor of the Company.41        The court has declared that "[a]n

employer is not entitled to be protected against legitimate and

ordinary competition of the type that a stranger could give."42

     ¶50    Manitowoc   Company     drafted   the   non-solicitation     of

employees provision and could have tailored the language to its

specific needs.     It does not argue that the non-solicitation of

employees provision is limited to Lanning's solicitation of only

certain employees.      Manitowoc Company does not contend that it

intended to limit the words to apply only to the solicitation of

employees with sensitive or company-specific information or to



     possible damage is greatly increased            by   experience
     gained in the course of the employment.

     McHugh, 28 S.W.3d at 350:

     [An employer does not have a proprietary interest in
     its employees at will or in their skills.] The normal
     skills of a trade are not included in an employer's
     protectable interest.    Thus, the basic skill of a
     craftsman    will    not    support   a    restrictive
     covenant. . . . The   fact   of  an  employer-employee
     relationship, standing alone, is not sufficient to
     cause a confidential relationship to exist as to
     knowledge which is the natural product of the
     employment.

     For a collection of cases, see 3 Louis Altman & Malla
Pollack,   Callmann  on   Unfair   Competition, Trademarks and
Monopolies § 16:44 (4th ed. Cum. 2017).
     41
          Lakeside Oil, 8 Wis. 2d at 163.
     42
       Lakeside Oil, 8 Wis. 2d at 163; see also Star Direct, 319
Wis. 2d 274, ¶56 (citing Lakeside).


                                     27
                                                                             No.    2015AP1530



the solicitation of employees with whom Lanning has worked or to

those employees with skill sets with which Lanning was familiar.

       ¶51       Rather, Manitowoc Company argues that the court should

apply a "sliding scale" to gauge whether the non-solicitation

provision         meets       the   prerequisites          of   Wis.   Stat.       § 103.465,

maintaining            that    because    the        non-solicitation        of     employees

provision is less onerous than a traditional covenant not to

compete, it should receive less-exacting scrutiny.                                  In other

words,          the    Company      argues      that       a    less   burdensome          non-

solicitation of employees provision should not be held to the

same     legal         requirements      as   a      traditional       covenant      not    to

compete.43

       ¶52       The    sliding      scale,   Manitowoc         Company     argues,     would

recognize that significant restrictions imposed on an employee

place       a    significant        burden    on     the    employer    to     justify     the

restriction by showing that the restriction is no broader than

is necessary to protect a legitimate business interest.44                                  Less

significant restrictions imposed on an employee should place a
less        significant        burden    on       the      employer    to     justify      the

restriction, Manitowoc Company argues.

       ¶53 We reject Manitowoc's proposed "sliding scale" approach

that would subject various restraints of trade and competition


       43
       Brief of Plaintiff-Respondent-Petitioner                             The     Manitowoc
Company, Inc. at 41.
       44
       Brief of Plaintiff-Respondent-Petitioner                             The     Manitowoc
Company, Inc. at 42.


                                                28
                                                                                 No.     2015AP1530



to different legal standards.                     The sliding scale approach has no

basis in Wisconsin law.

      ¶54       Wisconsin       Stat.       § 103.465        does    not    create       separate

legal standards applicable to traditional and non-traditional

non-compete provisions.                 Our       legislature         has     balanced           the

employer's        business          needs     and      the    employee's          interest       in

personal liberty under § 103.465 and has declared that if an

agreement        imposes       an   unreasonable          restraint,        it     is    illegal,

void, and unenforceable even as to so much of the covenant as

would      be    a   reasonable         restraint.             We     are     bound       by     the

legislature's decision.

      ¶55       Because        Lanning's          non-solicitation            of        employees

provision        restrains          trade     by       restraining          competition          and

inhibiting the mobility of employees, it must meet all five

prerequisites        identified         in    Lakeside        Oil    and     Star       Direct    in

order to be enforceable under Wisconsin law.                               Manitowoc Company

has   the       burden    to    prove       that       Lanning's     non-solicitation             of

employees provision meets all five prerequisites.45
      ¶56       The plain language of Lanning's non-solicitation of

employees provision creates a sweeping prohibition that prevents

Lanning     from     encouraging            any    Manitowoc        Company      employee,        no

matter the employee's job or location, to terminate his or her

employment with Manitowoc Company for any reason, or soliciting




      45
           Star Direct, 319 Wis. 2d 274, ¶20.


                                                  29
                                                                     No.      2015AP1530



any Manitowoc Company employee to take any position with any

competitor, supplier, or customer of Manitowoc Company.

      ¶57    Lanning does not have specialized knowledge about all

of Manitowoc Company's 13,000 world-wide employees across both

its   construction        crane    and    food    service    equipment     divisions.

Lanning     does    not    have    a     relationship       with   every      Manitowoc

Company employee.          Yet Lanning's non-solicitation of employees

provision prevents him from encouraging any Manitowoc Company

employee to terminate his or her employment.

      ¶58    Noting the extensive reach of the language of the non-

solicitation        of    employees       provision,     the    court    of     appeals

explained that "Manitowoc has drafted a provision that requires

it to prove that it has a protectable interest in preventing

Lanning from encouraging any employee to leave Manitowoc for any

reason, or to take any job with any competitor, supplier, or

customer."        Lanning, 371 Wis. 2d 696, ¶30.

      ¶59    In applying the prerequisites that must be met under

Wis. Stat. § 103.465, we conclude, as did the court of appeals,
that the non-solicitation of employees provision is overbroad on

its face.     Without a specified territory or class of employees,

the provision restricts Lanning's conduct as to all employees of

Manitowoc    Company       everywhere.           Lanning's     non-solicitation      of

employees provision covers each of the 13,000 Manitowoc Company

employees regardless of the business unit in which they work or

where in the world they are located.

      ¶60    We    agree    with    the    court    of   appeals    that      Manitowoc
Company has failed to satisfy the first prerequisite, namely
                                            30
                                                                            No.    2015AP1530



that    Manitowoc        Company      does    not    have    a    protectable      interest

justifying        the    restriction         imposed    on       the    activity    of    the

employee.         Because our conclusion as to the first prerequisite

is dispositive, we need not and do not consider the other four

prerequisites.

       ¶61    The       non-solicitation        of     employees        provision    cannot

survive simply because Manitowoc Company seeks to enforce the

non-solicitation provision in the instant case in a narrower

situation than that which is compelled by the plain language of

the agreement.46                Enforcing      an    overbroad         restraint    to    the

extent it can be reasonably enforced is exactly what § 103.465

was enacted to prevent.

       ¶62    A     non-solicitation          of     employees         provision    may    be

enforceable        under    Wis.      Stat.    §    103.465      if    it   is    reasonably

necessary to protect the employer and reasonable as to time,

geography,        and    type    of   conduct       covered.47         Manitowoc    Company

failed to show that it has a protectable interest justifying the

sweeping restriction imposed by the plain language on Lanning's
non-solicitation           of    employees.            Lanning's         non-solicitation

provision does not meet the prerequisites under § 103.465.

       ¶63    For the reasons set forth, we conclude that Wis. Stat.

§ 103.465      applies      to    Lanning's         non-solicitation        of     employees

provision.          Because      Lanning's          non-solicitation        of     employees


       46
            Manitowoc Co., 371 Wis. 2d 696, ¶19.
       47
            Lakeside Oil, 8 Wis. 2d at 163-67.


                                              31
                                                                      No.     2015AP1530



provision    does    not   meet    the   statutory       requirement         that     the

restriction be "reasonably necessary for the protection of the

employer,"      it    is    an     unreasonable          restraint          of     trade

unenforceable under the statute.

    ¶64     Accordingly,     the    cause     is   remanded      to    the       circuit

court with instructions to enter judgment in favor of Lanning.

    By    the   Court.—The       decision     of   the   court    of        appeals    is

affirmed.




                                         32
                                                                            No.    2015AP1530.rgb


       ¶65       REBECCA GRASSL BRADLEY, J.                     (concurring).          I join the

lead opinion's decision affirming the court of appeals and its

holding          that    Wis.     Stat.      § 103.465,            entitled        "Restrictive

covenants          in    employment        contracts,"            applies        to     Lanning's

nonsolicitation of employees covenant (NSE).                            I also agree that

this NSE is unreasonable under the Lakeside Oil1 prerequisites.

I     write      separately        because       the       lead     opinion       neglects      to

undertake a textual analysis of § 103.465, instead grounding its

interpretation of the statute almost exclusively in Wisconsin

case       law    in     which    the      court     has        interpreted       and     applied

§ 103.465 expansively, sometimes straying far from the text in

advancing policy choices that should be made legislatively, not

judicially.            For example, the lead opinion liberally cites Heyde

Cos., Inc. v. Dove Healthcare, LLC, 2002 WI 131, 258 Wis. 2d 28,

654     N.W.2d 830,         which       should       be     overruled       as        unsound   in

principle because its analysis is patently wrong.                                 Additionally,

I   caution       that    merely     because         the    court    concludes          § 103.465

applies to this NSE, not every NSE provision necessarily falls
under the purview of that statute.

                                                 I

       ¶66       The    lead     opinion    skips         the    critical    first       step   of

statutory analysis——examining the plain language of the text.

In abandoning this process, the lead opinion risks reading into

Wis. Stat. § 103.465 imagined words derived from the court's

perception of the legislature's unspoken policies and purpose.

       1
       Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W.2d 415
(1959).


                                                 1
                                                                No.      2015AP1530.rgb


Of course, legislative policies and purpose may aid the court in

its interpretative function, but only to the extent they are

discernable from the actual text of the statute.2

      ¶67    For this reason, statutory analysis must begin with

the plain language of the statute.               State ex rel Kalal v. Cir.

Ct.   for   Dane    Cty.,     2004   WI 58,      ¶45,    271   Wis. 2d 633,         681

N.W.2d 110 (citations omitted).               "Statutory language is given

its   common,      ordinary,     and    accepted        meaning,      except      that

technical or specially-defined words or phrases are given their

technical    or    special     definitional      meaning."         Id.     (citations

omitted).       Where   "the    meaning     of   the     statute    is     plain,   we

ordinarily     stop     the    inquiry."3         Id.     (citations        omitted).

Generally,    statutory       meaning   comes     from    examining        the   text,

context and structure of the statute.              See Wisconsin Carry, Inc.

v. City of Madison, 2017 WI 19, ¶20 n.15, 373 Wis. 2d 543, 892

N.W.2d 233.

      ¶68    The text of Wis. Stat. § 103.465 is relatively plain.

For the most part, the dissent correctly and succinctly examines
the relevant words and their ordinary meanings.                    Dissent, ¶¶10-

14.   In summary and in the context of the facts presented here,

      2
       "[T]he purpose must be derived from the text, not from
extrinsic sources such as legislative history or an assumption
about the legal drafter's desires."  Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 56
(2012).
      3
       The court does not consult extrinsic sources unless the
statute is ambiguous, that is to say, "it is capable of being
understood by reasonably well-informed persons in two or more
senses." State ex rel Kalal v. Cir. Ct. for Dane Cty., 2004 WI
58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (citations omitted).


                                        2
                                                                No.     2015AP1530.rgb


§ 103.465 governs only covenants between an employer and its

employee in which the employee agrees not to compete with the

employer.    The enforceability of such a covenant depends in part

upon the inclusion of limits on its duration and territorial

scope.    Its restrictions must also be "reasonably necessary for

the protection of the employer."

    ¶69     The   crux   of    the   issue       presented     in   this    case   is

whether this NSE constitutes a covenant not to compete within

the meaning of Wis. Stat. § 103.465.                   While I agree with the

lead opinion's conclusion that § 103.465 governs this NSE, I

depart from its over-expansive analysis of the statute.

    ¶70     Because this court has never applied the statute to an

NSE between an employer and an employee, it is fundamental to

first identify what an NSE is.             Black's Law Dictionary defines a

"nonsolicitation     agreement"       as       "[a]   promise . . . in . . . an

employment contract, to refrain, for a specified period of time,

from . . . enticing           employees          to    leave        a      company."

Nonsolicitation agreement, Black's Law Dictionary 1221 (10th ed.
2014).    Here, Lanning entered into a nonsolicitation agreement

by promising that he would "not (either directly or indirectly)

solicit, induce, or encourage any employee(s) to terminate their

employment   with   Manitowoc        or    to    accept   employment       with    any

competitor, supplier or customer of Manitowoc."

    ¶71     In order to determine if this NSE may be subject to

close scrutiny under Wis. Stat. § 103.465, I begin with the

types of restrictive covenants the text of the statute covers.
The first sentence of the statute identifies as its subject

                                           3
                                                                No.     2015AP1530.rgb


matter "[a] covenant . . . not to compete."               The dissent defines

"compete" as "the struggle for commercial advantage," equating

competition with actions by an employee laboring for commercial

advantage over his or her employer.                 This definition broadly

encompasses all sorts of restrictive covenants.                         The dissent,

however, does not consider the phrase "covenant not to compete"

as a legal term of art.

     ¶72     Black's     Law    Dictionary     defines    "covenant          not    to

compete" as "[a]n agreement, generally part of a contract of

employment . . . in which the covenantor agrees for a specific

period of time and within a particular area to refrain from

competition    with     the    covenantee."       Covenant    not       to   compete,

Black's Law Dictionary 364 (6th ed. 1990).                   The title of Wis.

Stat.     § 103.465    also    refers   to   covenants    not      to    compete    as

"Restrictive covenants in employment contracts."4                  In the context

of   an    employment     contract,     Black's    Law    Dictionary          defines

"[r]estrictive        covenant"    as   a    provision    that          "limit[s]   a

contracting     party     after     termination      of      the      contract      in
performing certain work for a period of time within a certain


     4
       Under Wis. Stat. § 990.001(6), "titles to subchapters,
subsections, paragraphs and subdivisions of the statutes and
history notes are not part of the statutes."     "Although titles
are not part of statutes, see Wis. Stat. § 990.001(6), they may
be helpful in interpretation.     Nevertheless text must control
over title." Aiello v. Village of Pleasant Prairie, 206 Wis. 2d
68, 73, 556 N.W.2d 697 (1996).     "The title and headings [of a
statute] are permissible indicators of meaning" although "a
title or heading should never be allowed to override the plain
words of a text."    Scalia & Garner, supra note 2, at 221-22.
Here, the title and the text are harmonious.


                                        4
                                                                   No.    2015AP1530.rgb


geographic area."          Restrictive covenant, id. at 1315.                  While the

NSE does not altogether prohibit Lanning from going to work for

a     competitor,     it    does      restrain       Lanning     from      soliciting,

inducing, or encouraging any Manitowoc employee from accepting

employment     with      any   Manitowoc        competitor,       thereby       limiting

Lanning in performing certain work——namely, recruitment for his

new employer, a competitor of Manitowoc's.                     Notwithstanding the

NSE's    label,     it     constitutes      a      restrictive    covenant       by   an

employee not to engage in a particular form of competition with

the    employer     both    during    his    employment     and    for     a    two-year

period after his employment ends.                  Accordingly, Lanning's NSE is

a type of covenant "described in this section" under § 103.465.

       ¶73   The dissent reaches the opposite conclusion but errs

in adopting a cramped construction of what it means to "compete"

with a former employer.              Proposing a definition of competition

as "the struggle for commercial advantage," the dissent then

inexplicably asserts the NSE "protects against only the raiding

of Manitowoc's key employees by Lanning" but "does not prevent
Lanning from competing with Manitowoc."                     Dissent, ¶38.             The

dissent thereby narrowly rewrites the scope of the NSE, which is

clearly much broader.           By its very terms, the NSE applies not

only    to   key    employees        but    "any     employee(s)"        and   the    NSE

prohibits not only "raiding" of "key" employees but also, for

example, encouraging an entry-level employee to terminate his or

her employment to pursue higher education.                        For this reason

(among others), the lead opinion correctly concludes that the
NSE is not reasonably necessary for Manitowoc's protection as

                                            5
                                                                             No.    2015AP1530.rgb


Manitowoc     cannot        demonstrate              a     protectable             interest       in

prohibiting       Lanning       from       encouraging          an    unskilled          Manitowoc

employee to retire in order to spend more time with family (an

example aptly stated by the court of appeals in this case).

Manitowoc Co. v. Lanning, 2016 WI App 72, ¶24, 371 Wis. 2d 696,

885 N.W.2d 798.

      ¶74   The     dissent              proceeds        to     adopt        the        internally

contradictory position of Manitowoc.                          On one hand, it notes that

"Lanning and SANY's recruitment efforts were successful.                                        Key

employees left Manitowoc and joined SANY."                              Dissent, ¶6.             The

dissent accurately identifies the adverse effect on the employer

(here, Manitowoc):              "the former employer will become a less

effective competitor."               Dissent, ¶45.             Nonetheless, the dissent

views   Lanning's        role       as    something       other       than    competing         with

Manitowoc despite the obvious "commercial advantage" to Lanning

individually       in     enhancing           his        new    employer's          competitive

position     in    the    marketplace           at       the     expense       of       Manitowoc.

Contrary to the dissent's construction, nothing in the text of
Wis. Stat. § 103.465 restricts its application to covenants not

to   work   for    the     employer's          competitor            and     nothing       in   the

statutory text exempts covenants not to compete on behalf of the

employer's        competitor.                Logically,              recruiting          Manitowoc

employees     to    join        a        Manitowoc       competitor          is     a    form    of

competition by Lanning and that aspect of the NSE's restriction

subjects it to the close scrutiny of § 103.465.

                                               II



                                               6
                                                                           No.    2015AP1530.rgb


       ¶75    While      the      dissent's          interpretation        of      Wis.     Stat.

§ 103.465 is too restrictive, the lead opinion errs in the other

direction.         Typically relying on the second sentence of Wis.

Stat. § 103.465, referring to "any covenant described in this

section      imposing       an    unreasonable         restraint,"        this     court     over

time opened wide the semantic door through which an assortment

of restrictive covenants were brought under § 103.465's purview.

See lead op., ¶¶6-8; Tatge v. Chambers & Owen, Inc., 219 Wis. 2d

99, 112, 579 N.W.2d 217 (1998) (reasoning that it "would be an

exercise in semantics to overlook" § 103.465's applicability to

different           types          of          restrictive            covenants           "merely

because . . . the agreement is not labeled a 'covenant not to

compete'").         For example, in Heyde the court concluded that a

no-hire provision between two companies "acts as a restrictive

covenant      on     [the      covenantee's]           employees"         even     though     the

covenant was not made in an employment contract and was not

otherwise made by any employee; therefore, it could not possibly

constitute a "covenant described in this section," regardless of
whether      it    in    effect         operated       to   restrict        the     employment

opportunities of the covenantee's employees.

       ¶76     The plain language of Wis. Stat. § 103.465 applies

only    to     certain           covenants       between         an     employer     and     its

"assistant, servant or agent."                       As the dissent notes, "servant"

encompasses an employee.                      Dissent, ¶11.           Nothing in the text

intimates an extension of its application beyond the employer-

employee relationship.               Nonetheless, the court in Heyde set the
statutory         text   aside          and     divined     an        overriding     statutory

                                                 7
                                                                            No.       2015AP1530.rgb


"purpose" that could be advanced only by ignoring certain words

in the statute so as to capture contracts between two businesses

within    the    ambit     of    § 103.465.            Relying        on    Heyde,       the   lead

opinion in this case lends continued but unwarranted credence to

Heyde's      erroneous      application           of    the     statute          by    concluding

"Lanning's nonsolicitation of employees provision is a restraint

of     trade    governed        by   Wis.     Stat.          § 103.465"           because      "the

limitation on Lanning also affects access to the labor pool by a

competitor of Manitowoc Company (including, Lanning's current

employer SANY America)" and "hinders the mobility of Manitowoc

Company employees."          Lead op., ¶¶9, 33.

       ¶77     The lead opinion mistakenly emphasizes a relationship

not     contemplated       by     the      statute,          namely        one    between       two

employers, SANY and Manitowoc, as well as the NSE's effect on

the    mobility      of    Manitowoc       employees          generally.               Other   than

Lanning himself, no SANY or Manitowoc employees are party to the

NSE;     therefore,        neither         SANY        nor     Manitowoc          workers       are

considerations in applying Wis. Stat. § 103.465.                                      Accordingly,
we should not base our interpretation of the statute on the

NSE's     effect,     if    any,      on    SANY's           ability       to     compete      with

Manitowoc or the mobility of its workers generally.                                     The focal

relationship under § 103.465 is the one between the employer,

Manitowoc, and the employee, Lanning.                           In basing part of its

determination regarding the statute's applicability on SANY's

ability to compete and Manitowoc employees' mobility, the lead

opinion further widens the rabbit hole encircling Wis. Stat.
§ 103.465       by   extending       the    statute          beyond    the       only     contract

                                              8
                                                                        No.       2015AP1530.rgb


mentioned in the statute——a covenant between an employer and its

assistant, servant, or agent.

       ¶78     Because Heyde provides the foundation for courts to

disregard the plain language of Wis. Stat. § 103.465 in order to

apply it inappropriately in the name of good public policy, I

would    overrule        it    as    unsound        in    principle.          Decisions      to

overrule prior case law depend on the presence of one or more of

the following circumstances:

       (1) Changes or developments in the law have undermined
       the rationale behind a decision; (2) there is a need
       to make a decision correspond to newly ascertained
       facts; (3) there is a showing that the precedent has
       become detrimental to coherence and consistency in the
       law; (4) the prior decision is "unsound in principle;"
       or (5) the prior decision is "unworkable in practice."
Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs.

Ins.    Corp.,      2006      WI 91,   ¶33,     293       Wis. 2d 38,    717       N.W.2d 216

(citing Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003

WI 108,       ¶¶98-99,     264      Wis. 2d 60,          665    N.W.2d 257).          Although

principles          of     statutory         interpretation            predating           Kalal

"generat[ed] some analytical confusion," 271 Wis. 2d 633, ¶43,
the    basic    tenets        of   plain     language          interpretation       were   well

established when this court decided Heyde.                           See, e.g., Moorman

Mfg.    Co.    v.    Indus.        Comm'n,    241    Wis. 200,       208,     5    N.W.2d 743

(1942)("The meaning of a legislative act must be determined from

what it says——not by what the framer of the act intended to say

or what he thought he was saying."); Nekoosa-Edwards Paper Co.

v. Pub. Serv. Comm'n, 8 Wis. 2d 582, 591, 99 N.W.2d 821 (1959)

("The meaning of a legislative act must be determined from the
language used."); Kalal, 271 Wis. 2d 633, ¶45; Wisconsin Carry,
                                               9
                                                                      No.    2015AP1530.rgb


Inc., 373 Wis. 2d 543, ¶20 n.15.                      See generally Daniel Suhr,

Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969 (2017).

      ¶79   This      court        began     its       analysis        in        Heyde      by

acknowledging       that     Wis.     Stat.       § 103.465       "only          refers     to

covenants    between       employers       and    employees";        nevertheless,         it

wholly ignored this language in favor of a liberal construction

to achieve what it deemed the legislature's purpose underlying

the statute.       258 Wis. 2d 28, ¶13-15.              The text of the statute,

however,    is     devoid    of    any     mention     of     this    "purpose."            In

adopting this interpretation, the Heyde court deviated from what

already was a fundamental principle of statutory construction——

interpreting a statute to mean what the text actually says.

      ¶80   The     Heyde     court      justified      its     application         of    the

statute to a no-hire provision in a services contract between

two businesses because by "restricting one employer's ability to

hire former employees of the other employer," by "indirection,"

the covenant restricted "the employees' future opportunities of

employment."       Heyde, 258 Wis. 2d 28, ¶14; id., ¶28 (Abrahamson,
J.,   concurring).          This    interpretation          flouted        the    statute's

language in order to favor "those intended to benefit from" Wis.

Stat. § 103.465, never mind the statute's utter silence on whom

the legislature intended to advantage.                  Id., ¶15.

      ¶81   Indeed,     until       Heyde,       no   Wisconsin       court       had     ever

applied Wis. Stat. § 103.465 to any restrictive covenant other

than those "by an assistant, servant or agent not to compete

with his or her employer or principal."                     The Heyde court boldly
labeled     this     unprecedented           leap      beyond        the     plain        text

                                            10
                                                                No.   2015AP1530.rgb


"inconsequential."           Id., ¶14.   The Heyde court's failure to give

effect to the actual words of the statute in order to advance

judicial notions of the public interest propels the lead opinion

in this case along an unsound analytical path.                        Although the

lead       opinion     correctly   concludes     that    § 103.465     applies   to

Lanning's       NSE,    it   incorrectly      supports    its   conclusion     with

Heyde's shaky reasoning:            because the NSE hinders the mobility

of Manitowoc employees and affects SANY's ability to compete

with Manitowoc, the statute applies.                    In order to steer the

scope of § 103.465 back to its textual bounds, I would overrule

Heyde as unsound in principle and reinstitute a plain language

interpretation of the statute, confining its application to an

employee's covenant not to compete with an employer.5




       5
       The people of Wisconsin should be wary of the lead
opinion's suggestion that prior judicial interpretations of a
statute become set in stone once decreed.    Lead op., ¶31 n.26.
Reflexively cloaking every judicial opinion with the adornment
of stare decisis threatens the rule of law, particularly when
applied to interpretations wholly unsupported by the statute's
text. In evaluating whether to persist in upholding a decision
that elevated judicially-imagined legislative purpose over the
words the legislature actually enacted, "[i]t is well to keep in
mind just how thoroughly [the court's opinion] rewrote the
statute it purported to construe."    Johnson v. Transp. Agency,
480 U.S. 616, 670 (1987) (Scalia, J., dissenting).        When a
judicial opinion like Heyde replaces the words the legislature
actually wrote with language the court preferred, in advancing
the court's own policy choices, courts of last resort are duty-
bound to correct the prior court's error.



                                                                       (continued)
                                         11
                                                               No.    2015AP1530.rgb


       ¶82   The   dissent   warns   that       the      outcome     of    the     lead

opinion's     holding    will   leave        employers     "unable        to    prevent

raiding of their key employees by a former employee."                          Dissent,

¶45.    Employers are not so hamstrung.               The NSE Lanning signed

could have been narrowly drawn to protect a legitimate interest

of Manitowoc and to satisfy the other prerequisites identified

in Lakeside Oil.        Finally, while the court concludes that Wis.

Stat. § 103.465 applies to Lanning's NSE, this conclusion should

not be interpreted to mean that § 103.465 will categorically




     Finally, the lead opinion's conclusion that we can glean
anything from the legislature's inaction in the 15 years
following Heyde has long been discredited.             "[I]t [is]
impossible to assert with any degree of assurance that
congressional failure to act represents (1) approval of the
status quo, as opposed to (2) inability to agree upon how to
alter the status quo, (3) unawareness of the status quo, (4)
indifference to the      status quo,    or even (5) political
cowardice."   Id. at 672.    "[E]ven if we were prepared to let
members of Congress authoritatively express their collective
ratification of a judicial decision without using the formal
legislative process, the failure to pass an override bill is
weak evidence of any such collective ratification.         In most
cases, it is easy to imagine that Congress would not have
overridden the opposite decision either. After all, enacting a
new statute is a lot harder than not enacting a new statute."
Caleb   Nelson,   Stare   Decisis   and   Demonstrably   Erroneous
Precedents, 87 Va. L. Rev. 1, 77 (2001).         The lead opinion
invokes the importance of promoting finality and predictability
in the law in its application of stare decisis to Heyde.
However, Heyde "is a demonstration not of stability and order,
but of the instability and unpredictable expansion which the
substitution of judicial improvisation for statutory text has
produced."     Johnson, 480 U.S. at 672.          Because Heyde's
interpretation of Wis. Stat. § 103.465 finds no mooring in
statutory text, it does not deserve the status of inalterable
law that stare decisis would afford it.


                                        12
                                                                    No.       2015AP1530.rgb


apply   to       every     NSE.       Applying       § 103.465     to     a    particular

restrictive covenant always requires a fact-specific inquiry.

    ¶83      I     agree     with     the     lead    opinion      that       Wis.    Stat.

§ 103.465    applies        to    this    NSE,     and    under   the     Lakeside       Oil

prerequisites, it is unreasonable and therefore unenforceable.

Because the lead opinion looks beyond the text of the statute to

consider the effect of this NSE on Manitowoc's workforce and

competitors rather than solely the employee restrained by the

covenant, I respectfully concur.

    ¶84      I    am     authorized      to   state      that   Justices       MICHAEL   J.

GABLEMAN and DANIEL KELLY join this concurrence.




                                              13
                                                                        No.   2015AP1530.pdr


    ¶85     PATIENCE DRAKE ROGGENSACK, C.J.                          (dissenting).       The

lead opinion distorts the plain meaning of Wis. Stat. § 103.465,

thereby changing it from a statute that balanced the rights of

employees and their employers into a broad mandate that prevents

employers    from    protecting          their      businesses         from   third-party

raiding.    In so doing, it permits John M. Lanning to assist SANY

America, Inc. in cherry picking Manitowoc Company, Inc.'s key

employees   and     thereby      reduces      the     competition          that   Manitowoc

would otherwise be able to exert against SANY, as both compete

in the same marketplace.

    ¶86     Because     I     conclude         that       the    Non-Solicitation           of

Employees   (NSE)     clause      in     Lanning's        employment        contract   with

Manitowoc does not come within the plain meaning of Wis. Stat.

§ 103.465 and is enforceable, I respectfully dissent.

                                   I.    BACKGROUND

    ¶87     Manitowoc,       a    Wisconsin         employer,        participates      in    a

global   market,     where       one    of    its     divisions        manufactures      and

services    large    cranes.           Lanning      was    a    contract      employee      of
Manitowoc's crane division, where he worked as an engineer for

more than 24 years.              During his employment he signed several

contracts   of    employment       with       Manitowoc;        however,      all   parties

agree that the contract at issue here was signed August 11,

2008.

    ¶88     Manitowoc        was         concerned         with        protecting        its

confidential      information          that   permitted         it    to   compete     in   a

global marketplace, and it emphasized that concern in Lanning's
employment contract.          The NSE clause in Lanning's contract with

                                              1
                                                              No.    2015AP1530.pdr


Manitowoc was preceded by the following acknowledgement that was

set out in all caps:

       I AM EMPLOYED OR MAY BE EMPLOYED BY MANITOWOC IN A
       CAPACITY IN WHICH I MAY RECEIVE OR CONTRIBUTE TO
       CONFIDENTIAL INFORMATION.    IN CONSIDERATION OF SUCH
       EMPLOYMENT OR CONTINUED EMPLOYMENT, AND THE WAGES,
       SALARY OR COMMISSIONS AND OTHER EMPLOYEE BENEFITS IN
       COMPENSATION FOR MY SERVICES, AND IN CONSIDERATION OF
       BEING GIVEN ACCESS TO CONFIDENTIAL INFORMATION, I
       AGREE TO ALL OF THE FOLLOWING:
       ¶89   As a Manitowoc employee who had access to Manitowoc's

confidential information, Lanning agreed:

       (2) Non-Solicitation of Employees.      I agree that
       during my Employment by Manitowoc and for a period of
       two years from the date my Employment by Manitowoc
       ends   for  any   reason,   including  termination  by
       Manitowoc with or without cause, I will not (either
       directly or indirectly) solicit, induce or encourage
       any employee(s) to terminate their employment with
       Manitowoc or to accept employment with any competitor,
       supplier or customer of Manitowoc.
       ¶90   In   January   2010,     Lanning    terminated    his    employment

with Manitowoc and went to work for SANY, a worldwide competitor

of   Manitowoc's    crane     division.     Shortly    after     joining    SANY,

Lanning and SANY began an aggressive attack on Manitowoc, as

SANY   attempted    to   hire      Manitowoc's    skilled   employees.         For

example,     Lanning   took    a    Manitowoc    employee   to      lunch   during

SANY's recruitment efforts.           He accompanied another employee on

a SANY plant tour in China and participated in SANY interviews

of Manitowoc employees.            Lanning and SANY's recruitment efforts

were successful.       Key employees left Manitowoc and joined SANY.

       ¶91   Lanning has not denied that he violated the NSE clause
in his employment contract.             The circuit court found that he


                                        2
                                                                 No.    2015AP1530.pdr


breached his contract with Manitowoc and awarded compensatory

damages.     The court of appeals reversed.

                                II.    DISCUSSION

                           A.   Standard of Review

       ¶92   This case turns on the interpretation and potential

application of Wis. Stat. § 103.465.                  Statutory interpretation

and     application   present        questions       of    law   that    we   decide

independently, while benefitting from the analyses of the court

of appeals and the circuit court.              DeHart v. Wis. Mut. Ins. Co.,

2007 WI 91, ¶8, 302 Wis. 2d 564, 734 N.W.2d 394.

                      B.    Statutory Interpretation

                           1.   General principles

       ¶93   The   purpose      of     statutory          interpretation      is   to

determine the statute's meaning so that we can give the statute

its proper effect.         Id., ¶12 (citing State ex rel Kalal v. Cir.

Ct. for Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d

110).     We begin with the language chosen by the legislature.

Kalal, 271 Wis. 2d 633, ¶45.              Statutory words are given their
plain and ordinary meaning unless they are technical terms or

have    specific   definitions        within   the    statute.         Id.    If   the

meaning of the statute is apparent from the plain meaning of the

words chosen by the legislature, we ordinarily stop our analysis

and apply that plain meaning to the questions presented for our

review.      Id.   We may use legislative history to confirm a plain

meaning interpretation.         Id., ¶51.




                                         3
                                                             No.   2015AP1530.pdr


                          2.     Wisconsin Stat. § 103.465

    ¶94     We interpret and consider whether to apply Wis. Stat.

§ 103.465, which provides:

    A covenant by an assistant, servant or agent not to
    compete with his or her employer or principal during
    the term of the employment or agency, or after the
    termination of that employment or agency, within a
    specified territory and during a specified time is
    lawful and enforceable only if the restrictions
    imposed are reasonably necessary for the protection of
    the employer or principal. Any covenant, described in
    this section, imposing an unreasonable restraint is
    illegal, void and unenforceable even as to any part of
    the covenant or performance that would be a reasonable
    restraint.
    ¶95     The "covenant" addressed in Wis. Stat. § 103.465 is

the promise made by an "assistant, servant or agent" and is

limited in scope in that he or she promises "not to compete"

with "his or her employer" while employed by the employer or, in

specified circumstances, after that employment has ended.                     An

employee     is   an    individual      included   within     the     statute's

protection of "servant."            Romero v. West Bend Mut. Ins. Co.,

2016 WI App 59, ¶39, 371 Wis. 2d 478, 885 N.W.2d 591 (citing
Restatement (Second) of Agency § 220 cmt. g. (1958) ("explaining

that 'servant' and 'employee' are interchangeable terms")).

    ¶96     The statutory language is limited in regard to whom it

applies.     That is, Wis. Stat. § 103.465 applies only to the

employee who signs a contract containing such a covenant and

"his or her employer."            A plain reading of the statute shows

that the statute is not to be read as applying to a universe of

employers,    but      rather,     it   is   directed   at   one    particular
employer.

                                         4
                                                                      No.    2015AP1530.pdr


       ¶97       "To    compete"    is    not      defined     within       the   statute.

Black's Law Dictionary defines competition as, "the struggle for

commercial        advantage."        Black's        Law    Dictionary     322     (9th   ed.

2009).       Accordingly, competition equates with those actions by

an employee that evince the struggle for commercial advantage of

the employee over his or her employer.

       ¶98       The statute also says that "any covenant described in

this section," i.e., a covenant by an employee not to compete

with       his    or     her   employer,       that       imposes    an     "unreasonable

restraint" is not enforceable.                  On whom do we focus to determine

if the covenant is an "unreasonable restraint?"                              Plainly, we

focus on the effect of the covenant on the employee because it

is the individual employee who made the promise to be restrained

in his or her actions.

       ¶99       It    is   important    to    note   that     the   term     "trade"     is

nowhere to be found in Wis. Stat. § 103.465.                         Nor should it be

implied      because        the    restraint       that     § 103.465       addresses     is

plainly      the       restraint    of   the       employee    who    signed      the    NSE
agreement.            As I will explain in some detail below, it is not a

broad restraint of trade that is referenced in § 103.465, even

though some opinions casually incorporate that term.1



       1
       The court of appeals specifically interpreted the term
"restraint" in Wis. Stat. § 103.465 as restraining trade.
Manitowoc Company, Inc. v. Lanning, 2016 WI App 72, ¶14, 371
Wis. 2d 696, 885 N.W.2d 798.       This interpretation goes far
beyond what a plain reading of the statute permits and creates a
universe of persons to which § 103.465 may be applied that is
much broader than that which the legislature created.


                                               5
                                                                  No.   2015AP1530.pdr


      ¶100 A    restraint     of     trade     is     prohibited         under     the

provisions of Wisconsin Statutes ch. 133.                  A restraint of trade

has a broad focus.       For example, Wis. Stat. § 133.01 is grounded

in a different scope of coverage and has a different analysis

for alleged violations than does Wis. Stat. § 103.465.                       Alleged

restraints of trade are examined under the "rule of reason,"

wherein    Wisconsin    courts      follow    federal       court       analyses     of

alleged violations of section 1 of the Sherman Antitrust Act.

Indep. Milk Producers Co-op v. Stoffel, 102 Wis. 2d 1, 6-7, 298

N.W.2d 102 (Ct. App. 1980).             Restraints of trade involve such

matters    as   monopolies,      that    inhibit      competition,         sometimes

vertically and sometimes horizontally, but on a broad basis.

See   Olstad    v.   Microsoft     Corp.,    2005    WI    121,    ¶¶13,    14,    284

Wis. 2d 224, 700 N.W.2d 139.

      ¶101 By inserting "restraint of trade" language into our

opinions, we have moved little by little away from Wis. Stat.

§ 103.465's plain meaning, which addresses only the restraint of

an employee.     In so doing, we have incrementally broadened what
the legislature chose to regulate under § 103.465.                        We did so

with a casual reference to a broad doctrine, restraint of trade,

without    reasoning     whether     § 103.465        actually      proscribed       a

restraint of trade or something more narrow.

      ¶102 For example, in 1959, in Lakeside Oil Co. v. Slutsky,

8 Wis. 2d 157, 98 N.W.2d 415 (1959), we were presented with an

injunction against a former employee that enforced a covenant

not   to   compete.     Slutsky     contended       that   the    covenant     was   a
restraint of trade and therefore was illegal.                     Id. at 161.        In

                                        6
                                                                   No.    2015AP1530.pdr


deciding     whether      the        injunction     was     properly      placed,       we

evaluated       the    employment       contract    in     light   of      controlling

statutes.        We    concluded,      the    "contract     on   its     face     is   not

illegal."        Id.     The     statute      to   which    we   referred       when   we

reviewed whether a "restraint of trade" had occurred was Wis.

Stat. § 133.01.        Id.     It was not Wis. Stat. § 103.465.                 However,

we noted later in the opinion that in 1957 the legislature had

enacted § 103.465.           Id. at 161-62.         We then went on to examine

the effect of the non-compete on the employer and employee, at

times drawing in antitrust concerns that are properly analyzed

under § 133.01, but not under § 103.465.                   Id. at 167.

      ¶103 In Behnke v. Hertz Corp., 70 Wis. 2d 818, 235 N.W.2d

690 (1975), we addressed a non-compete agreement that National

Car   Rental     required       of    its    employee,     Barbara       Kreft.        The

agreement provided:

      I agree not to work for any car rental competitor in
      the city of Milwaukee for one year if and when this
      present job is terminated.
Id. at 820.

      ¶104 We began our discussion in Behnke by recognizing that

the contract provision at issue was controlled by Wis. Stat.

§ 103.465.       Id.    We then mused about various contract provisions

spoken     to    in    Restatement          (Second)      Contracts,      picking       up

"restraint of trade" language from the Restatement.                       Id. at 821.

We did not discuss whether a restraint of trade was a broader

concept than a restraint of an employee; the question was never

presented.



                                             7
                                                                          No.   2015AP1530.pdr


       ¶105 In Zimmermann v. Brennan, 78 Wis. 2d 510, 254 N.W.2d

719 (1977), we examined whether a profit sharing plan provision

was unenforceable under Wis. Stat. § 103.465 when it provided

that Zimmermann would lose the unpaid portion of his vested

interest if he became employed by a "competitive business."                                   Id.

at    512.        Zimmermann      alleged     that       "the   forfeiture           provision

contained in the plan constituted an unreasonable restraint of

trade under sec. 103.465, Stats.," using the broad "restraint of

trade" language found in earlier opinions.                            Id.       Although the

trial court found the provision was an unreasonable restraint of

trade,    we      opined   that    we    need      not   decide      whether         the    trial

judge's       conclusion     was        correct      because        the     business         that

Zimmermann engaged in subsequent to his employment by Brennan

was not a "competing business."                   Id. at 512-13.

       ¶106 In Strief v. Am. Family Mut. Ins. Co., 118 Wis. 2d

602, 348 N.W.2d 505 (1984), we concluded that a clause in an

insurance agent's contract was unenforceable under Wis. Stat.

§ 103.465 as "an unreasonable restraint of trade."                              Id. at 603-
04.    However, the opinion actually turns on the interpretation

of the contractual provisions, not on an interpretation of the

scope of § 103.465.          Id. at 611-12.

       ¶107 In Tatge v. Chambers & Owen, Inc., 219 Wis. 2d 99, 579

N.W.2d    217      (1998),   we    examined        whether      a    wrongful        discharge

claim would lie for the discharge of an at-will employee who

refused to sign a non-disclosure, non-compete agreement.                                   Id. at

101.         We   assumed    that       the     provisions          sought      to    restrain
competition, and therefore, came within Wis. Stat. § 103.465.

                                              8
                                                                 No.   2015AP1530.pdr


Id. at 112.        We reasoned that § 103.465 "evidences a strong

public policy against the enforcement of trade restraints which

are determined to be unreasonable upon all employees."                         Id. at

114-15.

    ¶108 Before concluding that no claim for wrongful discharge

could be made, we explained that "the validity of a restrictive

covenant is to be established by examination of the particular

circumstances which surround it."              Id. at 116-17 (citing Rollins

Burdick Hunter of Wis., Inc. v. Hamilton, 101 Wis. 2d 460, 468,

304 N.W.2d 752 (1981) ("What is reasonable varies from case to

case, and what may be unreasonable in one instance may be very

reasonable in another.")).

    ¶109 In Heyde Cos., Inc. v. Dove Healthcare, LLC, 2002 WI

131, 258 Wis. 2d 28, 654 N.W.2d 830, we applied Wis. Stat.

§ 103.465 to a contract between two corporations.                      Id., ¶1.      We

broadly   stated    the   issue      as:       "whether   a     no-hire    provision

contained in a contract between employers, without the knowledge

and consent of the affected employees, is unenforceable as an
unreasonable    restraint       of    trade."        Id.,     ¶9.       This      broad

statement of the issue permitted us to ignore the plain meaning

of § 103.465, which requires an employee covenant.                          However,

notwithstanding     that       little      detail,      i.e.,    the      words    the

legislature    chose,     we   struck      down   the   agreement      between     two

companies based on our expansion of § 103.465.                  Id., ¶13.

    ¶110 Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d

274, 767 N.W.2d 898, is our most recent decision involving Wis.
Stat. § 103.465.        Star Direct involved a business non-compete

                                           9
                                                                      No.    2015AP1530.pdr


clause and a customer non-compete clause in Dal Pra's employment

contract    with     Star       Direct.      We       applied      § 103.465      to   both

clauses.          Id.,    ¶5.       No    question          was    raised     about    the

applicability of § 103.465 to these clauses.

       ¶111 We started our analysis with the now common, broad

statement:        "Restrictive covenants in Wisconsin are prima facie

suspect as restraints of trade."                  Id., ¶19. (citing Streiff, 118

Wis.   2d   at    611).     However,        we    did   not       expand    our   analysis

consistent with that broad statement as we had in Heyde, but

instead,     we     narrowly      focused        on   the    particular       facts    and

circumstances of Star Direct and Dal Pra.                           We recognized the

legitimate concerns of an employer when a former employee is in

possession of confidential business information.                       Id., ¶47.

       ¶112 Equity Enterprises, Inc. v. Milosch, 2001 WI App 186,

274 Wis. 2d 172, 633 N.W.2d 632, contained a contract with a NSE

clause.     However, the court of appeals did not address whether

Wis. Stat. § 103.465 applied to NSE clauses or whether it was

relevant to Milosch's claim for commissions that he asserted
Equity was retaining.

       ¶113 In Mut. Serv. Cas. Ins. Co. v. Brass, 2001 WI App 92,

242 Wis. 2d 733, 625 N.W.2d 648, the court of appeals in meeting

MSI's concern that Brass's new employer, American National Ins.

Co., had raided the ranks of its career agents, reasoned that

NSE provisions do not come within Wis. Stat. § 103.465.                                Id.,

¶17.    The court of appeals said that "[t]he law [§ 103.465],

however, does not protect against the raiding of a competitor's
employees.        Rather, it encourages the mobility of workers."                       Id.

                                            10
                                                              No.   2015AP1530.pdr


In so concluding, the court of appeals affirmed that § 103.465

is     focused    on   covenants     that   preclude   the     employee      from

realizing employment opportunities, but that it does not apply

to all agreements that employees make with their employers.

       ¶114 Few states have examined NSE provisions in employment

contracts.       However, a provision similar to the NSE covenant at

issue here was addressed in CDI Corp. v. Hough, 9 So. 3d 282

(La. Ct. App. 1 Cir. 3/27/09).              Hough was a vice-president of

operations for CDI.         In connection with his employment he signed

a NSE agreement that provided:

       For a period of twelve (12) months following the
       termination of your employment with the Company, you
       will not:

       (a)   Directly or indirectly hire or cause to be hired,
             or solicit, interfere with or attempt to entice
             away from the Company, any individual who was an
             employee of the Company within six (6) months
             prior to such contact, solicitation, interference
             or enticement.
Id. at 284.

       ¶115 Hough and Kyzer, another employee of CDI, decided to

set up a competing business.            They did so and then recruited

several CDI employees to go to work for their new company.                    Id.

at 285.

       ¶116 CDI    sought    and   obtained    an   injunction      prohibiting

further raiding of CDI employees.             On appeal, Hough challenged

the injunction, claiming that it violated a Louisiana statute

that    regulated      non-compete    agreements    between     employees     and

employers.       Id. at 286.



                                       11
                                                                    No.   2015AP1530.pdr


      ¶117 The     court    noted       that    generally    parties      contract       as

they see fit, and courts "will enforce the contract as written,

provided the agreement is not contrary to good morals or public

policy."    Id. at 287.       The court then noted that the purpose of

the Louisiana statute was to avoid restraints on an employee's

employment opportunities, which is not a concern of an agreement

not to solicit an employer's employees.                   Id. at 290.

      ¶118 The court concluded that the NSE agreement "does not

prevent    Mr.   Hough     from    exercising       his    trade,    profession,         or

business.    In fact, the agreement assumes Mr. Hough will compete

with CDI Corporation."            Id. at 292.         The court then concluded

that the NSE agreement Hough signed with CDI is not governed by

the statute raised by Hough and is enforceable.                     Id.

                            C.     The NSE Agreement

      ¶119 As I consider whether the NSE agreement at issue here

comes within the provisions of Wis. Stat. § 103.465, I note how

the   statute    expresses        its    concerns    for     employees.             Section

103.465 plainly focuses on contractual promises of an employee
"not to compete with his or her employer."                      The language chosen

by the legislature is driven by a legislative policy choice that

employees    not    be     subjected       to     undue     restraints         on     their

employability      or    mobility.         Streiff,       118    Wis.     2d    at     614.

Covenants that the employee not work for a competitor, supplier

or customer of his or her employer come within covenants not to

compete with the employee's employer.

      ¶120 However,        Wis.    Stat.       § 103.465     also     considers         the
interests of employers and their necessary business interests.

                                           12
                                                                   No.   2015AP1530.pdr


For example, § 103.465 does permit employers to contract for

restrictions       that    would       limit    their     employees        employment

opportunities if the restriction is reasonable in time and place

and reasonably necessary to protect a business interest of the

employer.     Rollins Burdick, 101 Wis. 2d at 469.

      ¶121 Lanning's       contract      with     Manitowoc        provides:         "IN

CONSIDERATION OF BEING GIVEN ACCESS TO CONFIDENTIAL INFORMATION,

I AGREE TO ALL OF THE FOLLOWING:."                The NSE clause follows.            In

the contract, Lanning agreed that during his employment, and for

two   years    thereafter,        he    will    not    try    to    persuade    other

employees     of    Manitowoc      to     leave       Manitowoc     or    to   accept

employment with a competitor, supplier or customer of Manitowoc.

      ¶122 On its face, the NSE clause protects against only the

raiding of Manitowoc's key employees by Lanning, who was given

access to Manitowoc's confidential information.                          It does not

prevent Lanning from competing with Manitowoc.                     He can work for

whomever he chooses, including a direct competitor such as SANY,

in any place, at any time.                 He can use all the engineering
skills he possesses.            He can contact customers of Manitowoc in

an attempt to sell or service more cranes.                   Furthermore, the NSE

clause does not prevent Manitowoc's other employees from leaving

Manitowoc for other employment opportunities, including working

for a competitor such as SANY.              The NSE clause simply restrains

Lanning from raiding Manitowoc's skilled employees.

      ¶123 I agree with the court of appeals in Brass; Wis. Stat.

§ 103.465     "does       not    protect       against       the    raiding     of     a
competitor's employees."           That concern is not within the purview

                                          13
                                                                        No.    2015AP1530.pdr


of § 103.465.           Stated otherwise, the NSE covenant does not come

within the provisions of § 103.465 because it is not a covenant

that prohibits Lanning from competing with Manitowoc.

       ¶124 Lanning does not question that there was consideration

for the contract he signed.                    Courts generally honor the rights

of parties to freely contract.                   Solowicz v. Forward Geneva Nat.,

LLC,       2010    WI   20,     ¶34,     323    Wis.    2d    556,     780     N.W.2d   111.

Accordingly, I would honor the right to freely contract and

enforce the agreement Lanning made.

                                         D.    Lead opinion

       ¶125 The lead opinion gets off track by asserting that Wis.

Stat. § 103.465 applies to "agreements viewed as restraints of

trade."2      It cites Heyde for this proposition, and as I explained

above, Heyde dealt with an agreement between two companies.                                See

also Heyde, 258 Wis. 2d at 47 (Sykes, J., dissenting) ("The

majority analyzes this case as though it were a lawsuit between

an employer and a former employee, but it is not. It is a breach

of contract lawsuit between two sophisticated businesses.").
       ¶126 The         lead    opinion        herein   creates        an     even   broader

application of Wis. Stat. § 103.465 than that created by Heyde.

The    lead       opinion      states,    "§ 103.465         'essentially       deals   with

restraint of trade . . . regardless of whether the restriction

is    labeled      a    non-disclosure         provision      or   a   covenant      not   to

compete.'"3         The lead concludes the NSE clause violates § 103.465


       2
           Lead op., ¶5.
       3
           Id., ¶6.


                                                14
                                                                No.    2015AP1530.pdr


because it "affects access to the labor pool by a competitor of

Manitowoc Company (including Lanning's current employer, SANY

America)."4     By that addition, the lead includes the effect of

the NSE on non-parties to the contract.                  Essentially, the lead

legislates new parameters for § 103.465 that are far beyond what

the plain meaning of the statute can accommodate.                     In so doing,

it sets the stage for greater and greater judicial legislating.

     ¶127 As I explained above, using "restraint of trade" as

definitional for Wis. Stat. § 103.465, creates a much broader

regulation than that chosen by the plain meaning of § 103.465,

wherein "trade" is never mentioned.             Using restraint of trade as

the matter being regulated has permitted the Wisconsin Supreme

Court to find a violation of § 103.465 in a contract between two

companies, where no employee was involved.                 Heyde, 258 Wis. 2d

at 47.

     ¶128 Although "restraint of trade" is a term found in many

opinions, it initially was employed when a restraint of trade,

i.e., a violation of Wis. Stat. § 133.01, was claimed.                     Lakeside
Oil, 8 Wis. 2d at 158-59.           While many cases repeat the words,

few expand Wis. Stat. § 103.465 with them as Heyde did and as

the lead opinion does here.

     ¶129 Employers       will     be    harmed     by    the   lead      opinion's

expansive     interpretation       of    Wis.     Stat.     § 103.465       because

employers     will   be   unable    to    prevent    raiding      of    their    key

employees by a former employee who knows which employees are


     4
         Id., ¶9.


                                         15
                                                                          No.    2015AP1530.pdr


important to the former employer's operations.                                  When such an

employee    joins       an    aggressive         competitor,      competition          in    the

marketplace will be diminished because the former employer will

become a less effective competitor than it was before its key

employees were raided.

                                   III.     CONCLUSION

    ¶130 The lead opinion distorts the plain meaning of Wis.

Stat.     § 103.465,         thereby     changing      it     from        a     statute     that

balanced the rights of employees and their employers into a

broad   mandate        that    prevents      employers        from    protecting          their

businesses from third-party raiding.                       In so doing, it permits

Lanning     to    assist       SANY    in    cherry        picking        Manitowoc's        key

employees    and    thereby        reduces       the   competition            that   Manitowoc

would otherwise be able to exert against SANY as both compete in

the same marketplace.

    ¶131 Because I conclude that the NSE clause in Lanning's

employment       contract      with    Manitowoc       does    not        come    within     the

plain   meaning        of    Wis   Stat.    § 103.465       and      is       enforceable,     I
respectfully dissent.

    ¶132 I        am        authorized      to     state      that        Justice     ANNETTE

KINGSLAND ZIEGLER joins this dissent.




                                             16
    No.   2015AP1530.pdr




1
