2019 WI 15 

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP291-W 

COMPLETE TITLE: State of Wisconsin ex rel. CityDeck Landing LLC, 

 Petitioner, 

 v. 

Circuit Court for Brown County, the Honorable 

Thomas J. Walsh, presiding, Society Insurance, 

Smet Construction Services Corporation and GB 

Builders, LLC, 

 Respondents. 

PETITION FOR SUPERVISORY WRIT 

OPINION FILED: February 21, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 10, 2018 

SOURCE OF APPEAL: 

 COURT: 

 COUNTY: 

 JUDGE: 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, 

J. (opinion filed) 

 NOT PARTICIPATING: DALLET, J. did not participate. 

 

ATTORNEYS: 

For the petitioner, there were briefs filed by Eric M. 

McLeod, Paul D. Cranley, Katherine Smith Polich, Joseph S. 

Diedrich, and Husch Blackwell LLP, Madison. 

For the respondents, Circuit Court for Brown County and the 

Honorable Thomas J. Walsh, there was a brief filed by Brian P. 

Keenan, assistant attorney general, with whom on the brief was 

Brad D. Schimel, attorney general. 
2

For the respondent, Society Insurance, there was a brief 

filed by Jeffrey Leavell, Danielle N. Rousset, Brandon L. Parks, 

and Jeffrey Leavell, S.C., Racine. 
2019 WI 15

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP291-W 

(L.C. No. 2017CV1324) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin ex rel. CityDeck Landing 

LLC, 

 Petitioner, 

 v. 

Circuit Court for Brown County, the Honorable 

Thomas J. Walsh, presiding, Society Insurance, 

Smet Construction Services Corporation and GB 

Builders, LLC, 

 Respondents. 

FILED 

FEB 21, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

PETITION for supervisory writ. Granted; stay order 

vacated.

¶1 REBECCA GRASSL BRADLEY, J. The circuit court ordered 

the arbitration of a private construction dispute stayed until 

it could decide an insurance coverage dispute between one of the 

contractors connected to the arbitration and the contractor's 

insurer. CityDeck Landing LLC petitions this court, pursuant to 

Wis. Stat. § (Rule) 809.71 (2015-16),1 for a supervisory writ. 

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. 
No. 2018AP291-W 

2 

CityDeck asks this court to exercise its superintending 

constitutional authority to vacate the circuit court's2 order. 

CityDeck asserts the circuit court exceeded its jurisdiction by 

putting the private arbitration3 on hold, and that a supervisory 

writ is necessary to correct the circuit court's extrajurisdictional act. We hold the circuit court lacked the 

authority to issue the order staying the arbitration, the 

requirements necessary to issue a supervisory writ have been 

satisfied, and the stay order must be vacated. 

I. BACKGROUND 

¶2 In December 2013, CityDeck hired Smet Construction 

Services Corporation as its general contractor to construct an 

apartment building called "CityDeck Residences" in Green Bay. 

Smet hired subcontractors, including GB Builders of Northeastern 

Wisconsin, LLC; Lunda Construction Company; Security-Luebke 

Roofing, Inc.; and Lakeland Construction, Inc. The construction 

contract required any disputes to be resolved by arbitration. A 

dispute arose and in May 2016, CityDeck filed for arbitration 

against Smet, alleging breach of the construction contract and 

theft by contractor. It filed an amended demand for arbitration 

in November 2016. In July 2017, Smet sought to bring the 

subcontractors into the arbitration because it contended the 

 

2 Brown County Circuit Court, Thomas J. Walsh, Judge. 

3 The parties independently initiated the arbitration in 

this case pursuant to a private contract, without involvement by 

the court system. 
No. 2018AP291-W 

3 

subcontractors were responsible for the problems and each of the 

subcontracts contained an indemnity provision requiring the 

subcontractor to "defend, indemnify and hold [Smet] harmless." 

Most of the subcontractors voluntarily joined the arbitration. 

GB Builders notified its insurer, Society Insurance, of the 

claim, and Society hired an attorney to represent GB Builders 

under a reservation of rights. In August 2017, Smet tendered 

the defense of the CityDeck claim to Society, asserting it was 

an additional insured under the insurance policy Society issued 

to GB Builders. In October 2017, GB Builders filed an answer to 

Smet's demand for arbitration, asking the arbitrator for 

dismissal. The arbitrator scheduled the arbitration hearing for 

March 1, 2018. 

¶3 In October 2017, however, Society Insurance filed a 

declaratory judgment complaint in Brown County Circuit Court 

against CityDeck, Smet, and GB Builders. Society sought a 

declaration "on the scope of its insurance duties" to Smet and 

GB Builders with respect to CityDeck's construction claims under 

arbitration. Society asked the circuit court to stay the 

arbitration until it could decide the insurance coverage issue. 

The circuit court granted Society's request and ordered the 

arbitration stayed on January 2, 2018. 

¶4 CityDeck asserted the circuit court lacked 

jurisdiction to order a private arbitration stayed, particularly 

when the circuit court action and the arbitration involved 

different issues and different parties; three subcontractors who 

were parties to the arbitration were not named in the circuit 
No. 2018AP291-W 

4 

court suit. CityDeck filed a motion asking the circuit court to 

reconsider its decision. The circuit court ignored CityDeck's 

motion to reconsider, and CityDeck filed a petition for a 

supervisory writ in the court of appeals. The court of appeals 

construed the petition as an appeal from a non-final order and 

denied the petition. CityDeck filed a petition for a 

supervisory writ with this court. We accepted jurisdiction over 

CityDeck's petition and heard oral argument. 

II. ANALYSIS 

A. Historical Analysis 

¶5 Wisconsin cases contain inconsistencies regarding writ 

procedure, terminology, and the standards applicable to the 

exercise of our constitutional superintending authority. For 

the sake of clarity, we set forth the history of writs requested 

under our superintending authority, the origin of the term 

"supervisory writ," and an unexplained discrepancy in our cases 

illuminated in State ex rel. Beaudry v. Panosian, 35 Wis. 2d 

418, 151 N.W.2d 48 (1967). 

1. History of writ procedure 

¶6 Article VII, § 3 of the Wisconsin Constitution gives 

the supreme court "superintending and administrative authority 

over all courts" and the ability to "issue all writs necessary 
No. 2018AP291-W 

5 

in aid of its jurisdiction."4 Interpreting this provision, this 

court held that "[the supreme court] was endowed with a separate 

and independent jurisdiction, which enables and requires it in a 

proper case to control the course of ordinary litigation in such 

inferior courts, and was also endowed with all the common-law 

writs applicable to that jurisdiction." State ex rel. Fourth 

Nat'l Bank of Phila. v. Johnson, 103 Wis. 591, 613, 79 N.W. 1081 

(1899). This court concluded that "when the makers of the 

constitution used the words 'superintending control over all 

inferior courts' they definitely referred to that well-known 

superintending jurisdiction of the court of king's bench." Id. 

at 614. "The two great writs by which this superintending 

jurisdiction was principally exercised by the court of King's 

bench were the writs of mandamus and prohibition; the one 

directing action by the inferior court, and the other forbidding 

action." Id. 

¶7 A writ of prohibition "restrain[s] a court in the 

exercise of judicial functions outside or beyond its 

jurisdiction, and when there is no other adequate remedy." 

State ex rel. Attorney Gen. v. Circuit Court of Eau Claire Cty., 

 

4 In 1899, the provision read, in relevant part, "The 

supreme court shall have a general superintending control over 

all inferior courts; it shall have power to issue writs of 

habeas corpus, mandamus, injunction, quo warranto, certiorari, 

and other original and remedial writs, and to hear and determine 

the same." State ex rel. Fourth Nat'l Bank of Phila. v. 

Johnson, 103 Wis. 591, 610, 79 N.W. 1081 (1899) (emphasis 

omitted). 
No. 2018AP291-W 

6 

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

De Puy v. Evans, 88 Wis. 255, 263, 60 N.W. 433 (1894) ("So this 

court has repeatedly held that under our statutes such writ 

issues only to restrain the acts of a court or other inferior 

tribunal exercising some judicial power which it has no legal 

authority to exercise at all."); State ex rel. Kellogg v. Gary, 

33 Wis. 93, 98 (1873) ("It does not issue to restrain the acts 

of either executive or administrative officers, but only those 

of a court or other inferior tribunal engaged in the exercise of 

some judicial power, and that not merely in a manner not 

authorized by law, but it must also be in defiance of law, or 

without any legal authority whatever for that purpose."). 

¶8 Prior to 1921, it was the rule in Wisconsin "that 

prohibition will not lie against a judge of a lower court except 

in a situation where such judge is exceeding his jurisdiction." 

State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90 

N.W.2d 790 (1958). However, the rule changed so that 

"prohibition may be invoked in case of a non-jurisdictional 

error in a situation where appeal from the judgment would come 

too late for effective redress and great hardship would result 

if such writ were not issued." Id. See also In re Inland Steel 

Co., 174 Wis. 140, 143, 182 N.W. 917 (1921) ("[I]t is the 

opinion of the court that jurisdiction may properly be exercised 

though the duty of the court below may not be so plain as to 

permit of but one conclusion, if a careful consideration of all 

the facts shows that a valid service has not been made."); State 

ex rel. Hustisford Light, Power & Mfg. Co. v. Grimm, 208 Wis. 
No. 2018AP291-W 

7 

366, 370, 243 N.W. 763 (1932) ("Neither the power nor the 

exercise of it as a matter of policy is limited to keeping the 

lower court within its jurisdiction or compelling it to act."); 

State ex rel. Gaynon v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d 

437 (1966) ("Traditionally, this writ was used to keep an 

inferior court from acting outside its jurisdiction when there 

was no adequate remedy by appeal or otherwise. But, . . . the 

writ has been expanded to cover cases of 'nonjurisdictional 

error when the appeal may come too late for effective redress, 

or be inadequate and there is a need for such intervention to 

avoid grave hardship or a complete denial of the rights of a 

litigant.'") (internal citations and quoted source omitted). 

¶9 In Fourth National Bank, this court acknowledged it 

granted a writ of prohibition in Attorney General, to prevent 

"the further prosecution of certain contempt proceedings in the 

circuit court because such court was acting in excess of its 

jurisdiction." Fourth Nat'l Bank, 103 Wis. at 617. This court 

explained in Attorney General: "Having held that the attempt to 

punish the publication in question as contempt was in excess of 

the jurisdiction of the circuit court, no reason is seen why the 

writ is not an apt and proper remedy, unless, indeed, there be 

other adequate remedies." Attorney Gen., 97 Wis. at 15. The 

court proceeded to rule out the use of other writs and concluded 

that a writ of prohibition was appropriate. Id. 

¶10 While Fourth National Bank explained the court's 

superintending power, it specifically dealt with the issuance of 

a writ of mandamus. 103 Wis. at 618. The court stated that 
No. 2018AP291-W 

8 

"unless there be adequate remedy for such denial in the regular 

exercise of the appellate jurisdiction of this court, it is 

difficult to see why the superintending jurisdiction should not 

be exercised to quash the neglect or refusal of the circuit 

court, and compel it to act within its jurisdiction." Id. at 

621. 

¶11 In addition, Fourth National Bank created several 

principles for issuing a writ of mandamus. First, "[t]he 

general rule of law undoubtedly is that mandamus will not lie 

where there is a remedy by appeal or writ of error. But the 

remedy by appeal must be substantially adequate in order to 

prevent relief by mandamus." Id. at 622 (internal citations 

omitted). Second, "[i]t is very plain that, if the creditors 

are to exercise their rights with any prospect of benefit, they 

must exercise them promptly." Id. Third, "reliance is placed 

upon the well-known principle that mandamus will not lie to 

control the exercise of discretion." Id. Fourth, "[w]here it 

clearly appears that discretion has been not merely abused, but 

not exercised at all, or that the action taken by the inferior 

court is without semblance of legal cause, and no other adequate 

remedy exists, mandamus will lie to compel the specific action 

which should have been taken." Id. at 623. Fifth, "[t]he duty 

of the court must be plain, the refusal to proceed within its 

jurisdiction to perform that duty must be clear, the results of 

such refusal prejudicial, the remedy, if any, by appeal or writ 

of error utterly inadequate, and the application for relief by 
No. 2018AP291-W 

9 

mandamus speedy and prompt, in order to justify the issuance of 

the writ." Id. at 623-24. 

¶12 It appears, however, that the requirements outlined in 

Fourth National Bank for a writ of mandamus became requirements 

for all writs issued under the court's supervisory powers. In 

1907, in a mandamus case, the court wrote that it would apply 

its supervisory control only "where the duty of the inferior 

court to act within its jurisdiction or to refrain from going 

beyond its jurisdiction is plain and imperative, where such 

court threatens to violate that duty to the substantial 

prejudice of the rights of the petitioner, where all other 

remedies are inadequate, and the application for relief [is] 

prompt." State ex rel. Milwaukee Elec. Ry. & Light Co. v. 

Circuit Court for Rock Cty., 133 Wis. 442, 444, 113 N.W. 722 

(1907) (citing Fourth Nat'l Bank). That case, Fourth National 

Bank, and two other mandamus cases,5 were then cited in State ex 

rel. Pierce-Arrow Motor Car Co. v. Circuit Court of Milwaukee 

Cty., 143 Wis. 282, 127 N.W. 998 (1910), as principles for 

exercising general superintending control. The court stated: 

Those principles in substance are that this 

[superintending] jurisdiction is not to be exercised 

upon light occasion, but only upon some grave 

exigency; that the writs by which it is exercised will 

not be used to perform the ordinary functions of an 

appeal or writ of error; that the duty of the court 

below must be plain; its refusal to proceed within the 

 

5 State ex rel. City of Milwaukee v. Ludwig, 106 Wis. 226, 

82 N.W. 158 (1900); State ex rel. Umbreit v. Helms, 136 Wis. 

432, 118 N.W. 158 (1908). 
No. 2018AP291-W 

10 

line of such duty, or, on the other hand, its intent 

to proceed in violation of such duty must be clear; 

the results must be not only prejudicial, but must 

involve extraordinary hardship; the remedy by appeal 

or writ of error must be utterly inadequate; and the 

application for the exercise of the power of 

superintending control must be speedy and prompt. 

Id. at 285. Pierce-Arrow, however, was a prohibition case——not 

a mandamus case. 

¶13 Nonetheless, the principles outlined in Pierce-Arrow 

were reiterated in a later prohibition case, State ex rel. Pabst 

v. Circuit Court for Milwaukee Cty., 184 Wis. 301, 304, 199 N.W. 

213 (1924). However, that court went on to apply only some of 

the Pierce-Arrow principles, stating "[i]f the duty of the 

circuit court to abate the action against the Pabst Brewing 

Company were clear, and the relator did suffer extraordinary 

hardship by reason of the court's failure to perform its duty, 

and if he had no other adequate remedy, the duty of this court 

to assume jurisdiction is well settled." Id. Notably, the 

court did not address the factor requiring that "the application 

for the exercise of the power of superintending control must be 

speedy and prompt." 

¶14 Likewise, other cases did not uniformly or 

consistently apply the Pierce-Arrow principles. Some cases 

utilized only two. First, "[i]n order to entitle a party to a 

writ of prohibition, the results of the error attacked must not 

only be prejudicial to him but must [also] involve extraordinary 

hardship." Kiekhaefer, 4 Wis. 2d at 490 (emphasis omitted) 

(citing Pierce-Arrow). Second, "[i]t is a further well 

established principle that prohibition will not lie where there 
No. 2018AP291-W 

11 

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

ex rel. Mitchell v. Superior Court of Dane Cty., 14 Wis. 2d 77, 

81, 109 N.W.2d 522 (1961) ("Ordinarily such a writ should be 

issued only to prevent an inferior court from exercising 

jurisdiction in a case where i[t] should not be exercised or 

assumed. Nor should a writ of prohibition be issued if there is 

an adequate remedy by way of appeal, except where great hardship 

would result.") (internal citations omitted). However, other 

cases referenced all of the principles from Pierce-Arrow. For 

example, in State ex rel. Beaudry v. Panosian, the court cited 

Pierce-Arrow and affirmed a motion to quash a petition for a 

writ of prohibition because "from this record it cannot be said 

that the justice court's 'duty' to refrain from exercising 

jurisdiction was plain." Beaudry, 35 Wis. 2d at 425-26; see 

also State ex rel. Lang v. Municipal Justice Court of Cudahy, 50 

Wis. 2d 21, 23-24, 183 N.W.2d 43 (1971) (citing Pierce-Arrow); 

State ex rel. Prentice v. Cty. Court, Milwaukee Cty., 70 

Wis. 2d 230, 234-35, 234 N.W.2d 283 (1975) (citing Pierce Arrow 

and Beaudry). 

¶15 Eventually, the principles developed in Pierce-Arrow 

and cited in Beaudry merged into a four-factor test: 

A petition for a supervisory writ will not be granted 

unless: (1) an appeal is an inadequate remedy; (2) 

grave hardship or irreparable harm will result; (3) 

the duty of the trial court is plain and it must have 

acted or intends to act in violation of that duty[;] 

and (4) the request for relief is made promptly and 

speedily. 
No. 2018AP291-W 

12 

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

220 (Ct. App. 1984) (citing Beaudry). This court subsequently 

endorsed these four factors, and routinely applies them whenever 

a party petitions for a supervisory writ. See Burnett v. Alt, 

224 Wis. 2d 72, 96-97, 589 N.W.2d 21 (1999); State ex rel. Kalal 

v. Circuit Court for Dane Cty., 2004 WI 58, ¶17, 271 

Wis. 2d 633, 681 N.W.2d 110; DNR v. Wis. Court of Appeals, Dist. 

IV., 2018 WI 25, ¶9, 380 Wis. 2d 354, 909 N.W.2d 114. This was 

not always the case. 

¶16 Before adoption of the modern four-factor test, Wis. 

Stat. ch. 817 (1975-76) provided guidance for writs of errors 

and appeals. Parties asking the supreme court to exercise its 

superintending authority did so via an application or a petition 

for a particular writ——typically a writ of mandamus or a writ of 

prohibition. In 1978, the typical practice changed when 

Wisconsin revamped its court system, adding the intermediate 

appellate court——the Wisconsin Court of Appeals. The newly 

revised appellate court structure required revisions to 

appellate rules. The Judicial Council drafted new rules of 

appellate procedure, which this court enacted. Sup. Ct. Order, 

83 Wis. 2d xxvii (1978). Two Rules, 809.51 and 809.71, created 

procedural and filing guidance regarding writ practice in the 

appellate courts. Rule 809.51 applied to the newly-created 

court of appeals, and Rule 809.71 applied to this court. Both 

Rules were titled "Supervisory Writ" although this term did not 

appear in the text of the original statutes. See Wis. Stat. 

§§ (Rules) 809.51 & 809.71 (1977-78). 
No. 2018AP291-W 

13 

¶17 The text of the court of appeals' rule said: "A 

person may request the court to exercise its supervisory 

jurisdiction over a court . . . by filing a petition and 

supporting memorandum." The text of the supreme court rule 

said: "A person may request the supreme court to exercise its 

supervisory jurisdiction . . . by filing a petition in 

accordance with Rule 809.51." The term "supervisory writ" does 

appear in the second sentence of our current Rule 809.71: "A 

person seeking a supervisory writ from the supreme court shall 

first file a petition for a supervisory writ in the court of 

appeals[,]" but the term still does not appear in the text of 

Rule 809.51.6

 

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

809.71 provides: 

809.51 Rule (Supervisory writ and original 

jurisdiction to issue prerogative writ). 

(1) A person may request the court to exercise its 

supervisory jurisdiction or its original jurisdiction 

to issue a prerogative writ over a court and the 

presiding judge, or other person or body, by filing a 

petition and supporting memorandum. The petition and 

memorandum combined may not exceed 35 pages if a 

monospaced font is used or 8,000 words if a 

proportional serif font is used. The petitioner shall 

name as respondents the court and judge, or other 

person or body, and all other parties in the action or 

proceeding. The petition shall contain: 

(a) A statement of the issues presented by the 

controversy; 

(b) A statement of the facts necessary to an 

understanding of the issues; 

(c) The relief sought; and 

(continued) 
No. 2018AP291-W 

14 

 

(d) The reasons why the court should take 

jurisdiction. 

(2) The court may deny the petition ex parte or may 

order the respondents to file a response with a 

supporting memorandum, if any, and may order oral 

argument on the merits of the petition. The response 

and memorandum combined may not exceed 35 pages if a 

monospaced font is used or 8,000 words if a 

proportional serif font is used. The respondents 

shall respond with supporting memorandum within 14 

days after service of the order. A respondent may 

file a letter stating that he or she does not intend 

to file a response, but the petition is not thereby 

admitted. 

(3) The court, upon a consideration of the petition, 

responses, supporting memoranda and argument, may 

grant or deny the petition or order such additional 

proceedings as it considers appropriate. Costs and 

fees may be awarded against any party in a writ 

proceeding. 

(4) A person filing a petition under this section 

shall append to the petition a statement identifying 

whether the petition is produced with a monospaced 

font or with a proportional serif font. If produced 

with a proportional serif font, the person shall set 

forth the word count of the petition. 

809.71 Rule (Supervisory writ). A person may request 

the supreme court to exercise its supervisory 

jurisdiction over a court and the judge presiding 

therein or other person or body by filing a petition 

in accordance with s. 809.51. A person seeking a 

supervisory writ from the supreme court shall first 

file a petition for a supervisory writ in the court of 

appeals under s. 809.51 unless it is impractical to 

seek the writ in the court of appeals. A petition in 

the supreme court shall show why it was impractical to 

seek the writ in the court of appeals or, if a 

petition had been filed in the court of appeals, the 

disposition made and reasons given by the court of 

appeals. 
No. 2018AP291-W 

15 

¶18 With the introduction of the term "supervisory writ" 

via the new appellate rules, post-1978 cases attempted to draw 

from both the old, existing terminology and the new rules. The 

term "supervisory writ" appears for the first time in Wisconsin 

cases in State v. Whitty, 86 Wis. 2d 380, 385, 272 N.W.2d 842 

(1978), which references Wis. Stat. §§ (Rules) 809.51 and 

809.71. Six years later, the current four-factor "supervisory 

writ" test was explicitly declared in a 1984 court of appeals' 

per curiam opinion in Oman, 120 Wis. 2d at 91. Oman lists the 

test with a citation to Beaudry. Beaudry, as noted, does not 

explicitly denominate a four-factor test, but instead cites to 

the general principles set forth in Pierce-Arrow. 

¶19 Dissecting the relevant paragraph in Pierce-Arrow 

results in a list of seven factors guiding the exercise of 

superintending authority: 

(1) This jurisdiction is not to be exercised upon 

light occasion, but only upon some grave exigency; 

(2) The writs by which it is exercised will not be 

used to perform the ordinary functions of an appeal or 

writ of error; 

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

(4) Its refusal to proceed within the line of such 

duty or, on the other hand, its intent to proceed in 

violation of such duty must be clear; 

(5) The results must be not only prejudicial but must 

involve extraordinary hardship; 

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

utterly inadequate; 

(7) The application for the exercise of the power of 

superintending control must be speedy and prompt. 
No. 2018AP291-W 

16 

Pierce-Arrow, 143 Wis. at 285. 

¶20 While the Oman court did not say how it arrived at the 

four factors, it likely condensed these seven principles into 

four factors given their overlap: 

(1) An appeal is an inadequate remedy (see #2 and #6 

of Pierce-Arrow); 

(2) Grave hardship or irreparable harm will result 

(see #1 and #5 of Pierce-Arrow); 

(3) The duty of the trial court is plain and the court 

must have acted or intend to act in violation of that 

duty (see #3 and #4 of Pierce-Arrow); 

(4) The request for relief is made promptly and 

speedily (see #7 of Pierce-Arrow). 

¶21 Alternatively, because the party in Oman sought two 

writs——a writ of mandamus and a writ of prohibition——the Oman 

court may have applied factors derived from each of the tests 

tied to those writs, respectively. Mandamus requires: "(1) a 

clear legal right; (2) a plain and positive duty; (3) 

substantial damages or injury should the relief not be granted, 

and (4) no other adequate remedy at law." Oman, 120 Wis. 2d at 

88 (citing Law Enf't Standards Bd. v. Village of Lyndon Station, 

101 Wis. 2d 472, 493-94, 305 N.W.2d 89 (1981), which actually 

lists two additional factors not mentioned, including "no 

laches" and "no special reasons" making the remedy 

"inequitable."). 

¶22 As Wisconsin appellate courts grappled with the 

language of the older cases, together with the post-1978 body of 

cases, profuse variations of both terminology and tests appeared 
No. 2018AP291-W 

17 

in our modern writ cases. Cases sometimes referred to 

"supervisory writs" and sometimes referred to a specific common 

law writ. Some courts combined the old and new terminology into 

"supervisory writ of prohibition." See State ex rel. Godfrey & 

Kahn, S.C. v. Circuit Court for Milwaukee Cty., 2012 WI App 120, 

¶¶48-50, 344 Wis. 2d 610, 823 N.W.2d 816 (granting a 

"supervisory writ of prohibition" after applying four-factor 

test because trial judge exceeded authority); State ex rel. 

Individual Subpoenaed to Appear at Waukesha Cty. v. Davis, 2005 

WI 70, 281 Wis. 2d 431, 697 N.W.2d 803 (court granted a "writ of 

prohibition," but did not apply four-factor test); State ex rel. 

Garibay v. Circuit Court for Kenosha Cty., 2002 WI App 164, ¶2, 

256 Wis. 2d 438, 647 N.W.2d 455 (denied petition for 

"supervisory writ."). 

¶23 Attempting to define "supervisory writ," the court of 

appeals described it as "a blending of the writ of mandamus and 

the writ of prohibition." State ex rel. Dressler v. Circuit 

Court for Racine Cty., 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. 

App. 1991) (citing Oman). This court likewise adopted this 

definition. See Madison Metro. Sch. Dist. v. Circuit Court for 

Dane Cty., 2011 WI 72, ¶74, 336 Wis. 2d 95, 800 N.W.2d 442; DNR, 

380 Wis. 2d 354, ¶8. Nevertheless, courts continued to 

distinguish between writs of prohibition and writs of mandamus. 

See Madison Metro. Sch. Dist., 336 Wis. 2d 95, ¶¶1, 75-76. This 

historical review reveals inconsistencies in writ law and the 

standards governing our exercise of superintending authority. 
No. 2018AP291-W 

18 

2. Supervisory Writ 

¶24 With the introduction of the term "supervisory writ" 

in 1978, our cases became less clear. The cases are silent as 

to whether the "supervisory writ" was an intentional invention 

or resulted fortuitously from the title the Judicial Council 

drafters chose for Rules 809.51 and 809.71. It is also unclear 

whether a supervisory writ existed as an independent writ under 

which this court exercised its superintending authority or 

whether it was simply a generic term providing the mechanism by 

which parties reached the appellate courts when seeking the 

exercise of supervisory (court of appeals) or superintending 

(supreme court) authority. 

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

case empowering this court to use both the traditional common 

law writs when exercising superintending jurisdiction or 

"devise" any new writs we might deem necessary: 

We have previously observed that with the grant of 

[art. VII, § 3 superintending] jurisdiction [over all 

courts] come all the writs necessary to give it 

effect: 

The framers of the constitution appear to have 

well understood that, with appellate 

jurisdiction, the court took all common law writs 

applicable to it; and with superintending 

control, all common law writs applicable to that; 

and that, failing adequate common law writs, the 

court might well devise new ones, as Lord Coke 

tells us, as "a secret in law." 

Attorney Gen. v. Chicago & N.W. Ry. Co., 35 Wis. 425, 

515 (1874) (construing our original constitution); see 

State v. Buchanan, 2013 WI 31, ¶11, 346 Wis. 2d 735, 

828 N.W.2d 847 ("As the court of original 
No. 2018AP291-W 

19 

jurisdiction, we have discretion to issue a 

supervisory writ."). 

DNR, 380 Wis. 2d 354, ¶7 (footnote omitted). 

¶26 This suggests our "supervisory writ" may in fact be a 

new writ devised to exercise our superintending constitutional 

authority. But, the term "supervisory writ" also bears a second 

meaning. Since its appearance in 1978, a supervisory writ is 

commonly known as the general term used when petitioning 

Wisconsin appellate courts under Rules 809.51 and 809.71. This 

terminology, regardless of whether it entered the law 

intentionally or fortuitously, is firmly entrenched in our 

jurisprudence, and we have never explained or addressed its 

purpose or presence. This historical analysis does not provide 

clear answers, but the court takes this opportunity to clarify 

and acknowledge the dual purpose of the term supervisory writ. 

It is both: (1) the general term used in petitioning the court 

of appeals to exercise its constitutional supervisory authority7

and in petitioning this court to exercise its constitutional 

 

7 Article VII, § 5 of the Wisconsin Constitution gives the 

court of appeals "supervisory authority": 

(3) The appeals court shall have such appellate 

jurisdiction in the district, including jurisdiction 

to review administrative proceedings, as the 

legislature may provide by law, but shall have no 

original jurisdiction other than by prerogative writ. 

The appeals court may issue all writs necessary in aid 

of its jurisdiction and shall have supervisory 

authority over all actions and proceedings in the 

courts in the district. 
No. 2018AP291-W 

20 

superintending authority;8 and (2) a new writ this court devised 

independent of the traditional common law writs. 

3. Beaudry's jurisdictional distinction 

¶27 Our last consideration in this historical analysis 

addresses the unexplained discrepancy in our case law 

illuminated in State ex rel. Beaudry v. Panosian, 35 

Wis. 2d 418, 151 N.W.2d 48 (1967). Beaudry makes a distinction 

between jurisdictional and non-jurisdictional cases requesting 

the exercise of this court's superintending authority.9 The 

court in Beaudry recognized that this court's constitutional 

superintending authority includes "the power to issue writs 

prohibiting inferior courts from acting outside their 

jurisdiction" and explained that "[t]raditionally, this writ was 

used to keep an inferior court from acting outside its 

jurisdiction when there was no adequate remedy by appeal or 

otherwise" but the "use of the writ to prohibit action by 

inferior courts and tribunals in cases of nonjurisdictional 

error" was historically limited to situations "where 'the appeal 

 

8 The term "supervisory" is used in both Wis. Stat. § (Rule) 

809.51 (court of appeals) and Wis. Stat. § (Rule) 809.71 

(supreme court), but the Wisconsin Constitution uses the term 

"supervisory authority" with respect to the court of appeals and 

the term "superintending authority" with respect to this court. 

9 State ex rel. Beaudry v. Panosian, 35 Wis. 2d 418, 151 

N.W.2d 48 (1967), was not the only case to recognize the 

distinction. State ex rel. Kiekhaefer v. Anderson, 4 

Wis. 2d 485, 490, 90 N.W.2d 790 (1958) and State ex rel. Gaynon 

v. Krueger, 31 Wis. 2d 609, 614, 143 N.W.2d 437 (1966) similarly 

acknowledge a jurisdictional and non-jurisdictional distinction. 
No. 2018AP291-W 

21 

may come too late for effective redress, or be inadequate and 

there is a need for such intervention to avoid grave hardship or 

a complete denial of the rights of a litigant.'" Id. at 421-22 

(quoted source omitted). Beaudry, at least implicitly, 

suggested a lesser burden to secure superintending assistance 

from this court when addressing a jurisdictional error and a 

greater burden when the case presents a non-jurisdictional 

error. This makes sense, of course, because non-jurisdictional 

errors are more likely to be remedied through the normal appeal 

process than purely jurisdictional errors, as this case 

illustrates well. Indeed, as recently as 2005, this court 

dispensed with the four-factor supervisory writ test in Davis, 

281 Wis. 2d 431, ¶17, holding that "the requested writ of 

prohibition will issue if the John Doe judge acted in excess of 

his powers." In that case, the court concluded "a John Doe 

judge does not have statutory or inherent power to require a 

witness's counsel to take an oath of secrecy" and on that basis 

alone granted the writ of prohibition. Id., ¶¶32-34. Despite 

this distinction, this court largely ignored any substantive 

differences between jurisdictional and non-jurisdictional errors 

post-Beaudry and continued to blur the general principles 

involved in the writ cases. 

¶28 Although Beaudry has never been overruled, it appears 

time, lack of precision, and perhaps the commonplace use of the 

supervisory writ has eroded any distinction between 

jurisdictional and non-jurisdictional categories of error. 

Parties seeking a supervisory writ——regardless of which category 
No. 2018AP291-W 

22 

of error——must satisfy the four-criteria supervisory writ test. 

This test is well-known, easy to apply, and firmly entrenched in 

Wisconsin law. 

B. Application 

¶29 This court's authority to issue a supervisory writ 

arises from the constitutional grant of jurisdiction in Article 

VII, § 3 of the Wisconsin Constitution, which provides: 

(1) The supreme court shall have superintending and 

administrative authority over all courts. 

(2) The supreme court has appellate jurisdiction over 

all courts and may hear original actions and 

proceedings. The supreme court may issue all writs 

necessary in aid of its jurisdiction. 

(3) The supreme court may review judgments and orders 

of the court of appeals, may remove cases from the 

court of appeals and may accept cases on certification 

by the court of appeals. 

We do not exercise this authority lightly; instead, we reserve 

this jurisdiction for extraordinary circumstances. See DNR, 380 

Wis. 2d 354, ¶8; Dressler, 163 Wis. 2d at 630. 

¶30 A party seeking the issuance of a supervisory writ 

must establish four factors: (1) a circuit court had a plain 

duty and either acted or intends to act in violation of that 

duty; (2) "an appeal is an inadequate remedy;" (3) "grave 

hardship or irreparable harm will result;" and (4) the party 

requested relief "promptly and speedily." DNR, 380 Wis. 2d 354, 

¶9 (quoting Kalal, 271 Wis. 2d 633, ¶17). 

¶31 In deciding whether to grant the writ requested by 

CityDeck, we consider the four criteria in turn. First, there 
No. 2018AP291-W 

23 

must be a plain duty violated by the Brown County Circuit Court—

—in this case, the duty to refrain from exercising jurisdiction 

over a private arbitration with which it had no authority to 

interfere. We conclude the circuit court had a plain duty to 

act within its jurisdiction and a concomitant duty to refrain 

from acting beyond it. 

¶32 Article VII, § 8 of the Wisconsin Constitution confers 

broad jurisdiction on Wisconsin circuit courts to hear "all 

matters civil and criminal within this state," but not without 

exception: 

Except as otherwise provided by law, the circuit court 

shall have original jurisdiction in all matters civil 

and criminal within this state and such appellate 

jurisdiction in the circuit as the legislature may 

prescribe by law. The circuit court may issue all 

writs necessary in aid of its jurisdiction. 

(Emphasis added.) The Wisconsin Arbitration Act, Wis. Stat. ch. 

788, comprises one constitutionally-permissible exception to a 

circuit court's original jurisdiction: 

A provision in any written contract to settle by 

arbitration a controversy thereafter arising out of 

the contract, or out of the refusal to perform the 

whole or any part of the contract, or an agreement in 

writing between 2 or more persons to submit to 

arbitration any controversy existing between them at 

the time of the agreement to submit, shall be valid, 

irrevocable and enforceable except upon such grounds 

as exist at law or in equity for the revocation of any 

contract. 

Wis. Stat. § 788.01. In this Act, the Wisconsin legislature 

recognizes the freedom of persons to agree to resolve their 

disputes outside of the state's court system, via arbitration. 
No. 2018AP291-W 

24 

¶33 A circuit court possesses only limited, statutorily 

enumerated powers with respect to a private arbitration. See 

Midwest Neurosciences Assocs. v. Great Lakes Neurosurgical 

Assocs., LLC, 2018 WI 112, ¶¶47-49, 384 Wis. 2d 669, 920 

N.W.2d 767. Nothing in the Wisconsin Arbitration Act permits a 

circuit court to stay or otherwise intermeddle with a private 

arbitration proceeding. A fundamental canon of statutory 

construction provides that "[n]othing is to be added to what the 

text states or reasonably implies[.]" Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 93 

(2012); see also Dawson v. Town of Jackson, 2011 WI 77, ¶42, 336 

Wis. 2d 318, 801 N.W.2d 316 ("We decline to read into the 

statute words the legislature did not see fit to write."). By 

specifying particular powers of a circuit court to act with 

respect to an arbitration proceeding, the legislature has 

circumscribed the authority of the circuit court, which may not 

arrogate to itself any additional powers. 

¶34 A circuit court's role in arbitration is restricted 

because parties who contract for arbitration do so to avoid the 

court system altogether. Borst v. Allstate Ins. Co., 2006 WI 

70, ¶61, 291 Wis. 2d 361, 717 N.W.2d 42 ("[T]he goal of 

arbitration is 'to resolve the entire controversy out of court 

without the formality and expense that normally attaches to the 

judicial process.'" (quoted source and emphasis omitted)); 

Midwest Neurosciences Assocs., LLC, 384 Wis. 2d 669, ¶41 ("When 

parties agree to arbitration, a court's role is limited because 

a different forum of dispute resolution has been selected."). 
No. 2018AP291-W 

25 

¶35 Arbitration is a matter of contract between private 

parties who enjoy that freedom. McAdams v. Marquette Univ., 

2018 WI 88, ¶25, 383 Wis. 2d 358, 914 N.W.2d 708; Parsons v. 

Associated Banc-Corp, 2017 WI 37, ¶31, 374 Wis. 2d 513, 893 

N.W.2d 212 ("Wisconsin courts have long recognized the 

importance of freedom of contract and have endeavored to protect 

the right to contract." (quoted source omitted)). The circuit 

court has no authority to halt a contractually agreed upon 

arbitration. Consistent with Wisconsin's arbitration statute, 

the circuit court may act only to ensure the parties who 

contracted for arbitration abide by their contractual agreement. 

See generally First Weber Grp., Inc. v. Synergy Real Estate 

Grp., LLC, 2015 WI 34, ¶¶30-31, 361 Wis. 2d 496, 860 N.W.2d 498 

("The legislature has determined that the courts have a limited 

role in the context of arbitration."); Midwest Neurosciences 

Assocs., LLC, 384 Wis. 2d 669, ¶77 ("Courts should remain 

mindful of the limited role endowed to them under chapter 788 

and not endeavor into the province of the parties' contractual 

choice to arbitrate."). 

¶36 Nothing in the statutes or the cases authorizes a 

circuit court to halt a private arbitration so that an insurance 

company can litigate whether its policy provides coverage to an 

insured. Although Wisconsin cases do allow insurance companies 

to bifurcate coverage from liability when both coverage and 

liability are being decided in the courts, see, e.g., Newhouse 

by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 836, 

501 N.W.2d 1 (1993), no legal authority confers on a circuit 
No. 2018AP291-W 

26 

court the power to interfere with a liability claim when the 

parties have contracted to resolve it in arbitration. An 

insurer may file a declaratory judgment action seeking a 

coverage determination when the insurer has not been named as a 

party in a lawsuit involving its insured, see, e.g., Fire Ins. 

Exch. v. Basten, 202 Wis. 2d 74, 78, 549 N.W.2d 690 (1996), but 

the declaratory judgment statute does not authorize a circuit 

court to obstruct a scheduled arbitration over the liability 

claims pending the circuit court's coverage determination. 

¶37 Society suggests American Family Mut. Ins. Co. v. 

American Girl, Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65 

and Delta Group, Inc. v. DBI, Inc., 204 Wis. 2d 515, 555 

N.W.2d 162 (Ct. App. 1996), authorize a circuit court to stay a 

private arbitration. We disagree. In American Girl, the 

circuit court did not order a stay of the arbitration. Rather, 

the insurer intervened in the arbitration and asked the 

arbitrator to stay the arbitration until coverage could be 

determined. 268 Wis. 2d 16, ¶109 (Roggensack, J., dissenting). 

Society's reliance on American Girl is inapposite. The same is 

true for its reliance on Delta Group. In that case, the parties 

filed suit in court and then agreed to stay the court case to 

allow for mediation and arbitration. Delta Group, 204 

Wis. 2d at 519. The court of appeals decided the insurer 

breached its duty to defend its insured and was therefore 

obligated to pay the arbitration award. Id. at 525-26. The 

insurer had denied the claim entirely and never sought a 

coverage determination. Id. Although Delta Group reiterates 
No. 2018AP291-W 

27 

general rules about bifurcation and an insurer's duty to resolve 

coverage disputes, it does not establish a circuit court's 

authority to stay a private arbitration. 

¶38 We conclude the circuit court violated its plain duty 

when it stepped outside its original jurisdiction under Article 

VII, § 8 of the Wisconsin Constitution by issuing an order it 

had no authority to make. The circuit court compounded its 

error by stopping an arbitration proceeding involving three 

parties who were not participating in the court case at all and 

therefore had no opportunity to be heard on an order that 

affected their rights. Accordingly, the first criterion for a 

supervisory writ is met. 

¶39 The second criterion for granting a supervisory writ 

requires a showing that CityDeck cannot receive an adequate 

remedy through the ordinary appeal process. This criterion is 

also met. Here, the circuit court acted beyond its original 

jurisdiction under Article VII, § 8 of the Wisconsin 

Constitution and halted a private arbitration to decide a 

separate coverage issue in the circuit court involving different 

parties. There is no adequate appellate remedy for the circuit 

court's unlawful act because any "appeal comes too late for 

effective redress" and the damage——stopping the parties from 

resolving their dispute in arbitration——is not reparable or 

compensable. See DNR, 380 Wis. 2d 354, ¶41 (quoted source 

omitted). Challenging the circuit court's exercise of power via 

a regular appeal would be futile. CityDeck would have to wait 

until the coverage issue was resolved before it could appeal and 
No. 2018AP291-W 

28 

ask an appellate court to declare the circuit court had no 

authority to stay the arbitration. At that point, the wrongful 

exercise of authority over the arbitration either becomes moot 

if the circuit court allows the arbitration to proceed during 

the appeal, or if the circuit court continues the stay pending 

the appeal, CityDeck continues to be wrongly subjected to the 

circuit court's exercise of authority it lacks. Either way, a 

regular appeal is inadequate as it comes "too late for effective 

redress." Id. (quoted source omitted). 

¶40 Significantly, the appeal process continues to subject 

the parties to the court system for resolving their dispute, 

effectively trampling their agreement to avoid court altogether. 

Rather than serving as a vehicle for vindicating a party's 

rights, the appeal exacerbates the injury. The damage is done 

and cannot be reversed. 

¶41 Third, we consider whether grave hardship or 

irreparable harm will result if we do not issue the supervisory 

writ. We conclude that it would. A litigant's right to be free 

from the exercise of the court's power has been completely 

denied. The circuit court's unlawful stay order halted attempts 

by these private parties to resolve a construction dispute in 

their contractually-selected forum of arbitration. CityDeck was 

deprived of the benefits of its bargained-for method of dispute 

resolution: rather than avoiding the court system, it was 

subjected to an order issuing from it, and instead of its 

contractually agreed-upon arbitration progressing, it was 

indefinitely delayed by a court acting without authority. 
No. 2018AP291-W 

29 

Additionally, CityDeck was forced into public proceedings in a 

matter it had contracted to resolve privately. These factors 

satisfy the grave hardship/irreparable harm criterion. 

¶42 Finally, CityDeck met the fourth criterion by acting 

promptly and speedily. Although Society asserts that the 21 

days between the issuance of the unlawful stay order and 

CityDeck's writ filing is neither prompt nor speedy, we 

disagree. The circuit court issued the stay order on January 2, 

2018. Two days later, on January 4, 2018, CityDeck filed a 

motion for reconsideration with the circuit court, which the 

circuit court ignored. On January 11, 2018, the circuit court 

issued an order giving the parties permission to proceed with a 

planned mediation. Twelve days after that order, CityDeck filed 

its writ petition in the court of appeals. This timeline 

satisfies the "prompt and speedy" criterion. 

¶43 CityDeck's petition fulfills all four criteria for 

issuance of a supervisory writ; therefore, we grant CityDeck's 

request and vacate the circuit court's order staying the 

arbitration. 

By the Court.—The petition for a supervisory writ is 

granted; the stay order is vacated. 

¶44 REBECCA FRANK DALLET, J., withdrew from participation. 
No. 2018AP291-W.awb 

1 

¶45 ANN WALSH BRADLEY, J. (dissenting). Until now, it 

has been well settled that a supervisory writ is intended to be 

"an extraordinary and drastic remedy[,]" reserved for rare 

situations involving "some grievous exigency." State ex rel. 

Kalal v. Circuit Ct. for Dane Cty., 2004 WI 58, ¶17, 271 

Wis. 2d 633, 681 N.W.2d 110; see Matter of Civil Contempt of 

Kroll, 101 Wis. 2d 296, 304, 304 N.W.2d 175 (Ct. App. 1981) 

(denominating a supervisory writ an "extraordinary remed[y]"); 

State ex rel. Kenneth S. v. Circuit Ct. for Dane Cty., 2008 WI 

App 120, ¶8, 313 Wis. 2d 508, 756 N.W.2d 573 (referring to a 

supervisory writ as an "extraordinary and drastic remedy that is 

to be issued only upon some grievous exigency") (citation 

omitted). 

¶46 Ignoring this admonishment, the majority greatly 

expands the application of our supervisory writ jurisprudence. 

Throwing caution to the wind, it elevates jurisdictional errors 

above all others as deserving of special treatment under 

Wisconsin's supervisory writ procedures. 

¶47 In doing so, the majority pays lip service to the 

familiar and well-established four-factor test used to determine 

whether a supervisory writ is an appropriate remedy under the 

circumstances, but fails to apply it correctly. Adopting an 

argument that CityDeck did not make, the majority's result is 

that a supervisory writ, which is supposed to be reserved for 

the most "extraordinary" or "grievous" situations, may become 

commonplace. 
No. 2018AP291-W.awb 

2 

¶48 In my view, CityDeck has not met a necessary 

prerequisite for the issuance of a supervisory writ. Mere delay 

in arbitration proceedings is not the type of "grave hardship" 

or "irreparable harm" that entitles a party to such a writ. 

¶49 Accordingly, I respectfully dissent. 

I 

¶50 Although the majority spills a great deal of ink 

exploring the history of writ procedures in Wisconsin, it 

ultimately purports to reaffirm and apply the familiar and wellestablished four-factor test for determining whether a 

supervisory writ is an appropriate remedy under the 

circumstances. 

¶51 As the majority correctly explains, "[a] party seeking 

the issuance of a supervisory writ must establish four factors: 

(1) a circuit court had a plain duty and either acted or intends 

to act in violation of that duty; (2) 'an appeal is an 

inadequate remedy;' (3) 'grave hardship or irreparable harm will 

result;' and (4) the party requested relief 'promptly and 

speedily.'" Majority op., ¶30 (citing DNR. v. Wis. Court of 

Appeals, Dist. IV, 2018 WI 25, ¶9, 380 Wis. 2d 354, 909 

N.W.2d 114). If any one of these factors is not present, the 

writ must be denied. Kalal, 271 Wis. 2d 633, ¶17; see also 

State ex rel. Kiekhaefer v. Anderson, 4 Wis. 2d 485, 490, 90 

N.W.2d 790 (1958) (explaining that where the "petition fails to 

allege any facts which disclose that he would suffer great 

hardship[,]" a writ of prohibition may not be granted). 
No. 2018AP291-W.awb 

3 

¶52 I focus my analysis on the third supervisory writ 

factor: grave hardship or irreparable harm. The irreparable 

harm claimed by CityDeck is a simple delay in its arbitration 

proceedings. In my view, the fact that CityDeck's arbitration 

is delayed, without more, is insufficient to show grave hardship 

or irreparable harm. 

¶53 The harm caused by any such delay is not similar to 

the harm suffered by parties that previously sought and obtained 

supervisory writs. In prior cases, the petitioner would have 

suffered a complete denial of a right in a way that could not be 

undone or remedied in the absence of a supervisory writ——that 

is, the "bells" in those cases could not be "unrung." 

¶54 For example, courts have determined that the failure 

to substitute a judge when required by law constitutes 

irreparable harm. State ex rel. J.H. Findorff & Son, Inc. v. 

Circuit Ct. for Milwaukee Cty., 2000 WI 30, ¶37, 233 Wis. 2d 

428, 608 N.W.2d 679 (2000); State ex rel. Laborers Int'l Union 

of N. Am., AFL-CIO v. Circuit Ct. for Kenosha Cty., 112 Wis. 2d 

337, 342, 332 N.W.2d 832 (Ct. App. 1983); State ex rel. Oman v. 

Hunkins, 120 Wis. 2d 86, 91, 352 N.W.2d 220 (Ct. App. 1984). 

Similarly, the potential disclosure of information subject to 

the attorney-client privilege is irreparable harm sufficient to 

support the issuance of a supervisory writ. State ex rel. 

Godfrey & Kahn, S.C. v. Circuit Ct. for Milwaukee Cty., 2012 WI 

App 120, ¶52, 344 Wis. 2d 610, 823 N.W.2d 816 (Ct. App. 2012). 

Finally, in DNR, 380 Wis. 2d 354, ¶47, this court determined 
No. 2018AP291-W.awb 

4 

that the failure to honor an appellant's statutory right to 

choice of venue constituted irreparable harm. 

¶55 Ignoring this case law, CityDeck fails to make any 

persuasive argument that the delay caused by the circuit court's 

stay of the arbitration proceedings constitutes grave hardship 

or irreparable harm. CityDeck's "argument" with regard to this 

factor is tucked away in the very last paragraph of its 28-page 

brief-in-chief.1

¶56 It baldly asserts that, in the absence of a 

supervisory writ, it will incur unspecified "substantial damages 

for which there is no adequate remedy." CityDeck further 

complains that "[t]he inability to resolve the arbitration and 

the indefinite delay resulting from the Stay Order has already 

caused substantial damage to CityDeck's interests and will 

continue to do so until it is lifted." 

¶57 In my view, CityDeck is not being denied its right to 

arbitrate its claims. Arbitration is merely delayed, not 

denied.2 CityDeck loses no statutory right and it loses no 

contractual right. 

¶58 What about the delay in the arbitration proceedings 

cannot be remedied with money, such as interest on CityDeck's 

 

1 CityDeck did not supplement its argument in its reply 

brief. 

2 This is an important distinction that is either lost on, 

or ignored by, the majority. See, e.g., majority op., ¶39 

(characterizing the "damage" in the instant case as "stopping 

the parties from resolving their dispute in arbitration") 

(emphasis added). 
No. 2018AP291-W.awb 

5 

judgment if it is successful in arbitration? Indeed, at oral 

argument, CityDeck asserted that "the irreparable harm is that 

we continue to lose money that we will not recover because of 

the delay associated with our arbitration proceedings." Exactly 

how will the loss of money from delay result in grave hardship 

or irreparable harm? CityDeck does not explain, so the majority 

conjures its own justification. 

¶59 Putting on its advocacy hat, the majority sua sponte 

discovers a new type of irreparable harm. In the majority's 

broad view, CityDeck suffers irreparable harm by the delay of 

arbitration proceedings because "[a] litigant's right to be free 

from the exercise of the court's power has been completely 

denied." Majority op., ¶41. 

¶60 If this is the thrust of the injury (i.e., being 

subject to a court's power despite that court's lack of 

jurisdiction), then the majority has short-circuited Wisconsin's 

supervisory writ procedure. It treats jurisdictional errors as 

a special class of errors for which the issuance of a 

supervisory writ appears to be all but a certainty.3

¶61 Following the majority's logic, would a defendant be 

entitled to a supervisory writ if a motion to dismiss for lack 

of subject matter jurisdiction was erroneously denied? See 

Richards v. Young, 150 Wis. 2d 549, 557, 441 N.W.2d 742 (1989) 

 

3 Although the majority expressly rejects the proposition 

that jurisdictional errors are treated differently under our 

writ procedure than non-jurisdictional errors, its analysis 

belies that assertion. See majority op., ¶27. 
No. 2018AP291-W.awb 

6 

("This court has previously held that if the statutory 

requirements for obtaining judicial review are not fully 

complied with, the subject matter jurisdiction of the circuit 

court cannot be invoked."). 

¶62 Is a supervisory writ to be employed whenever it is 

asserted that a circuit court exercised personal jurisdiction 

despite a fundamental defect in service? See Johnson v. Cintas 

Corp. No. 2, 2012 WI 31, ¶50, 339 Wis. 2d 493, 811 N.W.2d 756. 

Could a party turn to a supervisory writ to resolve a question 

of whether a juvenile court could exercise personal 

jurisdiction? See State v. Aufderhaar, 2005 WI 108, ¶27, 283 

Wis. 2d 336, 700 N.W.2d 4. 

¶63 It appears that in each of these situations, for the 

entirety of the case, the circuit court would be "stepp[ing] 

outside its original jurisdiction" and issuing orders "it ha[s] 

no authority to make" that would bind the defendant. See 

majority op., ¶38. Further, the ordinary appeals process will 

be inadequate because an appeal would always "come[] too late" 

to effectively redress the error. Id., ¶39 (quoted source 

omitted). The harm to the defendant would be considered 

irreparable because, for the duration of the case, the defendant 

would be "completely denied" the "right to be free from the 

exercise of the court's power." Id., ¶41. 

¶64 If there is a principle under which the majority's 

analysis would not apply to all jurisdictional errors, that 

principle is well hidden. Such an expansion of the availability 

of supervisory writs is anathema to the limitations provided in 
No. 2018AP291-W.awb 

7 

our supervisory writ jurisprudence. A supervisory writ should 

be a last resort, not a first option. 

¶65 In sum, the majority has placed itself in the role of 

CityDeck's attorneys, relying on arguments not made in order to 

issue a writ to which CityDeck is not entitled. In doing so, 

the majority improperly elevates jurisdictional errors as a 

special class of errors that can always be redressed via a 

supervisory writ regardless of the specific facts of any 

particular case. The majority's reasoning is incompatible with 

Wisconsin's supervisory writ jurisprudence that has consistently 

described a supervisory writ as an "extraordinary and drastic 

remedy" reserved for only the most "grievous exigenc[ies]." 

Kalal, 271 Wis. 2d 633, ¶17. 

¶66 For the reasons set forth, I respectfully dissent. 

¶67 I am authorized to state that SHIRLEY S. ABRAHAMSON 

joins this dissent. 
No. 2018AP291-W.awb 

1