The Wisconsin Supreme Court’s ruling today in Estate of Robert C. Parker v. Beverly Enterprises, Inc., 2010 WI 71, makes clear appellate courts have the ability to review orders compelling arbitration.
For the time being, it appears the Supreme Court will continue with its policy of deferring to the judgment of the lower courts when it comes to arbitration, effectively limiting the review of arbitration decisions. However, this decision, penned by Justice Ann Walsh Bradley, announces that the Court has jurisdiction over orders compelling arbitration, but chooses not to exercise that jurisdiction out of respect for the lower courts and value found in arbitration.
Two cases from the 1970s, Teamsters Union Local No. 695 v. County of Waukesha, 203 N.W.2d 707, and Worthington v. Farmers Ins., 218 N.W.2d 373, held that orders compelling arbitration were not appealable. The Court says that while this is still good case law, the statutes interpreted changed with the 1978 reorganization of the Wisconsin court system, so the underlying law is no longer accurate. Article VII, § 3 of the Wisconsin Constitution and related statutes give appellate courts broad jurisdiction over all orders and judgments of the circuit courts.
This means that in the future the Court could change its mind about the value of encouraging arbitration or deferring to lower courts, and begin to review orders to arbitrate or even court certified outcomes of arbitration.
Justice Annette Kingsland Ziegler wrote a separate concurrence to state that she would go further than the majority and say that orders compelling arbitration should not be appealable by right, but only by permission of the appellate court.
(This post was authored by Hamilton Consulting Group’s intern, Emily Kiddoo, a third year law student at the University of Wisconsin Law School.)