Daniel J. Hennessy, Jr. v. Wells Fargo Bank, N.A.

2022 WI 2SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1206
COMPLETE TITLE: Daniel J. Hennessy, Jr. and Jane E. Hennessy,
Plaintiffs-Appellants-Petitioners,
v.
Wells Fargo Bank, N.A.,
Defendant-Respondent.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 357,950 N.W. Wis. 2d 357
PDC No:2020 WI App 64 - Published
OPINION FILED: January 14, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 4, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: William S. Pocan
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court. DALLET, J., filed a concurring opinion, in which
HAGEDORN and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiffs-appellants-petitioners, there were
briefs filed by Daniel A. Manna, John Franke, Tamar B. Kelber,
and Gass Weber Mullins LLC, Milwaukee. There was an oral
argument by Daniel A. Manna.
For defendant-respondent, there was a brief filed by Nina
G. Beck, Michael B. Apfeld, Daniel J. Blinka, and Godfery &
Kahn, S.C., Milwaukee. There was an oral argument by Nina G.
Beck.
2022 WI 2NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1206
(L.C. No. 2016CV8617)
STATE OF WISCONSIN : IN SUPREME COURT
Daniel J. Hennessy, Jr. and Jane E. Hennessy,
Plaintiffs-Appellants-Petitioners, FILED
v. JAN 14, 2022
Wells Fargo Bank, N.A., Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent.
ZIEGLER, C.J., delivered the majority opinion for a unanimous
Court. DALLET, J., filed a concurring opinion, in which
HAGEDORN and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
a published decision of the court of appeals, Hennessy v. Wells
Fargo Bank, N.A., 2020 WI App 64, 394 Wis. 2d 357, 950
N.W.2d 877, affirming an order of the Milwaukee County circuit
court1 that domesticated a Mexican judgment in favor of Wells
Fargo Bank, N.A., and against Daniel and Jane Hennessy.
1 The Honorable William S. Pocan presided.
No. 2019AP1206
¶2 The Hennessys argue that the circuit court incorrectly
held that, under Mexican law, the foreign judgment was valid and
personally enforceable against them. In the process, the
Hennessys ask that this court alter the standard for reviewing
issues of foreign law and consider such issues de novo as
questions of law. In addition, the Hennessys claim that the
circuit court should not have domesticated the Mexican judgment
under principles of comity.
¶3 In Wisconsin, a foreign country's law must be proven
before a circuit court as a question of fact. We reaffirm this
principle and decline the Hennessys' invitation to consider
foreign law de novo. Upon a review of the record, the court
cannot conclude that the circuit court's interpretation of
Mexican law was clearly erroneous. Further, the circuit court
did not erroneously exercise its discretion by choosing to
recognize the Mexican judgment in Wisconsin. Thus, the court of
appeals is affirmed, and Wells Fargo's judgment against the
Hennessys was properly domesticated.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 The Hennessys took out a loan of $7.5 million owed to
Wells Fargo to build a condominium in San Jose del Cabo, Mexico.
As part of the transaction, the parties signed three separate
agreements. They executed a construction loan agreement, a
promissory note, and an addendum to the note. These documents
are governed by Wisconsin law and are written in English. In
addition, the parties entered into a trust agreement. The trust
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held the property underlying the transaction as collateral in
case of the Hennessys' default. Mexican law governs the trust
agreement, which is written in Spanish.
¶5 The agreements are closely interlinked and reference
each other. For instance, the loan agreement stated that the
security is "granted . . . under the Guaranteed Trust
Agreement." The trust agreement, for its part, stated that the
Hennessys must "comply with all obligations [they] assumed under
the Loan Documents," and, in the case of default, the Hennessys
were obligated to "immediately pay any and all amounts [they]
owe[] under the Loan Documents."
¶6 The Hennessys defaulted under the agreements, and in
May 2012, Wells Fargo initiated a foreclosure action in Mexico.
Wells Fargo filed its lawsuit before the Eighth District Civil
Court, a Mexican federal court located in Mexico City ("the
Mexican district court"). Wells Fargo claimed it was entitled
to payment for amounts owed under the transaction agreements
and, if payments were not made, possession of the property as
collateral. As an exhibit to the complaint, Wells Fargo
attached the loan agreement, the note and its addendum, and the
trust agreement.
¶7 In March 2014, the Mexican district court issued a
judgment in favor of Wells Fargo ("the Mexican judgment"), and
both parties appealed the decision. In October 2014, an
appellate court, the Third Unitary Court of Mexico ("the Mexican
appellate court"), affirmed in part the Mexican district court's
decision and awarded a judgment in favor of Wells Fargo. The
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Mexican appellate court amended the judgment issued by the
district court. It stated in relevant part:2
The plaintiff partially proved its claim, and the
defendants did not prove their counterarguments;
consequently, the defendants are sentenced to pay the
plaintiff the principal amount of US$ 7,500,000.00
(seven million, five hundred thousand and 00/100
United States dollars, legal tender in the United
States of America), in its equivalent in national
currency (pesos) at the time that payment is made.
In addition, the defendants are sentenced to pay
unpaid ordinary interest accrued both during and after
the construction period, which may be quantified in
enforcement of a judgment in accordance with what was
stipulated in all of the loan documents admitted into
court as evidence.
The defendant is informed that if it does not pay
the foregoing amounts, it will be ordered to deliver
to the plaintiff the property with which it guaranteed
the promissory note in the loan agreement, so that the
property can be auctioned off according to the terms
of the chapter that applies to this matter.
. . . The defendants are sentenced to pay the
claim identified in section (d) of the demand,
consisting of payment of the delay fee and expenses
and commissions caused, which may be quantified in
enforcement of the judgment, in accordance with what
was stipulated in all of the loan documents admitted
into court as evidence.
. . . The defendants are sentenced in trial court
to pay court costs.
¶8 No further appeal was taken in the case, and the
Mexican judgment, as amended by the Mexican appellate court, was
2 The judgment was written originally in Spanish. However,
the parties submitted into evidence a certified English
translation of the document. No party disputes the accuracy of
the translation.
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No. 2019AP1206
indisputably final and binding upon the parties. In the summer
of 2017, the property was transferred from the Hennessys to
Wells Fargo.
¶9 In November 2016, the Hennessys filed a complaint in
the Milwaukee County circuit court. They sought a declaratory
judgment that Wells Fargo was barred under the applicable
statute of limitations from bringing a breach of contract claim
under Wisconsin law based on the Hennessys' failure to pay their
loan obligations. In May 2017, Wells Fargo filed a counterclaim
seeking domestication of the Mexican judgment. In August 2017,
the circuit court granted summary judgment in favor of the
Hennessys for their declaratory judgment claim. The circuit
court held that any breach of contract action by Wells Fargo was
time barred, but stated that the order did not affect Wells
Fargo's action to enforce the Mexican judgment.
¶10 To resolve Wells Fargo's remaining request for
domestication, the circuit court divided the proceedings into
two phases. First, the circuit court heard arguments on the
effect and meaning of the Mexican judgment under Mexican law.
Second, the circuit court determined whether to recognize the
Mexican judgment under principles of comity.
¶11 For the first phase of the proceedings, the Hennessys
claimed that the Mexican order was not a valid judgment
enforceable against them personally. Specifically, they claimed
that the Mexican courts had resolved only in rem claims, and no
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No. 2019AP1206
in personam money judgment against the Hennessys had been
entered.3
¶12 The circuit court received briefing from the parties,
including hundreds of pages of exhibits on Mexican law. On
June 11, 2018, and July 17, 2018, the circuit court held
hearings at which the parties presented their arguments. In
addition, experts testified on the substance and meaning of
Mexican law. Wells Fargo presented Alejandro Osuna-Gonzalez, an
attorney who taught law classes and practiced in Mexico. He
testified that the Mexican judgment was final and enforceable
against the Hennessys. In addition, Mr. Osuna explained that,
under the Mexican judgment, Wells Fargo could seek monetary
compensation for any difference between the value of the
collateral and the amounts still owed to Wells Fargo. In
response, the Hennessys presented the testimony of Georgina
Fabian, an attorney who practiced commercial law in Mexico.
Ms. Fabian stated that under Mexican law a creditor cannot
combine an in rem and an in personam action. Thus, according to
the Hennessys' expert, because Wells Fargo pursued foreclosure
proceedings in Mexico, a form of in rem relief, the Mexican
judgment could not extend to the Hennessys personally for any
money judgment or deficiency.
3 The Hennessys argued that Wells Fargo sought an action for
transfer of the property as collateral, thus making the nature
of the lawsuit in rem. By contrast, the Hennessys claimed that
if Wells Fargo had sought a judgment for money, or for a
deficiency after the collateral had been sold, the lawsuit would
have been in personam.
6
No. 2019AP1206
¶13 On October 16, 2018, the circuit court issued a
written decision holding that the Mexican judgment was valid and
could be enforced against the Hennessys personally. The circuit
court reasoned that the Mexican judgment mandated that the
Hennessys either pay the amounts owed to Wells Fargo or
surrender the property as collateral. Under Mexican law, if the
Hennessys failed to pay Wells Fargo, the bank could recover any
deficiency remaining after the collateral was sold, and, by
seeking a deficiency, Wells Fargo was enforcing the Mexican
judgment. Thus, the circuit court credited Wells Fargo's expert
and rejected the Hennessys' argument that the Mexican judgment
provided only in rem relief.
¶14 After issuing its October 2018 decision, the circuit
court continued to the second phase of the proceedings and
considered whether to domesticate the Mexican judgment. The
circuit court again accepted briefing and exhibits, and on
April 11, 2019, a hearing was held. At the hearing, the circuit
court concluded, under principles of comity, that Wells Fargo
was entitled to recognition of the Mexican judgment.
¶15 On May 20, 2019, the circuit court entered an order
"recognizing" the Mexican judgment, and on June 20, 2019, the
circuit court ordered the clerk of court to enter the judgment
against the Hennessys. In the June 20 order, the circuit court
stated that Wells Fargo was entitled to $7.5 million, "plus
unpaid ordinary interest accrued both during and after the
construction period." In addition, the circuit court awarded
Wells Fargo "delay fees, expenses, and commissions in accordance
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No. 2019AP1206
with . . . the underlying loan documents," as well as "court
costs incurred in Mexico." Finally, the order allowed Wells
Fargo to "foreclose on the underlying collateral . . . and to
seek any resulting deficiency."
¶16 The Hennessys appealed, and, on September 15, 2020,
the court of appeals affirmed the circuit court's decision.
Hennessy, 394 Wis. 2d 357, ¶47. The court of appeals first
rejected the Hennessys' argument that the Mexican judgment was
not valid and enforceable against them personally under Mexican
law. Id., ¶¶14-33. It noted that, in Wisconsin, the substance
of foreign laws is treated as a question of fact. Id., ¶¶15-18.
The court of appeals continued, holding that the circuit court's
finding that the Mexican judgment provided both in rem and in
personam relief was not clearly erroneous. Id., ¶¶19-30.
Further, the court of appeals found that it was not clearly
erroneous for the circuit court to read the Mexican judgment as
permitting monetary relief against the Hennessys, despite the
fact that the loan agreement, note, and addendum were governed
by Wisconsin law. Id., ¶¶31-33. Finally, the court of appeals
rejected the Hennessys' argument that the circuit court had
erroneously exercised its discretion by domesticating the
Mexican judgment under principles of comity. Id., ¶¶34-46. In
particular, the court of appeals did not agree with the
Hennessys that the inclusion of unquantified interest, damages,
fees, and costs in the Mexican judgment rendered domestication
inappropriate. Id., ¶¶43-45.
8
No. 2019AP1206
¶17 The Hennessys petitioned for our review, and on
February 24, 2021, we granted that petition.
II. STANDARD OF REVIEW
¶18 The Hennessys ask this court to alter its current
standard for reviewing questions of a foreign country's law.4 In
addition, the Hennessys seek reversal of the circuit court and
court of appeals based upon their interpretations of the Mexican
judgment and on international comity. We will first address the
Hennessys' arguments on the proper standard of review.5
A. Interpretation Of Foreign Law
¶19 For centuries, the common law established that, unlike
the laws of the domestic jurisdiction, a foreign country's laws
must be pleaded and proven as facts. See Animal Sci. Prods.,
Inc. v. Hebei Welcome Pharm. Co. Ltd., 585 U.S. ___, 138 S. Ct.
1865, 1872-73 (2018); Church v. Hubbart, 6 U.S. (2 Cranch) 187,
4 The Hennessys admit that they did not challenge the
standard of review for questions of foreign law in the courts
below. Generally, issues "will not be considered for the first
time on appeal." State v. Caban, 210 Wis. 2d 597, 604, 563
N.W.2d 501 (1997). But the rule "is not absolute." Apex Elecs.
Corp. v. Gee, 217 Wis. 2d 378, 384, 577 N.W.2d 23 (1998). "When
an issue involves a question of law rather than of fact, when
the question of law has been briefed by both parties and when
the question of law is of sufficient public interest to merit a
decision, this court may exercise its discretion to address the
issue." Id. The issue presented is a question of law, which
has been thoroughly briefed by the parties and is of statewide
significance. Thus, we will consider the issue, despite the
Hennessys forfeiting the argument in courts below.
5 For an analysis on the merits of the Hennessys' claims,
see infra, section III.
9
No. 2019AP1206
236 (1804) (Marshall, C.J.) ("Foreign laws are well understood
to be facts which must, like other facts, be proved to exist
before they can be received in a court of justice."); 31A C.J.S.
Evidence § 38 (2021) ("Unless authorized by statute . . . the
law of other nations must be pleaded and proved.").6
¶20 Over 150 years of jurisprudence, we have recognized
this basic principle in Wisconsin. Hull v. Augustine, 23 Wis.
383, 386 (1868) (noting that a party may establish a defense
under foreign law by "alleg[ing]" the defense in its pleadings
and "sustain[ing] this averment by proof on the trial"); Hite v.
Keene, 149 Wis. 207, 215, 134 N.W. 383 (1912) ("The question of
what a foreign law is, is always a question of fact.");
Milwaukee Cheese Co. v. Olafsson, 40 Wis. 2d 575, 580, 162
N.W.2d 609 (1968) ("[T]he laws of foreign countries must be
pleaded and proved as any other fact."). Questions of a foreign
country's law are "an issue for the court." Wis. Stat.
§ 902.02(5) (2017-18).7 As questions of fact assigned to circuit
courts in the first instance, appellate courts review questions
of a foreign country's law under the "clearly erroneous"
In the United States, the laws of other states were
6
treated the same as the laws of foreign countries. Both were
considered questions of fact. See Rape v. Heaton, 9 Wis. 328,
341 (1859) ("When a question depends on the laws of a sister
state, in our courts, such laws are a part of the evidence in
the case, and like another fact must be proved by him who holds
the affirmative." (quotations omitted)). As discussed below, we
now consider other states' laws as questions of law.
All subsequent references to the Wisconsin Statutes are to
7
the 2017-18 version unless otherwise indicated.
10
No. 2019AP1206
standard, not de novo. Royster-Clark, Inc. v. Olsen's Mill,
Inc., 2006 WI 46, ¶¶11-12, 290 Wis. 2d 264, 714 N.W.2d 530("[T]his court defers to the circuit court's findings of fact
unless they are unsupported by the record and are, therefore,
clearly erroneous."); Griffin v. Mark Travel Corp., 2006 WI App
213, ¶4, 296 Wis. 2d 642, 724 N.W.2d 900 ("A trial court's
findings of fact [as to the content of a foreign country's laws]
may not be set aside on appeal unless they are clearly
erroneous." (quotations omitted)).
¶21 The requirement that foreign laws be proven as facts
has close ties to the doctrine of judicial notice. As explained
by McCormick on Evidence:
In the ordinary process of finding the applicable law,
the normal method then is by informal investigation of
any sources satisfactory to the judge. Thus, this
process has been traditionally described in terms of
the judge taking judicial notice of the law applicable
to the case at hand. Indeed, when the source-material
was not easily accessible to the judge, as in the case
of "foreign law" or city ordinances, law has been
treated as a peculiar species of fact, requiring
formal proof.
2 McCormick on Evid. The Judge's Task as Law-Finder: Judicial
Notice of Law § 335 (8th ed. 2020).
¶22 Thus, in Wisconsin, our courts by statute "take
judicial notice of the common law and statutes of every state,
territory and other jurisdiction of the United States." Wis.
Stat. § 902.02(1). Because courts "may inform [themselves] of
such laws in such manner as [they] may deem proper,"
§ 902.02(2), and do not rely purely on allegations and evidence
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No. 2019AP1206
offered by the parties, courts review questions of other states'
laws independently. See, e.g., Am. Fam. Mut. Ins. Co. v. Cintas
Corp. No. 2, 2018 WI 81, ¶¶20-34, 383 Wis. 2d 63, 914 N.W.2d 76(reviewing and applying the law of Ohio de novo).
¶23 Notably, Wis. Stat. § 902.02 explicitly excludes the
law of foreign countries from judicial notice:
(5) Foreign country. The law of a jurisdiction
other than [the states, territories and other
jurisdictions of the United States] shall be an issue
for the court, but shall not be subject to the
foregoing provisions concerning judicial notice.
§ 902.02(5); see also Milwaukee Cheese, 40 Wis. 2d at 580(stating that the Uniform Judicial Notice of Foreign Law Act,
now codified under § 902.02, "chang[ed] . . . the established
law" for proving the law of other states but left in place the
requirement that "the laws of foreign countries . . . be pleaded
and proved as any other fact").
¶24 Other states have altered the common law, and have
allowed courts to decide questions of a foreign country's law
independently, by permitting courts, whether through rule or
statute, to take judicial notice of the foreign country's law.
See, e.g., Mich. R. Evid. 202(a) (2018) ("A court may take
judicial notice without request by a party of . . . the laws of
foreign countries."); Harkness v. Harkness, 577 N.W.2d 116, 119
(Mich. Ct. App. 1998) ("[A trial court's] interpretation of and
conclusions about American, foreign, and international law are
reviewed de novo."); In re Estate of Crane, No. 288654, 2010 WL
935651, at *4 (Mich. Ct. App. Mar. 16, 2010) (explaining the
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No. 2019AP1206
background and history of Michigan's change in treatment of a
foreign country's laws after allowing courts to take judicial
notice of the law).
¶25 The federal courts have followed a similar path. In
1966, the Federal Rules of Civil Procedure were amended to
permit judicial notice of a foreign country's law. Fed. R. Civ.
P. 44.1 ("In determining foreign law, the court may consider any
relevant material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of
Evidence."). The federal rule states explicitly that issues of
a foreign country's law are "question[s] of law." Id.; see
Animal Sci. Prods., 138 S. Ct. at 1873 ("Appellate review, as is
true of domestic law determinations, is de novo.").
¶26 Even though Wisconsin's standard of review has been
long established, the standard has been reaffirmed by this court
on numerous occasions, and Wisconsin's statutory notice
provisions on foreign law have not been changed, the Hennessys
ask that the court resolve issues of foreign countries' laws as
questions of law. Whether we treat this issue solely as a
matter of stare decisis, statutory interpretation, or both, we
decline to do so.
¶27 "Any time this court is asked to overturn a prior
case, we must thoroughly consider the doctrine of stare
decisis." Progressive N. Ins. Co. v. Romanshek, 2005 WI 67,
¶41, 281 Wis. 2d 300, 697 N.W.2d 417. "Fidelity to precedent
ensures that existing law will not be abandoned lightly. When
existing law is open to revision in every case, deciding cases
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No. 2019AP1206
becomes a mere exercise of judicial will, with arbitrary and
unpredictable results." Hinrichs v. DOW Chem. Co., 2020 WI 2,
¶67, 389 Wis. 2d 669, 937 N.W.2d 37 (quoting Schultz v. Natwick,
2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266). Thus, "any
departure from stare decisis requires special justification."
Id. (quotations omitted).
¶28 When asked to overturn precedent, we consider whether
several factors are present:
(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.
State v. Robinson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935
N.W.2d 813 (quotations omitted). In addition, we frequently
review "whether reliance interests are implicated" and "whether
[the decision] has produced a settled body of law." Johnson
Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶99, 264
Wis. 2d 60, 665 N.W.2d 257.
¶29 There has been no "[c]hange[] or development in the
law" that has "undermined the rationale behind" Wisconsin's
current standard of review for questions of a foreign country's
law. Robinson, 389 Wis. 2d 190, ¶50. The justifications
underlying the question of fact standard remain valid today.
Countries use different languages, and have distinct legal
systems, cultural values, and societal expectations, all of
which influence legal interpretation and analysis. As was true
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No. 2019AP1206
in centuries past, applying a wholly independent standard of
review to a foreign country's jurisprudence can create
substantial difficulties for courts, and having a question of
fact standard can relieve the pressure placed on the judicial
system.8 The standard places the burden on the parties to
present what evidence and expert testimony they believe are
relevant on the issue of foreign law, and limits appellate
review to clearly erroneous interpretations. The process may
serve to facilitate efficient and effective resolution of
foreign law disputes. These disputes may otherwise consume
court resources without consequent development of Wisconsin law.
¶30 Nonetheless, the Hennessys cite policy rationales in
support of their position. They argue that recrafting issues of
a foreign country's laws as questions of law would allow courts
to exercise independent judgment, and it would give courts the
opportunity to fully analyze the substance of foreign law. We
explained over 50 years ago in Milwaukee Cheese that, while
"[i]t is relatively easy to gain access to the laws of the
states," "[a]ccess to the laws of foreign countries is far more
difficult. Even if the laws were readily available, language
barriers, problems of interpretation, and unfamiliar legal
8 For instance, the instant dispute concerns interrelated
legal documents that repeatedly cross-reference each other. The
loan agreement, the note, and the note's addendum are governed
by Wisconsin law and are written in English, while the trust
agreement is governed by Mexican law and is written in Spanish.
Accurately interpreting the documents and the Mexican judgment
at issue under a question of law standard could present
significant linguistic and conceptual challenges.
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No. 2019AP1206
systems compound the difficulties involved in a search of the
law." 40 Wis. 2d at 581; see also Bodum USA, Inc. v. La
Cafetiere, Inc., 621 F.3d 624, 638-39 (7th Cir. 2010) (Wood, J.,
concurring) ("Exercises in comparative law are notoriously
difficult, because the U.S. reader is likely to miss nuances in
the foreign law, to fail to appreciate the way in which one
branch of the other country's law interacts with another, or to
assume erroneously that the foreign law mirrors U.S. law when it
does not."). The Hennessys fail to cite a single case where
litigants, under the question of fact standard, were inhibited
from presenting to the court a full and accurate body of a
foreign country's law. Although the Hennessys disagree with the
circuit court's findings in this case, there is no indication
that the record was incomplete or somehow inadequate.
¶31 The Hennessys correctly identify jurisdictions that
treat issues of foreign law as questions of law, but there are
in fact other jurisdictions that, like Wisconsin, continue to
follow the common law approach. See, e.g., Ramsey County v. Yee
Lee, 770 N.W.2d 572, 577-78 (Minn. Ct. App. 2009) ("Foreign law
is a matter of fact which the courts of this country cannot be
presumed to be acquainted with or to take judicial notice of
unless it is pleaded and proved." (quotations omitted)).
Moreover, "[i]t is not a sufficient reason for this court to
overrule its precedent that a large majority of other
jurisdictions, with no binding authority on this court, have
reached opposing conclusions." Johnson Controls, 264
Wis. 2d 60, ¶100. Similarly, a policy disagreement with a prior
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No. 2019AP1206
decision does not, on its own, justify overturning precedent.
Progressive N. Ins. Co., 281 Wis. 2d 300, ¶¶46, 50 ("[E]ven if
this court were now persuaded by . . . policy arguments [that
opposed a prior decision], that is not a sufficient reason to
overturn the decision.").
¶32 Further, subsequent review and development in the law
have not undermined the validity of Wisconsin's standard of
review. Cf. Robinson, 389 Wis. 2d 190, ¶¶51-57 (overturning a
decision from this court when it did not conform to U.S. Supreme
Court precedent upon which the decision was based); Johnson
Controls, 264 Wis. 2d 60, ¶105 (reasoning that a decision from
this court could not be upheld under stare decisis principles
where the decision could not "be reconciled [with other
Wisconsin precedent] without generating . . . arbitrary and
illogical distinctions"). On numerous occasions, this court has
concluded that Wisconsin applies a question of fact standard for
interpretation of foreign law. See, e.g., Milwaukee Cheese, 40
Wis. 2d at 580-81. There is no indication that the prior
decisions were wrongly decided, "unsound in principle," or
subject to change due to "newly ascertained facts." Robinson,
389 Wis. 2d 190, ¶50. The foundational common law principles
that support Wisconsin's standard have not changed, and the
challenges that underlie the interpretation of a foreign
country's law remain.
¶33 Most significantly, the question of fact standard has
"produced a settled body of law" that has, over the course of
many decades, been workable in practice. Johnson Controls, 264
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No. 2019AP1206
Wis. 2d 60, ¶99; Robinson, 389 Wis. 2d 190, ¶50. The court of
appeals and this court have consistently relied on the question
of fact standard for over 150 years. Hull, 23 Wis. at 386;
Milwaukee Cheese, 40 Wis. 2d at 580-81; Griffin, 296
Wis. 2d 642, ¶4. This is not a case where a decision, propped
up on infirm legal grounds, fails "to provide suitable direction
and consistency to [the] area of the law." Johnson Controls,
264 Wis. 2d 60, ¶106. Quite the opposite. Wisconsin courts,
under current law, have a clearly established standard, and they
have "regularly applied [it] . . . in a consistent manner."
Progressive N. Ins. Co., 281 Wis. 2d 300, ¶51; see, e.g.,
Griffin, 296 Wis. 2d 642, ¶¶5-15 (applying the standard to
interpretation of Mexican laws and treaties); Witt v. Realist,
Inc., 18 Wis. 2d 282, 289-91, 118 N.W.2d 85 (1962) (using the
question of fact standard to interpret the meaning of German
law).
¶34 Additionally, the question of fact standard for the
law of foreign countries is supported by Wisconsin statutes.
Wisconsin Stat. § 902.02(5) states that courts may not take
judicial notice of a foreign country's law, and judicial notice
is intimately tied to questions of law and de novo review.
¶35 Wisconsin Stat. § 902.02(1) states explicitly that the
laws of other states are subject to judicial notice. Courts do
not need to rely on the allegations and proofs offered by the
parties, and thus, courts review questions of other states' laws
independently. See, 2 McCormick on Evid., supra ¶21, § 335
(explaining the connection between judicial notice and
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No. 2019AP1206
independent judicial review). On appeal, the interpretation of
other states' laws is a question of law reviewed de novo. See,
e.g., Am. Fam. Mut. Ins. Co., 383 Wis. 2d 63, ¶¶20-34. Notably,
other states have transitioned to a question of law standard for
foreign countries' laws by allowing courts to take judicial
notice of the law. See, e.g., Mich. R. Evid. 202(a) (2018).
Wisconsin has not done so.
¶36 Unlike questions of other states' laws, Wis. Stat.
§ 902.02(5) explicitly excludes the law of foreign countries
from judicial notice. See Milwaukee Cheese, 40 Wis. 2d at 580(explaining changes made by the legislature in the Uniform
Judicial Notice of Foreign Law Act to require judicial notice
for other states' laws, while not altering the question of fact
standard for foreign countries' laws).9 Nowhere in the statutory
chapter on judicial notice does the legislature permit judicial
9 To the extent that this court, in prior cases, has cited
the notice statute in support of the question of fact standard,
this bolsters the argument against discarding our past
decisions, as the Hennessys request. See Witt v. Realist, Inc.,
18 Wis. 2d 282, 289, 118 N.W.2d 85 (1962) (citing the notice
provisions in the context of explaining the question of fact
standard); Milwaukee Cheese Co. v. Olafsson, 40 Wis. 2d 575,
580, 162 N.W.2d 609 (1968). Stare decisis has greater
significance when our prior decisions involve the interpretation
of statutes. See Progressive N. Ins. Co. v. Romanshek, 2005 WI
67, ¶52, 281 Wis. 2d 300, 697 N.W.2d 417 ("This court has long
been committed to the principle that a construction given to a
statute by the court becomes a part thereof, unless the
legislature subsequently amends the statute to effect a change."
(quotations omitted)); Kimble v. Marvel Ent., LLC, 576 U.S. 446,
456 (2015) (explaining that stare decisis "carries enhanced
force when a decision . . . interprets a statute" because
"critics of [the] ruling can take their objections across the
street, and [the legislature] can correct any mistake it sees").
19
No. 2019AP1206
notice of foreign countries' laws. In other states that, like
Wisconsin, still prohibit judicial notice for foreign countries'
laws, they too consider foreign countries' laws under a question
of fact standard. See Yee Lee, 770 N.W.2d at 577-78; Minn.
Stat. §§ 599.01, 599.08 (2021) (stating that foreign countries
laws must be proved as facts and are not subject to judicial
notice). Considering the statutory context of Wis. Stat.
§ 902.02, our treatment of other states' law as questions of
law, and how judicial notice statutes have impacted standards of
review in other jurisdictions, Wisconsin courts cannot take
judicial notice of foreign countries' laws, and instead, the
parties must prove them as facts.
¶37 In all, we do not accept the invitation to alter
Wisconsin's standard for interpreting the law of foreign
countries. The substance of foreign law remains a question of
fact that "must be pleaded and proved as any other fact."
Milwaukee Cheese, 40 Wis. 2d at 580. The meaning of a foreign
country's law is an issue reserved in the first instance for the
circuit court. Wis. Stat. § 902.02(5). On appeal, we review
the circuit court's findings of fact under the clearly erroneous
standard.
¶38 When reviewing questions of fact, the standard "is
highly deferential." Royster-Clark, 290 Wis. 2d 264, ¶11.
A finding of fact is clearly erroneous when it is
against the great weight and clear preponderance of
the evidence. Therefore, although evidence may have
presented competing factual inferences, the circuit
court's findings are to be sustained if they do not go
20
No. 2019AP1206
against the great weight and clear preponderance of
the evidence.
Country Visions Coop. v. Archer-Daniels-Midland Co., 2021 WI 35,
¶19, 396 Wis. 2d 470, 958 N.W.2d 511 (cleaned up).
B. International Comity
¶39 Unlike many states, Wisconsin has not codified the
manner in which judgments from foreign countries may be
domesticated and enforced in the state. For instance, Wisconsin
has not adopted the Uniform Foreign-Country Money Judgments
Recognition Act. Cf. 735 Ill. Comp. Stat. 5/12-644 (2021).
Thus, when considering whether to enforce a foreign country's
judgment, courts in this state look to the common law and
traditional doctrines of comity.
¶40 Under principles of comity, "courts will as a matter
of discretion rather than obligation defer to the assertion of
jurisdiction or give effect to the judgments of other states or
sovereigns out of mutual respect, and for the purpose of
furthering the orderly administration of justice." Teague v.
Bad River Band of Lake Superior Tribe of Chippewa Indians, 2000
WI 79, ¶35, 236 Wis. 2d 384, 612 N.W.2d 709. "Comity, being a
rule of practice and not a rule of law, rests upon the exercise
of sound judicial discretion," and "[t]he scope of comity is
determinable as a matter of judicial policy." Sheridan v.
Sheridan, 65 Wis. 2d 504, 510, 223 N.W.2d 557 (1974).
¶41 Because comity is the product of sound judicial
discretion and policy, the doctrine cannot readily be distilled
into clearly defined rules. See Disconto Gesellschaft v.
21
No. 2019AP1206
Terlinden, 127 Wis. 651, 660, 106 N.W. 821 (1906) ("[T]here is
no uniform and constant practice of nations as to taking
cognizance of controversies between foreigners."); Hilton v.
Guyot, 159 U.S. 113, 164 (1895) (noting that "comity is, and
ever must be, uncertain; that it must necessarily depend on a
variety of circumstances which cannot be reduced to any certain
rule" (quotations omitted)). However, over the course of
centuries, courts have recognized several well-established
reasons for declining to recognize a foreign country's judgment.
¶42 "[R]ights acquired under statute enacted or judgment
rendered in one state will be given force and effect in another,
unless, as said, against policy or laws of the state,
prejudicial to interests of its citizens or against good morals
and natural justice." Estate of Steffke v. DOR, 65 Wis. 2d 199,
203, 222 N.W.2d 628 (1974) (quoting Hughes v. Fetter, 257 Wis.
35, 39, 42 N.W.2d 452 (1951), reversed on other grounds, 341
U.S. 609 (1951)). When considering whether to domesticate a
foreign judgment, courts may also consider whether parties were
"given notice and the opportunity to be heard," whether "the
foreign court had original jurisdiction," and whether the
foreign court "abided by fundamental standards of procedural
fairness." 30 Am. Jur. 2d Executions Etc § 585 (2d ed. 2021);
50 C.J.S. Judgments § 1329 (2021) ("The elements required to
establish a prima facie case of entitlement to recognition of a
foreign-country judgment are that the rendering court had
jurisdiction over the person and subject matter; there was
timely notice and an opportunity to present a defense; no fraud
22
No. 2019AP1206
was involved; and the proceedings were according to a civilized
jurisprudence."); Restatement (Third) of Foreign Relations Law
§ 482 (1987) (describing the grounds by which a court may refuse
to recognize a judgment from a foreign country).
¶43 What is clear is that, when deciding whether to
recognize a foreign judgment, courts may not reopen the merits
of the case and consider whether foreign courts accurately
applied their own law. See Hilton, 159 U.S. at 202 (explaining
that comity is supported by the idea that "the whole merits of
the case were open, at all events, to the parties, however much
they may have failed to take advantage of them, or may have
waived any of their rights, a final adjudication has been given
that a debt or obligation exists which cannot thereafter in that
[foreign] court be disputed, and can only be questioned in an
appeal to a higher tribunal"); 30 Am. Jur. 2d, supra ¶42 ("[T]he
merits of the case should not be tried anew upon the mere
assertion by a party that the judgment was erroneous in law or
in fact."); 50 C.J.S., supra ¶42, § 1333 ("It is no ground for
impeaching a judgment in personam of a foreign court that it is
erroneous in matter of law, or fact.").
¶44 The decision to recognize a foreign country's judgment
is ultimately subject to the circuit court's discretion, and we
will not disturb the determination "unless there has been an
erroneous exercise of discretion." LeMere v. LeMere, 2003 WI
67, ¶13, 262 Wis. 2d 426, 663 N.W.2d 789; see also Daniel-Nordin
v. Nordin, 173 Wis. 2d 635, 651, 495 N.W.2d 318 (1993) (holding
that, when reviewing the application of comity principles to a
23
No. 2019AP1206
deferral of jurisdiction, we determine whether the circuit court
"erroneously exercised its discretionary power"); Teague v. Bad
River Band of Lake Superior Tribe of Chippewa Indians, 2003 WI
118, ¶69, 265 Wis. 2d 64, 665 N.W.2d 899 ("Comity is
discretionary, highly fact specific, and reviewable on appeal
for erroneous exercise of discretion."). "We will sustain a
discretionary act if we find the trial court examined the
relevant facts, applied a proper standard of law, and using a
demonstrative rational process, reached a conclusion that a
reasonable judge could reach." Lane v. Sharp Packaging Sys.,
Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788.
III. ANALYSIS
¶45 The Hennessys argue that the circuit court incorrectly
interpreted Mexican law to allow recovery against them
personally under the Mexican judgment. In addition, the
Hennessys claim that the circuit court misapplied the doctrine
of comity. Wells Fargo disputes both these assertions. It
argues that the circuit court accurately interpreted Mexican law
and properly applied its discretion to domesticate the Mexican
judgment. We will address the two issues in turn.
24
No. 2019AP1206
A. Interpretation Of Mexican Law
¶46 The Hennessys argue that, under Mexican law, Wells
Fargo did not possess a money judgment to domesticate against
the Hennessys personally. They claim that because the loan
agreement and note are governed by Wisconsin law, the Mexican
courts could not have permitted Wells Fargo to collect any
deficiency remaining after sale of the property. We disagree.
¶47 The circuit court was provided briefing, accepted
hundreds of pages of exhibits on Mexican law, and listened for
two days of hearings to two qualified experts on Mexican law.
Mr. Osuna, the expert Wells Fargo presented, testified in detail
that the Mexican judgment included both in rem and in personam
relief. According to Mr. Osuna, Wells Fargo could both obtain
the property as collateral and use the Mexican judgment to seek
any deficiency remaining after the property is sold. Notably,
the Mexican judgment on its face states that Wells Fargo is owed
"the principal amount of US$ 7,500,000.00," as well as interest,
fees, expenses, and court costs. Although the judgment states
that if payment is not made the Hennessys must "deliver to
[Wells Fargo] the property," the provision does not explicitly
exclude the possibility that Wells Fargo is entitled to a
deficiency in its money award after the property is sold.
¶48 The Hennessys argue that only the loan document and
note allowed Wells Fargo to collect a deficiency; however, those
documents are closely tied with the trust agreement. The
contracts repeatedly reference each other. For instance, the
trust agreement stated that the Hennessys must "comply with all
25
No. 2019AP1206
obligations [they] assumed under the Loan Documents," and, in
the case of default, the Hennessys were obligated to
"immediately pay any and all amounts [they] owe[] under the Loan
Documents." Wells Fargo attached the loan agreement, the note,
and the trust agreement as attachments to its complaint in
Mexico, and the Mexican judgment explicitly references amounts
owed under the other contracts. Specifically, Wells Fargo is
entitled to interest, fees, and expenses "in accordance with
what was stipulated in all of the loan documents admitted into
court as evidence." To the extent that the Hennessys believe
that the Mexican court did not apply its own law correctly or
improperly awarded relief under the Mexican judgment, they must
address their complaints to Mexican authorities. Hilton, 159
U.S. at 202; 30 Am. Jur. 2d, supra ¶42; 50 C.J.S., supra ¶42,
§ 1333. We will not sit as a court of review for the judicial
systems of other countries.
¶49 While the Hennessys presented an expert with different
views on Mexican law, the court cannot conclude that the circuit
court's decision to credit Wells Fargo and its expert "is
against the great weight and clear preponderance of the
evidence." Country Visions Coop., 396 Wis. 2d 470, ¶19. While
the Hennessys may have presented "competing factual inferences,"
that alone does not justify reversal of the circuit court's
decision. Id.
¶50 Consequently, we affirm the circuit court's
interpretation of Mexican law. The circuit court properly
determined that the Mexican judgment allowed Wells Fargo to
26
No. 2019AP1206
collect a money judgment from the Hennessys personally and seek
any deficiency after foreclosure on the property is complete.
B. International Comity
¶51 The Hennessys argue that the circuit court should not
have domesticated the Mexican judgment because it was
insufficiently specific as to the amounts the Hennessys owed.
They argue that the judgment does not contain a "sum certain"
and leaves open additional calculations of deficiencies,
interest, fees, and expenses owed to Wells Fargo. Thus,
according to the Hennessys, the Mexican judgment is not final.
¶52 The Hennessys do not contend that the Mexican judgment
is "against [the] policy or laws of [this] state," nor do they
claim that the Mexican courts lacked jurisdiction. Estate of
Steffke, 65 Wis. 2d at 203. In addition, they do not assert
that the Mexican proceedings lacked basic procedural guarantees,
such as notice and the opportunity to be heard.
¶53 The circuit court found that the Mexican judgment
permitted Wells Fargo to collect the amounts owed to the bank
and receive the property as collateral. According to the
circuit court, "[a]n attempt to recover a difference in
value . . . is not a new action that seeks a new judgment;
rather it is an action that simply seeks to enforce the previous
judgment." Thus, "the Mexican [j]udgment is a valid and
enforceable personal judgment against the Hennessys under the
laws of Mexico." No further appeals can be taken regarding the
Mexican judgment, and for all intents and purposes, it
27
No. 2019AP1206
represents the final resolution of the claims brought by Wells
Fargo against the Hennessys in Mexico.
¶54 These findings were well supported by the record.
Mr. Osuna testified explicitly that the Mexican judgment was
final, and actions undertaken by Wells Fargo to calculate and
collect deficiencies, interest, expenses, and fees were simply
procedures to enforce the preexisting judgment. The judgment
itself identifies amounts owed to Wells Fargo, namely $7.5
million, and the property subject to forfeiture. As explained
above, the circuit court's findings of fact as to Mexican law
were not clearly erroneous.
¶55 Nonetheless, the Hennessys argue that the Mexican
judgment was not final enough, citing the Restatement's
discussion on the meaning of "final judgment." Restatement
(Third) of Foreign Relations Law, supra ¶42, § 481 cmt. e ("A
final judgment [subject to domestication] is one that is not
subject to additional proceedings in the rendering court other
than execution.").
¶56 In its reasoning supporting recognition of the Mexican
judgment, the circuit court accurately described the facts of
the case. It cited the Restatement's definition of a final
judgment and thoroughly described the Hennessy's arguments
against domestication. Point by point, the circuit court
rejected the Hennessys' contentions. The circuit court
explained that the Mexican judgment must be given due respect
under principles of comity because the judgment definitively
established personal liability for a sum of money against the
28
No. 2019AP1206
Hennessys and in favor of Wells Fargo, even though "certain sums
must still be determined through the process of executing the
[j]udgment." The circuit court cited persuasive authority in
support of its decision. See Societe d'Amenagement et de
Gestion de l'Abri Nautique v. Marine Travelift Inc., 324
F. Supp. 3d 1004, 1012 (E.D. Wis. 2018) (applying Wisconsin law
and recognizing a French judgment despite the fact that the
final amount owed "is subject to further computation"); see also
Ingersoll Mill. Mach. Co. v. Granger, 833 F.2d 680, 686 (7th
Cir. 1987) (holding, in the analogous Uniform Foreign Money
Judgment Recognition Act context, that a judgment was "final"
and granted "recovery of a sum of money" despite the fact that
additional calculations of interest and exchange rates were
necessary); Nat'l Aluminum Co., Ltd. v. Peak Chem. Corp., 132 F.
Supp. 3d 990, 998-1000 (N.D. Ill. 2015) (applying Illinois'
Uniform Foreign Country Money Judgment Recognition Act and
rejecting an argument that "further calculations, such as any
applicable interest due," prevented the court from recognizing a
foreign judgment).
¶57 Upon a review of the record, this court cannot
conclude that the circuit court erroneously exercised its
discretion in domesticating the Mexican judgment. The circuit
court accurately examined the facts, recognized the
applicability of the comity doctrine, "us[ed] a demonstrative
rational process" in applying the doctrine, and came to a
reasonable conclusion. Lane, 251 Wis. 2d 68, ¶19. We affirm
the circuit court's judgment in favor of Wells Fargo.
29
No. 2019AP1206
IV. CONCLUSION
¶58 The Hennessys argue that the circuit court incorrectly
held that, under Mexican law, the foreign judgment was valid and
personally enforceable against them. In the process, the
Hennessys ask that this court alter the standard for reviewing
issues of a foreign country's law and consider such issues de
novo as questions of law. In addition, the Hennessys claim that
the circuit court should not have domesticated the Mexican
judgment under principles of comity.
¶59 In Wisconsin, a foreign country's law must be proven
before a circuit court as a question of fact. We reaffirm this
principle and decline the Hennessys' invitation to consider
foreign law de novo. Upon a review of the record, the court
cannot conclude that the circuit court's interpretation of
Mexican law was clearly erroneous. Further, the circuit court
did not erroneously exercise its discretion by choosing to
recognize the Mexican judgment in Wisconsin. Thus, the court of
appeals is affirmed, and Wells Fargo's judgment against the
Hennessys was properly domesticated.
By the Court.—The decision of the court of appeals is
affirmed.
30
No. 2019AP1206.rfd
¶60 REBECCA FRANK DALLET, J. (concurring). I join the
majority opinion but write separately only because I would focus
on Wis. Stat. § 902.02(5), which requires Wisconsin courts to
treat foreign countries' laws as questions of fact that must be
proven to the circuit court. Therefore, I respectfully concur.
¶61 From statehood through the early 1920s, Wisconsin
consistently treated all other jurisdictions' laws as questions
of fact that needed to be pleaded and proven. See Wis. Stat.
ch. 98, § 56 (1849) ("The existence and the tenor or effect of
all foreign laws may be proved as facts by parol evidence.");
Rape v. Heaton, 9 Wis. 328, 337-41 (1859); Hite v. Keene, 149
Wis. 207, 217, 134 N.W. 383 (1912). This rule applied equally
to the laws of other states and foreign countries and was, at
the time, the majority (if not universal) approach in other
states and in the federal courts. See Heaton, 9 Wis. at 337-41;
Hite, 149 Wis. at 217; see also, e.g., Arthur R. Miller, Federal
Rule 44.1 and the "Fact" Approach to Determining Foreign Law:
Death Knell for a Die-Hard Doctrine, 65 Mich. L.
Rev. 613, 621-22 (1967). Beginning in the early 1920s, however,
the legislature mandated that Wisconsin courts use a question-
of-law approach, but only as to other states' laws; foreign
countries' laws remained questions of fact. The legislature
accomplished this change by directing Wisconsin courts to "take
judicial notice" of other states' laws. See Wis. Stat.
ch. 176, § 4135m (1921) (other states' statutes); Wis.
Stat. § 328.01(1) (1947) (other states' common law and
statutes).
1
No. 2019AP1206.rfd
¶62 To the modern reader, it might seem strange that
"judicial notice" in this context indicated that courts should
treat other states' laws as questions of law, not fact. That's
because in contemporary usage, "judicial notice" almost always
refers to judicial notice of facts (sometimes called "judicial
notice of adjudicative facts"). See Wis. Stat. § 902.01(1)-(2)
(allowing courts to forgo the rules of evidence for facts that
are beyond reasonable dispute, generally known, and can be
easily ascertained from sources "whose accuracy cannot
reasonably be questioned"). But historically, "judicial notice"
has also referred to judicial notice of law. Although "judicial
notice of law" is a phrase seldom used today, the concept is
part of everyday legal practice. It refers to the unremarkable
fact that the rules of evidence do not apply to judges'
citations to statutes or judicial opinions. Judges may simply
research and cite the applicable law, and the parties are not
required to prove that law like a fact. See Getty Petroleum
Mktg., Inc. v. Cap. Terminal Co., 391 F.3d 312, 324 (1st
Cir. 2004) (Lipez, C.J., concurring) ("Without acknowledging it
(and perhaps without even thinking about it) courts take
judicial notice of law every time they cite a statute or
judicial decision."); see also 2 McCormick on Evidence § 335
(8th ed. 2020).
¶63 Judicial notice remains the norm when it comes to
other states' laws. Indeed, Wis. Stat. § 902.02(1) requires
that approach. And when a circuit court takes judicial notice
of another state's law, appellate courts treat the circuit
court's resulting conclusions like other legal conclusions,
2
No. 2019AP1206.rfd
reviewing them independently (or de novo). See, e.g., Wis.
Pharmacal Co., LLC v. Neb. Cultures of Cal., Inc., 2016 WI 14,
¶¶12-13, 16, 57-84, 367 Wis. 2d 221, 876 N.W.2d 72.
¶64 Foreign countries' laws, however, are treated
differently. In Wis. Stat. § 902.02, which adopted the Uniform
Judicial Notice of Foreign Law Act, the legislature explicitly
excluded foreign countries' laws from the judicial-notice
provisions:
(5) Foreign country. The law of a jurisdiction other
than those referred to in sub. (1) shall be an
issue for the court, but shall not be subject to
the foregoing provisions concerning judicial
notice.
§ 902.02(5). On its face, § 902.02(5) might appear to require
no particular approach to foreign countries' laws. After all,
just because foreign countries' laws are not subject to the same
rules as other states' laws does not necessarily prohibit courts
from taking judicial notice of foreign countries' laws in all
circumstances.
¶65 But the broader statutory context tells a different
story. See State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. Chapter 902 sets
forth the exhaustive rules for when Wisconsin courts may take
judicial notice of either facts or law. Wisconsin
Stat. § 902.01 deals with judicial notice of facts, including
when taking such notice is within a court's discretion and when
it is mandatory. The other two provisions in Chapter 902
discuss judicial of notice of law. Section 902.03 specifies
when circuit courts may and when they shall take judicial notice
of Wisconsin county and municipal ordinances and rules and
3
No. 2019AP1206.rfd
orders of Wisconsin and federal agencies. Section 902.02,
Wisconsin's version of the Uniform Judicial Notice of Foreign
Law Act, directs Wisconsin courts to "take judicial notice of
the common law and statutes of every state, territory and other
jurisdiction of the United States." § 902.02(1). Contrast that
with the explicit exclusion of foreign countries' laws from the
judicial notice provisions in § 902.02(5). Nowhere in Chapter
902 does the legislature provide for judicial notice of foreign
countries' laws. This context leads to a single conclusion:
Wisconsin courts cannot take judicial notice of foreign
countries laws; the parties must prove them as facts.1 Cf.
Switzer v. Weiner, 230 Wis. 599, 601-02, 280 N.W. 509 (1939).
¶66 This conclusion is bolstered by the Wisconsin cases
addressing Wis. Stat. § 902.02 and is consistent with the
practice in other states that have identical statutes. This
court first mentioned § 902.02(5) (then numbered Wis.
Stat. § 328.01 (1961-62)) in Witt v. Realist, Inc., 18
Wis. 2d 282, 289 & n.5, 118 N.W.2d 85 (1962), citing it as a
reason why we could not take judicial notice of German law.
Although the court did not analyze in depth the meaning
of § 902.02(5), its holding reinforces the view that § 902.02
requires foreign countries' laws to be treated as questions of
fact. A few years later in Milwaukee Cheese Co. v. Olafsson, 40
Wis. 2d 575, 579-80, 162 N.W.2d 609 (1968), we held
This
1 reading also makes sense in light of the
legislature's practice, unbroken since statehood, of specifying
how various types of laws may be proven. See, e.g., Wis. Stat.
ch. 98, § 56 (1849); Wis. Stat. §§ 327.05-.06 (1925-26); Wis.
Stat. § 328.01 (1927-28); Wis. Stat. § 889.06.
4
No. 2019AP1206.rfd
that § 902.02 (then numbered § 891.01 (1967-68)) did not alter
the rule that "the laws of foreign countries must be pleaded and
proved as any other fact." Id. The court of appeals has been
even more explicit, explaining that under § 902.02(5) "a court
may not take judicial notice of foreign country's law" and that,
as a result, "the issue of what the law of a foreign country
requires is one of pure fact that must be proved." Griffin v.
Mark Travel Corp., 2006 WI App 213, ¶4, 296 Wis. 2d 642, 724
N.W.2d 900. Moreover, other states that retain the Uniform
Judicial Notice of Foreign Law Act also treat foreign countries'
laws as questions of fact, not subject to judicial notice. See
DeLima v. Tsevi, 921 N.W.2d 89, 95 (Neb. 2018); Ramsey County v.
Yee Lee, 770 N.W.2d 572, 577-78 (Minn. Ct. App. 2009); Bianchi
v. Savino Del Bene Int'l Freight Forwarders, Inc., 770
N.E.2d 684, 695 (Ill. Ct. App. 2002); James v. James, 45
S.W.3d 458, 462 (Mo. Ct. App. 2001).
¶67 Because Wis. Stat. § 902.02(5) requires foreign
countries' laws be treated as questions of fact, any change to
that standard must come through legislation. In fact, the
states that now allow judicial notice of foreign countries' laws
have done so either by repealing the Uniform Act or by adding
additional statutes or rules. See, e.g., Fla. Stat.
Ann. § 90.202(4); Cal. Evid. Code §§ 450-52; N.Y. C.P.L.R. 3016,
4511. In making neither change, Wisconsin is an outlier——by a
5
No. 2019AP1206.rfd
wide margin.2 Nevertheless, we are bound by § 902.02(5), and the
analysis in this case should be rooted in that statute.
¶68 I am authorized to state that Justices BRIAN HAGEDORN
and JILL J. KAROFSKY join this concurrence.
2 Exact numbers are hard to come by, but it appears that at
least 41 states have adopted statutes or rules that either
explicitly allow judicial notice of foreign countries' laws, or
specify that rulings based on foreign countries' laws are to be
treated as rulings on questions of law, or both. Ala. R. Civ.
P. 44.1; Alaska R. Evid. 202(c)(4); Ariz. R. Civ. P. 44.1; Ark.
R. Civ. P. 44.1(c); Cal. Evid. Code §§ 450-52; Colo. R. Civ.
P. 44.1; Conn. Gen. Stat. § 52-163a; Del. Ch. R. 44.1; Fla.
Stat. Ann. § 90.202(4); Ga. Code Ann. § 9-11-43; Haw. R. Civ.
P. 44.1; Ind. Tr. P.R. 44.1; Kan. Stat. Ann. § 60-409(b); La.
Code Evid. Ann. art. 202; Me. R. Civ. P. 44A; Md. Code § 10-501;
Mass. R. Civ. P. 44.1; Mich. R. Evid. 202; Miss. Code
§ 13-1-149; Mont. R. Civ. P. 44.1; Nev. R. Civ. P. 44.1; N.J. R.
Evid. 201(a); N.M. R. Ann. 1-044; N.Y. C.P.L.R. 3016, 4511; N.C.
R. Civ. P. § 1A-1, R. 44.1; N.D. R. Civ. P. 44.1; Ohio Civ.
R. 44.1; Okla. Stat. tit. 12 § 2201; Or. Rev. Stat. § 40.090(6);
Pa. Cons. Stat. § 5327; R.I. R. Civ. P. 44.1; S.C. R. Civ. P.
44; S.D. Codified Laws § 19-8-2; Tenn. R. Evid. 202(b); Tex. R.
Evid. 203; Utah R. Civ. P. 44(f); Vt. R. Civ. P. 44.1(a); Va.
Stat. § 8.01-386; Wash. Super. Ct. Civ. R. 44.1; W. Va. R. Civ.
P. 44.1; Wyo. R. Civ. P. 44. The federal courts have done the
same. See Fed. R. Civ. P. 44.1.
6
No. 2019AP1206.rfd
1