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

2022 WI 2, 968 N.W.2d 684, 400 Wis. 2d 50

• Court: Wisconsin Supreme Court
• Decided: January 14, 2022
• Docket: 2019AP001206
• Status: Published

Opinion

2022 WI 2

SUPREME 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 2 NOTICE 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

2 No. 2019AP1206

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 3 No. 2019AP1206

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.

4 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

5 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 7 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

11 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

12 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 13 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

14 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.

15 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 16 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 17 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 18 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.

¶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

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

cannot conclude that the circuit court's interpretation of

Mexican law was clearly erroneous. Further, the circuit court

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