Hennessy v. Wells Fargo Bank, N.A.
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The Supreme Court affirmed the judgment of the court of appeals affirming an order of the circuit court that domesticated a Mexican judgment in favor of Wells Fargo Bank, N.A., and against Daniel and Jane Hennessy, holding that Wells Fargo's judgment against the Hennessys was properly domesticated.
On appeal, the Hennessys asserted that the circuit court erred in holding that the foreign judgment was valid and personally enforceable against them under Mexican law and erred in domesticating the Mexican judgment under principles of comity. The Supreme Court affirmed, holding (1) the Wisconsin principle that a foreign country's law must be proven before a circuit court as a question of fact is hereby affirmed; (2) the circuit court's interpretation of Mexican law was not clearly erroneous; and (3) the circuit court did not abuse its discretion by choosing to recognize the Mexican judgment in Wisconsin.
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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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: January 14, 2022 October 4, 2021 Circuit Milwaukee 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, FILED Plaintiffs-Appellants-Petitioners, 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. ¶1 ANNETTE KINGSLAND ZIEGLER, C.J. Affirmed. 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 questions of law. and consider such issues de novo as 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. principle and decline the Hennessys' We reaffirm this invitation to consider foreign law de novo. Upon a review of the record, the court cannot the conclude that circuit Mexican law was clearly erroneous. did not erroneously exercise its court's is affirmed, and Wells of Further, the circuit court discretion recognize the Mexican judgment in Wisconsin. appeals interpretation Fargo's by choosing to Thus, the court of judgment against the Hennessys was properly domesticated. I. ¶4 FACTUAL BACKGROUND AND PROCEDURAL POSTURE 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. addition, the parties entered into a trust agreement. 2 In The trust 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. security For instance, the loan agreement stated that the is Agreement." "granted . . . under the Guaranteed Trust 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. 3 The No. 2019AP1206 Mexican appellate district court. court amended the judgment issued by the 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 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. 2 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. judgment that Wells Fargo was They sought a declaratory 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. the circuit court granted summary judgment In August 2017, in favor Hennessys for their declaratory judgment claim. of the 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 claimed For the first phase of the proceedings, the Hennessys that the Mexican order enforceable against them personally. was not a valid judgment 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. June 11, 2018, and July 17, 2018, the circuit court On held hearings at which the parties presented their arguments. In addition, of experts Mexican law. testified on the substance and meaning 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. under the Mexican compensation collateral response, Fabian, an Ms. Fabian for and the In addition, Mr. Osuna explained that, judgment, any the difference amounts Hennessys attorney stated Wells who that still Fargo could seek between the value owed to Wells presented the practiced commercial under Mexican testimony law combine an in rem and an in personam action. a law monetary of the Fargo. In of Georgina in creditor Mexico. cannot 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. 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. 3 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. court reasoned Hennessys that either the pay Mexican the judgment amounts owed surrender the property as collateral. The circuit mandated to that Wells Fargo the or Under Mexican law, if the Hennessys failed to pay Wells Fargo, the bank could recover any deficiency remaining seeking deficiency, a judgment. after the Wells collateral Fargo was was sold, enforcing the and, by Mexican Thus, the circuit court credited Wells Fargo's expert and rejected the Hennessys' argument that the Mexican judgment provided only in rem relief. ¶14 court After issuing its October 2018 decision, the circuit continued to the second phase of the proceedings considered whether to domesticate the Mexican judgment. circuit court again accepted briefing April 11, 2019, a hearing was held. and exhibits, and and The on 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 construction period." accrued both during and after the In addition, the circuit court awarded Wells Fargo "delay fees, expenses, and commissions in accordance 7 No. 2019AP1206 with . . . the underlying loan costs incurred in Mexico." documents," as well as "court Finally, the order allowed Wells Fargo to "foreclose on the underlying collateral . . . and to seek any resulting deficiency." ¶16 the The Hennessys appealed, and, on September 15, 2020, court of appeals affirmed the Hennessy, 394 Wis. 2d 357, ¶47. circuit court's decision. 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. rejected the erroneously Id., ¶¶31-33. Hennessys' exercised argument its Finally, the court of appeals that the discretion by circuit domesticating Mexican judgment under principles of comity. particular, the court of appeals did court not Id., ¶¶34-46. agree with had the In 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. ¶18 The Hennessys STANDARD OF REVIEW 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. ¶19 Interpretation Of Foreign Law 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, 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. 4 For an analysis on the merits of the Hennessys' claims, see infra, section III. 5 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 Milwaukee N.W.2d 609 law Cheese is, Co. (1968) v. ("[T]he is always Olafsson, laws of a 40 question Wis. 2d 575, foreign pleaded and proved as any other fact."). country's law are "an § 902.02(5) (2017-18).7 issue for of fact."); 580, countries must 162 be Questions of a foreign the court." Wis. Stat. 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 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. 6 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 7 10 No. 2019AP1206 standard, not de novo. Inc., 2006 WI 46, Royster-Clark, Inc. v. Olsen's Mill, ¶¶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." Stat. § 902.02(1). such laws in Wis. Because courts "may inform [themselves] of 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 1966, the The federal courts have followed a similar path. Federal Rules of Civil Procedure were permit judicial notice of a foreign country's law. In amended to 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 case, we decisis." "Any time this court is asked to overturn must thoroughly consider the doctrine a prior of stare 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, N.W.2d 813 2019 (quotations WI 102, omitted). ¶50, In 389 Wis. 2d 190, addition, we 935 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 law" that There has been no "[c]hange[] or development in the 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 systems, use different cultural values, languages, and and societal have distinct expectations, which influence legal interpretation and analysis. 14 legal all of As was true 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 present The what relevant on standard evidence the issue places the and expert of foreign burden on testimony law, and the they to foreign facilitate law efficient disputes. These and may to are appellate The process may effective disputes believe limits review to clearly erroneous interpretations. serve parties resolution otherwise of 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. explained over 50 years ago in Milwaukee Cheese We 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. barriers, Even if the laws were readily available, language problems of interpretation, and unfamiliar legal 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. 8 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 Wis. 2d 60, ¶100. conclusions." Johnson Controls, 264 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 have Further, subsequent review and development in the law not undermined review. the validity of Wisconsin's standard of 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 Wisconsin decision could precedent] not without illogical distinctions"). "be reconciled [with other generating . . . arbitrary and On numerous occasions, this court has concluded that Wisconsin applies a question of fact standard for interpretation of foreign law. Wis. 2d at decisions 580-81. were There wrongly See, e.g., Milwaukee Cheese, 40 is no decided, indication "unsound in that the principle," subject to change due to "newly ascertained facts." 389 Wis. 2d 190, ¶50. that support challenges or Robinson, The foundational common law principles Wisconsin's that prior underlie standard the have not changed, interpretation of a and the 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. 17 Johnson Controls, 264 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. Milwaukee Cheese, Wis. 2d 642, ¶4. 40 Wis. 2d at Hull, 23 Wis. at 386; 580-81; Griffin, 296 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. Wisconsin courts, Quite the opposite. under current law, have a clearly established standard, and they have "regularly Progressive Griffin, N. 296 applied Ins. [it] . . . in Co., Wis. 2d 642, 281 a consistent Wis. 2d 300, ¶¶5-15 (applying ¶51; the manner." see, e.g., 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. (explaining the See, 2 McCormick on Evid., supra ¶21, connection between 18 judicial notice § 335 and No. 2019AP1206 independent judicial review). On appeal, the interpretation of other states' laws is a question of law reviewed de novo. e.g., Am. Fam. Mut. Ins. Co., 383 Wis. 2d 63, ¶¶20-34. See, Notably, other states have transitioned to a question of law standard for foreign countries' laws notice of the law. by allowing courts to take judicial See, e.g., Mich. R. Evid. 202(a) (2018). Wisconsin has not done so. ¶36 Unlike § 902.02(5) questions explicitly from judicial notice. (explaining changes of other excludes the states' laws, law foreign of Wis. Stat. countries See Milwaukee Cheese, 40 Wis. 2d at 580 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 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"). 9 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 Wisconsin's countries. fact that all, we standard do not for accept the interpreting invitation the law to of alter foreign The substance of foreign law remains a question of "must be pleaded and proved Milwaukee Cheese, 40 Wis. 2d at 580. as any other fact." 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 highly deferential." questions of fact, the standard 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 "is 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. ¶39 manner Unlike in many which International Comity states, judgments Wisconsin from foreign domesticated and enforced in the state. has not adopted the Recognition Act. Uniform has not codified countries may the be For instance, Wisconsin Foreign-Country Money Judgments 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 furthering the orderly administration of justice." of 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 21 Disconto Gesellschaft v. No. 2019AP1206 Terlinden, 127 Wis. 651, 660, 106 N.W. 821 (1906) ("[T]here is no uniform cognizance and of constant practice controversies of between nations as foreigners."); to taking 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 centuries, courts omitted)). have However, recognized over several the course of 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 foreign court fairness." had original "abided by jurisdiction," fundamental and standards whether of the procedural 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 jurisdiction judgment over the are person that and the rendering subject matter; court had 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 applied their own law. whether foreign courts accurately 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 court act if we find the trial examined the relevant facts, applied a proper standard of law, and using a demonstrative rational process, reached reasonable judge could reach." a conclusion that a Lane v. Sharp Packaging Sys., Inc., 2002 WI 28, ¶19, 251 Wis. 2d 68, 640 N.W.2d 788. III. ¶45 ANALYSIS The Hennessys argue that the circuit court incorrectly interpreted personally Mexican under the law to Mexican allow recovery judgment. In against addition, them 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. ¶46 The Interpretation Of Mexican Law 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 deficiency remaining after sale of the property. ¶47 The circuit court was provided collect any We disagree. 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. that if payment is not made the Although the judgment states 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 contracts repeatedly reference each other. agreement. The 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." and the Wells Fargo attached the loan agreement, the note, 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 against the evidence." to great credit weight Wells and Fargo clear and its expert preponderance of Country Visions Coop., 396 Wis. 2d 470, ¶19. "is the While the Hennessys may have presented "competing factual inferences," that alone does not justify reversal of the circuit court's decision. ¶50 Id. Consequently, interpretation determined that of we Mexican the affirm law. Mexican the circuit The circuit judgment allowed 26 court Wells court's properly Fargo to No. 2019AP1206 collect a money judgment from the Hennessys personally and seek any deficiency after foreclosure on the property is complete. B. ¶51 have International Comity The Hennessys argue that the circuit court should not 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 interest, open fees, additional and calculations expenses owed to of Wells deficiencies, 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. Steffke, 65 Wis. 2d at 203. Estate of 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 circuit the court, value . . . is property "[a]n not a as collateral. attempt new to action According recover that a seeks a to difference new the in 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." Mexican judgment, No further appeals can be taken regarding the and for all 27 intents and purposes, it No. 2019AP1206 represents the final resolution of the claims brought by Wells Fargo against the Hennessys in Mexico. ¶54 These Mr. Osuna findings testified were well explicitly supported that the by the Mexican record. 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. itself identifies amounts owed to Wells The judgment Fargo, namely million, and the property subject to forfeiture. $7.5 As explained above, the circuit court's findings of fact as to Mexican law were not clearly erroneous. ¶55 Nonetheless, judgment was discussion on the Hennessys not final enough, the meaning of argue citing "final that the the Mexican Restatement's 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. judgment against rejected It cited the Restatement's definition of a final and thoroughly domestication. the described Point Hennessys' by the Hennessy's point, contentions. the The arguments circuit court 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. Gestion de l'Abri See Nautique Societe v. d'Amenagement Marine Travelift et Inc., de 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 Uniform 990, 998-1000 Foreign Country (N.D. Ill. Money 2015) Judgment (applying Illinois' 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 conclude that the of circuit the court record, this erroneously court exercised discretion in domesticating the Mexican judgment. court accurately examined the facts, cannot its The circuit recognized the applicability of the comity doctrine, "us[ed] a demonstrative rational process" in reasonable conclusion. applying the doctrine, and Lane, 251 Wis. 2d 68, ¶19. the circuit court's judgment in favor of Wells Fargo. 29 came to a We affirm No. 2019AP1206 IV. ¶58 CONCLUSION 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. the circuit court In addition, the Hennessys claim that 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. principle and decline the Hennessys' We reaffirm this invitation to consider foreign law de novo. Upon a review of the record, the court cannot the conclude that circuit Mexican law was clearly erroneous. did not erroneously exercise its court's is affirmed, and Wells of Further, the circuit court discretion recognize the Mexican judgment in Wisconsin. appeals interpretation Fargo's by choosing to Thus, the court of judgment against the Hennessys was properly domesticated. By the Court.—The decision affirmed. 30 of the court of appeals is ¶60 REBECCA FRANK DALLET, J. No. 2019AP1206.rfd (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. ¶61 From statehood Therefore, I respectfully concur. 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) states and in the federal courts. approach in other 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 Rev. 613, 621-22 (1967). Die-Hard Doctrine, 65 Mich. L. Beginning in the early 1920s, however, the legislature mandated that Wisconsin courts use a questionof-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" ch. 176, § 4135m Stat. § 328.01(1) of other (1921) (1947) states' laws. See Wis. Stat. Wis. (other states' statutes); (other states' common statutes). 1 law and No. ¶62 To the modern reader, it might seem 2019AP1206.rfd 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 easily reasonable ascertained dispute, from generally sources reasonably be questioned"). known, "whose and can accuracy be cannot 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. fact that the rules of It refers to the unremarkable evidence do not apply citations to statutes or judicial opinions. to judges' Judges may simply research and cite the applicable law, and the parties are not required to prove that law like a fact. Mktg., Inc. v. Cap. Terminal Co., 391 See Getty Petroleum F.3d 312, 324 (1st Cir. 2004) (Lipez, C.J., concurring) ("Without acknowledging it (and perhaps judicial without notice of even law thinking every about time they it) cite courts a take statute or judicial decision."); see also 2 McCormick on Evidence § 335 (8th ed. 2020). ¶63 Judicial notice other states' laws. that approach. of another court's remains the norm when it comes to Indeed, Wis. Stat. § 902.02(1) requires And when a circuit court takes judicial notice state's resulting law, appellate conclusions like 2 courts treat the circuit other legal conclusions, No. reviewing them independently (or de novo). 2019AP1206.rfd 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 differently. countries' laws, however, are treated 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 story. But the broader statutory context tells a different 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 discuss judicial of notice of law. provisions in Chapter 902 Section 902.03 specifies when circuit courts may and when they shall take judicial notice of Wisconsin county and municipal 3 ordinances and rules and No. orders of Wisconsin and federal agencies. 2019AP1206.rfd 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 cannot courts 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 Wis. first mentioned Stat. § 328.01 (1961-62)) § 902.02(5) in Witt (then v. numbered 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 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. 1 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 N.E.2d 684, Del Bene Int'l 695 (Ill. Ct. Freight App. Forwarders, 2002); James Inc., v. 770 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. wide margin.2 2019AP1206.rfd 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. 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. 2 6 No. 1 2019AP1206.rfd
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