July 26, 2012 – A former chief executive officer working for a company owned by the Oneida Tribe recently won, just barely, a battle to keep legal claims out of tribal court.

John Kroner was chief executive officer of Oneida Seven Generations Corporation, a real estate company owned by the Oneida Tribe. The company terminated his position in 2008. Kroner, who is not a member of the tribe, sued for wrongful termination and breach of contract.

On motion of Seven Generations, the Brown County Circuit Court transferred the case to the Oneida Tribal Court under Wis. Stat. section 801.54, which gives circuit courts discretion to make such transfers if concurrent jurisdiction exists and certain factors are considered.

The supreme court adopted section 801.54 in July 2008 (by a 4-3 vote) under its rulemaking authority, with an effective date of Jan. 1, 2009. Kroner filed his claims in 2008, before the effective date. Seven Generations filed its motion for tribal court transfer in 2010.

The circuit court granted the motion to transfer and an appeals court upheld the transfer. But in Kroner v. Oneida Seven Generations Corp., 2012 WI 88 (July 11, 2012), a Wisconsin Supreme Court majority ruled it was not proper to apply section 801.54 retroactively.

“Although our rationales differ, four justices – Justices Prosser, Roggensack, Ziegler, and Gableman – do not, upon remand, permit transfer of this case to the Oneida Tribal Court, but require the circuit court to proceed on the merits of the pending lawsuit,” a footnote explained.

Three justices (Chief Justice Shirley Abrahamson, Justice Patrick Crooks, and Justice Ann Walsh Bradley) concluded that section 801.54 could apply retroactively to Kroner’s claims, unless the transfer would impact “vested or contractual rights.” In a lead opinion, those justices called for remand for the circuit court to properly decide the retroactivity issue, among other issues.

Three other justices (Justice Patience Roggensack, and Justices Annette Ziegler and Michael Gableman) ruled that section 801.54 could not be applied retroactively in this case because Kroner’s substantive and constitutional rights would be violated by the transfer.

“Today I reaffirm both constitutional and statutory protections for Wisconsin litigants, and I counsel circuit court affirmatively to ensure that those protections are not abridged, enlarged or modified by a transfer under Wis. Stat. § 801.54,” Justice Roggensack wrote.

Justice David Prosser cast the deciding vote in a separate concurring opinion, ruling that section 801.54 should never be given retroactive effect, while noting outstanding thorns in the statute.

“In sum, there is room for significant improvement in the transfer rule,” Justice Prosser wrote. “This is not the case to decide all the serious issues implicated in the existing rule. This is the case to determine that the rule should be applied prospectively."

Joe Forward is the legal writer for the State Bar of Wisconsin.