law of the case doctrine in Wisconsin

2026State v. Jensen, 2021 WI 27, ¶12 , 396 Wis. 2d 196 , 957 N.W.2d 244 . ¶16 “The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” State v. Stuart, 2003 WI 73, ¶23 , 262 Wis. 2d 620 , 664 N.W.2d 82 (citation omitted).

2026State v. Jensen, 2021 WI 27, ¶12 , 396 Wis. 2d 196 , 957 N.W.2d 244 . ¶16 “The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” State v. Stuart, 2003 WI 73, ¶23 , 262 Wis. 2d 620 , 664 N.W.2d 82 (citation omitted).

2003See State v. Brady, 130 Wis. 2d 443, 447 , 388 N.W.2d 151 (1986) (citing McGovern v. Eckhart, 200 Wis. 64 , 227 N.W. 300 (1929), for the proposition that the tradition to strictly follow the law of the case doctrine was to be applied more flexibly in the future) . 5 As this court has found: " [T]he law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rule to be inexorably followed in every case." Univest, 148 Wis. 2d at 38-39 .

2003See State v. Brady, 130 Wis. 2d 443, 447 , 388 N.W.2d 151 (1986) (citing McGovern v. Eckhart, 200 Wis. 64 , 227 N.W. 300 (1929), for the proposition that the tradition to strictly follow the law of the case doctrine was to be applied more flexibly in the future) . 5 As this court has found: " [T]he law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rule to be inexorably followed in every case." Univest, 148 Wis. 2d at 38-39 .

2026See, e.g., id., ¶13 (explaining that the law of the case doctrine requires courts “to adhere to an appellate court’s ruling on a legal issue” in all subsequent proceedings (emphasis added)); Novell v. Migliaccio, 2008 WI 44, ¶64 , 309 Wis. 2d 132 , 749 N.W.2d 544 (same); State v. Moeck, 2005 WI 57, ¶18 , 280 Wis. 2d 277 , 695 N.W.2d 783 (same).

2026See, e.g., id., ¶13 (explaining that the law of the case doctrine requires courts “to adhere to an appellate court’s ruling on a legal issue” in all subsequent proceedings (emphasis added)); Novell v. Migliaccio, 2008 WI 44, ¶64 , 309 Wis. 2d 132 , 749 N.W.2d 544 (same); State v. Moeck, 2005 WI 57, ¶18 , 280 Wis. 2d 277 , 695 N.W.2d 783 (same).

2003See State v. Brady, 130 Wis. 2d 443, 447 , 388 N.W.2d 151 (1986) (citing McGovern v. Eckhart, 200 Wis. 64 , 227 N.W. 300 (1929), for the proposition that the tradition to strictly follow the law of the case doctrine was to be applied more flexibly in the future) . 5 As this court has found: " [T]he law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rule to be inexorably followed in every case." Univest, 148 Wis. 2d at 38-39 .

2003See State v. Brady, 130 Wis. 2d 443, 447 , 388 N.W.2d 151 (1986) (citing McGovern v. Eckhart, 200 Wis. 64 , 227 N.W. 300 (1929), for the proposition that the tradition to strictly follow the law of the case doctrine was to be applied more flexibly in the future) . 5 As this court has found: " [T]he law of the case doctrine is not a rule to which this court is bound by any legislative enactment, nor is it a rule to be inexorably followed in every case." Univest, 148 Wis. 2d at 38-39 .

2026Under these circumstances, the law of the case doctrine is inapplicable. ¶16 In arguing to the contrary, Kerstner cites Ridgeway v. Montana High School Ass’n, 858 F.2d 579, 588 (9th Cir. 1988), asserting that in that case, the United States Court of Appeals for the Ninth Circuit “expressly rejected the argument that the law of the case doctrine only applies to issues decided by an appellate court, and recognize[d] that it also applies to prior orders of a trial court.” Kerstner further contends that the Wisconsin Supreme Court “cited and quoted” Ridgeway “with approval” in State v. Stuart, 200

2003The purpose of the law of the case doctrine is not complex: "The doctrine of 'law of the case' is rooted in the concept that courts should generally follow earlier orders in the same case and should he reluctant to change decisions already made, because encouragement of change would create intolerable instability for the parties." Ridgeway v. Montana High School Ass'n, 858 F.2d 579, 587 (9th Cir. 1988) (internal citations omitted). ¶ 24.

2025See Laatsch v. Derzon, 2018 WI App 10, ¶40 , 380 Wis. 2d 108 , 908 N.W.2d 471 (“‘[A] decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” (alteration in Laatsch; quoted source omitted)).

2025See Laatsch v. Derzon, 2018 WI App 10, ¶40 , 380 Wis. 2d 108 , 908 N.W.2d 471 (“‘[A] decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” (alteration in Laatsch; quoted source omitted)).

2023See Dostal v. Strand, 2023 WI 6, ¶24 , 405 Wis. 2d 572 , 948 N.W.2d 382 ("[C]laim preclusion . . . extends to all claims that either were or could have been asserted in the previous case."). 8 The doctrine of law of the case, in the interest of there being finality in court decisions, binds the parties in any subsequent retrial or appeal involving the same case and substantially the same facts as was addressed in the Johnson litigation.

2023See Dostal v. Strand, 2023 WI 6, ¶24 , 405 Wis. 2d 572 , 948 N.W.2d 382 ("[C]laim preclusion . . . extends to all claims that either were or could have been asserted in the previous case."). 8 The doctrine of law of the case, in the interest of there being finality in court decisions, binds the parties in any subsequent retrial or appeal involving the same case and substantially the same facts as was addressed in the Johnson litigation.

2015See State v. Wurtz, 141 Wis. 2d 795, 799-800 , 416 N.W.2d 623 (Ct. App. 1987).

2015See State v. Wurtz, 141 Wis. 2d 795, 799-800 , 416 N.W.2d 623 (Ct. App. 1987).

2005The court of appeals gave an additional reason for disregarding the law of the case doctrine, namely, that "the oral decision makes clear that the trial court left the mistrial decision up to the State." Moeck, 270 Wis. 2d 729, ¶ 21 .

2005We need not address this issue because the departure from the law of the case doctrine is justified on other grounds. [9] Moeck, 270 Wis. 2d 729, ¶ 21 . [10] Seefeldt, 261 Wis. 2d 383, ¶ 13 . [11] The Fifth Amendment to the U.S. Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb ...." [12] Article I, § 8 of the Wisconsin Constitution provides: "[N]o person for the same offense may be put twice in jeopardy of punishment...." This court has been guided by U.S. Supreme Court double jeopardy jurisprudence in construing Wiscons

2025RULE 809.10(2)(b) (explaining that cross-appellants have the same rights and obligations as appellants) and 809.10(4) (explaining that appellants cannot 17 No. 2023AP1478 seek review of judgments, orders, and rulings “previously appealed and ruled upon”); see also Ash Park, LLC v. Alexander & Bishop, Ltd., 2014 WI App 87, ¶19 , 356 Wis. 2d 249 , 853 N.W.2d 618 (“The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’”

2025RULE 809.10(2)(b) (explaining that cross-appellants have the same rights and obligations as appellants) and 809.10(4) (explaining that appellants cannot 17 No. 2023AP1478 seek review of judgments, orders, and rulings “previously appealed and ruled upon”); see also Ash Park, LLC v. Alexander & Bishop, Ltd., 2014 WI App 87, ¶19 , 356 Wis. 2d 249 , 853 N.W.2d 618 (“The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’”

1990We concluded that the law of the case doctrine allowed trial court reconsideration of an appellate order *411 in certain circumstances, for example if the "controlling authority has since made a contrary decision of the law applicable to such issues." Brady at 448 (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967).

1989In Brady , 130 Wis. 2d, we noted that we have departed from the earlier tradition of rigid adherence to the law of the case doctrine, and may disregard the doctrine in certain circumstances when “‘cogent, substantial, and proper reasons exist.’” Id. at 447 , (citing McGovern v. Eckhart, 200 Wis. 64, 78 , 227 N.W. 300, 305 (1929)).

2024See Witkowski, 163 Wis. 2d at 990 ; State v. Moeck, 2005 WI 57, ¶18 , 280 Wis. 2d 277 , 695 N.W.2d 783 (law of the case).

2023See State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 515-16 , 383 N.W.2d 916 (Ct. App. 1986). 8 No. 2021AP2185 application of the correct legal standard, and reasoned and reasonable decisionmaking.

2023See State Bank of La Crosse v. Elsen, 128 Wis. 2d 508, 515-16 , 383 N.W.2d 916 (Ct. App. 1986). 8 No. 2021AP2185 application of the correct legal standard, and reasoned and reasonable decisionmaking.

2022They argue that the circuit court was thus barred, under the law of the case doctrine, from 1 “HAMP” refers to the federal Home Affordable Modification Program, which the Department of the Treasury implemented to “help homeowners avoid foreclosure amidst the sharp decline in the nation's housing market in 2008.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554 (7th Cir. 2012). 2 No. 2021AP347 revisiting this issue after remand and again dismissing their counterclaim.

2022See Schimmels v. Noordover, 2006 WI App 7, ¶17 , 288 Wis. 2d 790 , 709 N.W.2d 466 . 12 No. 2020AP1261 ¶20 Finally, Jerneb and Oak Creek argue that Partner has taken inconsistent positions on agency, with Partner arguing to the arbitration panel that Time Equities does not have standing to bring Jerneb and Oak Creek’s damages claims as their agent, while also arguing to the circuit court and this court that agency principles bind Jerneb and Oak Creek to the Agreement.

2022See Schimmels v. Noordover, 2006 WI App 7, ¶17 , 288 Wis. 2d 790 , 709 N.W.2d 466 . 12 No. 2020AP1261 ¶20 Finally, Jerneb and Oak Creek argue that Partner has taken inconsistent positions on agency, with Partner arguing to the arbitration panel that Time Equities does not have standing to bring Jerneb and Oak Creek’s damages claims as their agent, while also arguing to the circuit court and this court that agency principles bind Jerneb and Oak Creek to the Agreement.

2005Seefeldt, 261 Wis. 2d 383 , ¶ 15 n.4 (citing State v. Barthels, 174 Wis. 2d 173, 181 , 495 N.W.2d 341 (1993)). [13] Seefeldt, 261 Wis. 2d 383, ¶ 15 . [14] Arizona v. Washington, 434 U.S. 497, 503 (1978) (internal quotation and citation omitted). [15] Green v. United States, 355 U.S. 184, 187-88 (1957).