April 16, 2025 – A phrase on some opinions meaning “by the court” may raise questions.

“Why did they give this to some Latin group, the Per Curiam?” joked Reserve Judge Richard J. Sankovitz of a client’s potential confusion about a per curiam decision.

Lawyers know what per curiam means and its ramifications – generally, do not cite this case – but one may wonder why the case justifies the term.

Judges don’t always agree when a decision should be per curiam. As Wisconsin Court of Appeals District I Presiding Judge M. Joseph Donald said, “Although we are a unified court, … if you asked each one of us, you would get a different answer.”

Per Curiam Limits

Per curiam in a court of appeals decision signals limits to using the case, as established by Wisconsin Rule of Appellate Procedure in Wis. Stat. section 809.23(3).

A case receives a per curiam opinion because, according to the Wisconsin Rules of Appellate Procedure section VI.(5)(a), the case doesn’t have “new or unsettled questions of general importance.”

Because the case lacks general legal significance, the judge may draft it with limited information, perhaps even omitting a statement of facts, “with a minimum analysis of the reasoning,” according to the Internal Operating Procedures.

Such a case may have a bearing only for the parties involved – Wis. Stat. section 809.23(3)(a) limits citation for preclusion or the law of the case.

The exception under section 809.23(1)(b)5. allows substantive, published court of appeals per curiam decisions only when they address appellate jurisdiction or procedure.

For example, McConley v. T. C. Visions, Inc., 2016 WI App 74, addresses whether the court of appeals had jurisdiction to review a final circuit court summary judgment decision while a request for attorney fees remained unresolved. The court explained it has a duty to determine jurisdiction. After evaluating the issue, it decided it had jurisdiction.

Appeal As of Right

The court of appeals provides an “appeal as of right” of a final order or judgment under Wis. Stat. section 808.03(1) within specified time periods after the final order stated in Wis. Stat. section 808.04(1).

That right creates a mighty caseload. The Monthly Statistical Report for February 2025 tallied a total of 172 appeals filed. By the end of the month, the court faced a total of 2,123 pending cases.

In the most recently available court of appeals annual report for 2023, the number of filings totaled 2,360, of which 1,790 petitioners filed as a matter of right.

With that number of cases, a few may be destined for the supreme court and others may receive suitable explanation by the court of appeals. The court of appeals published 55 opinions in 2023, according to the annual report, only 9% of the total. In contrast, the court issued 378 per curiam opinions.

Some appeals of right may not be much for cases. They may contain well-decided issues or facts that can’t result in a useful decision. The briefing could be light or inadequate because of peculiarities of appellate practice or, even more challenging, from a pro se litigant. The court of appeals has in its four districts a total of 16 judges.

‘A Conundrum’

Presiding Judge Donald – making sure that his comments didn’t speak for the entire court of appeals – described a panel’s determination of a case’s status as “a conundrum we all struggle with.”

“Unless the case clearly involves new law or an unsettled question,” Donald explained, “panels tend to use a great deal of restraint.”

The classification also may build agreement. Limiting the case to per curiam may make at least another judge comfortable with a conclusion. Facts may be limited and the opinion easier to write while it speaks directly to the parties, Donald said.

Judge Sankovitz heard a similar explanation at least 10 years ago when he served as Milwaukee County circuit court judge. “It’s a lot easier for [the court of appeals] to do a per curiam decision when all they’re doing is making it clear for one party or the other how they got it wrong.”

The result, Sankovitz said, may resolve the matter to the court’s satisfaction. “We have a per curiam opinion that says, ‘yeah, we reviewed this, and here it is in a per curiam opinion that is easier for a staff attorney to write without having to take the extra resources of the judge … or the law clerks.”

Satisfying everyone extends outside the court’s doors, Sankovitz explained. The court of appeals may want to limit the decision so it can’t come back to them as precedent, “but they also have the concern about those parties in front of them. Are they going to be satisfied?”

A per curiam decision could also “quietly correct” an error made in the circuit court, explained Sankovitz, “and I got some of those as a trial court judge.”

Others may disagree whether the opinion should be only per curiam, but Wis. Stat. section 809.23(4)(c) allows a person to request withdrawal of the decision to make it authored and recommended for publication.

“Some lawyers request that all the time and some … on a case-by-case approach,” Donald said.

An Unusual Per Curiam

Not all per curiam opinions are dull. Last month, court of appeals District II released its opinion on remand in Wisconsin Voter Alliance v. Secord, No. 2023AP36 (March 19, 2025), involving access to court records relating to ineligibility to vote because of a finding of incompetency – a hot issue coming back from the supreme court.

In Wisconsin Voter Alliance v. Secord, 2025 WI 2, the supreme court held that District II’s Dec. 27, 2023 decision had failed to follow a court of appeals decision. District IV had decided the issue first in a manner different from District II’s opinion. The supreme court reversed and remanded for the court of appeals to fix its error.

The supreme court explained that the court of appeals has two choices when the court of appeals has decided the issue contrary to what the current panel believes correct – to use precedent and express its disagreement with it or to request certification to send the case to the supreme court.

On remand, the court of appeals released a seven-page opinion with two paragraphs of discussion, one of which summarized the court’s previous decision. Two concurrences expressed the opinions of the majority and minority on the merits.

The court released its decision as a per curiam opinion.

Supreme Court Variation

As a court that accepts cases in its discretion, the supreme court is picky. For the current term from Sept. 1 through February, it granted review of only 17 cases out of 309 petitions for review, according to the court’s Monthly Statistical Report for February.

It’s much rarer for the supreme court to issue per curiam decisions than the court of appeals. The most common reason may come from disciplinary proceedings, as described in Supreme Court Internal Operating Procedures section III.H.

A cursory review of decisions in recent years finds per curiam decisions when the court is evenly divided and for cases dismissed as improvidently granted. In both instances, the court of appeals decision becomes the final decision.

At times, the supreme court issued more per curiams. A review of the early 1970s – before creation of the court of appeals – shows a bump of unanimous per curiam decisions in the 1972 and 1973 terms: 59 out of 339 cases in 1972-73 and 27 out of 316 cases in 1973-74, according to SCOWstats, a website compiled by Marquette University history Professor Alan Ball.

With the supreme court the only court available then to appeal a circuit court decision, its opinions could become terse. Sometimes a complete decision only said, “judgment affirmed.”

In a random search of supreme court statistics dating back to the 1924 Term, Ball also found two other conspicuous bumps in per curiam decisions, 52 out of 361 cases in 1930-31 and 53 out of 305 cases in 1940-41. He did not know what could have caused that irregularity.