May 17, 2024 – The Wisconsin Supreme Court’s dismissal of another case – because review was improvidently granted – has sparked a new round of debate between the justices about whether such dismissals should be accompanied by an explanation.
In Winnebago County v. D.E.W.,2023AP215 (May 14, 2023), the Wisconsin Supreme Court, in a per curiam decision, ruled that the review of the decision of the Wisconsin Court of Appeals should be dismissed as improvidently granted.
The case involved whether Winnebago County (County) had met its burden to prove by clear and convincing evidence that it had adequately explained to D.E.W. the pros and cons of certain medications it sought to involuntarily administer to him.
The Court of Appeals held that the County had met its burden, and D.E.W. appealed.
Dissent: Explanation Would Guide Litigants
Justice Rebecca Dallet (joined by Justice Ann Walsh Bradley) dissented from the decision.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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She argued that by deciding the case, the Supreme Court could clarify for lower courts the interplay between Supreme Court caselaw interpreting the legality of involuntarily medication orders.
Dallet also argued that the Supreme Court should have decided the case to answer whether a report prepared by the doctor who examined D.E.W., which was never entered into evidence, must be entered into evidence before being considered by a circuit court.
Justice Dallet explained that the Court of Appeals has held that a circuit court may rely on such a report in an initial commitment proceeding because a court orders the report, and the report is filed with the court.
But she pointed out that it was not clear whether that holding should apply to an examining doctor’s report not entered into evidence in a recommitment or involuntary medication case, because those cases are governed by requirements.
Dallet also reiterated an argument, made earlier this term by Justice A.W. Bradley in Amazon Logistics, Inc. v. LIRC, 2024 WI 15, 411 Wis. 2d 166, 4 N.W. 3d 294 (Ann Walsh Bradley, concurring) that by dismissing cases as improvidently granted, the Supreme Court “fails to provide guidance to litigants and the public.”
Concurrence: Explanation Would Confuse Litigants
Justice Rebecca Grassl Bradley (joined by Chief Justice Annette Ziegler and Justice Brian Hagedorn) wrote a concurrence.
R. Bradley argued that Justice Dallet’s arguments did not warrant a departure from the Supreme Court’s practice of dismissing cases for the review having been improvidently granted without an explanation.
“To suggest, as Justice Dallet does, that a per curiam should explain when the court dismisses a case as improvidently granted sounds beneficial in theory but in practice would only confuse attorneys, judges, and litigants,” Justice R. Bradley wrote.
Justice R. Bradley reasoned that in some cases, a majority might be unable to reach agreement on the reason for dismissing a particular case without a decision.
“Attempting to craft a potentially fractured rationale would not benefit the parties,” Justice R. Bradley wrote.
R. Bradley also argued that in providing an explanation for cases dismissed as having been improvidently granted, the Supreme Court could inadvertently develop legal holdings that future litigants would cite as a basis for dismissing cases as improvidently granted.
“When we grant a petition for review, we expect the parties to make legal arguments on the issue presented; expanding our explanations for dismissing a case could distract from the substantive issues in favor of tactical arguments,” Justice R. Bradley wrote.
