Feb. 5, 2025 – A run in baseball requires touching first, second, and third base before scoring. Wisconsin appellate law allows a party to skip second or go straight to third, the Wisconsin Supreme Court, for a final decision. It’s called bypass.

Bypass isn’t new. Wisconsin’s rules of appellate procedure allow for three paths to get around the court of appeals in Wis. Stat. section 808.05, but the most exciting story in numbers comes from the appellants themselves.

For the supreme court to take a case on bypass, the case must meet the same standards in section 809.62 for petitions for review.

The supreme court’s internal operating procedures, section III.B.2, add two considerations. The case is one the supreme court “concludes it ultimately will choose to consider … regardless of how the Court of Appeals might decide the issues,” and there may be “a clear need to hasten the ultimate appellate decision.”

The court deliberates on the petitions, typically issuing orders of only a few pages. The analysis that reaches print typically appears in concurrences and dissents.

Although one can find the orders on the supreme court website, their existence lacks the profile of a released supreme court opinion. These pieces of motion practice may draw little attention outside the appellate bar.

More Bypass

The increased popularity of bypass may be what’s new. The supreme court’s current Table of Pending Cases shows five cases accepted on bypass out of 25 – one-fifth of the total. That’s for only part of the current 2024-25 term.

The supreme court’s most recent Annual Statistical Report quantifies bypass cases in the preceding three court terms. In the 2023-24 term, the supreme court received 34 petitions to bypass. The court granted bypass to only three cases. By the end of the term, 19 petitions awaited decision.

These numbers contrast in the preceding two terms. In 2022-23, appellants filed 22 requests with two granted. In the term before that, 2021-22, 12 petitions to bypass came in. The court granted five of them.

The other two means of bypass in Wis. Stat. section 808.05 result from court choices.

The court of appeals may request review upon certification “prior to … hearing and deciding the matter.” Those numbers are much smaller. The supreme court didn’t receive a request for certification in the 2023-24 term, only one the previous term, and five the term before that, according to the Annual Statistical Report.

The supreme court recently highlighted this option in Wisconsin Voter Alliance v. Secord, 2025 WI 2 (Jan. 17, 2025), as a means for the court of appeals to follow its decisions – which the court of appeals cannot modify – when the court disagrees with precedent.

The supreme court also can choose to yank the case upward, under section 808.05(3), although given the court’s approval rating for petitions to bypass, it would be an extraordinary choice.

Procedure for bypass under section 809.60 allows a party to file the petition to bypass no later than 14 days after the respondent has filed its brief or made a response at the court of appeals. The petition includes reasons why bypass is appropriate. Respondents receive notice of the petition and have an opportunity to respond.

Hot Cases

The decisions approving or disapproving bypass appear in reporters as table cases. They are unpublished, not persuasive, and can’t be cited as authority.

Four examples in the past three years show that cases suggested for bypass aren’t dull.

In Kennedy v. Wisconsin Elections Commission (WEC), 2024 WI 37 (Sept 27, 2024), the court affirmed the denial of an injunction requested by Robert F. Kennedy, Jr. to remove his name from Wisconsin ballots after he dropped out of the presidential race. The WEC denied Kennedy’s request because state law requires everyone who has submitted nomination papers and qualified to remain on the ballot, unless the candidate died.

Priorities USA v. WEC, 2024 WI 32 (July 5, 2024), permitted secure absentee ballot drop boxes, reversing Teigen v. WEC, 22 WI 64 (July 8, 2022), that prohibited the drop boxes under the previous composition of the supreme court. Teigen also arrived at the supreme court by bypass.

Frederick Prehn stayed on the Wisconsin Board of Natural Resources as a holdover after his term expired but before confirmation of a successor, according to State ex rel. Kaul v. Prehn, 2022 WI 50 (June 29, 2022). Prehn’s status as a holdover protected him against removal without cause by Gov. Tony Evers. This was also a bypass case.

Finally, Gahl on behalf of Zingsheim v. Aurora Health Care, Inc., 2023 WI 35 (May 2, 2023), reversed a circuit court injunction that would have forced a medical provider to comply with a patient’s wishes to receive medical treatment the provider considered below the standard of care. In this case, the individual with COVID-19 wanted to receive Ivermectin, which the Food and Drug Administration had not approved to treat COVID-19. The case reached the supreme court the long way, however, because the petition to bypass failed.

In the current term, cases that arrived on bypass in the Table of Pending Cases offer a tantalizing preview of coming attractions: Kaul v. Urmanski (abortion); Brown v. WEC (non-partisan alternate voting sites); WEC v. LeMahieu (administrator hold-over); and Service Employees International Union Healthcare Wisconsin v. Wisconsin Employment Relations Commission (unionization in University of Wisconsin Hospitals and Clinics Authority).

Process – or Arbitrary?

A recent case accepted on bypass also contains political overtones. The supreme court granted bypass to Wisconsin State Legislature v. Wisconsin Department of Public Instruction (DPI) on Jan. 24, a 4-3 decision.

The case, as summarized in the Table of Pending Cases, involves three questions: was the bill an appropriation bill, was Gov. Tony Evers’ partial veto constitutional, and could the Joint Committee on Finance withhold budgeted funds from DPI?

This decision to bypass may be messier than most. Three justices dissented in granting bypass. Justice Brian Hagedorn dissented by saying the case didn’t meet past practice to grant bypass.

There’s more to it than that, as Justice Rebecca Grassl Bradley pointed out in her dissent to the order granting bypass, which Chief Justice Annette Kingsland Ziegler joined. It’s not their first dissent to a petition to bypass, but it provides a good example.

The case only safely got to appeal because an earlier supreme court order “‘fix[ed]’ a jurisdictional defect that otherwise would have precluded appellate review,” Justice R.G. Bradley wrote.

The decision for which both parties sought appeal may not have been final – it may not have decided all matters in litigation, Justice R.G. Bradley explained. Appellate jurisdiction under Wis. Stat. section 808.03(1), requires a final order or decision.

The supreme court’s Jan. 8 order, referenced in Justice R.G. Bradley’s dissent, required Dane County Circuit Judge Stephen E. Ehlke to “enter a written order or judgment based on the August 27, 2024 ‘Decision and Order’ that clearly satisfies the finality requirement.”

That wasn’t the only problem, as Justice R.G. Bradley explained. “Because DPI and Governor Evers filed this petition before the parties filed any briefs in the court of appeals, the petition is premature.”

A more practical problem may be that the case “presents issues related to the exercise of Governor Evers’ partial veto authority,” an issue the court would decide in Lemieux v. Evers, Justice R.G. Bradley wrote. “The court has not released its opinion, so the parties in this case do not have the benefit of the court’s decision.”

These defects, according to Justice R.G. Bradley, place this case among a cohort of decisions in which the supreme court inconsistently enforced “a rule against ‘premature petitions.’” The orders on whether to grant bypass lack reasons to explain the decision, and according to her dissent, were inconsistent.

Experience with Bypass

Whether with petitions filed or responded, Doug Poland is familiar with petitions to bypass. Poland, a partner at Stafford Rosenbaum LLP, has a civil litigation practice that includes appeals and election and political law.

“We’ve petitioned to bypass. It comes up as a fairly routine thing for the cases we deal with, election and political cases,” Poland said. “They typically come up in situations with a need for speed.”

The choice to seek bypass can involve weighing what one can expect from the court of appeals district that would hear the case and the composition of the supreme court.

That is particularly true in politically charged cases, where consideration of the courts’ respective prevailing judicial philosophies may make bypass either more or less attractive for both conservative and liberal groups.

“That’s a part of the calculus” in those cases, Poland said. For other types of civil cases, such as commercial litigation, court composition can be less of a factor.

We’re in another “bubble” of bypass petitions, Poland said, resembling activity in 2020-21 when the pandemic and the change of governor may have sparked sensitive litigation.

The political divide between Democratic Gov. Evers and the Republican Legislature may have prompted litigation over significant policy issues that are more susceptible to bypass. “When issues broadly affecting the public aren’t resolved legislatively, the court might be viewed as the backup plan,” Poland suggested.

For all the recent experience with supreme court responses to petitions to bypass, Poland is at a loss as to what the winning requirements are, outside the statutory criteria for granting review. Not only do the orders fail to fall into a pattern, he said “I don’t really know if you can go through the different orders granting or denying bypass and come up with a particular understanding that there is a rule for when they are granted and when they are denied.”