2024 WI 21
SUPREME COURT OF WISCONSIN
CASE NO.: 2023AP215
COMPLETE TITLE: In the matter of the mental commitment of
D.E.W.:
Winnebago County,
Petitioner-Respondent,
v.
D. E. W.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: May 14, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 20, 2024
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Scott C. Woldt
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Christopher P. August, assistant state public defender.
There was an oral argument by Christopher P. August, assistant
state public defender.
For the petitioner-respondent there was a brief filed by
Catherine B. Scherer, assistant corporation counsel. There was
an oral argument by Catherine B. Scherer, assistant corporation
counsel.
An amicus curiae brief was filed by Andrew T. Phillips,
Matthew J. Thome, and Attolles Law, S.C., Milwaukee, on behalf
of Wisconsin Counties Association.
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2024 WI 21
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2023AP215
(L.C. No. 2022ME335)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
D.E.W.:
FILED
Winnebago County,
MAY 14, 2024
Petitioner-Respondent,
Samuel A. Christensen
v. Clerk of Supreme Court
D. E. W.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. D.E.W. petitioned for review of a
decision of the court of appeals, Winnebago County v. D.E.W.,
No. 2023AP215, unpublished slip op. (Wis. Ct. App. July 26,
2023), which affirmed an order of the circuit court granting
Winnebago County's petition to involuntarily medicate him.
After reviewing the record and the briefs, and after hearing
oral arguments, we conclude that this matter should be dismissed
as improvidently granted.
No. 2023AP215
By the Court.—The review of the decision of the court of
appeals is dismissed as improvidently granted.
2
No. 2023AP215.rgb
¶2 REBECCA GRASSL BRADLEY, J. (concurring). Justice
Rebecca Dallet reprises similar arguments earlier advanced by
Justice Ann Walsh Bradley regarding this court's treatment of
cases dismissed as improvidently granted.1 Offering nothing more
than a generalized invocation of a "strong public policy
rationale," Justice Dallet fails to justify a departure from
this court's custom of dismissing cases as improvidently granted
without commentary. Justice Dallet's concurrence, ¶10.
¶3 In response to Justice Ann Walsh Bradley's most recent
advocacy for explanatory per curiam opinions in cases dismissed
as improvidently granted, I observed, "[a] shallow explanation
of the court's reason for dismissing a case as improvidently
granted amounts to nothing more than a hollow victory for one
party and provides nothing for future litigants." Amazon
Logistics, Inc. v. LIRC, 2024 WI 15, ¶12, ___ Wis. 2d ___, ___
18 N.W.3d ___ (Rebecca Grassl Bradley, J., concurring). In my
concurrence in Amazon, I noted that our practice of withholding
an explanation for dismissals mirrors the United States Supreme
Court's custom, id., ¶11, and reiterated multiple reasons
militating against more expansive opinions in dismissed cases.
Id., ¶14. To suggest, as Justice Dallet does, that a per curiam
Amazon Logistics, Inc. v. LIRC, 2024 WI 15, ¶3, ___ Wis.
1
2d ___, ___ 18 N.W.3d ___ (Ann Walsh Bradley, J., concurring);
State v. Jackson,
2023 WI 37, ¶15,
407 Wis. 2d 73,
989 N.W.2d
555 (Ann Walsh Bradley, J., dissenting); Slamka v. Gen. Heating
& Air Conditioning Inc.,
2022 WI 68, ¶4,
404 Wis. 2d 586,
980
N.W.2d 957 (Ann Walsh Bradley, J., concurring); Cobb v. King,
2022 WI 59, ¶3,
403 Wis. 2d 198,
976 N.W.2d 410 (Ann Walsh
Bradley, J., concurring); Fond du Lac County v. S.N.W.,
2021 WI
41, ¶3,
396 Wis. 2d 773,
958 N.W.2d 530 (Ann Walsh Bradley, J.,
dissenting).
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No. 2023AP215.rgb
should explain why the court dismisses a case as improvidently
granted sounds beneficial in theory but in practice would only
confuse attorneys, judges, and litigants.
¶4 In certain situations, a majority may not agree on the
legal rationale for dismissing a particular case without a
decision. Attempting to craft a potentially fractured rationale
would not benefit the parties. Additionally, a more detailed
explanation of this court's decision to dismiss a case as
improvidently granted could inadvertently develop legal holdings
cited by future litigants 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 issues
presented; expanding our explanations for dismissing a case
could distract from the substantive issues in favor of tactical
arguments.
¶5 I join the per curiam opinion of the court but concur
to once again2 rebut the misconception that more detailed
explanations supporting dismissal of a case as improvidently
granted would provide greater clarity for parties or their
attorneys.
¶6 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice BRIAN HAGEDORN join this
concurrence.
2 Amazon, 2024 WI 15, ¶14 (Rebecca Grassl Bradley, J.,
concurring); State v. Jackson,
407 Wis. 2d 73, ¶9 (Rebecca
Grassl Bradley, J., concurring).
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No. 2023AP215.rfd
¶7 REBECCA FRANK DALLET, J. (dissenting). I would not
dismiss this case as improvidently granted. Like all
sufficiency-of-the-evidence cases, the issues raised here are
necessarily fact-specific. Nonetheless, there are questions
about whether the County met its burden to prove by clear and
convincing evidence that D.E.W. received an adequate explanation
of the advantages and disadvantages of the particular
medications the County sought to administer involuntarily. See
Wis. Stat. § 51.61(1)(g)4. I agree with D.E.W. that a decision
resolving those questions may help clear up potential
uncertainty in circuit courts and the court of appeals about the
interplay between Outagamie County v. Melanie L.,
2013 WI 67,
349 Wis. 2d 148,
833 N.W.2d 607, and Winnebago County v.
Christopher S.,
2016 WI 1,
366 Wis. 2d 1,
878 N.W.2d 109. See
Wis. Stat. § (Rule) 809.62(1r). Accordingly, I respectfully
dissent.
¶8 I also write separately to make two additional points.
First, although the parties did not address the issue in their
briefs, in a future case we may need to resolve the issue of
whether physicians' reports prepared in recommitment or
involuntary medication cases like this one need to be admitted
into evidence to be considered by the circuit court.
¶9 In this recommitment and involuntary medication case,
the examining physician prepared a report that was never
admitted into evidence listing the particular medications the
County sought to administer and summarizing the advantages,
disadvantages, and potential side-effects of those
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No. 2023AP215.rfd
medications. If this were instead an initial commitment
proceeding, then under Wis. Stat. § 51.20(9)(a), that report
would have been created by court-appointed physicians and filed
with the circuit court. Because such reports are court-ordered
and filed, the court of appeals has concluded that the circuit
court may rely on them even if they are not admitted into
evidence. See Outagamie County v. L.X.D.-O.,
2023 WI App 17,
¶34,
407 Wis. 2d 441,
991 N.W.2d 518. But it is not clear that
the same is true of physicians' reports in recommitment or
involuntary medication cases like this one, which are subject to
different requirements. See id., ¶¶35-36 (stating that Waukesha
County v. S.L.L.,
2019 WI 66, ¶24,
387 Wis. 2d 333,
929
N.W.2d 140 and Langlade County v. D.J.W.,
2020 WI 41, ¶7 n.4,
391 Wis. 2d 231,
942 N.W.2d 277 require that "in a recommitment
hearing . . . an examiner's report must be received into
evidence to be considered by the circuit court").
¶10 Second, as Justice Ann Walsh Bradley has written in
the past, I believe that this court should explain our reasons
for dismissing a case as improvidently granted. See, e.g.,
Amazon Logistics, Inc. v. LIRC, 2024 WI 15, ¶3,
411 Wis. 2d 166,
4 N.W.3d 294 (Ann Walsh Bradley, J., concurring). As she has
correctly explained, the court's recent practice of issuing
terse per curiam decisions dismissing cases as improvidently
granted fails to provide guidance to litigants and the public.
Id., ¶5. Moreover, failing to provide such an explanation may
"effective[ly] negat[e] . . . the numerous hours of work and
sums of money spent seeking a decision on the merits." Id. For
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No. 2023AP215.rfd
these reasons, there is a strong public policy rationale for
following our older practice of providing an explanation for
such dismissals. See id., ¶4 & n.1.
¶11 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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No. 2023AP215.rfd
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