Aug. 6, 2025 – Sometimes justices fall victim to the appellate equivalent of buyer’s remorse. They call it “dismissed as improvidently granted.”

“Dismissing a case as improvidently granted is thankfully an uncommon occurrence in this court,” Justice Ann Walsh Bradley explained.^[1]

The numbers in this term, in Wisconsin and at the U.S. Supreme Court, agree with Justice A.W. Bradley’s memory in 2021.

In the terms that ended in July, the U.S. Supreme Court dismissed three of 63 decided cases listed on SCOTUSblog as improvidently granted, and the Wisconsin Supreme Court dismissed one case with the same justification – about average for a Wisconsin term during the past 50 years (see table).

This term, the Wisconsin Supreme Court also dismissed Planned Parenthood of Wisconsin v. Urmanski, 2025 WI 33, not because the case was improvidently granted. Kaul v. Urmanski, 2025 WI 32, resolved the issue.

Dissents in the 22 Wisconsin cases this term, however, revealed justices unhappy with the result of two other cases, which they advised should have been dismissed as improvidently granted.

‘Special and Important Issues’

Such dismissals result from discretionary appeals. Under the Wisconsin Rules of Appellate Procedure, the Supreme Court may accept cases “only when special and important issues are presented.”^[2]

Five examples illustrating the rule under Wis. Stat. section 809.62(1r) describe: “a real and significant question” of constitutional law, the need for “establishing, implementing or changing a policy,” to “help develop, clarify or harmonize the law,” old Court of Appeals precedent “ripe for reexamination,” and a Court of Appeals decision in conflict with other appellate decisions.

U.S. Supreme Court Rule 10 similarly requires “compelling reasons” to grant review. In addition to circuit splits, eligible cases raise “important federal questions.”

As Chief Justice Annette Kingsland Ziegler described it in her dissent in Halter v. Wisconsin Interscholastic Athletic Association (WIAA), 2025 WI 10, ¶ 65, the Court seeks cases that “meaningfully develop the law or answer questions that have statewide importance.”

It takes only three of the seven justices to approve a petition for review, according to Wisconsin Supreme Court Internal Operating Procedures section III.B.1. The rule supports “the general public policy that appellate review is desirable.”

The U.S. Supreme Court’s customary “Rule of Four,” likewise, allows a minority of justices to grant certiorari.

With a minority granting review, odds are better that a majority of justices may be disappointed in case briefing and oral arguments.

The key term is “improvidently” – which Black’s Law Dictionary defines as “without adequate consideration by the court, or without proper information as to all the circumstances affecting it, or based upon a mistaken assumption or misleading information.”^[3]

Facts Can Change

Justice Shirley Abrahamson 31 years ago advised that the only justification to dismiss as improvidently granted is change – second thoughts are not enough.^[4]

Similarly, Justice Donald W. Steinmetz’s dissent explained that the basis for dismissal as improvidently granted “is normally that the court will not be able to reach the issue for which we accepted the petition.”^[5]

Common explanations in the past 26 years provide contour to those rules. The Supreme Court has dismissed cases when the law, whether statutory or caselaw, changed.^[6]

Parties could defeat justices’ expectations by not presenting the issues they expected to hear.^[7]

A case may be “premature,” that is, the facts are not developed,^[8] the case is moot,^[9]or the circuit court may be poised to resolve the issues.^[10]

The most extreme change justifying dismissal occurred in State v. Townsend, 2007 WI 31 – the petitioner “absconded from his parole.”

As the dismissal explains, “[i]t is within the discretion of this court to refuse to decide a criminal appeal if the defendant cannot be made to respond to the court’s judgment.”

‘Not Squarely Raise That Issue’

Van Oudenhoven v. Wisconsin Department of Justice, 2025 WI 25, is the only dismissal as improvidently granted in the 2024-25 Term, although some justices wished for dismissal of two other cases.

Scot Van Oudenhoven tried to purchase a firearm. The Department of Justice said no because “Van Oudenhoven had been convicted of a misdemeanor crime of domestic violence” under 18 U.S.C. section 922(g)(9).

He received an expunction order for a 1994 misdemeanor battery conviction, but the question remained whether it qualified as expunction under 18 U.S.C. section 921(a)(33)(B)(ii).

Justice Rebecca Frank Dallet’s concurrence, joined by Chief Justice A.W. Bradley and Justice Janet C. Protasiewicz, concluded that “[a]fter reviewing the administrative record, however, it appears that this case may not squarely raise the issue.”

Justice Zieger’s dissent, joined by Justice Rebecca Grassl Bradley, described the facts and saw the case as a vehicle to develop the law. Justice Brian Hagedorn considered the case presenting a worthy “question of statutory interpretation.”

The decision to dismiss did not explain the reasons – a point of contention between justices.

‘Mootness Argument Is Insubstantial’

A U.S. Supreme Court example with similar analysis comes from Justice Brett M. Kavanaugh in Laboratory Corporation of America Holdings v. Davis, 145 S. Ct. 1608, dismissed as improvidently granted.

The case raised the issue of whether a class could be certified that “includes both injured and uninjured class members.”

The Supreme Court’s dismissal gave no reasons, like the recent style of the Wisconsin Supreme Court.

Justice Kavanaugh presumed a mootness issue encouraged the majority to dismiss, but “[i]n my view, however, plaintiffs’ mootness argument is insubstantial.” He then gave his analysis on the issue.

Like recent Wisconsin cases dismissed as improvidently granted, the only explanation comes from an opinion attached to the dismissal.

‘Develops No Law’

Although the Supreme Court decides the issue, justices may dissent because they found the result uninspiring. Eleven times from 1982 to 2024, a justice argued in dissent that the case should have been dismissed as improvidently granted.

It happened twice in the most recent term.

In Halter v. Wisconsin Interscholastic Athletic Association (WIAA)​, 2025 WI 10​, Chief Justice Ziegler dissented, joined by Justice R.G. Bradley, and expressed disappointment in the results.

“Had this court answered the questions raised by the petition for review, this case would develop the law and resolve issues of statewide importance, potentially even national importance,” Chief Justice Ziegler wrote.

“But the majority walks a different path, one that develops no law and answers questions of importance only to the parties directly before us” – in other words, “routine error correction.”

In Halter​​​​, the WIAA’s petition for review qualified under the criteria of section 809.62(1r), asking whether the WIAA was a state actor and whether the Halters were entitled to judicial review and certiorari, declaratory, and injunctive relief for Hayden Halter’s suspension.

These issues “would help develop and clarify the appropriate bounds of judicial intervention in cases concerning a voluntary high school athletic association’s interpretation and application of its own, member chosen rules to non-member student athletes,” Chief Justice Ziegler explained.

But as the majority resolved the case, those issues fell away.

In State ex rel. Department of Corrections, Division of Community Corrections (DOC) v. Hayes, 25 WI 35, Justice R.G. Bradley’s dissent ended with a terse justification for dismissing the case as improvidently granted.

Hayes involved whether a Division of Hearings and Appeals (DHA) administrator erroneously reversed an administrative law judge’s (ALJ) decision to revoke parole.

The ALJ relied upon evidence that the parolee had committed sexual assault, robbery, and subsequent trespass, which the administrator concluded didn’t fill the gap that only the absent victim’s live testimony could satisfy.

The majority decision affirmed the Court of Appeals, which affirmed the administrator’s decision under the narrow terms of certiorari review.

Justice R.G. Bradley said the decision “contributes nothing to the jurisprudence governing revocation proceedings,” but instead “relies upon the same well-established cases the [C]ourt of [A]ppeals applied” in its per curiam opinion that she described as “errant.”

Explanations?

Starting in 2017, opinions of dismissals from Justice Abrahamson,^[11] followed by Justice A.W. Bradley^[12] and Justice Dallet,^[13] argued that the parties, who have spent resources on their appeal, deserve at least a brief reason why their efforts came to nought.

These opinions argued that the Court historically gave explanations, or at minimum, has been inconsistent in providing them.

Justice R.G. Bradley, joined by Chief Justice Ziegler and Justice Hagedorn,^[14] saying the Court’s style had changed, rebutted these arguments.

Avoiding written explanations saves judicial resources, prevents inadvertently creating precedent, and eliminates the headache of trying to get everyone to agree on a narrow reason. Furthermore, it’s what the U.S. Supreme Court does, Justice R.G. Bradley explained.

Justice Ziegler and Justice R.G. Bradley turned the tables by raising the same discrepancy between the majority’s dismissals of Planned Parenthood and Van Oudenhoven.^[15]

Both sides are correct. In the early 1980s, it was not unusual for terse dismissals, but the practice didn’t resurface until 2010, when it still wasn’t the consistent choice (see Table 1).

The Other Side of the Bench

Nick Zales, currently an assistant state public defender in the West Bend office, argued a case before the Supreme Court as a solo practitioner in Milwaukee that resulted in dismissal as improvidently granted.

He was fortunate, in State ex rel. Labine v. Pucket, 270 Wis. 2d 57 (2004), that he received an explanation in a per curiam decision.

A lot of work takes a case to oral argument before the Supreme Court – filing or responding to the petition for review, briefing, and oral argument. The case has taken time from lawyers, the Supreme Court commissioner, and the justices, Zales explained.

All that work takes time, Zales said, at a big cost to the client. If the case is just dismissed without an explanation, “What about the client?”

“I think people deserve some kind of decision, some kind of explanation, especially at that level,” Zales said.

Endnotes

[1] In re Commitment of S.N.W., 2021 WI 41, ¶ 2 (A.W. Bradley, J., dissenting). ↩

[2] A party may petition the Court of Appeals for leave to appeal a judgment or order that is not of right under Wis. Stat. section 808.03(1) under the process set out in Wis. Stat. section 809.50. In one case, the Court of Appeals, District II, dismissed as improvidently granted a case not of right, Veasey v. FII USA, Inc., No. 2024AP1327 (Ct. App. June 4, 2025), available at 2025 WL 1577806, but that’s an outlier. ↩

[3] Black’s Law Dictionary 758 (6th ed. 1990). ↩

[4] Hoskins v. U.S. Fire Insurance Co., 180 Wis. 2d 534, 536 (1994) (Abrahamson, J., dissenting). ↩

[5] Id. (Steinmetz, J., dissenting). ↩

[6] Michael J. Waldvogel Trucking, LLC v. Wisconsin Labor and Industry Review Commission, 2012 WI 28 (statutory clarification resolved issue); State v. Shuttlesworth, 2002 WI 3 (the statute was repealed eliminating the need for interpretation); State v. Church, 2000 WI 90 (issues decided by case released at the same time); In re Commitment of Miller, 2000 WI 44 (statute changed); Smith v. Anderson, 2017 WI 43 (requested insurance interpretation would violate four-corners review of recent precedent and create confusion); State v. Betts, 129 Wis. 2d 1 (1986) (the petitioner’s requested rule the Supreme Court rejected in a rule petition). ↩

[7]State v. Gajewski, 2009 WI 22 (issue before the court becomes mere error correction); State v. Kasmarek, 2006 WI 123 (petition raised legal issue never presented in briefing or argument); In re Commitment of Aaron J.J., 2005 WI 162 (issue not reached in arguments and the case may be moot); State v. Wagner, 2005 WI 63 (“does not present the issue for which we granted review”); State v. Moucha, 225 Wis. 2d 36 (1999) (anticipated issue not brought up). ↩

[8] State v. Welda, 2009 WI 35; Bruzas v. Quezada-Garcia, 2001 WI 127. ↩

[9] State ex rel. Labine v. Pucket, 2004 WI 25 (prisoner not within definition of statute); Norquist v. Zeuske, 2002 WI 69 (rendered moot by case released at the same time); see ​In re Commitment of Aaron J.J., 2005 WI 162 (case may be moot). ↩

[10] In re Guardianship of Giovanna P., 2013 WI 89. ↩

[11]Halbman v. Barrock, 2017 WI 91 (Abrahamson, J., dissenting). ↩

[12] State v. Jackson, 2023 WI 37 (A.W. Bradley, J., concurring) (providing extensive argument and documentation); see In re Commitment of S.N.W., 2021 WI 41 (A.W. Bradley, J., dissenting) (her first dissent on the subject). ↩

[13] In re Commitment of D.E.W., 2024 WI 21, ¶ 10 (Dallet, J., dissenting). ↩

[14] Jackson, 2023 WI 37 (R.G. Bradley, J., concurring). ↩

[15] Planned Parenthood of Wis. v. Urmanski, 2025 WI 33 (Ziegler, J., concurring) (“Also, it is interesting that the court appears to pick and choose when to provide reasoning for dismissing a case. Sometimes it says nothing [citing Van Oudenhoven]. Other times it explains why the case is being dismissed, such as declaring the case moot.”) ↩