June 2, 2023 – Two Wisconsin Supreme Court justices used a recent per curiam decision to engage in a debate over the supreme court’s practice of dismissing petitions as improvidently granted.
In State v. Jackson, 2023 WI 37 (May 12, 2023), the supreme court dismissed as improvidently granted a petition seeking review of a Wisconsin Court of Appeals decision upholding a circuit court’s denial of post-conviction relief.
The decision came after the parties had submitted briefs and had oral argument before the supreme court.
Justice Rebecca Bradley filed a concurrence, joined by Chief Justice Annette Ziegler. Justice Brian Hagedorn also joined the concurrence, except for ¶ 3. Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet.
Post-conviction Relief Denied
In 2015, in Racine County Circuit Court, Daimon Von Jackson, Jr., entered a no contest plea to second degree reckless homicide as a repeater with use of a dangerous weapon.
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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The court entered a judgment of conviction, and Jackson filed a motion for post-conviction relief, claiming ineffective assistance of counsel.
When the circuit court denied Jackson’s motion, he appealed to the Wisconsin Court of Appeals. In a 51-page opinion, the Court of Appeals District II held that Jackson’s counsel had not been ineffective.
The decision came on a 2-1 vote, with Judge Paul Reilly dissenting. Jackson appealed to the supreme court.
Dissent: No Rationale for ‘About-face’
In her dissent, Justice A.W. Bradley argued that the supreme court should have explained to the parties and the public why it was dismissing the petition as having been improvidently granted, given the time and money the parties had spent litigating the case before the supreme court.
“The [supreme court] dismisses a case that it at one point in time thought worthy of our review, offering no insight for either these litigants or future litigants as to the court’s rationale for it’s about-face,” A.W. Bradley wrote.
Justice A.W. Bradley pointed out that Jackson alleged that his trial counsel failed to both: 1) tell him about a plea offer; and 2) meet with him before his trial. She also noted that the supreme court had disciplined Jackson’s trial counsel for violating the rules of professional conduct while representing Jackson.
Additionally, the supreme court’s practice regarding dismissing petitions as having been improvidently granted has been inconsistent, Justice A.W. Bradley argued (in a footnote, she noted that the practice was adopted five years ago “without explanation”).
That inconsistency, A.W. Bradley wrote, not only offered no guidance for litigants, but constituted “an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits.”
“[The supreme court’s] ‘we don’t have to tell you, so we won’t’ approach serves only to undermine transparency and accountability, while compounding the alleged systematic failure in this case,” Justice A.W. Bradley wrote.
Justice A.W. Bradley argued also argued that the issues raised by Jackson’s appeal were worthy of the supreme court’s review.
She pointed out that Judge Reilly had, in his dissent, characterized Jackson’s case as representing a failure of the “entire justice system.”
Concurrence: Dissent’s Portrayal of Dismissal Practice Inaccurate
In her concurrence, Justice R.G. Bradley argued that the dissent’s portrayal of the supreme court’s recent history of dismissing petitions as “inconsistent” was inaccurate.
Each of the supreme court cases cited by Justice A.W. Bradley that provided an explanation for dismissing a petition as having been improvidently granted were issued at least ten years ago, Justice R.G. Bradley pointed out.
She noted that the cases cited by A.W. Bradley that provided no explanation for dismissing a petition as having been improvidently granted dated from the last six years.
“The dissent’s ‘recent’ examples show the opposite of the point the dissent is trying to make,” R.G. Bradley wrote. “The dissent may lament the no-explanation trend but calling the court’s practice ‘inconsistent’ flies in the face of the facts.”
Justice R.G. Bradley also pointed out that Judge Reilly’s dissent raised issues that hadn’t been raised with the circuit court and hadn’t been argued before the court of appeals.
“Daimon Von Jackson’s right to an appeal was fully satisfied when the court of appeals addressed the arguments he actually made,” Justice R.G. Bradley wrote.
“Just because a single judge at one point in this case’s procedural history ‘perceived’ a ‘failure’ of the justice system does not entitle Jackson to further review.”
R.G. Bradley also explained that among the purposes historically cited by courts in dismissing petitions for review as having been improvidently granted are: 1) preserving limited judicial resources and; 2) judicial restraint.