Amаzon Logistics, Inc., Plaintiff-Respondent-Petitioner, v. Labor and Industry Review Commission, Defendant-Appellant, Department of Workforce Development UI Div. Bureau of Legal Affairs, Defendant-Co-Appellant.
2022AP13
SUPREME COURT OF WISCONSIN
March 26, 2024
2024 WI 15
SOURCE OF APPEAL: CIRCUIT COURT, Waukesha County, Michael O. Bohren, JUDGE.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 407 Wis. 2d 807, 992 N.W.2d 168 (2023 - published)
OPINION FILED: March 26, 2024
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 19, 2023
JUSTICES: PER CURIAM. NOT PARTICIPATING: BRIAN HAGEDORN, J.
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs filed by Erik K. Eisenmann, Emily Logan Stedman, and Husch Blackwell LLP, Milwaukee; Michаel E. Kenneally (pro hac vice), Stephanie Schuster (pro hac vice), Brendan J. Anderson (pro hac vice), and Morgan, Lewis & Bockius LLP, Washington, DC; Christopher Ramsey (pro hac vice), and Morgan, Lewis & Bockius LLP, Pittsburgh, PA. There was an oral argument by Michael E. Kenneally.
For the defendant-appellant, there was a brief filed by Jennifer P. Carter, and Wisconsin Labor and Industry Review Commission, Madison. There was an oral argument by Jennifer P. Carter.
For the defendant-co-appellant, there was a brief filed by Christin L. Galinat, Ryan X. Farrell, and Department of Workforce Development, Madison. There was an oral argument by Ryan X. Farrell.
An amicus curiae brief was filed by Nathan J. Kane, Scott E. Rosenow, and WMC Litigation Center, Madison, on behalf of Wisconsin Manufacturers & Commerce, Inc.
An amicus curiae brief was filed by Brenda Lewison, and Legal Action of Wisconsin Inc., Milwaukee, on behalf of Legal Action of Wisconsin, Inc.
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
FILED MAR 26, 2024 Samuel A. Christensen Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Dismissed as improvidently granted.
¶1 PER CURIAM. Amazon Logistics petitioned for review оf the decision of the court of appeals, Amazon Logistics, Inc. v. LIRC, 2023 WI App 26, 407 Wis. 2d 807, 992 N.W.2d 168, affirming LIRC‘s decision that Amazon Logistics’ Flex delivery drivers do not qualify as independent contractors under
By the Court.—The review of the decision of the court of аppeals is dismissed as improvidently granted.
¶2 BRIAN HAGEDORN, J., did not participate.
¶3 ANN WALSH BRADLEY, J. (concurring). As I have done in the past, I write separately because I believe that this court should explain to the litigants and the public the reason for its dismissal. It is the least we can do when the litigants have expended substantial effort and resources arguing the case before us.
¶4 We granted review in order to address what we then thought was an issuе that would result in the development of the law. And now, without explanation, the court disposes of the case in a two-sentence per curiam decision, dismissing the
¶5 The result of the court‘s inconsistent practice is a lack of guidance for potential litigants and the public, as well as an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits. Because thеre is a strong public policy rationale behind providing reasons for a dismissal as improvidently granted, the court‘s general practice should be to provide an explanation for such a dismissal, and as such it should have provided an explanation in this case.
¶6 After reviewing the court of appeals opinion, together with the record and the briefs, and after hearing oral arguments, I agree with the per curiam that this review should be deemed improvidently granted because the issues for which we took this fact-dependent case will not lead to any further develоpment of the law. See
¶7 Accordingly, I respectfully concur.
¶8 I am authorized to state that Justices REBECCA FRANK DALLET and JANET C. PROTASIEWICZ join this concurrence.
In сontrast, for examples of explanations provided by the court for a dismissal as improvidently granted, see Smith v. Anderson, 2017 WI 43, 374 Wis. 2d 715, 893 N.W.2d 790; Michael J. Waldvogel Trucking, LLC v. LIRC, 2012 WI 28, 339 Wis. 2d 248, 810 N.W.2d 811; Nedvidek v. Kuipers, 2009 WI 44, 317 Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 35, 317 Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v. Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.
¶9 REBECCA GRASSL BRADLEY, J. (concurring). When this court decides to dismiss a case as improvidently granted, customarily it does not offer an explanation for the dismissal. Justice Ann Walsh Bradley‘s concurrence renews her arguments made in her dissent in State v. Jackson, 2023 WI 37, 407 Wis. 2d 72, 989 N.W.2d 555, urging the court to change this practice and provide thе reasons for dismissal. She again argues there is a “strong public policy rationale” to do so. Justice Ann Walsh Bradley‘s Concurrence, ¶5. Just as in Jackson, her concurrence does not grapple with the countervailing reasons to withhold an explanation and exemplifies why changing this practice would result in more confusion for litigants.
¶10 In her concurrence, Justice Ann Walsh Bradley reiterates her claim that this court‘s practice of dismissing cases as improvidently granted is inconsistent “with regard to whether this court provides any explanation for its decision[.]” Id., ¶4. This claim was rebutted in Jackson, 407 Wis. 2d 73, ¶¶4-5 (Rebeсca Grassl Bradley, J., concurring), and Justice Ann Walsh Bradley has provided no new information to establish an inconsistency in this
¶11 This court‘s custom of issuing per curiam decisions dismissing cases as improvidently granted is standard practice. “When courts of last resort dismiss a petition, they customarily do not explain why, although courts have at times exercised their discretion to make exceptions to this practice on a case by case basis.” Id., ¶6 (citing 5 Am. Jur. 2d Appellate Review § 347 (updated Feb. 2023)). The United States Supreme Court will dismiss a case as improvidently granted without explanation, typically in a one-sеntence order.2 Justice Ann Walsh Bradley “does not suggest this case warrants an exception to our [customary] practice; [she] argues explanations should accompany all dismissals.” Id. She therefore “bears the burden of examining why the practice exists and then explaining why it should be rejected[.]” Id., ¶7 (quoting G.K. Chesterton, The Thing: Why I am Catholic 27 (Dodd, Mead and Co. 1930)). Just as in Jackson, Justice Ann Walsh Bradley fails to do so.
¶12 Justice Ann Walsh Bradley suggests a per curiam opinion dismissing a case without an accompanying explanation is a “negation of the numerous hours of work and sums of money spent seeking a decision on the merits.” Justicе Ann Walsh Bradley‘s Concurrence, ¶5. The conclusory explanation Justice
Ann Walsh Bradley offers does not, however, restore the hours worked or money spent on this case by the parties. Prоviding an illusory explanation might make some justices feel better about dismissing cases as improvidently granted, but such an explanation does not help litigants or vindicate their efforts. A shallow exрlanation 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.
¶13 Justice Ann Walsh Bradley asserts “this fact-dependent case will not lead to any further development of the law.” Justice Ann Walsh Bradley‘s Concurrence, ¶6. But her attempt to provide clarity to the parties will only sow аdditional confusion. “Without some explanation as to why the court‘s review of the case would not develop any law, the conclusory order recommended by [Justice Ann Walsh Bradley] would nоt promote transparency.” Jackson, 407 Wis. 2d 73, ¶11 (Rebecca Grassl Bradley, J., concurring). Parties may be left scratching their heads, believing their case would lead to law development. Justice Ann Walsh Bradlеy “does not recognize that merely declaring a petition lacks law-developing potential is itself a holding with law-developing potential. Even if not binding, it hints this court would not distinguish or overrule an existing
¶14 There are several reasons courts of last resort typically do not supply a reason for dismissing a case. For one thing, this tradition preserves limited judicial resources. “For example, if this court determines the lower court reaсhed the correct outcome, further review can be a waste of time.” Id., ¶8 (citation omitted). Additionally, providing litigants an explanation for dismissal “presupposes a majority of this court in a particular case would agree on why a petition should be dismissed. Often, no such majority exists.” Id., ¶9. If a justice disagrees with the reasoning for dismissal, the justice may write separately, possibly leading оther justices to write separately in response. On the other hand, “[a] broadly-worded order without a specific reason for dismissal facilitates joinder,” avoiding any waste of judicial resources. Id. The traditional route also avoids “undermining the very decision not to decide” a case: “If this court declines to decide an issue, explaining the avoidance could inadvertently create persuasive authority on the issue . . . .” Id., ¶8.
¶15 When this court issues a per curiam opinion dismissing a case as improvidently granted, the opinion should be short and formulaic without unnecessary еxplanations that could mislead litigants. This directive mirrors the practice of the United States Supreme Court and maintains the status quo of this court‘s recent practice. Justice Ann Walsh Bradley оffers no convincing reason to depart from this court‘s custom.
¶16 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER joins this concurrence.