2024 WI 15

SUPREME COURT OF WISCONSIN

CASE NO.: 2022AP13

COMPLETE TITLE: Amazon 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.

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 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Waukesha

JUDGE: Michael O. Bohren 

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; Michael 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
2

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.
2024 WI 15

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2022AP13

(L.C. No. 2020CV579)

STATE OF WISCONSIN : IN SUPREME COURT

Amazon 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.

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 

of 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 Wis. 

Stat. § 108.02(12). After reviewing the record and briefs from 

all of the parties, and after hearing oral arguments on December 
No. 2022AP13 

2

19, 2023, we conclude that this matter should be dismissed as 

improvidently granted.

By the Court.—The review of the decision of the court of 

appeals is dismissed as improvidently granted.

¶2 BRIAN HAGEDORN, J., did not participate. 
No. 2022AP13.awb

1

¶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 issue 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 case 

as improvidently granted. Such a dearth of explanation has been 

the court's pattern for the past seven years. But this was not 

always so. A wider examination of such dismissals reveals a 

largely inconsistent practice with regard to whether this court 

provides any explanation for its decision when it dismisses a 

case as improvidently granted.1

 

1 For examples of dismissals without explanation, see State 

v. Jackson, 2023 WI 37, 407 Wis. 2d 73, 989 N.W.2d 555; Slamka 

v. Gen. Heating and Air Conditioning Inc., 2022 WI 68, 404 

Wis. 2d 586, 980 N.W.2d 957; Cobb v. King, 2022 WI 59, 403 

Wis. 2d 198, 976 N.W.2d 410; Fond du Lac County v. S.N.W., 2021 

WI 41, 396 Wis. 2d 773, 958 N.W.2d 530; State v. Kloss, 2020 WI 

26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha County v. J.J.H., 

2020 WI 22, 390 Wis. 2d 531, 939 N.W.2d 49; Halbman v. Barrock, 

2017 WI 91, 378 Wis. 2d 17, 902 N.W.2d 248. 
No. 2022AP13.awb

2

¶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 there 

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 

development of the law. See Wis. Stat. § (Rule) 809.62(1r). 

Thus, further review by this court and publication of an opinion 

would not serve any meaningful purpose.

¶7 Accordingly, I respectfully concur.

¶8 I am authorized to state that Justices REBECCA FRANK 

DALLET and JANET C. PROTASIEWICZ join this concurrence.

 

In contrast, 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.
No. 22AP13.rgb

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¶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 the 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 (Rebecca Grassl Bradley, J., concurring), and Justice Ann 

Walsh Bradley has provided no new information to establish an 

inconsistency in this court's practice.1 As I have previously 

documented, Justice Ann Walsh Bradley "may lament the noexplanation trend, but calling the court's practice 

'inconsistent' flies in the face of the facts." Id., ¶5. 

 

1 In this concurrence, Justice Ann Walsh Bradley lists a 

nearly identical collection of cases as referenced in her 

Jackson dissent. State v. Jackson, 2023 WI 37, ¶15 n.2, 407 

Wis. 2d 73, 989 N.W.2d 555 (Ann Walsh Bradley, J., dissenting).
No. 22AP13.rgb

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¶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-sentence 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." Justice Ann Walsh 

Bradley's Concurrence, ¶5. The conclusory explanation Justice 

 

2 E.g., Arizona v. City & Cnty. of San Francisco, 596 U.S. 

763 (2022) (per curiam); Henry Schein, Inc. v. Archer & White 

Sales, Inc., 592 U.S. 168 (2021) (per curiam); Dalmazzi v. 

United States, 585 U.S. 527 (2018) (per curiam); Duncan v. 

Owens, 577 U.S. 189 (2016) (per curiam); Unite Here Local 355 v. 

Mulhall, 571 U.S. 83 (2013) (per curiam); Vasquez v. United 

States, 566 U.S. 376 (2012) (per curiam); Sullivan v. Florida, 

560 U.S. 181 (2010) (per curiam); Bell v. Kelly, 555 U.S. 55 

(2008) (per curiam); Maryland v. Blake, 546 U.S. 72 (2005) (per 

curiam).
No. 22AP13.rgb

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Ann Walsh Bradley offers does not, however, restore the hours 

worked or money spent on this case by the parties. Providing 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 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. 

¶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 additional 

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 not 

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 Bradley "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 

precedent." Id., ¶10 (citations omitted). Instead of injecting 

needless confusion into the process, this court should stay the 

traditional course. 
No. 22AP13.rgb

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¶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 reached 

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 other 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 explanations 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 offers 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. 
No. 22AP13.rgb

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