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.
2

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.
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.:

Winnebago County,

 Petitioner-Respondent,

 v.

D. E. W.,

 Respondent-Appellant-Petitioner.

FILED

MAY 14, 2024

Samuel A. Christensen

Clerk of Supreme Court

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No. 2023AP215, unpublished slip op.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 

2

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

appeals is dismissed as improvidently granted.
No. 2023AP215.rgb

1

¶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 

 

1 Amazon Logistics, Inc. v. LIRC, 2024 WI 15, ¶3, ___ Wis. 

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).
No. 2023AP215.rgb

2

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).
No. 2023AP215.rfd

1

¶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 
No. 2023AP215.rfd

2

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 
No. 2023AP215.rfd

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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. 
No. 2023AP215.rfd

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