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 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.
2 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. FILED Labor and Industry Review Commission, MAR 26, 2024 Defendant-Appellant, Samuel A. Christensen Clerk of Supreme Court Department of Workforce Development UI
Div. Bureau of Legal Affairs,
Defendant-Co-Appellant.
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
19, 2023, we conclude that this matter should be dismissed as
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.
2 No. 2022AP13.awb
¶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
For examples of dismissals without explanation, see State 1
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.
1 No. 2022AP13.awb
¶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.
2 No. 22AP13.rgb
¶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
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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 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.
2 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. FILED Labor and Industry Review Commission, MAR 26, 2024 Defendant-Appellant, Samuel A. Christensen Clerk of Supreme Court Department of Workforce Development UI
Div. Bureau of Legal Affairs,
Defendant-Co-Appellant.
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
19, 2023, we conclude that this matter should be dismissed as
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.
2 No. 2022AP13.awb
¶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
For examples of dismissals without explanation, see State 1
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.
1 No. 2022AP13.awb
¶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.
2 No. 22AP13.rgb
¶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 no-
explanation 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).
1 No. 22AP13.rgb
¶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
E.g., Arizona v. City & Cnty. of San Francisco, 596 U.S. 2
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).
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.
3 No. 22AP13.rgb
¶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.
4 No. 22AP13.rgb