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Avoiding the Question - Presented Thoughts on Wisconsin Supreme Court practice through the lens of Secura Supreme Insurance Company v. The Estate of Huck Since 1977, the Wisconsin Supreme Court’s role has been one of law development, rather than error correction. The supreme court therefore enjoys the right to control its own docket through exercising discretion on which cases to accept. Controlling its own docket allows the court to focus its resources on drafting well-reasoned opinions on issues of great importance. Typically, cases reach the supreme court through a petition for review of the court of appeals’ decision. The court has shared five factors it uses to decide whether a case merits its review. While the parties are limited to arguing the issues raised in the petition for review, the court is not so limited. Thus, the court sometimes resolves cases based on arguments or issues other than those raised in the petition for review, or any party. In Secura Supreme Insurance Company v. Estate of Huck (“Huck II”) , the supreme court did just that by resolving a case through two separate opinions, each receiving a majority of votes in part, without ever addressing the reasoning used by the court of appeals, addressed in the petition for review, or argued by the parties. This result left lingering questions about whether the supreme court actually furthered its law-developing purpose through its decision in Huck II. In the interests of transparency, the author of this article was one of the attorneys representing Secura in Huck II. To be clear, though, this article is not sour grapes about the result of the case; rather, the focus is on the supreme court’s scattered opinions in this case, the reasons relied upon in them, and how the court could reconsider its internal operating procedures to better focus its resources on developing the law. I. The Case Mr. Huck tragically died in an accident with a motor vehicle. Mr. Huck was in the course and scope of employment at the time of the accident, so he and his estate received worker’s compensation benefits totaling $35,798.04. The driver who struck Mr. Huck purchased auto liability insurance with $25,000 limits; the insurer quickly tendered these limits. Mr. Huck purchased personal auto insurance from Secura that included underinsured motorists (UIM) coverage with $250,000 limits. Secura conceded that Mr. Huck’s damages exceeded $250,000. However, Mr. Huck’s UIM coverage included a reducing clause: The limit of liability shall be reduced by all sums: (1) Paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible … (2) Paid or payable because of the bodily injury under any of the following or similar law: a. Worker[‘s] compensation law … The reducing clause is substantially based upon Wis. Stat. § 632.32(5)(i), which permits such provisions: (i) A policy may provide that the limits under the policy for … underinsured motorist coverage for bodily injury or death resulting from any one accident shall be reduced by any of the following that apply: 1. Amounts paid by or on behalf of any person or organization that may be legally responsible for the bodily injury or death for which the payment is made. 2. Amounts paid or payable under any worker’s compensation law. Secura applied each paragraph of the reducing clause separately; that is, Secura deducted from the $250,000 limits the $25,000 paid by the tortfeasor’s insurer, and then deducted from the remaining $225,000 the $35,798.04 received in workers compensation benefits, resulting in a payment of $189,201.96. The Estate asserted, however, that Secura’s calculation improperly double-counted $9,718.73 from the tortfeasor’s payment that went to compensate Mr. Huck’s employer pursuant to Wis. Stat. § 102.29. No Wisconsin case law directly addressed this question. Consequently, Secura filed a declaratory judgment action to resolve this dispute. a. Lower Court Decisions The parties filed cross motions for judgment on the pleadings, and the circuit court granted the Estate’s motion and entered judgment on its counterclaim for the disputed amount. The circuit court found the policy language ambiguous and construed it in favor of the Estate. The circuit court further found persuasive a court of appeals decision and federal district court decision that tangentially touched on the issue without substantial analysis. Secura appealed. The court of appeals unanimously agreed with the circuit court’s conclusion and affirmed its decision (“Huck I”). Unlike the circuit court, however, the court of appeals focused on the language of § 632.32(5)(i) rather than the language of the policy. Further, the court of appeals concluded that the supreme court’s analysis in Teschendorf v. State Farm Insurance Companies resolved the issue. The court of appeals was careful to note that the “statutory analysis … set forth in Teschendorf guides” its decision, rather than finding Teschendorf directly controlling. This careful language is appropriate because Teschendorf resolved a different, albeit adjacent, issue without a majority of the supreme court agreeing on any rationale. At issue in Teschendorf was application of a substantively identical reducing clause in an uninsured motorist (UM) policy to worker’s compensation payments made to the Work Injury Supplemental Benefits Fund (the “Fund”) pursuant to Wis. Stat. § 102.49(5)(b). In that case, if payments made to the Fund were subject to the reducing clause, then the UM recovery would have been zero. The supreme court unanimously agreed that Wis. Stat. § 632.32(5)(i) contains an implicit requirement that amounts be paid to the insured (or estate) under worker’s compensation law in order to be subject to reducing. However, no majority of justices agreed on a rationale. Three justices held § 632.32(5)(i) ambiguous and therefore construed it to require the payment under worker’s compensation law be to the insured or estate (the “Ambiguity Faction”); three justices held that § 632.32(5)(i) plainly permits reducing clauses to apply to payments to the Fund, but that the result is absurd such that the legislature could not have intended it (the “Absurd Results Faction”); and the final justice sought to eschew labels and simply determine what the statute means. In Huck I, the court of appeals concluded that Teschendorf foreclosed Secura’s reading of § 632.32(5)(i) even though Teschendorf did not have a majority rationale as to why. Thus, the court of appeals affirmed. Judge Grogan wrote a brief concurrence acknowledging that the text of § 632.32(5)(i) does not clearly address this issue, so “[o]n a clean slate, Secura’s textual argument may not have been so swiftly dismissed, but our supreme court foreclosed it in Teschendorf.” b. Petition for Review Secura petitioned the supreme court for review, emphasizing the court of appeals’ reliance on Teschendorf and the disjointed analysis in Teschendorf. Secura presented Huck as a case in which the supreme court could clarify the analysis in Teschendorf to provide greater guidance to the bench and bar regarding the proper analytical framework for § 632.32(5)(i). The supreme court accepted review. II. Supreme Court Opinions In a twist of irony, the supreme court’s decision in Huck II not only failed to clarify how insurers, attorneys, and judges should interpret § 632.32(5)(i) in light of Teschendorf but was itself subject to disjointed opinions. Justice Roggensack wrote an opinion that only Chief Justice Ziegler joined in full, but Justices Ann Walsh Bradley, Dallet, Hagedorn, and Karofsky joined in part. Justice Dallet wrote a concurrence that Justices A.W. Bradley, Hagedorn, and Karofsky joined in full. Justice Rebecca Grassl Bradley dissented. Justice Roggensack’s opinion garnered six votes in part and two votes in whole. Justice Dallet’s opinion garnered four votes in whole. Thus, Justice Roggensack’s opinion is binding only as to those portions garnering six votes, and Justice Dallet’s opinion is binding in full. This lends itself to as much confusion as Teschendorf, the opinion Huck II was supposed to clarify. a. Majority/Lead The Majority/Lead opinion—i.e., Justice Roggensack’s opinion —first focuses on the policy’s reducing clause, and in particular on the word “paid.” The opinion analyzes chapter 102 to determine that § 102.29 is a worker’s compensation law that modifies how much an employer pays. Thus, the reducing clause cannot apply to amounts the employer recovers under § 102.29 because that amount was never actually paid under a worker’s compensation law. In so doing, the opinion rejects Secura’s argument that the employer “paid” the full $35,798.04 under worker’s compensation law because the employer had an obligation for the full amount at the start, even though the employer ultimately recovered nearly $10,000. As a further alternative under the terms of the policy, the opinion recognizes that UIM coverage does not apply until the tortfeasor’s insurer exhausts limits that do not suffice to compensate the insured for all of his or her damages. Thus, the opinion reasons, the amount “paid” under worker’s compensation law at the time the UIM claim becomes ripe is the net amount because, by definition, the insured will have already been subject to the § 102.29 distribution. The Majority/Lead opinion then analyzes § 632.32(5)(i). Secura argued that the court need interpret only § 632.32(5)(i), not the policy, because the policy simply adopts the statutory language in the policy. The opinion, though, appears to reject this proposition by analyzing the policy language first. The opinion engaged in a grammatical exercise, noting that “paid” is a past participle that is sometimes used as an adjective “to describe the present state of a thing.” Accordingly, the “amount paid” under worker’s compensation law describes the employer’s total financial outlay as of UIM payment, and the employer’s total outlay at that time accounts for the § 102.29 reimbursement. Similarly, the word “payable” denotes future payments, which has no effect on this case where all relevant transfers of money between the Estate and employer occurred in the past. Finally, the Majority/Lead opinion reasons that “any worker’s compensation law” in § 632.32(5)(i) necessarily includes § 102.29, so § 632.32(5)(i) should be interpreted to contemplate the reimbursement required under § 102.29. b. Second Majority? Justice Dallet opens her opinion with a hypothetical raised in oral arguments: “If I buy an $8 sandwich, hand the cashier a $10 bill, and she hands me my sandwich and $2 in change, how much was she ‘paid’ for the sandwich? Eight dollars, of course.” The concurrence concludes that, regardless of whether one is applying the policy or § 632.32(5)(i), the only reasonable definition of “paid” is the amount of money the Estate actually kept. Though she agrees with the mandate to affirm, and the Majority/Lead opinion’s analysis of the reducing clause in the policy, Justice Dallet concurred because she views the Majority/Lead opinion’s analysis of when UIM coverage applies and § 632.32(5)(i) unnecessary. Neither the Majority/Lead opinion nor Justice Dallet’s concurrence at all discuss the effect of the concurrence garnering four votes in full. Both appear to be binding to the extent each received at least four votes. Consequently, lawyers and judges attempting to use Huck II in the future must be careful to note which paragraphs constitute a majority opinion and which do not. c. Dissent Justice Rebecca Grassl Bradley’s dissent spans almost thirty full pages in the supreme court’s slip opinion format—more than the other two opinions combined. The dissent takes issue with both the majority’s result and analysis. On the issue of analysis, the dissent raises multiple concerns with the court’s resolution of the case that is wholly divorced from the parties’ arguments and petition for review. First, the published court of appeals decision and its analysis of Teschendorf remains binding law because the supreme court affirmed the decision without criticizing or otherwise addressing its reasoning. Second, the court leaves unresolved the ostensible reason it accepted the case: to resolve how lower courts should read and apply Teschendorf. Justice R.G. Bradley acknowledged that the court, as part of its law developing function, is not bound to the parties arguments and may consider any arguments or issues, even if not raised by a party. In this case, however, neither majority opinion explained why the court ignored the issues raised in the petition for review and arguments made in the briefing to instead decide the case on a wholly other ground. On the merits, the dissent’s focus is a meticulous deconstruction of the supreme court’s decision in Teschendorf. Starting with the ambiguity faction, Justice R.G. Bradley attacks those three justices for searching for ambiguity in order to reach a result more palatable than what the statutory language dictates. In order to reach its desired result, this faction had to read the words “to the insured” into the statutory language, which the Teschendorf opinion readily acknowledges. Further, the ambiguity faction acknowledged that the “literal” reading of § 632.32(5)(i) supported the insurer’s position, but concluded that the statute was nonetheless ambiguous. The dissent criticized this as semantic sleight-of-hand: “a plain meaning cannot be ignored by merely labelling it literal, as the ambiguity faction did in discarding it.” The absurd results faction started on the right path by acknowledging that nothing in § 632.32(5)(i) limits reducing clauses to payments made to the insured. That faction erred, however, by watering down the meaning of “absurd” in statutory interpretation. Historically, absurdity meant that applying the plain meaning “would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” The classic examples of an absurd reading of a plain statute include a surgeon who performs emergency surgery on the street to stabilize an injured stranger in contravention of a law prohibiting the drawing of blood in the street; a prisoner escaping in order to avoid a fire despite a law prohibiting prisoner escapes; and a mail carrier failing to deliver the mail while indicted for murder despite a federal statute prohibiting anyone from obstructing or slowing the passage of the mail. While an insured receiving a lower amount of UIM benefits based on worker’s compensation payments made to entities other than the insured is perhaps unpalatable and inferior public policy, the dissent does not see this as rising to the level of absurdity. Indeed, the plain language of § 632.32(5)(i) has a purpose: controlling UIM premiums. The legislature could, and in fact has, decided that public policy is better served by firm UIM limits not subject to reducing, with the attendant increase in UIM premiums; however, the legislature most recently decided that greater access to UIM coverage is permitted by lower premiums and reducing clauses. Which option is better is ultimately a decision for the legislature. Most concerningly to the dissent, six justices in Teschendorf agreed that a “literal” meaning of § 632.32(5)(i) favored the insurer, yet all six agreed that the meaning should be set aside. The only dispute among the justices was why to ignore that meaning. The dissent also discusses, albeit briefly, the actual analysis used by the majority. Justice R.G. Bradley criticizes the Majority/Lead opinion for unnecessarily analyzing § 632.32(5)(i)2 after rejecting Secura’s position based on the policy language, and further inserting a word—“current”—into the statutory text that does not exist. The dissent also considers the concurrence’s example at the sandwich shop. The problem with Justice Dallet’s hypothetical is that the purchaser owed an $8 obligation and overpaid. This would be more akin to Mr. Huck’s employer overpaying worker’s compensation benefits, successfully recovering the overpayment, and Secura then trying to reduce UIM limits by the original payment. However, consistent with Secura’s arguments, Mr. Huck’s employer satisfied a $35,798.04 obligation through a payment of $35,798.04; that it later received a little over $9,000 back does not change that it incurred and discharged (i.e., paid) the $35,798.04 obligation. A better hypothetical (of this author’s creation, not Justice R.G. Bradley’s), would be Justice Dallet’s credit card giving her $2.25 in cash back on her $8 sandwich, which she purchased as part of a tax-deductible charitable event. If the relevant tax statute permitted Justice Dallet to deduct “any amount paid in furtherance of a charitable mission,” would she be entitled to deduct the $8 she spent on the sandwich, or the $5.75 “net” payment for the sandwich? In that situation, the result is not so clear. III. Who Benefits from Huck II? The ultimate resolution of Huck II came as a disappointment. To emphasize, the disappointment was not so much in the result—Secura’s losses in the circuit court and court of appeals allowed for appropriate emotional preparation to lose again before the supreme court—but that the court’s decision did not even address Teschendorf, let alone resolve which faction was correct. While Secura, and the industry as a whole, would have benefitted from a victory on the merits applying § 632.32(5)(i) as written, the industry also would have benefitted from knowing that § 632.32(5)(i) is ambiguous, or that § 632.32(5)(i) has a plain meaning that is absurd without an implied “to the insured” in the statute. Instead, the court resolved little more than the case before it and may have exacerbated questions about how to analyze § 632.32(5)(i). The only discernable rule from Teschendorf and Huck II is that § 632.32(5)(i) means whatever will result in the highest payment to the insured. Even making this clear would allow the industry to appropriately adjust rates, but we are left with more questions than answers. Though not explicitly explained as such, the majority’s analysis (as stated in both Justice Roggensack’s and Justice Dallet’s opinions) may be the result of applying the doctrine that “[a]n appellate court should decide cases on the narrowest possible grounds. Issues that are not dispositive need not be addressed.” Drafting a judicial opinion designed for future use—as every supreme court opinion is—requires extensive time and effort. Resolving the case as it did may have simply been easier and less time consuming than wrestling with the Teschendorf quagmire. In this situation, however, the court may have benefitted itself, the public, and even the parties by dismissing review as improvidently granted rather than issuing the opinions it did. Dismissal would have benefitted the court because it would have been freed of the task of drafting any opinions without any change in result or deprivation of law development. Dismissal of review as improvidently granted is rarely used and often controversial because it gives the impression that the parties’ efforts before the court were wasted. However, where the supreme court would affirm the court of appeals and no clear majority reasoning exists, dismissal may be preferrable to disjointed opinions. Such appears to have been the situation in Huck II. The parties would have been no worse off if the court had dismissed review as improvidently granted; the Estate would have been happy with its win, and Secura would have avoided another disjointed decision creating confusion over the meaning of § 632.32(5)(i). Similarly, future litigants, their attorneys, and the lower-court judges deciding those cases would also have benefitted from (or at least been no worse off by) letting the court of appeals remain the last word in Huck I, which at least provides a serviceable reading of Teschendorf. The court may be able to further its law-developing role while maintaining the quality of opinions by accepting more cases with the understanding that a certain percentage will be dismissed once the court has had the opportunity to review the briefs. Litigants in the cases dismissed may be disappointed, but the court and public will benefit from the court focusing on the cases that actually present issues meriting supreme court review. If the alternative is a decision that fails to address the issues raised in the petition for review, many litigants may prefer dismissal rather than being blindsided by unforeseen analysis. Dismissal as improvidently granted works particularly well where the supreme court would affirm a published court of appeals decision. Sometimes, the benefit of a supreme court decision is not groundbreaking analysis, but making binding correct analysis in an unpublished court of appeals opinion. One way to reduce the court’s workload in these situations is a procedure for summary affirmance that requires publication of the court of appeals’ opinion, either with or without revisions. This would save judicial resources while still allowing for appropriate law development. IV. Conclusion Particularly for attorneys who practice in and for a specific industry, taking a case to the supreme court is often about more than just the case at hand. Such was the case in Huck II, where resolving which analytical framework from Teschendorf controls analysis of § 632.32(5)(i) was just as important as the result of the case. The frustrating experience of coming away with a loss for the client and no meaningful development of applicable law revealed some insights on how the court may be able to better execute its law developing role for the benefit of the public. Author Biography: Erik M. Gustafson is an associate in the Milwaukee office of Borgelt, Powell, Peterson & Frauen, S.C. His practice is entirely devoted to representing Wisconsin insurance companies, with his practice focused on first-party property and third-party liability insurance coverage. Erik earned his B.A., summa cum laude, from Creighton University in 2014, and his J.D., magna cum laude, from Marquette University Law School in 2017. Before joining Borgelt, Powell, Peterson & Frauen, S.C., Erik clerked for Justice Michael J. Gableman of the Wisconsin Supreme Court during the 2017-2018 court term.
[1] Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). [1] Wis. Stat. § 808.10(1); see also Wis. Stat. § 808.05 (setting forth procedures for a case to bypass the court of appeals). All citations to the Wisconsin statutes are to the 2021-22 versions, as updated through 2023 Wis. Act 10 and published pursuant to Wis. Stat. § 35.18. [1] See Patience Drake Roggensack, Elected to Decide: Is The Decision-Avoidance Doctrine Of Great Weight Deference Appropriate In This Court Of Last Resort?, 89 Marq. L. Rev. 541, 543 (2006). [1] Wis. Stat. § 808.10(1). Alternative means include petitions to bypass, certifications, original actions, and supervisory writs. Wis. Stat. §§ 808.05, 809.70, 809.71. [1] Wis. Stat. § 809.62(1r). [1] Univest Corp. v. Gen. Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989) (“Once the case is before us, it is within our discretion to review any substantial and compelling issue which the case presents.”). [1] See State v. Weber, 164 Wis. 2d 788, 790, 476 N.W.2d 867 (1991) (denying reconsideration). [1] Secura Supreme Ins. Co. v. Estate of Huck, 2023 WI 21, 406 Wis. 2d 297, 986 N.W.2d 810 (“Huck II”). [1] Id. [1] Id. ¶ 4. [1] Id. [1] Id. ¶ 5. [1] Id. ¶ 6. [1] Id. [1] Id. ¶ 11. [1] Id. ¶ 6. [1] The record does not reveal whether Mr. Huck’s employer, a municipality, was self-insured or carried worker’s compensation insurance because this distinction is irrelevant for purposes of the issues in the case. [1] Huck, 406 Wis. 2d 297, ¶ 5. [1] Id. ¶ 7. [1] Id. [1] Id. [1] Secura Supreme Ins. v. Estate of Huck, 2021 WI App 69, ¶ 7, 399 Wis. 2d 542, 966 N.W.2d 124 (“Huck I”). [1] Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶ 9, 293 Wis. 2d 123, 717 N.W.2d 258. [1] Id. [1] Id. ¶ 34. The Work Injury Supplemental Benefits Fund provides additional proceeds to certain claimants funded by payments by or on behalf of insurers in certain circumstances. Id. ¶¶ 34–36. [1] Id. ¶ 5. [1] Id. ¶ 18. [1] Id. [1] Id. [1] Huck I, 399 Wis. 2d 542, ¶ 16. [1] Id. ¶ 20. [1] Id. ¶ 21 (Grogan, J., concurring). [1] See Huck II, 406 Wis. 2d 297, ¶ 37 & n.1 (Dallet, J., concurring). [1] Id. [1] Id. ¶ 84 (R.G. Bradley, J., dissenting). [1] State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984) (“It is a general principle of appellate practice that a majority must have agreed on a particular point for it to be considered the opinion of the court. … Numerous cases have expressly held that a concurring opinion becomes the opinion of the court when joined in by a majority.” (citations omitted)). [1] The supreme court’s internal operating procedures hold that “[i]f…the opinion originally circulated as the majority opinion does not garner the vote of a majority of the court, it shall be referred to in separate writings as the ‘lead opinion.’” Wis. Sup. Ct. IOP III.G.4 (June 1, 2023). [1] Huck II, 406 Wis. 2d 297, ¶¶ 11–18. [1] Id. ¶¶ 15-16. [1] Id. ¶ 16. [1] Id. ¶ 13. [1] Id. ¶ 18. [1] Id. [1] Id. ¶¶ 19-28. [1] Id. ¶ 19. [1] See id. [1] Id. ¶ 23 (quoting Henson v. Santander Consumer USA Inc., 582 U.S. 79, 84 (2017)). [1] Id. ¶ 24. [1] Id. ¶ 25. [1] Id. ¶ 26. [1] Id. ¶ 31 (Dallet, J., concurring). [1] Id. ¶ 35 (Dallet, J., concurring). [1] Id. ¶ 37 (Dallet, J., concurring). [1] Dowe, 120 Wis. 2d at 194. [1] Huck II, 406 Wis. 2d 297, ¶¶ 42-45 (R.G. Bradley, J., dissenting). [1] See id. [1] Id. ¶ 59 (R.G. Bradley, J., dissenting). [1] See Id. ¶ 66 (R.G. Bradley, J., dissenting). [1] Id. ¶¶ 42-43 (R.G. Bradley, J., dissenting). [1] Id. [1] Id. ¶ 60 (R.G. Bradley, J., dissenting). [1] Id. ¶¶ 67-68 (R.G. Bradley, J., dissenting). [1] Id. ¶ 67 (R.G. Bradley, J., dissenting). [1] See Teschendorf, 293 Wis. 2d 123, ¶ 8. [1] Id. ¶ 24. [1] Huck II, 406 Wis. 2d 297, ¶ 69 (R.G. Bradley, J., dissenting). [1] Id. ¶¶ 69, 73-74 (R.G. Bradley, J., dissenting). [1] Id. ¶ 74 (R.G. Bradley, J., dissenting). [1] Id. ¶ 77 (R.G. Bradley, J., dissenting) (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 427 (1833)). [1] Id. ¶ 76 (R.G. Bradley, J., dissenting) (quoting United States v. Kirby, 74 U.S. 482, 487 (1868)). [1] Id. ¶ 75 (R.G. Bradley, J., dissenting) (“To equate the Estate receiving $189,000 instead of $199,000 with the two archetypal examples of absurdity would be, well, absurd.”). [1] Id. ¶ 78 (R.G. Bradley, J., dissenting). [1] See Teschendorf, 293 Wis. 2d 123, ¶¶ 45–53 (collecting legislative history on § 632.32(5)(i), including periods when reducing clauses were unenforceable). [1] See Huck II, 406 Wis. 2d 297, ¶¶ 77–79 (R.G. Bradley, J., dissenting). [1] See Id. ¶ 71 (R.G. Bradley, J., dissenting). A court of appeals decision acknowledged that premiums did, in fact, go down after the legislature first permitted reducing clauses. Knowles v. State Farm Mut. Auto. Ins. Co., No. 01-2015, 2002 Wisc. App. LEXIS 588, ¶ 20 n.6 (Wis. Ct. App. May 16, 2002) (unpublished). Knowles is an unpublished decision not citable under Wis. Stat. § 809.23(3), so Secura did not cite it, and none of the Huck II opinions address whether § 632.32(5)(i) in fact reduces premiums. [1] Huck II, 406 Wis. 2d 297, ¶ 69 (R.G. Bradley, J., dissenting). [1] Id. [1] Id. ¶¶ 82-83 (R.G. Bradley., J., dissenting). [1] Id. ¶ 56 (R.G. Bradley, J., dissenting). [1] Id. [1] Id. [1] Id. [1] This is roughly the same proportion that the disputed amount has to the $35,798.04 payment. [1] Nationstar Mortg. LLC v. Stafsholt, 2018 WI 21, ¶ 2 n.2, 380 Wis. 2d 284, 908 N.W.2d 784 (quoting Md. Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶ 48, 326 Wis. 2d 300, 786 N.W.2d 15). [1] In re Amendment of Wis. Stat. § (Rule) 809.23(3), 2003 WI 84, ¶¶ 32-34, 261 Wis. 2d. xiii (Sykes, J., concurring); Roggensack, supra, 89 Marq. L. Rev. at 543 (“A well-written appellate opinion of the type that the public expects from the Wisconsin Supreme Court is a carefully forged tool.”). [1] Cf. Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, 2018 WI 75, ¶ 160, 382 Wis. 2d 496, 914 N.W.2d 21 (Gableman, J., concurring) (discussing general preference for resolving cases on simplest grounds without invoking constitutional or other complicated issues) (citing State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997)). [1] Halbman v. Barrock, 2017 WI 91, ¶ 5, 378 Wis. 2d 17, 902 N.W.2d 248 (Abrahamson, J., concurring) (“The parties have, at this court’s request, expended significant time, effort, and money in submitting briefs and participating in oral argument in this court on the assumption that the case would be heard and decided on the merits. The parties and the public, in my opinion, are owed an explanation of the court’s dismissal at this stage of the appellate proceedings without a decision on the merits.”). [1] See State v. Jackson, 2023 WI 37, ¶ 8, ___ Wis. 2d ___, ___ N.W.2d ___ (R.G. Bradley, J., concurring) (“For example, if this court determines the lower court reached the correct outcome, further review can be a waste of time.”). [1] See id.
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