“Improvidently Granted” Dismissals Must Be Explained:
The Wisconsin Supreme Court’s Continuing Debate in Scot Van Oudenhoven v. Wisconsin Department of Justice, 2025 WI 25

1. Introduction

The Wisconsin Supreme Court’s decision in Van Oudenhoven v. Wisconsin Department of Justice, 2025 WI 25, is striking not for what it decides but for what it refuses to decide. After granting review of a precedentially important question concerning the interplay between Wisconsin’s expunction statute (Wis. Stat. § 973.015) and the federal firearm-possession exception in 18 U.S.C. § 921(a)(33)(B)(ii), the Court dismissed the petition as improvidently granted (“DIG”).

The dismissal generated a concise per curiam order, a three-Justice concurrence (Dallet, A.W. Bradley, Protasiewicz, JJ.) urging transparency in DIGs, and two vigorous dissents (Ziegler, R.G. Bradley, JJ.; Hagedorn, J.) insisting the Court abdicated its duty to decide the certified question. While no new substantive rule on expunction and firearms emerged, the decision cements—at least rhetorically—a normative expectation that the Court should articulate reasons whenever it DIGs, and it leaves the published Court of Appeals opinion (2024 WI App 38) as binding statewide precedent.

2. Summary of the Judgment

  • Disposition: Review dismissed as improvidently granted (per curiam).
  • Concurrence (3 Justices): The Court should explain its DIGs; here, the case “may not squarely present” the certified issue because the administrative record casts doubt on whether the federal-law question is truly implicated.
  • Dissent #1 (2 Justices): The issue is squarely presented, the parties stipulated to the validity of the 2019 expunction order, and the Court is duty-bound to decide the federal-preemption question.
  • Dissent #2 (1 Justice): Echoes the first dissent, emphasizing the case is a straightforward exercise in statutory interpretation.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

  1. Amazon Logistics, Inc. v. LIRC, 2024 WI 15
    Cited by the concurrence for the proposition that failing to explain a DIG undermines confidence in the Court’s process and wastes litigants’ resources.
  2. Winnebago County v. D.E.W., 2024 WI 21
    Another recent opinion where Justices advocated for explanatory DIGs, underscoring a pattern of transparency concerns.
  3. State v. Braunschweig, 2018 WI 113
    Relied on by the Court of Appeals (and recounted in the dissent) for the principle that Wisconsin expunction does not invalidate a conviction but merely removes the public court record—important to the substantive firearm-possession question left undecided.
  4. Wyoming ex rel. Crank v. United States, 539 F.3d 1236 (10th Cir. 2008)
    Provided the “complete obliteration” test for federal expungement that the Court of Appeals adopted. Its persuasive authority remains intact because the Supreme Court did not disturb the appellate ruling.
  5. Additional federal and state cases—Jennings v. Mukasey, Bergman v. Caulk, Pa. State Police v. Drake—were cited by the dissent to demonstrate a nationwide split and the need for Wisconsin’s high court to weigh in.

3.2 Legal Reasoning (or Lack Thereof)

Because the per curiam provided no reasoning, the substantive “legal reasoning” lies in the separate writings:

a) Concurrence (Justice Dallet)

  • Reiterates the institutional benefit of providing written explanations for DIGs.
  • States the record “may not squarely raise” the federal expunction issue—hinting, but not detailing, possible factual or procedural gaps (e.g., whether § 921(a)(33)(B)(ii) was actually determinative of the DOJ’s denial).

b) Dissent (Chief Justice Ziegler & Justice R.G. Bradley)

  • Argues the certified question is undeniably before the Court: the validity of the expunction order is stipulated; collateral attack is forbidden; the only question is statutory interpretation—precisely what the Supreme Court exists to do.
  • Warns that dismissing leaves the Court of Appeals decision intact as statewide precedent, potentially entrenching a restrictive reading of § 921(a)(33)(B)(ii) without high-court scrutiny.
  • Critiques the concurrence’s speculative basis (“may not”), calling it “meager” and unsupported by the record.

c) Dissent (Justice Hagedorn)

Concurs with Ziegler’s analysis in briefer form, labelling the dismissal an abdication of duty.

3.3 Likely Impact

  1. Status quo preserved. The published Court of Appeals opinion (2024 WI App 38) now definitively holds, for Wisconsin courts and administrative agencies, that an expunction under § 973.015 is not an “expungement” for purposes of § 921(a)(33)(B)(ii) unless it eradicates all collateral consequences. Practically, many Wisconsin defendants whose misdemeanor domestic-violence convictions were expunged remain federally disqualified from possessing firearms.
  2. Procedural legacy. The concurrence, echoing earlier cases, strengthens the institutional expectation that future DIGs should be accompanied by explanatory statements— a soft precedent rooted in collegial persuasion rather than majority holding.
  3. Strategic litigation choices. Litigants seeking a definitive answer on Wisconsin expunction’s federal effect must now consider federal court or a new state-court vehicle with an uncontested record that cannot be questioned as “not squarely presenting” the issue.

4. Complex Concepts Simplified

  • Improvidently Granted (“DIG”). After the Court accepts a petition for review, it may decide—often late in the process—that it should not have taken the case. A DIG wipes the slate clean as though review were never granted, leaving the lower-court opinion intact.
  • Expunction vs. Expungement. Both words mean the same; Wisconsin statutes use “expunction.” Under § 973.015, expunction removes the court record from public view but does not erase the conviction’s legal existence.
  • Collateral Attack. Attempting to undermine a judgment in a new proceeding instead of a direct appeal. Generally forbidden unless specifically authorized.

5. Conclusion

The Supreme Court’s silence on the substantive firearm-expunction question may disappoint practitioners looking for clarity, but Van Oudenhoven is nonetheless instructive. First, it implicitly affirms that a DIG—though procedurally modest—can have sweeping practical effects by leaving intermediate appellate precedent untouched. Second, the separate writings push the Court toward a norm of transparency: dismissing as improvidently granted should come with a reasoned explanation. Whether future majorities internalize this norm remains to be seen, but the pressure is mounting.

Until the Wisconsin Supreme Court or the U.S. Supreme Court tackles the federal definition of “expunged” head-on, Wisconsin attorneys must advise clients that state-court expunction of a misdemeanor-domestic-violence conviction probably does not restore federal firearm rights. Meanwhile, litigants and lower courts should preserve clean records and procedural postures to avert another procedural anticlimax.