Wingra Redi-Mix, Inc. v. Burial Sites Preservation Board
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2018 WI 54 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2014AP2498 Wingra Redi-Mix, Inc. d/b/a Wingra Stone Company, Petitioner-Appellant-Petitioner, v. Burial Sites Preservation Board, Respondent-Respondent, Ho-Chunk Nation, Other Party-Respondent. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis. 2d 727, 902 N.W.2d 808 (2017 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: May 22, 2018 April 17, 2018 Circuit Dane Ellen K. Berz JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ABRAHAMSON, J., concurs (opinion filed). KELLY, J., withdrew from participation. ATTORNEYS: For the petitioner-appellant-petitioner, there were briefs filed by Bryan K. Nowicki, John H. Zawadsky, Amy L. MacArdy, Brittany Lopez Naleid, and Reinhart Boerner Van Deuren S.C., Milwaukee. There was an oral argument by Bryan K. Nowicki. For the respondent-respondent, there was a brief filed by Maura FJ Whelan, assistant Schimel, attorney general. attorney general, and Brad D. There was an oral argument by Maura FJ Whelan, assistant attorney general. For the other party-respondent, there was a brief filed by Amanda L. WhiteEagle and Ho-Chunk Nation Dep't of Justice, Black River Falls, with whom on the brief were Howard M. Shanker and The Shanker Law Firm, PLC, Tempe, Arizona. argument by Howard M. Shanker. 2 There was an oral 2018 WI 54 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP2498 (L.C. No. 2013CV1180) STATE OF WISCONSIN : IN SUPREME COURT Wingra Redi-Mix, Inc. d/b/a Wingra Stone Company, Petitioner-Appellant-Petitioner, FILED v. Burial Sites Preservation Board, Respondent-Respondent, MAY 22, 2018 Sheila T. Reiff Clerk of Supreme Court Ho-Chunk Nation, Other Party-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 PER CURIAM. Affirmed. The decision of the court of appeals is affirmed by an equally divided court. ¶2 DANIEL KELLY, J., withdrew from participation. No. ¶3 SHIRLEY S. ABRAHAMSON, J. (concurring). 2014AP2498.ssa As I did last term in Smith v. Kleynerman,1 I write separately to preserve institutional and historical memory. ¶4 In the instant case, the court is equally divided on the question of whether the unpublished decision of the court of appeals2 should be affirmed or reversed. The per curiam opinion does not list the names and votes of the participating justices. ¶5 In Kleynerman, an opinion issued on March 21, 2017, I catalogued 115 of this court's cases from 1885 through 2016 in which the names and votes of the participating justices were presented and 26 cases from 1849 through 2016 in which the names and votes of the participating justices were not presented. ¶6 Since Kleynerman, a total of two cases (including Kleynerman) have resulted in an equally divided court.3 The court did not present the names and votes of the participating justices in either case. In the instant case and its companion,4 the deviate court 1 Smith N.W.2d 734. continues v. to Kleynerman, 2017 from WI the 22, court's 374 historical Wis. 2d 1, 892 2 Wingra Redi-Mix, Inc. v. Burial Sites Preservation Bd., No. 2014AP2498, unpublished slip op. (Wis. Ct. App. July 31, 2017). 3 Smith v. Kleynerman, 2017 WI 22, 374 Wis. 2d 892 N.W.2d 734 (on appeal); P'ship Health Plan, Inc. v. Office of Commiss'r of Ins., 2018 WI 1, 379 Wis. 2d 56, 905 N.W.2d 122 (on appeal). 4 Wingra Redi-Mix, Inc. v. State Historical Soc'y of Wisconsin, Nos. 2015AP1632 & 2015AP1844, unpublished slip op. (Wis. Ct. App. July 31, 2017). 1 No. practice by failing participating to justices. present The the court names has and still 2014AP2498.ssa votes of the provided no explanation for its change in practice. ¶7 names Although the dominant practice has been to list the and votes historical of the participating practice has been justices, inconsistent, and this there court's is no established rule resolving the issue.5 ¶8 My view is that the court should consistently report the names and votes of the participating justices in the event of a tie vote. Such a practice advances the important goal of transparency in government and is consistent with every other opinion of this court in which the vote of each participating justice is known to the public. ¶9 For the foregoing reasons, I write separately. 5 I do note, however, that The Wisconsin Supreme Court Style and Procedures Manual contains a section entitled "Examples of Per Curiam Opinions where court is equally divided[.]" The only two examples listed are both cases in which the names and votes of the participating justices are presented. 2 No. 1 2014AP2498.ssa
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