                                                               2018 WI 54

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2014AP2498
COMPLETE TITLE:         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                                        (2017 – unpublished)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:          May 22, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 17, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Ellen K. Berz

JUSTICES:
   CONCURRED:           ABRAHAMSON, J., concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:   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   attorney   general,    and   Brad   D.
Schimel, attorney general.             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.    There was an oral
argument by Howard M. Shanker.




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                                                                  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,

      v.                                                       FILED
Burial Sites Preservation Board,                          MAY 22, 2018
            Respondent-Respondent,                           Sheila T. Reiff
                                                          Clerk of Supreme Court
Ho-Chunk Nation,

            Other Party-Respondent.




      REVIEW of a decision of the Court of Appeals.          Affirmed.


      ¶1    PER CURIAM.   The decision of the court of appeals is

affirmed by an equally divided court.

      ¶2    DANIEL KELLY, J., withdrew from participation.
                                                                No.    2014AP2498.ssa


      ¶3      SHIRLEY S. ABRAHAMSON, J.            (concurring).          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   court    continues   to   deviate     from    the    court's      historical


      1
       Smith     v.   Kleynerman,   2017    WI     22,    374    Wis. 2d 1,      892
N.W.2d 734.
      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).


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                                                                  No.    2014AP2498.ssa


practice       by    failing   to    present    the   names    and    votes     of    the

participating          justices.     The    court     has     still     provided       no

explanation for its change in practice.

     ¶7        Although the dominant practice has been to list the

names    and    votes     of   the   participating     justices,        this    court's

historical          practice   has   been   inconsistent,       and     there    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.


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    No.   2014AP2498.ssa




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