                                                             2018 WI 55

                  SUPREME COURT               OF   WISCONSIN
CASE NO.:                2015AP1632 & 2015AP1844
COMPLETE TITLE:          Wingra Redi-Mix, Inc. d/b/a Wingra Stone
                         Company,
                                   Petitioner-Respondent-Cross-Appellant-
                         Petitioner,
                              v.
                         State Historical Society of Wisconsin,
                                   Respondent-Appellant-Cross-Respondent,
                         Ho-Chunk Nation,
                                   Intervenor-Co-Appellant-Cross-
                         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                                        (2017 – unpublished)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:                John C. Albert

JUSTICES:
   CONCURRED:            ABRAHAMSON, J., concurs (opinion filed).
   DISSENTED:
   NOT PARTICIPATING:    KELLY, J., withdrew from participation.

ATTORNEYS:


       For        the    petitioner-respondent-cross-appellant-petitioner,
there were briefs filed by Bryan K. Nowicki, John H. Zawadsky,
Brittany Lopez Naleid, Amy L. MacArdy, and Reinhart Boerner Van
Deuren S.C., Milwaukee.             There was an oral argument by Bryan K.
Nowicki.


       For the respondent-appellant-cross-respondent, there was a
brief filed by Thomas C. Bellavia, assistant attorney general,
and   Brad        D.    Schimel,   attorney   general.   There   was   an   oral
argument by Thomas C. Bellavia, assistant attorney general.
      For the intervenor-co-appellant-cross-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 55
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.   2015AP1632 & 2015AP1844
(L.C. No.   2014CV2262)

STATE OF WISCONSIN                       :            IN SUPREME COURT

Wingra Redi-Mix, Inc. d/b/a Wingra Stone
Company,

          Petitioner-Respondent-Cross-
Appellant-Petitioner,

      v.
                                                                FILED
State Historical Society of Wisconsin,                     MAY 22, 2018

          Respondent-Appellant-Cross-                         Sheila T. Reiff
                                                           Clerk of Supreme Court
Respondent,

Ho-Chunk Nation,

          Intervenor-Co-Appellant-Cross-
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.     2015AP1632 & 2015AP1844.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. State Historical Soc'y of
Wisconsin, Nos. 2015AP1632 & 2015AP1844, 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
Comm'r of Ins., 2018 WI 1, 379 Wis. 2d 56, 905 N.W.2d 122 (on
appeal).
      4
       Wingra Redi-Mix, Inc. v. Burial Sites Preservation Bd.,
No. 2014AP2498, unpublished slip op. (Wis. Ct. App. July 31,
2017).


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                                                      No.    2015AP1632 & 2015AP1844.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.   2015AP1632 & 2015AP1844.ssa




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