                                                                  2015 WI 106

                  SUPREME COURT            OF     WISCONSIN
CASE NO.:              2014AP1938
COMPLETE TITLE:        New Richmond News and Steven Dzubay,
                                  Plaintiffs-Respondents,
                            v.
                       City of New Richmond,
                                  Defendant-Appellant.

                                   PETITION TO BYPASS DENIED

OPINION FILED:         December 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 18, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             St. Croix
   JUDGE:              Howard W. Cameron, Jr.

JUSTICES:
   CONCURRED:          ABRAHAMSON, A.W. BRADLEY, J.J., concur. (Opinion
                       Filed)
  DISSENTED:
  NOT PARTICIPATING:   R.G. BRADLEY, J., did not participate.


       For the defendant-appellant, there were briefs by Remzy D.
Bitar,     Timothy     M.   Johnson,   Samantha   R.   Schmid,   and   Crivello
Carlson, S.C., Milwaukee, and oral argument by Remzy D. Bitar.


       For the plaintiff-respondents, there was a brief by Dustin
B. Brown, Robert J. Dreps and Godfrey & Kahn, S.C., Madison, and
oral argument by Robert J. Dreps.


       There was an amicus curiae brief by Christa Westerberg and
McGillivray Westerberg & Bender LLC, on behalf of the Wisconsin
Newspaper Association and the Reporters Committee for Freedom of
the Press.
    There        was     an     amicus    curiae     brief    by   Andrew    C.   Cook,
assistant attorney general, Delanie Breuer, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general, on behalf of the Wisconsin Department of Justice.


    There was an amicus curiae brief by Claire Sliverman and
League   of      Wisconsin        Municipalities,       Madison,     and    Andrew   T.
Phillips and von Briesen & Roper, S.C., Milwaukee, on behalf of
League     of        Wisconsin     Municipalities       and     Wisconsin     Counties
Association.


    There was an amicus curiae brief by                         Timothy     M. Barber,
Michael J. Modl, Gesina M. Seiler                     and    Axley Brynelson, LLP,
Madison,        on     behalf     of     Wisconsin     County      Mutual    Insurance
Corporation and Community Insurance Corporation.
                                                                           2015 WI 106
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2014AP1938
(L.C. No.   2013CV163)

STATE OF WISCONSIN                                :            IN SUPREME COURT

New Richmond News and Steven Dzubay,

               Plaintiffs-Respondents,
                                                                         FILED
       v.                                                           DEC 18, 2015

City of New Richmond,                                                  Diane M. Fremgen
                                                                    Clerk of Supreme Court

               Defendant-Appellant.




       APPEAL from a judgment and an order of the Circuit Court

for St. Croix County, Howard W. Cameron, Judge.                          Decision to

accept petition to bypass vacated and remanded.



       ¶1      PER CURIAM.     The court is equally divided on whether
to    affirm    or   reverse   the     judgment   of    the    circuit      court     for

St. Croix County.         This case was argued before the full court;

however, Justice N. Patrick Crooks passed away prior to the

court's decision.         Justice Rebecca G. Bradley was appointed to

the court after the court's decision, and therefore did not

participate.         Justice Shirley S. Abrahamson, Justice Ann Walsh

Bradley,       and   Justice   David    T.   Prosser     would     affirm.         Chief
                                                                    No.    2014AP1938



Justice    Patience     Drake   Roggensack,      Justice       Annette    Kingsland

Ziegler, and Justice Michael J. Gableman would reverse.

      ¶2      This court accepted jurisdiction over this appeal on a

petition to bypass.         Wis. Stat. § (Rule) 809.60 (2013-14).                   We

have previously stated that when a tie vote occurs in this court

on a bypass or certification, "justice is better served in such

an   instance     by   remanding   to    the   court     of    appeals    for    their

consideration."            State    v.       Richard     Knutson,        Inc.,     191

Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court

of appeals on a tie vote on certification); see also State v.

Elam, 195 Wis. 2d 683, 684-85, 538 N.W.2d 249 (1995) (restating

rule but declining to remand to court of appeals on a tie vote

on   bypass      because   court   of    appeals       had    previously       decided

issue).

      ¶3      Accordingly, we vacate our order granting the petition

to bypass and remand to the court of appeals.



      By   the    Court.—Decision       to   grant     the    petition    to    bypass
vacated and cause remanded.

      ¶4      REBECCA G. BRADLEY, J., did not participate.




                                         2
                                                               No.   2014AP1938.ssa




       ¶5       SHIRLEY S. ABRAHAMSON, J.        (concurring).       I concur in

the per curiam opinion vacating the order granting the petition

to bypass and remanding this case to the court of appeals.

       ¶6       I write separately to memorialize the approach being

taken      in   the   instant    case    following   a   new   justice's     (here

Justice Rebecca G. Bradley's) appointment to the court, and to

compare the practice at this time with past practice in this

court and in the United States Supreme Court.

       ¶7       The per curiam looks regular in its form.1           The instant

case       differs,   however,    from    past   cases   vacating     the   order

granting the petition to bypass and remanding the case to the

court of appeals.         The instant case poses the question of how a

case should be treated by the court when the case was heard and

decided before a new justice became a member of the court and

the new member joins the court before an opinion is released.

       ¶8       To memorialize the approach now taken by the court in

the instant case and to compare the present practice with this
court's past practice and the practices of the United States

Supreme Court, let me set forth the facts and circumstances of

the change in the membership of the court, the status of the




       1
       See Attachment A for a list of per curiam opinions
vacating orders granting certification or bypass and remanding
to the court of appeals, in which the justices who voted to
affirm or reverse are named.


                                          1
                                                               No.   2014AP1938.ssa


cases heard in September and October, and the issues raised by a

new justice's joining the court at this time.2

     ¶9       Justice N. Patrick Crooks passed away on September 21,

2015.     Justice Rebecca G. Bradley joined the court on October 9,

2015.

     ¶10      Prior    to   September    21,   2015,   the   court    heard    oral

argument in nine cases.          Justice N. Patrick Crooks participated.

No opinion was released in each of these cases prior to Justice

Rebecca G. Bradley's joining the court.                The nine cases are set

forth    in   the     attached   oral   argument   schedule     (Attachment      B)

released by the Clerk of the Supreme Court.

     ¶11      In addition, after Justice N. Patrick Crooks passed

away on September 21, 2015, and prior to Justice Rebecca G.

Bradley's appointment, on September 22, October 5, and October

6, 2015, the court heard oral argument in seven cases.                         The

seven cases are set forth in the attached oral argument schedule

(Attachment C) released by the Clerk of the Supreme Court.                      No

opinion was released in any of these cases prior to Justice
Rebecca G. Bradley's appointment to the court.

     ¶12      One   issue    regarding    the    court's     treatment    of   the

instant case and other cases in which no opinion was released

before Justice Rebecca G. Bradley became a member of the court


     2
       I am not writing about the Office of Lawyer Regulation
lawyer discipline cases and petitions for review or bypass and
certifications by the court of appeals.   These matters are too
numerous and involve a large variety of factual patterns. They
do, however, present issues similar to those presented by the
oral argument cases.


                                         2
                                                        No.   2014AP1938.ssa


is whether the court or the new justice decides whether the new

justice participates in the cases heard before the new justice

joined the court.    No decision on this issue has been released.

    ¶13    I turn to the instant case, New Richmond News v. City

of New Richmond.     The instant case came to the court by way of a

party's petition to bypass the court of appeals.               As the per

curiam states, the court granted the petition.              The court was

divided 3-3 after the passing of Justice N. Patrick Crooks.

    ¶14    When a case resulting in a tie vote is before us on a

certification or petition to bypass the court of appeals, the

court   ordinarily   vacates   the   order   granting   certification    or

bypass and remands the case to the court of appeals.3           This is a

    3
       State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97,
528 N.W.2d 430 (1995).

     But see State v. Elam, 195              Wis. 2d 683,     684-85,   538
N.W.2d 249 (1995), stating that:

    The court is equally divided on whether to affirm or
    reverse the judgment of the Circuit Court for
    Milwaukee County, Jeffrey A. Wagner, Judge.     Chief
    Justice Roland B. Day, Justices Donald W. Steinmetz
    and Janine P. Geske would affirm. Justices Shirley S.
    Abrahamson, William A. Bablitch and Ann Walsh Bradley
    would reverse.     Justice Jon P. Wilcox did not
    participate.

    This court accepted jurisdiction over this appeal on a
    petition to bypass. Wis. Stat. § (Rule) 809.60 (1993-
    94).   We have previously stated that when a tie vote
    occurs in this court on a bypass or certification,
    "justice is better served in such an instance by
    remanding   to  the   court   of   appeals   for their
    consideration."   State v. Richard Knutson, Inc., 191
    Wis. 2d 395, 396-397, 528 N.W.2d 430 (1995).

    We do not remand this appeal to the court of appeals
    because the court of appeals has already decided the
                                                  (continued)
                              3
                                                            No.   2014AP1938.ssa


sensible procedure.      No way exists for breaking the tie vote in

this court, and remanding the case to the court of appeals gives

the parties appellate review of the trial court's decision.

     ¶15   Unlike those prior cases regarding a tie vote in a

certification or bypass, in the instant case there is a way of

breaking the tie vote in this court; Justice Rebecca G. Bradley

could participate.      If Justice Rebecca G. Bradley participated

in the instant case, the parties and the public could have a

decision   by   this   court   more   quickly   than   if    the    case   were

remanded to the court of appeals.           A decision by this court

would also avoid the possibility of further review by this court

following the decision by the court of appeals.4


     issue presented in this appeal, namely whether Wis.
     Stat. § 973.012 (1993-94) prohibits a defendant from
     basing an appeal on a sentencing court's failure to
     take sentencing guidelines into consideration.     In
     State v. Halbert, 147      Wis. 2d 123, 131-32, 432
     N.W.2d 633 (Ct. App. 1988), the court of appeals held
     that a sentencing court's failure to consider the
     sentencing guidelines is not subject to appellate
     review.
     4
       Several of the cases the court sent to the court of
appeals after a tied vote came back to this court after a
decision of the court of appeals. See, e.g., Polsky v. Virnich,
2009 WI 66, ¶1, 318 Wis. 2d 599, 769 N.W.2d 52 (returned to the
court in 2011 and decided in Polsky v. Virnich, 2011 WI 13, ¶1,
332 Wis. 2d 1, 800 N.W.2d 742 (court remained evenly divided));
Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, ¶¶2, 4, 270
Wis. 2d 267, 677 N.W.2d 275 (recertified by the court of appeals
and decided by this court in Dairyland Greyhound Park, Inc. v.
Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408); Wenke v.
Gehl Co., 2003 WI 96, ¶1, 263 Wis. 2d 675, 665 N.W.2d 211
(returned to this court for review of the court of appeals'
decision in Wenke v. Gehl Co., 2004 WI 103, 274 Wis. 2d 220, 682
N.W.2d 405); State v. Watson, 209 Wis. 2d 281, 282-83, 562
N.W.2d 151 (1997) (returned to this court for review of the
                                                     (continued)
                                4
                                                              No.   2014AP1938.ssa


    ¶16     The per curiam explains Justice Rebecca G. Bradley's

non-participation in the instant case as follows: "This case was

argued before the full court; however, Justice N. Patrick Crooks

passed away prior to the court's decision.              Justice Rebecca G.

Bradley was appointed to the court after the court's decision,

and therefore did not participate."5             All court decisions are

tentative until the opinion is released.

    ¶17     To put the present situation into focus, I look to the

prior    practice   of   this   court   and    the   United    States    Supreme

Court.    Under past precedent of this court and the United States

Supreme Court, it appears that if a new justice is available to

break a tie vote, then the court, without the new justice's

input, decides whether to reargue the case.              In reargument, the

new justice participates.

    ¶18     Although this court has not had much experience with a

new justice joining the court after a case has been heard but

before an opinion is released, we have had some.

    ¶19     The circumstances surrounding my arrival on the court
in September 1976 are instructive.

    ¶20     Chief Justice Horace Wilkie passed away on May 26,

1976.    I was appointed by the governor in August 1976 and was

sworn in on September 7, 1976.              Two cases that had been heard

court of appeals decision in State v. Watson, 227 Wis. 2d 167,
595 N.W.2d 403 (1999)).
    5
       Per curiam, ¶1.     Justice Rebecca G. Bradley did not
participate in the court's decision in State v. Iverson, 2015 WI
101, ¶62, ___ Wis. 2d ___, ___ N.W.2d ___, heard before Justice
Rebecca G. Bradley joined the court.


                                        5
                                                                          No.    2014AP1938.ssa


before Chief Justice Wilkie's death resulted in a tie after his

death:       Punches      v.       Schmidt,    73     Wis. 2d 206,         243    N.W.2d 518

(1976);     and     State      v.   Kline,     73     Wis. 2d 337,         243    N.W.2d 519

(1976).     In each case, the court issued a per curiam opinion on

June 30, 1976, stating how each justice had voted and further

stating that because the court was equally divided following the

passing of Chief Justice Wilkie, the judgment of the trial court

was affirmed.         Because I had not yet taken office, nobody was

available to break the tie.                   The justices who heard the cases

obviously decided not to hold the cases over until September

when a new justice would, in all likelihood, participate.

      ¶21     A third case that was affected by the death of Chief

Justice Wilkie was Buse v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141

(1976).     Buse was an original action that was argued on May 5,

1976.     No decision was announced and no opinion was released

before Chief Justice Wilkie died on May 26.                          There was no trial

court decision to affirm.                  No court of appeals existed at the

time.
      ¶22     To resolve Buse, the court, sitting six (and without

my input), set Buse for reargument on September 8, 1976, when a

seven-person court would in all likelihood be sitting.                                  After I

was   sworn    in,    a     seven-member           court,       including       me,    sat     for

reargument     and    decided        the     case.         An   opinion     was       issued   on

November 30, 1976.

      ¶23     I turn to the procedures followed by the United States

Supreme     Court    when      a    change    in     the    membership      of        the   Court
occurs.     These procedures are instructive as well.

                                               6
                                                                          No.      2014AP1938.ssa


       ¶24       The practices followed by the United States Supreme

Court      when      a   new    justice     joins       the    court   are     set    forth    in

Stephen M. Shapiro et al., Supreme Court Practice, Ch. 15.6, at

838-39         (10th     ed.    2013).      The       practice   of    the     United    States

Supreme         Court      is     that     only       the     justices       who     originally

participated in a case decide how the case should be handled

when       a   new     justice     joins    the       court.      If     the    justices      who

originally participated in the case decide that the new justice

should have an opportunity to participate, they set the case for

reargument.            If the case is set for reargument, the new justice

may participate            in the reargument.                  No precedent appears to

exist in the United States Supreme Court for a new justice who

did not participate in oral argument to participate in the case

without reargument.6

       ¶25       Here is the relevant discussion from the Shapiro text:

       The normal practice is for any Justices who did not
       participate in the original decision to disqualify
       themselves in considering the petition for rehearing.
       Thus, Justice Stewart, who had not been a member of
       the Court when Flora v. United States, 357 U.S. 63
       (1958), was decided, took no part in the subsequent
       request for a response to the petition for rehearing
       (358 U.S. 871 (1958)) or in the order granting

       6
       At least one case suggests that an equally divided United
States Supreme Court alone is not a sufficient reason to grant a
reargument.    Rather, reargument may be warranted only when
important constitutional questions are involved.    See City of
Shreveport v. Holmes, 125 U.S. 694 (1888) ("These petitions are
denied. The rehearing was granted in Insurance Co. v. New York,
119 U.S. 129, ante, 1385, after a decision by a divided court,
because an important constitutional question was involved. The
questions in these cases are not of that character.") (emphasis
added).


                                                  7
                                           No.   2014AP1938.ssa

rehearing (360 U.S. 922 (1959)), but did participate
in the reargument (362 U.S. 145 (1960)).    See also
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 349
U.S. 901, 926 (1955), 350 U.S. 124 (1956); Indian
Towing Co. v. United States, 349 U.S. 902, 926, 350
U.S. 61 (1955).

Despite the above limitations, rehearing petitions
have been granted in the past where the prior decision
was by an equally divided Court and it appeared likely
that upon reargument a majority one way or the other
might be mustered.     This means that a Justice who
originally   participated   voted  for   rehearing  in
recognition of the importance of the Court's resolving
the question upon which it had divided.       This was
particularly true when a new Justice became available
to break the tie.    The same practice still prevails,
especially when a new Justice makes a majority
possible.22  In such cases, the new Justice does not
participate in the consideration of the petition for
rehearing but does take part in the reargument and the
ensuing judgment.

When the equal division has resulted from the failure
of a member of the Court to participate for personal
reasons, and the petition for rehearing will not
result in his or her participation, the mere fact of
the equal division will not cause the petition to be
granted, although it may be granted for other reasons.
But in Bartkus v. Illinois, 355 U.S. 281, 356 U.S. 969
(1958), 359 U.S. 121 (1959), and in Ladner v. United
States, 355 U.S. 282, 356 U.S. 969, 358 U.S. 169
(1958), Justice Brennan did not participate in the
affirmances by equal divisions; he had been a member
of the court below in Hoag v. New Jersey, 356 U.S. 464
(1958), a companion case argued at the same time.
Once   the  Hoag   case   was  decided,   however,  he
participated in the orders granting rehearing in
Bartkus and Ladner and in the subsequent rearguments
and opinions in those cases.

     . . . .
22
   [T]he Court on its own initiative restored three
cases to the calendar for reargument during the 2005
Term. See Garcetti v. Ceballos, 546 U.S. 1162 (2005);
Kansas v. Marsh, 547 U.S. 1037 (2005); Hudson v.
Michigan, 547 U.S. 1096 (2005).   Each of these cases
originally had been argued between the death of Chief
                          8
                                                               No.   2014AP1938.ssa

    Justice Rehnquist on September 3, 2005, and the
    swearing-in of Justice Alito on February 1, 2006.
    Presumably, the Court restored these cases to the
    calendar because an equally divided vote had resulted;
    the opinions ultimately issued in these three cases
    all were split 5-4, with the majority vote in each
    case including Justice Alito.        See Garcetti v.
    Ceballos, 547 U.S. 410 (2005); Hudson v. Michigan, 547
    U.S. 586 (2006); Kansas v. Marsh, 548 U.S. 163 (2006);
    see also Ryan Co. v. Pan-Atlantic Corp., 349 U.S. 901,
    926 (1955); Indian Towing Co. v. United States, 349
    U.S. 902, 926 (1955).
Id., 838-39 & n.22 (emphasis added; footnote 22 shown; other

footnotes omitted).

    ¶26     In sum, under past precedent of this court and the

United States Supreme Court, it appears that if a new justice is

available to break a tie vote, then the court, without the new

justice's   input,     decides    whether    to    reargue     the    case.      In

reargument, the new justice participates.

    ¶27     Although    the   per    curiam       does   not    appear      to   be

consistent with this past practice, this court appears to have

adopted a new practice.          I therefore concur in the decision to

vacate the order granting the petition to bypass and remand this

matter to the court of appeals.
    ¶28     To aid the court in the future, I write separately to

memorialize the practice adopted by the court at this time and

to describe the past practice of this court and the practices of

the United State Supreme Court.

    ¶29     For the reasons set forth, I write separately.

    ¶30     I   am   authorized     to   state    that   Justice      ANN     WALSH

BRADLEY joins this opinion.




                                         9
                                             No.   2014AP1938.ssa



                      ATTACHMENT A

1.   Metro. Milwaukee Ass'n of Commerce, Inc. v. City
     of   Milwaukee,   2010   WI   122,   ¶¶1,   3,   329
     Wis. 2d 537,   789   N.W.2d 734   ("The   court   is
     equally divided whether to affirm or reverse the
     order of the circuit court.       Justice David T.
     Prosser, Justice Patience Drake Roggensack, and
     Justice Michael J. Gableman would affirm.      Chief
     Justice Shirley S. Abrahamson, Justice Ann Walsh
     Bradley, and Justice N. Patrick Crooks would
     reverse. Justice Annette Kingsland Ziegler did
     not participate. . . . [W]e vacate our order
     granting certification and remand to the court of
     appeals.").

2.   Wis. Realtors Ass'n, Inc. v. Town of W. Point,
     2007 WI 139, ¶¶2, 4, 306 Wis. 2d 42, 743
     N.W.2d 441 ("The court is equally divided on
     whether to affirm or reverse the judgment of the
     circuit   court.      Chief Justice   Shirley  S.
     Abrahamson,   Justice   Ann Walsh   Bradley,  and
     Justice Patience Drake Roggensack would affirm.
     Justice N. Patrick Crooks, Justice David T.
     Prosser, and Justice Louis B. Butler, Jr. would
     reverse on the grounds that neither Wis. Stat.
     § 236.45 nor Wis. Stat. § 61.34 provide the Town
     the authority to enact a moratorium on land
     division.   Justice Annette Kingsland Ziegler did
     not participate. . . . [W]e vacate our order
     granting certification and remand to the court of
     appeals").

3.   Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI
     34, ¶¶2, 4, 270 Wis. 2d 267, 677 N.W.2d 275 ("The
     court is equally divided on whether to affirm the
     judgment of the circuit court.        Chief Justice
     Shirley S. Abrahamson, Justice Ann Walsh Bradley,
     and Justice N. Patrick Crooks would affirm.
     Justice David T. Prosser, Jr., Justice Diane S.
     Sykes, and Justice Patience D. Roggensack would
     reverse.      Justice  Jon   P.   Wilcox   did  not
     participate. . . . [W]e vacate our order granting
     certification    and  remand   to   the   court  of
     appeals.").



                           10
                                           No.   2014AP1938.ssa

4.   State v. Agnello, 2003 WI 44, ¶¶1, 3, 261
     Wis. 2d 331, 664 N.W.2d 55 ("The court is equally
     divided on whether to affirm or reverse the
     judgment of the circuit court for Milwaukee
     County. Justice William A. Bablitch, Justice Jon
     P. Wilcox, and Justice N. Patrick Crooks would
     affirm.    Chief Justice Shirley S. Abrahamson,
     Justice Ann Walsh Bradley, and Justice David T.
     Prosser would reverse.    Justice Diane S. Sykes
     did not participate. . . . [W]e vacate our order
     granting certification and remand to the court of
     appeals.").

5.   Wenke v. Gehl Co., 2003 WI 96,            ¶1, 263
     Wis. 2d 675,   665  N.W.2d 211  ("The   court  is
     equally divided on whether to affirm or reverse
     the judgment of the circuit court. Justice N.
     Patrick Crooks, Justice David T. Prosser, Jr.,
     and Justice Diane S. Sykes would affirm. Chief
     Justice Shirley S. Abrahamson, Justice William A.
     Bablitch, and Justice Ann Walsh Bradley would
     reverse.   Justice   Jon   P.  Wilcox    did  not
     participate.").

6.   State v. Greer, 2003 WI 20, ¶¶1, 3, 260
     Wis. 2d 43, 658 N.W.2d 795 ("The court is equally
     divided on whether to affirm or reverse the
     judgment of the circuit court for Milwaukee
     County.    Chief Justice Shirley S. Abrahamson,
     Justice Ann Walsh Bradley, and Justice David T.
     Prosser would affirm.       Justice William A.
     Bablitch, Justice N. Patrick Crooks, and Justice
     Diane S. Sykes would reverse.     Justice Jon P.
     Wilcox did not participate. . . . [W]e vacate our
     order granting certification and remand to the
     court of appeals.").

7.   Guzman v. St. Francis Hosp., Inc., 2000 WI 34,
     ¶¶1, 3, 234 Wis. 2d 170, 609 N.W.2d 166 ("The
     court is equally divided on whether to affirm or
     reverse the order of the circuit court for
     Milwaukee County.      Chief Justice Abrahamson,
     Justices Bablitch and Bradley would affirm.
     Justices Wilcox, Crooks and Sykes would reverse.
     Justice Prosser did not participate. . . . [W]e
     vacate our order granting bypass and remand to
     the court of appeals.").


                          11
                                             No.   2014AP1938.ssa

8.    State v. Deborah J.Z., 225 Wis. 2d 33, 34-35, 590
      N.W.2d 711 (1999) ("The court is equally divided
      on whether to affirm or reverse the order of the
      circuit court on the charge of attempted first
      degree intentional homicide.   Justice Donald W.
      Steinmetz, Justice Jon P. Wilcox, and Justice N.
      Patrick Crooks would affirm; Justice William A.
      Bablitch, Justice Ann Walsh Bradley, and Justice
      David T. Prosser would reverse. . . . [W]e vacate
      our order granting certification and remand the
      cause to the court of appeals . . . . Shirley S.
      Abrahamson,     Chief    Justice,     did     not
      participate.").

9.    State v. Watson, 209 Wis. 2d 281, 282-83, 562
      N.W.2d 151 (1997) ("The court is equally divided
      whether to affirm or reverse the order of the
      circuit   court.     Chief   Justice  Shirley   S.
      Abrahamson, Justice William A. Bablitch and
      Justice Ann Walsh Bradley would affirm.    Justice
      Jon P. Wilcox, Justice Janine P. Geske and
      Justice N. Patrick Crooks would reverse. Justice
      Donald       W.       Steinmetz      did       not
      participate. . . . [W]e vacate our order granting
      certification and remand to the court of appeal
      [sic].").

10.   State v. Richard Knutson, Inc., 191 Wis. 2d 395,
      396-97, 528 N.W.2d 430 (1995) ("The court is
      equally divided on whether to affirm or reverse
      the judgment of the circuit court for Waukesha
      County.    Justice Day, Justice Abrahamson, and
      Justice Bablitch would affirm.      Chief Justice
      Heffernan, Justice Steinmetz, and Justice Geske
      would   reverse.      Justice   Wilcox   did   not
      participate. . . . [W]e vacate our decision to
      certify and remand to the court of appeals.").




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ATTACHMENT B




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ATTACHMENT C




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