We take note of this decision not because of the issue presented (does the federal Drivers’ Privacy Protection Act restrict access to records that would otherwise be subject to inspection under Wisconsin’s open records law?) but because of what it may portend for a handful of criminal cases briefed and argued in—but not decided by—the Wisconsin Supreme Court before the death of Justice N. Patrick Crooks in September 2015.
The court granted a petition to bypass the court of appeals in this case, § (Rule) 809,60; the case was briefed and argued, but not decided, before Justice Crooks’s death. The six remaining justices evenly divided on whether to affirm or reverse the circuit court. Ordinarily, an evenly divided supreme court means the court of appeals decision is affirmed, e.g., Sohn Mfg., Inc. v. LIRC, 2014 WI 112, 358 Wis.2d 308, 854 N.W.2d 371; because this case bypassed the court of appeals, there’s no court of appeals decision to affirm. So, the court sends the case back to the court of appeals for a decision, an approach that seems both sensible and supported by precedent, e.g., State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97, 528 N.W.2d 430 (1995).
But as Justice Abrahamson explains in a concurrence (¶¶15-17), unlike cases where there’s an even division because of the recusal of one justice, in this case there is a way to break the tie vote: Have the newly appointed justice (Rebecca Bradley, who joined the court in October) participate in the case, which would be reargued. There is some (but not much) precedent for this approach in Wisconsin, as well as in the U.S. Supreme Court, as Justice Abrahamson outlines (¶¶18-26). This approach would certainly make more sense in cases where there was a decision by the court of appeals.
Note that the court heard oral argument in 16 cases between the start of its term in September and the date Rebecca Bradley joined the court. Three of those have been decided because there was a majority or unanimous decision. See State v. Iverson, 2015 WI 101; OLR v. Boyle, 2014 WI 110; and DOJ v. DWD, 2015 WI 114. Among the remaining baker’s dozen are a bunch of cases of interest to lawyers handling criminal and indigent defense cases: State v. Dumstrey; State v. LaMere; St. Croix County DHHS v. Michael D.; Winnebago County v. Christopher S. (slated for decision on January 5); State v. Matalonis; State v. Parisi; State v. Valadez; and State v. Jimmie Lee Smith.
There were court of appeals decisions in all those cases except Christopher S. and Valadez, both of which the court of appeals certified to the supreme court. If the court is divided 3-3 in the two certified cases, the New Richmond decision (not to mention logic) suggests they will be returned to the court of appeals for a decision. As for the other cases, if there’s a majority decision, the court will of course issue an opinion. But what if the court’s evenly divided? As Justice Abrahamson says, there’s a way to break the tie now that the court has its full complement of justices. Will the court order re-argument? Or will the new Justice Bradley just read the briefs and watch the Wisconsin Eye recording of the arguments already held? And who will decide how to proceed—the six justices who’ve already heard the case, or the six plus the new Justice Bradley? Stay tuned.We’ll keep you updated.