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SCOW: 3-3 split marks change in tie-vote procedure, lost opportunity on Daubert

Ten weeks ago SCOW issued Seifert v. Balink, its first decision interpreting and applying §907.02, the Daubert test for the admissibility of expert testimony. The court split 2-1-2-2 (as in Abrahamson/AW Bradley–Ziegler–Gableman/Roggensack–Kelly/RG Bradley). That generated two On Point posts here and here,  an Inside Track article here and a Wisconsin Lawyer article here.  Today SCOW split 3-3 in Smith v. Kleynerman, which raised two issues regarding the law governing LLCs and a Daubert issue. Click here to see Kleynerman’s brief.

Justice Kelly did not participate, and the case ended in a tie vote. That means the court of appeals decision stands. We don’t know which issue(s) caused the split. And, more interestingly, we don’t know how the justices aligned because, contrary to SCOW’s past practice, the order announcing the split does not indicate how the justices voted. One can speculate about why SCOW suddenly decided to withhold the justices’ votes from the public.

Whatever the reason, the change in procedure prompted Justice Abrahamson to list the 115 cases since 1885 that ended in a tie vote and declare that since 1979 SCOW has always listed the names and votes of each participating justice.  The change also caught the attention of the Associated Press and U.S. News, which has broadcasted: “Justices’ Tie Votes Unknown for First Time in 40 Years.”

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