Two tie votes result in a defense-friendly outcome in one case and keep litigation alive in another.
On a day featuring a lot of fireworks at SCOW, Justice Protasiewicz’s recusal results in two tie votes in these two cases of interest for the defense community. With respect to McBride, this means that the defense-friendly (and citable) COA decision subjecting MPD’s tactics to a unique level of appellate scrutiny stands. The State appealed that decision, essentially seeking a repeat of its victory in Genous,which generated a contentious 4-3 vote tally. Thus, while we can probably speculate on the makeup of the court of in this 3-3 tie, Justice Protasiewicz’s absence (she apparently sat in on one of the lower court hearings) means we will have to wait another day to find out her views on the Fourth Amendment. Although she famously attacked her opponent for fulfilling a Sixth Amendment function during the campaign, Justice Protasiewicz’s victory was also labeled “fantastic” by the ACLU, so we will simply have to wait and see how she balances these competing interests while on the Court.
With respect to Seaton, the tie in that case means that the order granting the certification is vacated and the matter is returned back to COA. (¶3). Given the impossibility of a decision being issued by SCOW so long as Justice Protasiewicz remains on the Court, we should all expect a published opinion resolving those issues soon.