New Richmond News v. City of New Richmond
875 N.W.2d 107
Wis.2015Background
- Case arose from a petition to bypass the court of appeals (New Richmond News v. City of New Richmond); the Wisconsin Supreme Court had heard argument before Justice N. Patrick Crooks died.
- After oral argument but before opinion issuance, Justice Crooks died (Sept. 21, 2015) and Justice Rebecca G. Bradley was later appointed (Oct. 9, 2015).
- The court was split 3–3 on whether to grant the bypass/decide the appeal following Crooks’s death, with one justice not participating.
- The court issued a per curiam vacating its prior order granting bypass and remanding the matter to the court of appeals because the Supreme Court was equally divided.
- Justice Shirley S. Abrahamson (joined by Justice Ann Walsh Bradley) concurred separately to explain and critique the court’s handling of cases where a new justice joins after argument but before decision, comparing Wisconsin practice to U.S. Supreme Court practice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a new justice who joined after oral argument may participate to break a tie on a bypass decision | New Richmond News (seeking resolution by the Supreme Court) would benefit from having the newly appointed justice participate so the high court can decide rather than remand | The majority treated the absence of a participating seventh justice as resulting in an irretrievable tie, warranting vacatur of bypass and remand | Court (per curiam) vacated the grant of bypass and remanded to court of appeals (tie remained) |
| Who decides whether to reargue a case when membership changes after argument but before decision | Advocate for allowing the court to have the new justice participate (or to set for reargument so the new justice can participate) to resolve the tie more efficiently | Past practice suggests only the justices who originally participated decide whether to grant reargument; new justice participates only if reargument is ordered | Concurrence (Abrahamson) explains prior practice (and U.S. Supreme Court practice): original members decide whether to reargue; reargument allows new justice to participate. The per curiam, however, remanded without invoking reargument here |
| Proper remedy when the court is equally divided on a petition to bypass | Plaintiff: resolution by the Supreme Court (with new justice) avoids additional review steps | Defendant/majority: remand to court of appeals provides appellate review where the Supreme Court cannot form a majority | Per curiam: vacated the bypass grant and remanded to the court of appeals (following prior Wisconsin practice for tie votes on bypass/certification) |
| Whether Wisconsin should follow U.S. Supreme Court practice regarding new-justice participation | Plaintiff/new-justice proponents: follow U.S. Supreme Court practice of permitting reargument so the new justice may participate | Opponents: the court may adopt a different administrative practice; absent reargument the new justice should not participate | Concurrence urges memorializing and following the U.S. Supreme Court approach (original justices decide on reargument; new justice participates only after reargument); per curiam did not adopt that route in this case |
Key Cases Cited
- Metro. Milwaukee Ass'n of Commerce, Inc. v. City of Milwaukee, 329 Wis. 2d 537, 789 N.W.2d 734 (Wis. 2010) (example of per curiam vacatur and remand after an evenly divided court)
- Wis. Realtors Ass'n, Inc. v. Town of W. Point, 306 Wis. 2d 42, 743 N.W.2d 441 (Wis. 2007) (vacatur and remand where court split on certification/bypass)
- Dairyland Greyhound Park, Inc. v. Doyle, 270 Wis. 2d 267, 677 N.W.2d 275 (Wis. 2004) (another Wisconsin example of remand after an evenly divided court)
- State v. Richard Knutson, Inc., 191 Wis. 2d 395, 528 N.W.2d 430 (Wis. 1995) (announcing remand-to-court-of-appeals practice on tie votes)
- Garcetti v. Ceballos, 547 U.S. 410 (U.S. 2006) (cited as an example of U.S. Supreme Court practice restoring cases for reargument after membership change)
- Hudson v. Michigan, 547 U.S. 586 (U.S. 2006) (same context: restored for reargument after Court membership change)
- Kansas v. Marsh, 548 U.S. 163 (U.S. 2006) (same context: reargument and decision including newly seated Justice)