Scott Smith v. Greg Kleynerman
892 N.W.2d 734
Wis.2017Background
- This opinion is a per curiam affirmance by an equally divided court; the judgment is affirmed by an equally divided Court. Justice Daniel Kelly did not participate.
- Justice Shirley S. Abrahamson filed a separate concurrence to preserve institutional and historical memory about how the Court reports tie votes.
- Abrahamson notes this is the first post-1979 tie decision in which the court did not list the names of participating justices and each justice's vote.
- She attached two lists: Attachment A (115 cases from 1885–2016 that name justices and votes) and Attachment B (26 cases from 1849–1979 that do not), arguing the Court has changed a recent and historically dominant reporting practice without explanation.
- Abrahamson emphasizes the importance of consistency and urges that when the Court departs from prior practice it should explain why voting information is disclosed in some tie cases and not others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should identify the participating justices and individual votes in an equally divided (tie) decision | Abrahamson: The Court should name justices and disclose votes to preserve institutional and historical record and maintain consistency | Per Curiam/majority practice: The Court issued a per curiam affirmance without listing votes; high courts (and the U.S. Supreme Court) sometimes do not disclose lineups in tie votes | Court affirmed by equal division and did not list participating justices or their votes; concurrence protests lack of disclosure and lack of explanation |
| Whether the Court must explain departures from its past reporting practice for tie votes | Abrahamson: When practice changes, Court should explain rationale for disclosure choices | Implicit: No explanation provided in lead per curiam; no requirement stated | No explanatory statement provided in the lead opinion; concurrence records objection and documents historical practice |
Key Cases Cited
- Frito-Lay v. LIRC, 101 Wis. 2d 169 (1981) (example of a tie decision that named justices and votes)
- DeRuyter v. Wis. Elec. Power Co., 211 Wis. 2d 169 (1997) (another tie decision listed in Attachment A showing historical practice of naming justices)
- Clark ex rel. Gramling v. Am. Cyanamid Co., 367 Wis. 2d 540 (2016) (recent tie decision included in Attachment A that named participating justices)