State Ex Rel. Thompson v. Jackson
546 N.W.2d 140
Wis.
1996
Check Treatment
PER CURIAM.

The court is equally divided. Chief Justice Day, Justice Abrahamson and Justice *719 Bablitch believe that the amendments to the Milwaukee Parental Choice Program (MPCP) are contrary to art. I, § 18 and art. X, § 3 of the Wisconsin Constitution. 1

Justice Steinmetz, Justice Wilcox and Justice Geske believe, based both upon the legislation before us and the stipulated facts, that respondents have not met the burden to prove beyond a reasonable doubt that the legislative amendments to MPCP violate the Establishment Clause of the First Amendment to the U.S. Const., art. I, § 18 of the Wis. Const., art. X, § 3 of the Wis. Const, or Wisconsin's Public Purpose Doctrine. 2

A majority of the participating justices must agree on a particular point for it to be considered the opinion of the court. State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995). Conversely, when the court splits evenly, as is the case here, the court would ordinarily *720 affirm the court of appeals' decision if the case was before the court on appeal, or remand to the court of appeals for further proceedings if the case was before the court on a bypass or certification. Id. at 684-85. This case, however, is not before the court on appeal, bypass or certification but rather as an original action pursuant to a petition for removal from the Dane County Circuit Court.

Accordingly, the stay of proceedings pending in the Dane County Circuit Court is lifted; the preliminary injunction enjoining all portions of the amended MPCP is continued until further order of the Dane County Circuit Court; and the original action proceeding pending before this court is dismissed without prejudice.

ANN WALSH BRADLEY, J., did not participate.

Notes

1

Because these three justices would hold the expanded MPCP program unconstitutional under the Wisconsin Constitution, they would not reach the issue of whether it should also be found unconstitutional under the United States Constitution.

2

The original program withstood challenges brought on a variety of state constitutional bases in Davis v. Grover, 166 Wis. 2d 501, 512, 480 N.W.2d 460 (1992), in part because the majority of this court concluded that the program was experimental in nature and served to advance the goal of improving "the quality of education in Wisconsin for children of low-income families." Justices Steinmetz, Wilcox and Geske believe that while the legislature has chosen to expand the program in the amendments challenged here, the program is still limited and experimental and, under the stipulated facts, remains inoffensive to the dictates of the United States Constitution, the Wisconsin Constitution and the Wisconsin Public Purpose Doctrine.