Wingra Redi-Mix, Inc. d/b/a Wingra Stone Company, Petitioner-Appellant-Petitioner,
Burial Sites Preservation Board, Respondent-Respondent, Ho-Chunk Nation, Other Party-Respondent.
ARGUMENT: April 17, 2018
OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d
727, 902 N.W.2d 808
Circuit Court of Dane County, L.C. No. 2013CV1180 Ellen K.
the petitioner-appellant-petitioner, there were briefs filed
by Bryan K. Nowicki, John H. Zawadsky, Amy L. MacArdy,
Brittany Lopez Naleid, and Reinhart Boerner Van Deuren S.C.,
Milwaukee. There was an oral argument by Bryan K. Nowicki.
the respondent-respondent, there was a brief filed by Maura
FJ Whelan, assistant attorney general, and Brad D. Schimel,
attorney general. There was an oral argument by Maura FJ
Whelan, assistant attorney general.
the other party-respondent, there was a brief filed by Amanda
L. WhiteEagle and Ho-Chunk Nation Dep't of Justice, Black
River Falls, with whom on the brief were Howard M. Shanker
and The Shanker Law Firm, PLC, Tempe, Arizona. There was an
oral argument by Howard M. Shanker.
The decision of the court of appeals is affirmed by an
equally divided court.
DANIEL KELLY, J., withdrew from participation.
SHIRLEY S. ABRAHAMSON, J. (concurring).
As I did last term in Smith v. Kleynerman,
write separately to preserve institutional and historical
In the instant case, the court is equally divided on the
question of whether the unpublished decision of the court of
appeals should be affirmed or reversed. The per
curiam opinion does not list the names and votes of the
In Kleynerman, an opinion issued on March 21, 2017,
I catalogued 115 of this court's cases from 1885 through
2016 in which the names and votes of the participating
justices were presented and 26 cases from 1849 through 2016
in which the names and votes of the participating justices
were not presented.
Since Kleynerman, a total of two cases (including
Kleynerman) have resulted in an equally divided
court. The court did not present the names and
votes of the participating justices in either case. In the
instant case and its companion, the court continues to
deviate from the court's historical practice by failing
to present the names and votes of ...