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Wingra Redi-Mix, Inc. v. State Historical Society of Wisconsin

Supreme Court of Wisconsin

May 22, 2018

Wingra Redi-Mix, Inc. d/b/a Wingra Stone Company, Petitioner-Respondent-Cross-Appellant-Petitioner,
v.
State Historical Society of Wisconsin, Respondent-Appellant-Cross-Respondent, Ho-Chunk Nation, Intervenor-Co-Appellant-Cross-Respondent.

          ORAL ARGUMENT: April 17, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d 727, 902 N.W.2d 808

         L.C. No. 2014CV2262

          For the petitioner-respondent-cross-appellant-petitioner, there were briefs filed by Bryan K. Nowicki, John H. Zawadsky, Brittany Lopez Naleid, Amy L. MacArdy, and Reinhart Boerner Van Deuren S.C., Milwaukee. There was an oral argument by Bryan K. Nowicki .

          For the respondent-appellant-cross-respondent, there was a brief filed by Thomas C. Bellavia, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Thomas C. Bellavia, assistant attorney general.

          For the intervenor-co-appellant-cross-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.

          PER CURIAM

         ¶1 The decision of the court of appeals is affirmed by an equally divided court.

         ¶2 DANIEL KELLY, J., withdrew from participation.

          SHIRLEY S. ABRAHAMSON, J. (concurring).

         ¶3 As I did last term in Smith v. Kleynerman, [1] I write separately to preserve institutional and historical memory.

         ¶4 In the instant case, the court is equally divided on the question of whether the unpublished decision of the court of appeals[2] should be affirmed or reversed. The per curiam opinion does not list the names and votes of the participating justices.

         ¶5 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.

         ¶6 Since Kleynerman, a total of two cases (including Kleynerman) have resulted in an equally divided court.[3] The court did not present the names and votes of the participating justices in either case. In the instant case and its companion, [4]the court continues to deviate from the court's historical practice by failing to present the names and votes of ...


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