PER CURIAM.

For the defendant-appellant, there were briefs by Remzy D. Bitar, Timothy M. Johnson, Samantha R. Schmid, and Crivello Carlson, S.C., Milwaukee, and oral argument by Remzy D. Bitar.

For the plaintiff-respondents, there was a brief by Dustin B. Brown, Robert J. Dreps and Godfrey & Kahn, S.C., Madison, and oral argument by Robert J. Dreps.

There was an amicus curiae brief by Christa Westerberg and McGillivray Westerberg & Bender LLC, on behalf of the Wisconsin Newspaper Association and the Reporters Committee for Freedom of the Press.

There was an amicus curiae brief by Andrew C. Cook, assistant attorney general, Delanie Breuer, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general, on behalf of the Wisconsin Department of Justice.

There was an amicus curiae brief by Claire Sliverman and League of Wisconsin Municipalities, Madison, and Andrew T. Phillips and von Briesen & Roper, S.C., Milwaukee, on behalf of League of Wisconsin Municipalities and Wisconsin Counties Association.

There was an amicus curiae brief by Timothy M. Barber, Michael J. Modl, Gesina M. Seiler and Axley Brynelson, LLP, Madison, on behalf of Wisconsin County Mutual Insurance Corporation and Community Insurance Corporation.

Opinion

PER CURIAM.

¶ 1 The court is equally divided on whether to affirm or reverse the judgment of the circuit court for St. Croix County. This case was argued before the full court; however, Justice N. Patrick Crooks passed away prior to the court's decision. Justice Rebecca G. Bradley was appointed to the court after the court's decision, and therefore did not participate. Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would affirm. Chief Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would reverse.

¶ 2 This court accepted jurisdiction over this appeal on a petition to bypass. Wis. Stat. § (Rule) 809.60 (2013–14). We have previously stated that when a tie vote occurs in this court on a bypass or certification, “justice is better served in such an instance by remanding to the court of appeals for their consideration.” State v. Richard Knutson, Inc., 191 Wis.2d 395, 396–97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); see also State v. Elam, 195 Wis.2d 683, 684–85, 538 N.W.2d 249 (1995) (restating rule but declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).

¶ 3 Accordingly, we vacate our order granting the petition to bypass and remand to the court of appeals.

Decision to grant the petition to bypass vacated and cause remanded.

¶ 4 REBECCA G. BRADLEY, J., did not participate.

SHIRLEY S. ABRAHAMSON, J. (concurring).

¶ 5 I concur in the per curiam opinion vacating the order granting the petition to bypass and remanding this case to the court of appeals.

¶ 6 I write separately to memorialize the approach being taken in the instant case following a new justice's (here Justice Rebecca G. Bradley's) appointment to the court, and to compare the practice at this time with past practice in this court and in the United States Supreme Court.

¶ 7 The per curiam looks regular in its form. The instant case differs, however, from past cases vacating the order granting the petition to bypass and remanding the case to the court of appeals. The instant case poses the question of how a case should be treated by the court when the case was heard and decided before a new justice became a member of the court and the new member joins the court before an opinion is released.

¶ 8 To memorialize the approach now taken by the court in the instant case and to compare the present practice with this court's past practice and the practices of the United States Supreme Court, let me set forth the facts and circumstances of the change in the membership of the court, the status of the cases heard in September and October, and the issues raised by a new justice's joining the court at this time.

¶ 9 Justice N. Patrick Crooks passed away on September 21, 2015. Justice Rebecca G. Bradley joined the court on October 9, 2015.

¶ 10 Prior to September 21, 2015, the court heard oral argument in nine cases. Justice N. Patrick Crooks participated. No opinion was released in each of these cases prior to Justice Rebecca G. Bradley's joining the court. The nine cases are set forth in the attached oral argument schedule (Attachment B) released by the Clerk of the Supreme Court.

¶ 11 In addition, after Justice N. Patrick Crooks passed away on September 21, 2015, and prior to Justice Rebecca G. Bradley's appointment, on September 22, October 5, and October 6, 2015, the court heard oral argument in seven cases. The seven cases are set forth in the attached oral argument schedule (Attachment C) released by the Clerk of the Supreme Court. No opinion was released in any of these cases prior to Justice Rebecca G. Bradley's appointment to the court.

¶ 12 One issue regarding the court's treatment of the instant case and other cases in which no opinion was released before Justice Rebecca G. Bradley became a member of the court is whether the court or the new justice decides whether the new justice participates in the cases heard before the new justice joined the court. No decision on this issue has been released.

¶ 13 I turn to the instant case, New Richmond News v. City of New Richmond. The instant case came to the court by way of a party's petition to bypass the court of appeals. As the per curiam states, the court granted the petition. The court was divided 3–3 after the passing of Justice N. Patrick Crooks.

¶ 14 When a case resulting in a tie vote is before us on a certification or petition to bypass the court of appeals, the court ordinarily vacates the order granting certification or bypass and remands the case to the court of appeals. This is a sensible procedure. No way exists for breaking the tie vote in this court, and remanding the case to the court of appeals gives the parties appellate review of the trial court's decision.

¶ 15 Unlike those prior cases regarding a tie vote in a certification or bypass, in the instant case there is a way of breaking the tie vote in this court; Justice Rebecca G. Bradley could participate. If Justice Rebecca G. Bradley participated in the instant case, the parties and the public could have a decision by this court more quickly than if the case were remanded to the court of appeals. A decision by this court would also avoid the possibility of further review by this court following the decision by the court of appeals.

¶ 16 The per curiam explains Justice Rebecca G. Bradley's non-participation in the instant case as follows: “This case was argued before the full court; however, Justice N. Patrick Crooks passed away prior to the court's decision. Justice Rebecca G. Bradley was appointed to the court after the court's decision, and therefore did not participate.” All court decisions are tentative until the opinion is released.

¶ 17 To put the present situation into focus, I look to the prior practice of this court and the United States Supreme Court. Under past precedent of this court and the United States Supreme Court, it appears that if a new justice is available to break a tie vote, then the court, without the new justice's input, decides whether to reargue the case. In reargument, the new justice participates.

¶ 18 Although this court has not had much experience with a new justice joining the court after a case has been heard but before an opinion is released, we have had some.

¶ 19 The circumstances surrounding my arrival on the court in September 1976 are instructive.

¶ 20 Chief Justice Horace Wilkie passed away on May 26, 1976. I was appointed by the governor in August 1976 and was sworn in on September 7, 1976. Two cases that had been heard before Chief Justice Wilkie's death resulted in a tie after his death: Punches v. Schmidt, 73 Wis.2d 206, 243 N.W.2d 518 (1976); and State v. Kline, 73 Wis.2d 337, 243 N.W.2d 519 (1976). In each case, the court issued a per curiam opinion on June 30, 1976, stating how each justice had voted and further stating that because the court was equally divided following the passing of Chief Justice Wilkie, the judgment of the trial court was affirmed. Because I had not yet taken office, nobody was available to break the tie. The justices who heard the cases obviously decided not to hold the cases over until September when a new justice would, in all likelihood, participate.

¶ 21 A third case that was affected by the death of Chief Justice Wilkie was Buse v. Smith, 74 Wis.2d 550, 247 N.W.2d 141 (1976). Buse was an original action that was argued on May 5, 1976. No decision was announced and no opinion was released before Chief Justice Wilkie died on May 26. There was no trial court decision to affirm. No court of appeals existed at the time.

¶ 22 To resolve Buse, the court, sitting six (and without my input), set Buse for reargument on September 8, 1976, when a seven-person court would in all likelihood be sitting. After I was sworn in, a seven-member court, including me, sat for reargument and decided the case. An opinion was issued on November 30, 1976.

¶ 23 I turn to the procedures followed by the United States Supreme Court when a change in the membership of the Court occurs. These procedures are instructive as well.

¶ 24 The practices followed by the United States Supreme Court when a new justice joins the court are set forth in Stephen M. Shapiro et al., Supreme Court Practice, Ch. 15.6, at 838–39 (10th ed.2013). The practice of the United States Supreme Court is that only the justices who originally participated in a case decide how the case should be handled when a new justice joins the court. If the justices who originally participated in the case decide that the new justice should have an opportunity to participate, they set the case for reargument. If the case is set for reargument, the new justice may participate in the reargument. No precedent appears to exist in the United States Supreme Court for a new justice who did not participate in oral argument to participate in the case without reargument.

¶ 25 Here is the relevant discussion from the Shapiro text:

The normal practice is for any Justices who did not participate in the original decision to disqualify themselves in considering the petition for rehearing. Thus, Justice Stewart, who had not been a member of the Court when Flora v. United States, 357 U.S. 63 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), was decided, took no part in the subsequent request for a response to the petition for rehearing (358 U.S. 871 79 S.Ct. 112 (1958)) or in the order granting rehearing (360 U.S. 922 79 S.Ct. 1430, 3 L.Ed.2d 1538 (1959)), but did participate in the reargument (362 U.S. 145 80 S.Ct. 630, 4 L.Ed.2d 623 (1960)). See also Ryan Stevedoring Co. v. Pan–Atlantic S.S. Corp., 349 U.S. 901, 926 75 S.Ct. 575, 769, 99 L.Ed. 1239, 1257 (1955), 350 U.S. 124 76 S.Ct. 232, 100 L.Ed. 133 (1956); Indian Towing Co. v. United States, 349 U.S. 902, 926 75 S.Ct. 575, 769, 99 L.Ed. 1239, 1257, 350 U.S. 61 76 S.Ct. 122, 100 L.Ed. 48 (1955).

Despite the above limitations, rehearing petitions have been granted in the past where the prior decision was by an equally divided Court and it appeared likely that upon reargument a majority one way or the other might be mustered. This means that a Justice who originally participated voted for rehearing in recognition of the importance of the Court's resolving the question upon which it had divided. This was particularly true when a new Justice became available to break the tie. The same practice still prevails, especially when a new Justice makes a majority possible. In such cases, the new Justice does not participate in the consideration of the petition for rehearing but does take part in the reargument and the ensuing judgment.

When the equal division has resulted from the failure of a member of the Court to participate for personal reasons, and the petition for rehearing will not result in his or her participation, the mere fact of the equal division will not cause the petition to be granted, although it may be granted for other reasons. But in Bartkus v. Illinois, 355 U.S. 281 78 S.Ct. 336, 2 L.Ed.2d 270, 356 U.S. 969 78 S.Ct. 1004, 2 L.Ed.2d 1075 (1958), 359 U.S. 121 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), and in Ladner v. United States, 355 U.S. 282 78 S.Ct. 336, 2 L.Ed.2d 270, 356 U.S. 969 78 S.Ct. 1004, 2 L.Ed.2d 1075, 358 U.S. 169 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), Justice Brennan did not participate in the affirmances by equal divisions; he had been a member of the court below in Hoag v. New Jersey, 356 U.S. 464 78 S.Ct. 829, 2 L.Ed.2d 913 (1958), a companion case argued at the same time. Once the Hoag case was decided, however, he participated in the orders granting rehearing in Bartkus and Ladner and in the subsequent rearguments and opinions in those cases.

....

²² [T]he Court on its own initiative restored three cases to the calendar for reargument during the 2005 Term. See Garcetti v. Ceballos, 546 U.S. 1162 126 S.Ct. 1294, 163 L.Ed.2d 1147 (2005); Kansas v. Marsh, 547 U.S. 1037 126 S.Ct. 1611, 164 L.Ed.2d 331 (2005); Hudson v. Michigan, 547 U.S. 1096 126 S.Ct. 1836, 164 L.Ed.2d 566 (2005). Each of these cases originally had been argued between the death of Chief Justice Rehnquist on September 3, 2005, and the swearing-in of Justice Alito on February 1, 2006. Presumably, the Court restored these cases to the calendar because an equally divided vote had resulted; the opinions ultimately issued in these three cases all were split 5–4, with the majority vote in each case including Justice Alito. See Garcetti v. Ceballos, 547 U.S. 410 126 S.Ct. 1951, 164 L.Ed.2d 689 (2005) [ (2006) ]; Hudson v. Michigan, 547 U.S. 586 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); Kansas v. Marsh, 548 U.S. 163 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006); see also Ryan Co. v. Pan–Atlantic Corp., 349 U.S. 901, 926 75 S.Ct. 575, 769, 99 L.Ed. 1239, 1257 (1955); Indian Towing Co. v. United States, 349 U.S. 902, 926 75 S.Ct. 575, 769, 99 L.Ed. 1239, 1257 (1955).

Id., 838–39 & n. 22 (emphasis added; footnote 22 shown; other footnotes omitted).

¶ 26 In sum, under past precedent of this court and the United States Supreme Court, it appears that if a new justice is available to break a tie vote, then the court, without the new justice's input, decides whether to reargue the case. In reargument, the new justice participates.

¶ 27 Although the per curiam does not appear to be consistent with this past practice, this court appears to have adopted a new practice. I therefore concur in the decision to vacate the order granting the petition to bypass and remand this matter to the court of appeals.

¶ 28 To aid the court in the future, I write separately to memorialize the practice adopted by the court at this time and to describe the past practice of this court and the practices of the United States Supreme Court.

¶ 29 For the reasons set forth, I write separately.

¶ 30 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.

ATTACHMENT A

1. Metro. Milwaukee Ass'n of Commerce, Inc. v. City of Milwaukee, 2010 WI 122, ¶¶ 1, 3, 329 Wis.2d 537, 789 N.W.2d 734 (“The court is equally divided whether to affirm or reverse the order of the circuit court. Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Michael J. Gableman would affirm. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would reverse. Justice Annette Kingsland Ziegler did not participate.... [W]e vacate our order granting certification and remand to the court of appeals.”).

2. Wis. Realtors Ass'n, Inc. v. Town of W. Point, 2007 WI 139, ¶¶ 2, 4, 306 Wis.2d 42, 743 N.W.2d 441 (“The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice Patience Drake Roggensack would affirm. Justice N. Patrick Crooks, Justice David T. Prosser, and Justice Louis B. Butler, Jr. would reverse on the grounds that neither Wis. Stat. § 236.45 nor Wis. Stat. § 61.34 provide the Town the authority to enact a moratorium on land division. Justice Annette Kingsland Ziegler did not participate.... [W]e vacate our order granting certification and remand to the court of appeals”).

3. Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, ¶¶ 2, 4, 270 Wis.2d 267, 677 N.W.2d 275 (“The court is equally divided on whether to affirm the judgment of the circuit court. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks would affirm. Justice David T. Prosser, Jr., Justice Diane S. Sykes, and Justice Patience D. Roggensack would reverse. Justice Jon P. Wilcox did not participate.... [W]e vacate our order granting certification and remand to the court of appeals.”).

4. State v. Agnello, 2003 WI 44, ¶¶ 1, 3, 261 Wis.2d 331, 664 N.W.2d 55 (“The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Milwaukee County. Justice William A. Bablitch, Justice Jon P. Wilcox, and Justice N. Patrick Crooks would affirm. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would reverse. Justice Diane S. Sykes did not participate.... [W]e vacate our order granting certification and remand to the court of appeals.”).

5. Wenke v. Gehl Co., 2003 WI 96, ¶ 1, 263 Wis.2d 675, 665 N.W.2d 211 (“The court is equally divided on whether to affirm or reverse the judgment of the circuit court. Justice N. Patrick Crooks, Justice David T. Prosser, Jr., and Justice Diane S. Sykes would affirm. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch, and Justice Ann Walsh Bradley would reverse. Justice Jon P. Wilcox did not participate.”).

6. State v. Greer, 2003 WI 20, ¶¶ 1, 3, 260 Wis.2d 43, 658 N.W.2d 795 (“The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Milwaukee County. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would affirm. Justice William A. Bablitch, Justice N. Patrick Crooks, and Justice Diane S. Sykes would reverse. Justice Jon P. Wilcox did not participate.... [W]e vacate our order granting certification and remand to the court of appeals.”).

7. Guzman v. St. Francis Hosp., Inc., 2000 WI 34, ¶¶ 1, 3, 234 Wis.2d 170, 609 N.W.2d 166 (“The court is equally divided on whether to affirm or reverse the order of the circuit court for Milwaukee County. Chief Justice Abrahamson, Justices Bablitch and Bradley would affirm. Justices Wilcox, Crooks and Sykes would reverse. Justice Prosser did not participate.... [W]e vacate our order granting bypass and remand to the court of appeals.”).

8. State v. Deborah J.Z., 225 Wis.2d 33, 34–35, 590 N.W.2d 711 (1999) ( “The court is equally divided on whether to affirm or reverse the order of the circuit court on the charge of attempted first degree intentional homicide. Justice Donald W. Steinmetz, Justice Jon P. Wilcox, and Justice N. Patrick Crooks would affirm; Justice William A. Bablitch, Justice Ann Walsh Bradley, and Justice David T. Prosser would reverse.... [W]e vacate our order granting certification and remand the cause to the court of appeals.... Shirley S. Abrahamson, Chief Justice, did not participate.”).

9. State v. Watson, 209 Wis.2d 281, 282–83, 562 N.W.2d 151 (1997) (“The court is equally divided whether to affirm or reverse the order of the circuit court. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch and Justice Ann Walsh Bradley would affirm. Justice Jon P. Wilcox, Justice Janine P. Geske and Justice N. Patrick Crooks would reverse. Justice Donald W. Steinmetz did not participate.... [W]e vacate our order granting certification and remand to the court of appeal [sic].”).

10. State v. Richard Knutson, Inc., 191 Wis.2d 395, 396–97, 528 N.W.2d 430 (1995) (“The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Waukesha County. Justice Day, Justice Abrahamson, and Justice Bablitch would affirm. Chief Justice Heffernan, Justice Steinmetz, and Justice Geske would reverse. Justice Wilcox did not participate.... [W]e vacate our decision to certify and remand to the court of appeals.”).

ATTACHMENT B

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ATTACHMENT C

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