Opinion
No. 2009AP1874-AC.
Oral argument October 1, 2010.
Decided October 14, 2010.
APPEAL from an order of the Circuit Court for Milwaukee County, Thomas R. Cooper, Judge. Order granting certification vacated and cause remanded to the Court of Appeals.
For the intervenor-defendant-appellant there were briefs by Barbara Z. Quindel, Richard Saks, and Hawks Quindel, S.C., Milwaukee, and oral argument by Barbara Z. Quindel.
For the plaintiff-respondent there was a brief by Scott C. Beightol, Joseph Louis Olson, and Michael, Best Friedrich, LLP, Milwaukee, and oral argument by Scott C. Beightol.
An amicus curiae brief was filed on behalf of the Wisconsin Coalition Against Domestic Violence and the Wisconsin Coalition Against Sexual Assault by Tony Gibart and the Wisconsin Coalition Against Domestic Violence, Madison.
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.
¶ 2. When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. 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).
¶ 3. Accordingly, we vacate our order granting certification and remand to the court of appeals.