Opinion
No. 01-2649.
Oral Argument: January 16, 2003.
Opinion Filed: July 8, 2003.
APPEAL from a judgment of the circuit court for Washington County: PATRICK J. FARAGHER, Judge. Order granted certification vacated and cause remanded to the Court of Appeals.
For the plaintiffs-appellants, there were briefs by Michael L. Laufenberg, Lynn R. Laufenberg and Laufenberg Hoefle, S.C., Milwaukee, and oral argument by Lynn R. Laufenberg.
For the defendant-respondent, there was was a brief by Francis H. LoCoco Daniel J. La Fave and Quarles Brady, LLP, Milwaukee, and oral argument by Francis H. LoCoco.
An amicus curiae was filed by Ralph A. Weber, Beth Ermatinger Hanan and Reinhart, Boerner, Van Deuren, S.C., Milwaukee, on behalf of the Wisconsin Manufacturers and Commerce.
An amicus curiae brief was filed by William C. Gleisner, III, Madison, and David M. Skoglind and Aiken Scoptur, S.C., Milwaukee on behalf of the Wisconsin Academy of Trial Lawyers.
The court is equally divided on whether to affirm or reverse the judgement 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.
¶ 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) (remaining to court of appeals on a tie vote on certification); 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 certification and remand to the court of appeals.
By the Court. — The Order granting certification is vacated and the cause is remanded to the court of appeals.