When Rebecca Bradley was appointed to the Wisconsin Supreme Court in October, the question arose what role she would play in cases argued this term before her appointment. Specifically, if the Court were otherwise split 3-3 on a case, would Justice R. Bradley participate in order to break the tie?  The Court answered “No” in New Richmond News v. City of New Richmond, 2015 WI 106.

New Richmond involves the interplay between Wisconsin’s Public Records Law, Wis. Stat. ch. 19 subch. II, and the federal Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-25, which protects from disclosure “personal information” and “highly restricted personal information” in motor vehicle records (ranging from street address to social security numbers). The Court thought the question to be one of state-wide importance when it accepted the case last April through its “bypass” procedure, which is one of the ways a case can skip the court of appeals. Nevertheless, the Court sent the case back to the court of appeals when the supreme court was deadlocked 3-3 after Justice N. Patrick Crooks passed away between argument and the release of an opinion. It explained that vacating its bypass allows the court of appeals to decide it and preserves the supreme court’s ability to take it up later, under the usual review process.

The Court could have reheard the case with Justice R. Bradley participating and reached a decision this term. Justice Abrahamson filed a concurrence that discussed United States Supreme Court practice and her own experience on the Wisconsin Supreme Court, being appointed after Chief Justice Horace Wilkie passed away. While her citations do not establish that deadlocked courts always set cases for rehearing when a justice becomes available to break a tie, they do establish that the Court could have done so.

So why didn’t it? The subject matter—the public records law—is always a hot topic, even when a supreme court justice is not up for reelection; but the issue has received special attention recently, pushed by the Milwaukee Journal Sentinel and the Wisconsin Freedom of Information Council. Perhaps that made some justices uneasy. One thing is for sure: the Court certainly has time to rehear the case. The Court had enough cases to fill only one of its three argument days in December. Instead, it chose a path that will cause delay.

Justice Abrahamson explained: “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. Several of the cases the court sent to the court of appeals after a tied vote [to which she had earlier referred] came back to this court after a decision of the court of appeals.” Id. ¶15 & n.4 (emphasis added).

This last point is worth repeating. The bypass procedure requires four votes rather than the three necessary to accept a case in the usual course. Therefore, just last April, the New Richmond case was “one the court conclude[d] it will ultimately choose to consider regardless of how the Court of Appeals might decide the issues.” Wis. Sup. Ct. IOP II.B.2. Even if Justice Crooks was among the four (or more) justices who reached that conclusion, at least three remaining justices believe that the Court will review the case regardless of the outcome below, and it will take only three to accept review of this case again under the court’s normal petition-for-review process.

Rather than deciding the case this term, the Court has pushed off its nearly inevitable decision until 2017 or 2018, depending on how long the court of appeals takes to decide it.