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Unusual Remand for Wis. Open-Records Case

MADISON, Wis. (CN) - Deadlocked in an open-records case after the death of a colleague this fall, the Wisconsin Supreme Court broke precedent by remanding the matter without a ruling.

New Richmond News v. City of New Richmond came before the court days before Justice N. Patrick Crooks died in his chambers on Sept. 21.

The case stems from justifications that the city of New Richmond gave when the local newspaper asked it to release certain public records, specifically copies of traffic-accident and other incident reports.

When the city turned over two car-collision reports and one report of gas theft, it redacted all identifying information about drivers, their cars and witnesses, citing the Driver's Privacy Protection Act.

The New Richmond News and its publisher filed suit in 2013, ultimately persuading the St. Croix County Circuit that police reports were public records under state law.

Three members of the Wisconsin Supreme Court said Friday that they would affirm the ruling for the newspaper, but three others said they would reverse.

Crooks would have cast the tie-breaking vote. Though not physically present at the Sept. 18 hearing, an officer told the gallery before argument began that the judge was listening to the argument remotely.

An unsigned order remanding the case notes that the court's newest member, Justice Rebecca Bradley who was appointed Oct. 9, is ineligible to participate in the ruling because she was not on the court during the case's Sept. 18 hearing. Bradley did not participate in the remand order, either.

An intermediate state appeals court will consider the case next, though the high court bypassed this venue in taking the case up after the circuit court's ruling.

"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,'" Friday's order states.

Justice Shirley Abrahamson, the court's former chief who has historically clashed with the other judges on close cases, wrote separately to "memorialize the approach being taken" in this situation.

Though she agreed with the majority in result Friday, Abrahamson said the order appeared inconsistent with past practice.

Federal and state Supreme Court precedent takes questions of opinions being issued when there has been a change in the court's makeup on a case-by-case basis, with the court deciding whether to send the case backward, use the new judge as a tie-breaker or rehear the case with them present, Abrahamson wrote.

Indeed, when Abrahamson joined the court in 1976, she was replacing a deceased justice.

The court tied on two cases and thus upheld the circuit court ruling, but for an original action with no prior decision, ordered a rehearing with Abrahamson present, she wrote.

"This court appears to have adopted a new practice," Abrahamson wrote.

The judge noted that Crooks participated in oral argument on nine major cases for which no opinion was released before Bradley's appointment.

After his death the court heard seven more before Bradley was appointed.

In one of those cases, State v. Daniel Iverson, the court was not divided and thus issued a six-person ruling last month with two concurrences.

The law that the New Richmond News case implicates usually governs disclosures by the Department of Motor Vehicles.

Wisconsin enacted the DPPA to prevent stalkers from tracking down their victims, and to prevent states from selling names and addresses to direct-mail promotion companies.

To bolster its request, the newspaper supplied the Supreme Court with a 2008 informal opinion from the state attorney general, a letter that says the DPPA permits disclosure of information to fulfill a governmental function - in this case, responding to an open-records request.

The Wisconsin Department of Justice filed a brief standing by its 2008 opinion, while the League of Wisconsin Municipalities urged the Supreme Court to clarify the law for local governments and law-enforcement agencies.

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