Gramling v. Am. Cyanamid Co.

367 Wis.2d 540

877 N.W.2d 117 (Mem)

2016 WI 24

Yasmine CLARK a Minor, by her Guardian ad Litem, Susan M. GRAMLING, Plaintiff–Respondent,

v.AMERICAN CYANAMID COMPANY, Armstrong Containers. Inc., E.I. Dupont De Nemours and Company, Atlantic Richfield Company and The Sherwin–Williams Company, Defendants–Appellants,Milwaukee County Department of Health and Human Services and NL Industries, Inc., Defendants.

No. 2014AP775.

Supreme Court of Wisconsin.

Argued April 5, 2016.

Decided April 15, 2016.

For the defendants-appellants, there were briefs by Jeffrey K. Spoerk, James E. Goldschmidt and Quarles & Brady LLP, Milwaukee, and Leon F. DeJulius, Jr., Charles H. Moellenberg, Jr. and Jones Day, Pittsburgh, PA. Oral argument by Leon F. DeJulius, Jr.

For the plaintiff-respondent, there was a brief by Peter G. Earle and the Law Office of Peter Earle, LLC, Milwaukee and Jonathan Orent, Fidelma Fitzpatrick and Motely Rice, LLC, Providence, RI, and oral argument by Peter G. Earle and Fidelma Fitzpatrick.

There was an amicus curiae brief by Brad Schimel, attorney general, Misha Tseytlin, solicitor general, Luke N. Berg, deputy solicitor general and Amy C. Miller, staff attorney, and the Wisconsin Department of Justice. Oral Argument by Luke N. Berg for the defendants-appellants.

ON CERTIFICATION FROM THE COURT OF APPEALS

PER CURIAM.

¶ 1 The court is equally divided on whether to affirm or reverse the decision of the circuit court for Milwaukee County. Chief Justice Patience Drake Roggensack, Justice Shirley S. Abrahamson, and Justice Ann Walsh Bradley would affirm. Justice David T. Prosser, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman would reverse. Justice Rebecca G. Bradley did not participate.

¶ 2 This court accepted jurisdiction over this appeal upon certification by the court of appeals. Wis. Stat. § 809.61 (2013–14) ("The supreme court may take jurisdiction of an appeal or other proceeding in the court of appeals upon certification by the court of appeals or upon the supreme court's own motion."). We have often 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." New Richmond News v. City of New Richmond, 2015 WI 106, ¶ 2, 365 Wis.2d 610, 875 N.W.2d 107 (per curiam) (quoting State v. Richard Knutson, Inc., 191 Wis.2d 395, 396–97, 528 N.W.2d 430 (1995) (per curiam) (remanding to court of appeals on a tie vote on...