Wenke v. Gehl Co. ( 2003 )

263 Wis.2d 675 (2003) 2003 WI 96 665 N.W.2d 211

Martin G. WENKE and Dakota M. Wenke, a minor, by his Guardian ad Litem, Lynn R. Laufenberg, Plaintiffs-Appellants,
v.
GEHL COMPANY, a Wisconsin corporation, Defendant-Respondent.

No. 01-2649.

Supreme Court of Wisconsin.

Oral argument January 16, 2003. Decided July 8, 2003.

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 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 brief 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.

¶ 1. PER CURIAM.

The court is equally divided on whether to affirm or reverse the judgment 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) (remanding 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.