New Richmond News v. City of New Richmond

2015 WI 106SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1938
COMPLETE TITLE: New Richmond News and Steven Dzubay,
Plaintiffs-Respondents,
v.
City of New Richmond,
Defendant-Appellant.
PETITION TO BYPASS DENIED
OPINION FILED: December 18, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: St. Croix
JUDGE: Howard W. Cameron, Jr.
JUSTICES:
CONCURRED: ABRAHAMSON, A.W. BRADLEY, J.J., concur. (Opinion
Filed)
DISSENTED:
NOT PARTICIPATING: R.G. BRADLEY, J., did not participate.
For the defendant-appellant, there were briefs by Remzy D.
Bitar, Timothy M. Johnson, Samantha R. Schmid, and Crivello
Carlson, S.C., Milwaukee, and oral argument by Remzy D. Bitar.
For the plaintiff-respondents, there was a brief by Dustin
B. Brown, Robert J. Dreps and Godfrey & Kahn, S.C., Madison, and
oral argument by Robert J. Dreps.
There was an amicus curiae brief by Christa Westerberg and
McGillivray Westerberg & Bender LLC, on behalf of the Wisconsin
Newspaper Association and the Reporters Committee for Freedom of
the Press.
There was an amicus curiae brief by Andrew C. Cook,
assistant attorney general, Delanie Breuer, assistant attorney
general, with whom on the brief was Brad D. Schimel, attorney
general, on behalf of the Wisconsin Department of Justice.
There was an amicus curiae brief by Claire Sliverman and
League of Wisconsin Municipalities, Madison, and Andrew T.
Phillips and von Briesen & Roper, S.C., Milwaukee, on behalf of
League of Wisconsin Municipalities and Wisconsin Counties
Association.
There was an amicus curiae brief by Timothy M. Barber,
Michael J. Modl, Gesina M. Seiler and Axley Brynelson, LLP,
Madison, on behalf of Wisconsin County Mutual Insurance
Corporation and Community Insurance Corporation.
2015 WI 106NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1938
(L.C. No. 2013CV163)
STATE OF WISCONSIN : IN SUPREME COURT
New Richmond News and Steven Dzubay,
Plaintiffs-Respondents,
FILED
v. DEC 18, 2015
City of New Richmond, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
APPEAL from a judgment and an order of the Circuit Court
for St. Croix County, Howard W. Cameron, Judge. Decision to
accept petition to bypass vacated and remanded.
¶1 PER CURIAM. The court is equally divided on whether
to affirm or reverse the judgment of the circuit court for
St. Croix County. This case was argued before the full court;
however, Justice N. Patrick Crooks passed away prior to the
court's decision. Justice Rebecca G. Bradley was appointed to
the court after the court's decision, and therefore did not
participate. Justice Shirley S. Abrahamson, Justice Ann Walsh
Bradley, and Justice David T. Prosser would affirm. Chief
No. 2014AP1938
Justice Patience Drake Roggensack, Justice Annette Kingsland
Ziegler, and Justice Michael J. Gableman would reverse.
¶2 This court accepted jurisdiction over this appeal on a
petition to bypass. Wis. Stat. § (Rule) 809.60 (2013-14). 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." 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); see also 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 the petition
to bypass and remand to the court of appeals.
By the Court.—Decision to grant the petition to bypass
vacated and cause remanded.
¶4 REBECCA G. BRADLEY, J., did not participate.
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No. 2014AP1938.ssa
¶5 SHIRLEY S. ABRAHAMSON, J. (concurring). I concur in
the per curiam opinion vacating the order granting the petition
to bypass and remanding this case to the court of appeals.
¶6 I write separately to memorialize the approach being
taken in the instant case following a new justice's (here
Justice Rebecca G. Bradley's) appointment to the court, and to
compare the practice at this time with past practice in this
court and in the United States Supreme Court.
¶7 The per curiam looks regular in its form.1 The instant
case differs, however, from past cases vacating the order
granting the petition to bypass and remanding the case to the
court of appeals. The instant case poses the question of how a
case should be treated by the court when the case was heard and
decided before a new justice became a member of the court and
the new member joins the court before an opinion is released.
¶8 To memorialize the approach now taken by the court in
the instant case and to compare the present practice with this
court's past practice and the practices of the United States
Supreme Court, let me set forth the facts and circumstances of
the change in the membership of the court, the status of the
1
See Attachment A for a list of per curiam opinions
vacating orders granting certification or bypass and remanding
to the court of appeals, in which the justices who voted to
affirm or reverse are named.
1
No. 2014AP1938.ssa
cases heard in September and October, and the issues raised by a
new justice's joining the court at this time.2
¶9 Justice N. Patrick Crooks passed away on September 21,
2015. Justice Rebecca G. Bradley joined the court on October 9,
2015.
¶10 Prior to September 21, 2015, the court heard oral
argument in nine cases. Justice N. Patrick Crooks participated.
No opinion was released in each of these cases prior to Justice
Rebecca G. Bradley's joining the court. The nine cases are set
forth in the attached oral argument schedule (Attachment B)
released by the Clerk of the Supreme Court.
¶11 In addition, after Justice N. Patrick Crooks passed
away on September 21, 2015, and prior to Justice Rebecca G.
Bradley's appointment, on September 22, October 5, and October
6, 2015, the court heard oral argument in seven cases. The
seven cases are set forth in the attached oral argument schedule
(Attachment C) released by the Clerk of the Supreme Court. No
opinion was released in any of these cases prior to Justice
Rebecca G. Bradley's appointment to the court.
¶12 One issue regarding the court's treatment of the
instant case and other cases in which no opinion was released
before Justice Rebecca G. Bradley became a member of the court
2
I am not writing about the Office of Lawyer Regulation
lawyer discipline cases and petitions for review or bypass and
certifications by the court of appeals. These matters are too
numerous and involve a large variety of factual patterns. They
do, however, present issues similar to those presented by the
oral argument cases.
2
No. 2014AP1938.ssa
is whether the court or the new justice decides whether the new
justice participates in the cases heard before the new justice
joined the court. No decision on this issue has been released.
¶13 I turn to the instant case, New Richmond News v. City
of New Richmond. The instant case came to the court by way of a
party's petition to bypass the court of appeals. As the per
curiam states, the court granted the petition. The court was
divided 3-3 after the passing of Justice N. Patrick Crooks.
¶14 When a case resulting in a tie vote is before us on a
certification or petition to bypass the court of appeals, the
court ordinarily vacates the order granting certification or
bypass and remands the case to the court of appeals.3 This is a
3
State v. Richard Knutson, Inc., 191 Wis. 2d 395, 396-97,
528 N.W.2d 430 (1995).
But see State v. Elam, 195 Wis. 2d 683, 684-85, 538
N.W.2d 249 (1995), stating that:
The court is equally divided on whether to affirm or
reverse the judgment of the Circuit Court for
Milwaukee County, Jeffrey A. Wagner, Judge. Chief
Justice Roland B. Day, Justices Donald W. Steinmetz
and Janine P. Geske would affirm. Justices Shirley S.
Abrahamson, William A. Bablitch and Ann Walsh Bradley
would reverse. Justice Jon P. Wilcox did not
participate.
This court accepted jurisdiction over this appeal on a
petition to bypass. Wis. Stat. § (Rule) 809.60 (1993-
94). 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." State v. Richard Knutson, Inc., 191
Wis. 2d 395, 396-397, 528 N.W.2d 430 (1995).
We do not remand this appeal to the court of appeals
because the court of appeals has already decided the
(continued)
3
No. 2014AP1938.ssa
sensible procedure. No way exists for breaking the tie vote in
this court, and remanding the case to the court of appeals gives
the parties appellate review of the trial court's decision.
¶15 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.4
issue presented in this appeal, namely whether Wis.
Stat. § 973.012 (1993-94) prohibits a defendant from
basing an appeal on a sentencing court's failure to
take sentencing guidelines into consideration. In
State v. Halbert, 147 Wis. 2d 123, 131-32, 432
N.W.2d 633 (Ct. App. 1988), the court of appeals held
that a sentencing court's failure to consider the
sentencing guidelines is not subject to appellate
review.
4
Several of the cases the court sent to the court of
appeals after a tied vote came back to this court after a
decision of the court of appeals. See, e.g., Polsky v. Virnich,
2009 WI 66, ¶1, 318 Wis. 2d 599, 769 N.W.2d 52 (returned to the
court in 2011 and decided in Polsky v. Virnich, 2011 WI 13, ¶1,
332 Wis. 2d 1, 800 N.W.2d 742 (court remained evenly divided));
Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI 34, ¶¶2, 4, 270
Wis. 2d 267, 677 N.W.2d 275 (recertified by the court of appeals
and decided by this court in Dairyland Greyhound Park, Inc. v.
Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408); Wenke v.
Gehl Co., 2003 WI 96, ¶1, 263 Wis. 2d 675, 665 N.W.2d 211(returned to this court for review of the court of appeals'
decision in Wenke v. Gehl Co., 2004 WI 103, 274 Wis. 2d 220, 682
N.W.2d 405); State v. Watson, 209 Wis. 2d 281, 282-83, 562
N.W.2d 151 (1997) (returned to this court for review of the
(continued)
4
No. 2014AP1938.ssa
¶16 The per curiam explains Justice Rebecca G. Bradley's
non-participation in the instant case as follows: "This case was
argued before the full court; however, Justice N. Patrick Crooks
passed away prior to the court's decision. Justice Rebecca G.
Bradley was appointed to the court after the court's decision,
and therefore did not participate."5 All court decisions are
tentative until the opinion is released.
¶17 To put the present situation into focus, I look to the
prior practice of this court and the United States Supreme
Court. Under past precedent of this court and the United States
Supreme Court, it appears that if a new justice is available to
break a tie vote, then the court, without the new justice's
input, decides whether to reargue the case. In reargument, the
new justice participates.
¶18 Although this court has not had much experience with a
new justice joining the court after a case has been heard but
before an opinion is released, we have had some.
¶19 The circumstances surrounding my arrival on the court
in September 1976 are instructive.
¶20 Chief Justice Horace Wilkie passed away on May 26,
1976. I was appointed by the governor in August 1976 and was
sworn in on September 7, 1976. Two cases that had been heard
court of appeals decision in State v. Watson, 227 Wis. 2d 167,
595 N.W.2d 403 (1999)).
5
Per curiam, ¶1. Justice Rebecca G. Bradley did not
participate in the court's decision in State v. Iverson, 2015 WI
101, ¶62, ___ Wis. 2d ___, ___ N.W.2d ___, heard before Justice
Rebecca G. Bradley joined the court.
5
No. 2014AP1938.ssa
before Chief Justice Wilkie's death resulted in a tie after his
death: Punches v. Schmidt, 73 Wis. 2d 206, 243 N.W.2d 518(1976); and State v. Kline, 73 Wis. 2d 337, 243 N.W.2d 519(1976). In each case, the court issued a per curiam opinion on
June 30, 1976, stating how each justice had voted and further
stating that because the court was equally divided following the
passing of Chief Justice Wilkie, the judgment of the trial court
was affirmed. Because I had not yet taken office, nobody was
available to break the tie. The justices who heard the cases
obviously decided not to hold the cases over until September
when a new justice would, in all likelihood, participate.
¶21 A third case that was affected by the death of Chief
Justice Wilkie was Buse v. Smith, 74 Wis. 2d 550, 247 N.W.2d 141(1976). Buse was an original action that was argued on May 5,
1976. No decision was announced and no opinion was released
before Chief Justice Wilkie died on May 26. There was no trial
court decision to affirm. No court of appeals existed at the
time.
¶22 To resolve Buse, the court, sitting six (and without
my input), set Buse for reargument on September 8, 1976, when a
seven-person court would in all likelihood be sitting. After I
was sworn in, a seven-member court, including me, sat for
reargument and decided the case. An opinion was issued on
November 30, 1976.
¶23 I turn to the procedures followed by the United States
Supreme Court when a change in the membership of the Court
occurs. These procedures are instructive as well.
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No. 2014AP1938.ssa
¶24 The practices followed by the United States Supreme
Court when a new justice joins the court are set forth in
Stephen M. Shapiro et al., Supreme Court Practice, Ch. 15.6, at
838-39 (10th ed. 2013). The practice of the United States
Supreme Court is that only the justices who originally
participated in a case decide how the case should be handled
when a new justice joins the court. If the justices who
originally participated in the case decide that the new justice
should have an opportunity to participate, they set the case for
reargument. If the case is set for reargument, the new justice
may participate in the reargument. No precedent appears to
exist in the United States Supreme Court for a new justice who
did not participate in oral argument to participate in the case
without reargument.6
¶25 Here is the relevant discussion from the Shapiro text:
The normal practice is for any Justices who did not
participate in the original decision to disqualify
themselves in considering the petition for rehearing.
Thus, Justice Stewart, who had not been a member of
the Court when Flora v. United States, 357 U.S. 63(1958), was decided, took no part in the subsequent
request for a response to the petition for rehearing
(358 U.S. 871 (1958)) or in the order granting
6
At least one case suggests that an equally divided United
States Supreme Court alone is not a sufficient reason to grant a
reargument. Rather, reargument may be warranted only when
important constitutional questions are involved. See City of
Shreveport v. Holmes, 125 U.S. 694 (1888) ("These petitions are
denied. The rehearing was granted in Insurance Co. v. New York,
119 U.S. 129, ante, 1385, after a decision by a divided court,
because an important constitutional question was involved. The
questions in these cases are not of that character.") (emphasis
added).
7
No. 2014AP1938.ssa
rehearing (360 U.S. 922 (1959)), but did participate
in the reargument (362 U.S. 145 (1960)). See also
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 349
U.S. 901, 926 (1955), 350 U.S. 124 (1956); Indian
Towing Co. v. United States, 349 U.S. 902, 926, 350
U.S. 61 (1955).
Despite the above limitations, rehearing petitions
have been granted in the past where the prior decision
was by an equally divided Court and it appeared likely
that upon reargument a majority one way or the other
might be mustered. This means that a Justice who
originally participated voted for rehearing in
recognition of the importance of the Court's resolving
the question upon which it had divided. This was
particularly true when a new Justice became available
to break the tie. The same practice still prevails,
especially when a new Justice makes a majority
possible.22 In such cases, the new Justice does not
participate in the consideration of the petition for
rehearing but does take part in the reargument and the
ensuing judgment.
When the equal division has resulted from the failure
of a member of the Court to participate for personal
reasons, and the petition for rehearing will not
result in his or her participation, the mere fact of
the equal division will not cause the petition to be
granted, although it may be granted for other reasons.
But in Bartkus v. Illinois, 355 U.S. 281, 356 U.S. 969(1958), 359 U.S. 121 (1959), and in Ladner v. United
States, 355 U.S. 282, 356 U.S. 969, 358 U.S. 169(1958), Justice Brennan did not participate in the
affirmances by equal divisions; he had been a member
of the court below in Hoag v. New Jersey, 356 U.S. 464(1958), a companion case argued at the same time.
Once the Hoag case was decided, however, he
participated in the orders granting rehearing in
Bartkus and Ladner and in the subsequent rearguments
and opinions in those cases.
. . . .
22
[T]he Court on its own initiative restored three
cases to the calendar for reargument during the 2005
Term. See Garcetti v. Ceballos, 546 U.S. 1162 (2005);
Kansas v. Marsh, 547 U.S. 1037 (2005); Hudson v.
Michigan, 547 U.S. 1096 (2005). Each of these cases
originally had been argued between the death of Chief
8
No. 2014AP1938.ssa
Justice Rehnquist on September 3, 2005, and the
swearing-in of Justice Alito on February 1, 2006.
Presumably, the Court restored these cases to the
calendar because an equally divided vote had resulted;
the opinions ultimately issued in these three cases
all were split 5-4, with the majority vote in each
case including Justice Alito. See Garcetti v.
Ceballos, 547 U.S. 410 (2005); Hudson v. Michigan, 547
U.S. 586 (2006); Kansas v. Marsh, 548 U.S. 163 (2006);
see also Ryan Co. v. Pan-Atlantic Corp., 349 U.S. 901,
926 (1955); Indian Towing Co. v. United States, 349
U.S. 902, 926 (1955).
Id., 838-39 & n.22 (emphasis added; footnote 22 shown; other
footnotes omitted).
¶26 In sum, under past precedent of this court and the
United States Supreme Court, it appears that if a new justice is
available to break a tie vote, then the court, without the new
justice's input, decides whether to reargue the case. In
reargument, the new justice participates.
¶27 Although the per curiam does not appear to be
consistent with this past practice, this court appears to have
adopted a new practice. I therefore concur in the decision to
vacate the order granting the petition to bypass and remand this
matter to the court of appeals.
¶28 To aid the court in the future, I write separately to
memorialize the practice adopted by the court at this time and
to describe the past practice of this court and the practices of
the United State Supreme Court.
¶29 For the reasons set forth, I write separately.
¶30 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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ATTACHMENT A
1. Metro. Milwaukee Ass'n of Commerce, Inc. v. City
of Milwaukee, 2010 WI 122, ¶¶1, 3, 329
Wis. 2d 537, 789 N.W.2d 734 ("The court is
equally divided whether to affirm or reverse the
order of the circuit court. Justice David T.
Prosser, Justice Patience Drake Roggensack, and
Justice Michael J. Gableman would affirm. Chief
Justice Shirley S. Abrahamson, Justice Ann Walsh
Bradley, and Justice N. Patrick Crooks would
reverse. Justice Annette Kingsland Ziegler did
not participate. . . . [W]e vacate our order
granting certification and remand to the court of
appeals.").
2. Wis. Realtors Ass'n, Inc. v. Town of W. Point,
2007 WI 139, ¶¶2, 4, 306 Wis. 2d 42, 743
N.W.2d 441 ("The court is equally divided on
whether to affirm or reverse the judgment of the
circuit court. Chief Justice Shirley S.
Abrahamson, Justice Ann Walsh Bradley, and
Justice Patience Drake Roggensack would affirm.
Justice N. Patrick Crooks, Justice David T.
Prosser, and Justice Louis B. Butler, Jr. would
reverse on the grounds that neither Wis. Stat.
§ 236.45 nor Wis. Stat. § 61.34 provide the Town
the authority to enact a moratorium on land
division. Justice Annette Kingsland Ziegler did
not participate. . . . [W]e vacate our order
granting certification and remand to the court of
appeals").
3. Dairyland Greyhound Park, Inc. v. Doyle, 2004 WI
34, ¶¶2, 4, 270 Wis. 2d 267, 677 N.W.2d 275 ("The
court is equally divided on whether to affirm the
judgment of the circuit court. Chief Justice
Shirley S. Abrahamson, Justice Ann Walsh Bradley,
and Justice N. Patrick Crooks would affirm.
Justice David T. Prosser, Jr., Justice Diane S.
Sykes, and Justice Patience D. Roggensack would
reverse. Justice Jon P. Wilcox did not
participate. . . . [W]e vacate our order granting
certification and remand to the court of
appeals.").
10
No. 2014AP1938.ssa
4. State v. Agnello, 2003 WI 44, ¶¶1, 3, 261
Wis. 2d 331, 664 N.W.2d 55 ("The court is equally
divided on whether to affirm or reverse the
judgment of the circuit court for Milwaukee
County. Justice William A. Bablitch, Justice Jon
P. Wilcox, and Justice N. Patrick Crooks would
affirm. Chief Justice Shirley S. Abrahamson,
Justice Ann Walsh Bradley, and Justice David T.
Prosser would reverse. Justice Diane S. Sykes
did not participate. . . . [W]e vacate our order
granting certification and remand to the court of
appeals.").
5. Wenke v. Gehl Co., 2003 WI 96, ¶1, 263
Wis. 2d 675, 665 N.W.2d 211 ("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.").
6. State v. Greer, 2003 WI 20, ¶¶1, 3, 260
Wis. 2d 43, 658 N.W.2d 795 ("The court is equally
divided on whether to affirm or reverse the
judgment of the circuit court for Milwaukee
County. Chief Justice Shirley S. Abrahamson,
Justice Ann Walsh Bradley, and Justice David T.
Prosser would affirm. Justice William A.
Bablitch, Justice N. Patrick Crooks, and Justice
Diane S. Sykes would reverse. Justice Jon P.
Wilcox did not participate. . . . [W]e vacate our
order granting certification and remand to the
court of appeals.").
7. Guzman v. St. Francis Hosp., Inc., 2000 WI 34,
¶¶1, 3, 234 Wis. 2d 170, 609 N.W.2d 166 ("The
court is equally divided on whether to affirm or
reverse the order of the circuit court for
Milwaukee County. Chief Justice Abrahamson,
Justices Bablitch and Bradley would affirm.
Justices Wilcox, Crooks and Sykes would reverse.
Justice Prosser did not participate. . . . [W]e
vacate our order granting bypass and remand to
the court of appeals.").
11
No. 2014AP1938.ssa
8. State v. Deborah J.Z., 225 Wis. 2d 33, 34-35, 590
N.W.2d 711 (1999) ("The court is equally divided
on whether to affirm or reverse the order of the
circuit court on the charge of attempted first
degree intentional homicide. Justice Donald W.
Steinmetz, Justice Jon P. Wilcox, and Justice N.
Patrick Crooks would affirm; Justice William A.
Bablitch, Justice Ann Walsh Bradley, and Justice
David T. Prosser would reverse. . . . [W]e vacate
our order granting certification and remand the
cause to the court of appeals . . . . Shirley S.
Abrahamson, Chief Justice, did not
participate.").
9. State v. Watson, 209 Wis. 2d 281, 282-83, 562
N.W.2d 151 (1997) ("The court is equally divided
whether to affirm or reverse the order of the
circuit court. Chief Justice Shirley S.
Abrahamson, Justice William A. Bablitch and
Justice Ann Walsh Bradley would affirm. Justice
Jon P. Wilcox, Justice Janine P. Geske and
Justice N. Patrick Crooks would reverse. Justice
Donald W. Steinmetz did not
participate. . . . [W]e vacate our order granting
certification and remand to the court of appeal
[sic].").
10. State v. Richard Knutson, Inc., 191 Wis. 2d 395,
396-97, 528 N.W.2d 430 (1995) ("The court is
equally divided on whether to affirm or reverse
the judgment of the circuit court for Waukesha
County. Justice Day, Justice Abrahamson, and
Justice Bablitch would affirm. Chief Justice
Heffernan, Justice Steinmetz, and Justice Geske
would reverse. Justice Wilcox did not
participate. . . . [W]e vacate our decision to
certify and remand to the court of appeals.").
12
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ATTACHMENT B
13
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ATTACHMENT C
14
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No. 2014AP1938.ssa
1