WISCONSIN REALTORS ASSOCIATION INC v. TOWN OF WEST POINT (2007)

Supreme Court of Wisconsin.

WISCONSIN REALTORS ASSOCIATION, INC. and Wisconsin Builders Association, Plaintiffs–Appellants, v. TOWN OF WEST POINT, Defendant–Respondent.

No. 2006AP2761

Decided: December 12, 2007

For the plaintiff-appellants there were briefs by Timothy D. Fenner, Lori M. Lubinsky, and Axley Brynelson, LLP, Madison, and oral argument by Lori M. Lubinsky. For the defendant-respondent there was a brief by Richard K. Nordeng, Bryan Kleinmaier, and Stafford Rosenbaum LLP, Madison, and oral argument by Richard K. Nordeng. An amicus curiae brief was filed by Carol B. Nawrocki, Shawano, on behalf of the Wisconsin Towns Association. An amicus curiae brief was filed by Daniel M. Olson, Madison, on behalf of the League of Wisconsin Municipalities. An amicus curiae brief was filed by Brian Ohm, Madison, on behalf of the Wisconsin Chapter of the American Planning Association and the American Planning Association. An amicus curiae brief was filed by William White, Paul D. Barbato, and Michael Best & Friedrich LLP, Madison, on behalf of the Wisconsin Transportation Builders Association and Aggregate Producers of Wisconsin.

ON CERTIFICATION FROM THE COURT OF APPEALS

This case comes before the court on certification from the Wisconsin Court of Appeals.

¶ 2 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.

¶ 3 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).

¶ 4 Accordingly, we vacate our order granting certification and remand to the court of appeals.

The order granting certification is vacated and the cause is remanded to the court of appeals.

¶ 1 PER CURIAM.

¶ 5 Justice ANNETTE KINGSLAND ZIEGLER did not participate.

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