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State Supreme Court remands New Richmond News vs. City of New Richmond back to Appellate Court

The Wisconsin State Supreme Court chambers in Madison shortly before the Court heard arguments in the New Richmond News vs. City of New Richmond back in September. (Jonathan Anderson photo)

The Wisconsin State Supreme Court, in a decision issued this afternoon, Friday, Dec. 18, vacated the petition to rule on New Richmond News vs. City of New Richmond, remanding the case back to the State Appellate Court.

The reason?

Justices on the court tied 3-3 on whether to uphold or reverse St. Croix County Court Judge Howard W. Cameron's ruling in favor of the New Richmond News. 

Because the late Justice N. Patrick Crooks died just days after the case was heard in front of the court in September and he didn't participate in the case, and because the newest Justice, Rebecca G. Bradley, was appointed after the case was heard, the Court was deadlocked at 3-3.

According to the opinion of the full court filed per curium this afternoon, Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser had voted to uphold Cameron's ruling, while Chief Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman all voted to reverse Cameron's circuit court ruling.

Bob Dreps, of Godfrey and Kahn S.C., the attorney representing the New Richmond News in this case, had heard about the decision late this afternoon and said that the turn of events was ironic in that both sides had decided to bypass the Appellate Court and go straight to the Supreme Court in hopes of a fast resolution. However, the death of Justice Crooks and today's decision made certain that a quick resolution wasn't possible at this point.
 "Not much to say ... it's disappointing that there is going to be further delay," Dreps said this afternoon. "The other side cooperated in trying to get a quick resolution. It's ironic because both sides thought a bypass would be the best way to get a quicker, final resolution," he said.

In a case that could have statewide implications for how law enforcement agencies release information to the public and the press, the court threw a curveball that could take months to sort through as it now backs its way to the Appellate Court.

In a story penned by Jonathan Anderson for the New Richmond News following the hearing of the case in front of the Supreme Court in Madison last September, he wrote:

"At issue in the case is whether police are prohibited from releasing the names and addresses of those referenced in law enforcement and motor vehicle accident records in certain situations.

"The Driver's Privacy Protection Act, or DPPA, was enacted in 1994 in response to privacy concerns and regulates how states use and disclose driver information.

"The city contends it is required by DPPA to black out personal information from police records when such information comes from the state’s Division of Motor Vehicles, while the newspaper disagrees with that claim.

"Up until a few years ago, police in Wisconsin had routinely released the names and addresses of those involved in traffic accidents and other incidents.

"But that came to a halt in many communities in the state after a 2012 federal appeals court ruling that prompted municipalities and their insurers to be concerned they could face significant liability for unauthorized disclosure of information."

In 2013, New Richmond News publisher Steven Dzubay tested the waters by filing a public records request with the New Richmond Police Department for several police reports.

The department, however, redacted identifying information of the owners of vehicles in two motor vehicle accident reports, and also withheld identifying information of those referenced in an incident report about gas theft.

Dzubay's arguments with the city and its police department fell on deaf ears and when Mark Samelstad, the city's police chief, decided to continue the practice of redaction, Dzubay and the newspaper sued the city in March 2013. 

A year later, St. Croix County Circuit Judge Howard Cameron ruled in favor of the newspaper, concluding that DPPA does not prohibit release of drivers’ names and addresses for several reasons.

According to Cameron, DPPA allows a police department to release names and addresses when “carrying out its functions,” stating that an essential function of police and all other units of government in Wisconsin is to comply with the state’s public records law.

Cameron went on to say that information about motor vehicle accidents is specifically exempted from DPPA’s definition of “personal information.”

The city appealed Cameron’s ruling to the state Court of Appeals, but the city and newspaper later asked the state Supreme Court to review the case directly.

The Supreme Court accepted that request and heard arguments this past September.

The court's decision today included this passage:

"This court accepted jurisdiction over this appeal on a petition to bypass. 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.' Accordingly, we vacate our order granting the petition to bypass and remand to the court of appeals."

In its ruling today, the court document also detailed its decision to vacate the case and send it back to the Appellate Court. Justice Shirley Abrahamson wrote: "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. "Justice N. Patrick Crooks passed away on September 21, 2015. Justice Rebecca G. Bradley joined the court on October 9, 2015. "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. 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. This is a 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. 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. Abrahamson went on to say: "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." Dreps said that it would be speculative as to predicting any kind of timeline in the disposition of this case. Knowing the speed at which the court system travels, one could probably predict that it will be several months before any kind of decision is reached. 
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