Dense fog advisory for Waukesha, Milwaukee, Walworth, Racine and Kenosha Cos. until 10pm
Winter weather advisory for southern half of FOX6 viewing area from 11pm Monday through 10am Tuesday

Wisconsin justices issue tie ruling without revealing votes

This is an archived article and the information in the article may be outdated. Please look at the time stamp on the story to see when it was last updated.

Wisconsin Supreme Court

MADISON — The Wisconsin Supreme Court on Tuesday released an unusual decision in which none of the justices identified how they voted in a tie — the first time that’s happened in nearly 40 years.

The court issued a two-sentence opinion saying it had reached a 3-3 tie in a dispute between a cargo company’s co-owners. The ruling noted that Justice Dan Kelly didn’t participate but didn’t say how any of the justices voted.

Liberal-leaning Justice Shirley Abrahamson wrote a concurrence noting the ruling was the first time since 1979 the court didn’t state the names of the participating justices and how each voted in a tie. Abrahamson, who has been locked in a long-running feud with the court’s five-justice conservative majority, noted the U.S. Supreme Court doesn’t lay out justices’ votes in ties but went on to accuse her colleagues of changing the Wisconsin court’s historical practices without explanation.

“From my perspective, consistency is important,” Abrahamson wrote. “If a court is not consistent in its practice about reporting tie votes, then I believe the court should explain why the voting information is revealed in a particular case and in another it is not.”

Asked for an explanation, court spokesman Tom Sheehan referred a reporter back to the opinion. Sheehan didn’t immediately respond to a follow-up email asking if any of the justices had any response to Abrahamson’s concurrence.

The case in question centers on Greg Kleynerman and Scott Smith, co-owners of Alpha Cargo Technology LLC, a cargo security company. Smith sued Kleynerman in 2011 alleging he breached his fiduciary duty to Smith in an asset sale to another cargo security company, leaving Smith with a 50 percent interest in a company with no assets.

A Milwaukee County jury found Kleynerman breached his duty and awarded Smith $499,000 in compensatory damages. The jury found that Kleynerman didn’t make any intentional misrepresentations to Smith but still awarded Smith an additional $200,000 in punitive damages.

Judge Pedro Colon struck the punitive damages award, finding it was inconsistent with the jury’s own verdict. A state appeals court last summer upheld the compensatory damages and Colon’s decision to erase the punitive damages. The Supreme Court tie means the appellate ruling stands.

Attorneys for both Kleynerman and Smith declined comment.