VILLAGE FOOD & LIQUOR MART, Plaintiff-Respondent, v. H & S PETROLEUM, INC., a Wisconsin Corporation, d/b/a Horizon Marathon and Shell, Defendant-Appellant.
No. 00-2493
Supreme Court of Wisconsin
Oral argument January 9, 2002.—Decided July 9, 2002.
2002 WI 92 | 647 N.W.2d 177 | 254 Wis. 2d 478
¶ 1. WILLIAM A. BABLITCH, J. In this case, we are asked to decide whether the Wisconsin Constitution protects a litigant‘s right to a jury trial in a civil suit for damages under the Unfair Sales Act,
¶ 2. The Racine County Circuit Court, Dennis J. Barry, Judge, held that H & S had no constitutionally protected right to a jury trial and granted Village Food‘s motion. The court of appeals granted H & S leave to appeal the non-final order and subsequently certified the question to this court. We now reverse the ruling of the circuit court and hold that the Wisconsin Constitution protects the right to a trial by jury for a civil suit brought under the Unfair Sales Act.
¶ 3. In 1999, Village Food brought suit against H & S, alleging a series of violations of the Unfair Sales Act,
¶ 4. In its plea for relief, Village Food sought $2000 in damages for each violation, and for each day of continued violation, pursuant to
¶ 5. Village Food moved to strike H & S‘s jury demand, arguing that the Wisconsin Constitution does not guarantee the right to a jury trial in a civil suit brought under the Unfair Sales Act. The circuit court agreed with Village Food and granted the motion to strike. Relying on State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), aff‘d 193 Wis. 2d 150, 532 N.W.2d 449 (1995), the circuit court held that, because there was no common law cause of action in 1848 sufficiently similar to the present one, the right to a jury trial was not protected by
¶ 6. The court of appeals granted H & S leave to appeal the non-final order and certified the appeal to this court. We accepted the certification, and we now reverse the circuit court‘s ruling.
¶ 7.
The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. . . .
¶ 8. We approach this question in two parts. We first set forth the test by which we determine if there is a constitutional right to a jury trial for a given cause of action. Second, we apply the test to the cause of action in the present case to determine if the constitutional right to a jury trial is protected. In the end, we conclude that H & S is entitled to a jury trial under the test set forth in this opinion.
¶ 9. In Ameritech, the court of appeals set forth a two-part test for assessing statutory causes of action under Article I, Section 5. The court of appeals stated that “[a] party has a constitutional right to have a statutory claim tried to a jury when: (1) the statute codifies an action known to the common law in 1848; and (2) the action was regarded as at law in 1848.” Ameritech, 185 Wis. 2d at 690. A negative answer to either question would mean that the jury trial right is not constitutionally guaranteed.4 We agree that a two-part test is required; however, we conclude that, in light our prior case law interpreting Article I, Section 5, a different test is required under the first prong.
¶ 10.
From an early day it was held that the constitutional provision, preserving inviolate the right of trial by jury preserves that right inviolate as it existed at the time of the adoption of the constitution. The matter of special assessments and reassessments is purely a statutory proceeding, relates to taxation, and there was at common law no right of jury trial. Therefore, unless the statute itself makes provision for a jury trial, the parties are not entitled thereto in a proceeding of the kind now before us. (Emphasis added).
We have articulated this principle in a number of other cases as well. See N.E. v. DHSS, 122 Wis. 2d 198, 203, 361 N.W.2d 693 (1985); Gaston v. Babcock, 6 Wis. 490 [*503], 494 [*506] (1857); Norval v. Rice, 2 Wis. 17 [*19], 22 [*29] (1853).
¶ 13. Breaking this test down, we first conclude that a party has a right to have a statutory claim tried to a jury if the cause of action created by the statute existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848. Previous decisions of this court support this test. For example, in Bekkedal, we held that a litigant had no right to a jury trial in an action challenging a municipal road construction assessment because the action did not exist in 1848 and there was no statutory provision providing for such a right. Bekkedal, 183 Wis. at 192-93. Similarly, in N.E., we held that there was no right to a jury trial in a juvenile delinquency proceeding, because such proceedings did not exist at the time the Wisconsin Constitution was adopted. N.E., 122 Wis. 2d at 203. In each case, we found that the party did not have a constitutional right to have a statutory claim tried to a jury because the cause of action created by the statute did not exist, was not known, and was not recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848. See also Gen. Drivers, 21 Wis. 2d at 252; Bergren v. Staples, 263 Wis. 477, 481-83, 57 N.W.2d 714 (1953).
¶ 15. Second, consistent with the second prong in Ameritech, we also conclude that the party seeking the jury trial must additionally show that the action existed “at law.” Our cases support Ameritech‘s holding in this respect. In Town of Burke, 17 Wis. 2d 623, we recognized that the action at issue—a contest to a referendum election—may have existed at the time the state constitution was enacted, but that the remedies available at the time for such a challenge were obtained through writs of quo warranto, mandamus, or other equitable actions—not legal actions. Similarly, in 1889, this court analyzed a garnishment action in La Crosse National Bank v. Wilson, 74 Wis. 391, 399, 43 N.W. 153 (1889), where we recognized that garnishment cases existed prior to 1848, but noted that the type of garnishment in this case—that of non-leviable assets—would have been remedied by creditor‘s bills or other equitable proceedings. In both Town of Burke and La Crosse National Bank we held there was no protected right to a trial by jury.
B
¶ 17. To determine if the right to a jury trial is preserved in this case, we apply the above test to the statute in question—the Unfair Sales Act,
¶ 18. We begin by examining the contours of
¶ 20. The legislature created several possible remedies for a violation of the Unfair Sales Act. The primary cause of action under the Unfair Sales Act is brought by the district attorney or the Wisconsin Department of Agriculture, Trade, and Consumer Protection (the Department) as a quasi-criminal forfeiture action.
¶ 22. With the above in mind, we start with the first part of our test: whether H & S had a constitutional right to have its
¶ 23. H & S contends that the first prong is met because the Unfair Sales Act is analogous to causes of action that existed at law in 1848. Specifically, H & S points to several cases that were initiated before 1848, which H & S contends are comparable to the present case, and where jury trials were afforded. See Getty v. Rountree, 2 Pin. 379 (Wis. 1850); Moore v. Kendall, 2 Pin. 99 (Wis. 1849); Rich v. Johnson, 2 Pin. 88 (Wis. 1849); Wood v. Folmer, 1 Pin. 509 (Wis. Terr. 1845); Vliet v. Rowe, 1 Pin. 413 (Wis. Terr. 1844). H & S suggests the present action is closely related to business fraud, and torts such as cheating, fraud, deceit, and business slander were recognized in the common law at the time of the state constitution‘s adoption. We are not persuaded by these particular comparisons.
¶ 25. The only case cited by H & S that we find somewhat similar to the one at bar is Getty, 2 Pin. 379, which involved fraud and the breach of an implied warranty in the sale of a pump. However, Getty is similar only because it involves a tort action between two business entities for monetary damages, but the similarity in the cause of action ends there.
¶ 26. H & S, however, persuasively points us to the well-recognized Commentaries on the Law of England wherein Sir William Blackstone included a chapter on “Offences Against Public Trade.” 4 William Blackstone, Commentaries on the Laws of England, ch. 12, at 154-60 (1778). H & S suggests that many of the offenses listed can be categorized as types of “business fraud” and “business torts” and asks that we take a general approach in comparing them to the present cause of action. We have reviewed this chapter of Blackstone‘s Commentaries and find that the first prong is met: H & S had a constitutional right to have its statutory claim tried to a jury because the cause of action created by the statute existed, was known, and was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848.
[S]elling below cost is really an act of unfair competition. . . . Sales below cost, it has been stated, are prohibited because “ruinous competition by lowering prices has been recognized as an illegal medium of eliminating weaker competitors,” and because “in many lines of industry larger combinations of capital through lower costs and through cutting prices below costs have driven smaller merchants out of business.”
Rudolf Callmann, The Law of Unfair Competition, Trademarks and Monopolies, § 7.02 (4th ed. 2001) (footnotes omitted). The fact that the type of unfair trade practice prohibited at common law differs slightly in its means from the unfair trade practice prohibited under the Unfair Sales Act is, we conclude, an insufficient distinguishing characteristic to restrict a jury trial in this case. They are essentially “counterpart[s]” in combating unfair trade practices. See Ameritech, 185 Wis. 2d at 697. The common law offenses discussed by Blackstone therefore leads us to the conclusion that H & S has a constitutional right to have its Unfair Sales Act claim tried to a jury because the cause of action existed, was known, and was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848.
¶ 30. Other causes of action based in tort involving unfair competition, including price competition, also lead us to the conclusion that H & S has a constitutional right to have its statutory claim tried to a jury because the cause of action created by the statute existed, was known, and was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848. As one commentator has observed: “The common law of unfair competition has always recognized that some kinds of price competition might be unlawful. The common law, however, lacked a workable definition of what prices were unfair.” Peter Carstensen, Predatory Pricing in the Courts: Reflection of Two Decisions, 61 Notre Dame L. Rev. 928, 939 (1986) (commenting on Mogul Steamship C. v. McGregor, Gow, & Co., 23 Q.B. Div. 598 (1889), which reflects that price cutting may be unlawful). Indeed, cases at the turn of the century explicitly recognized that a cause of action may result from price competition if a defendant engaged in intentional malicious conduct against the plaintiff competitor. See, e.g., Boggs v. Duncan-Schell Furniture Co., 143 N.W. 482 (Iowa 1913); Dunshee v. Standard Oil Co., 132 N.W. 371 (Iowa 1911); Tuttle v. Buck, 119 N.W. 946 (Minn. 1909); see also Barthlomew County Beverage Co. v. Barc Beverage Corp., 524 N.E.2d 353, 358 (Ind. Ct. App. 1988) (“A valid common law cause of action exists for the tort of unfair competition.“). These cases have been cited as support for recognizing a cause of action for intentional infliction of temporal damage to the business of another. See Martha W. Gerald, Recent Decision, 15 Miss. L.J. 213, 214-17 (1943) (indicating that the roots of this action is from early English cases involving such intentional conduct; see Keeble v. Hickeringall, 11 East 574 (1706) (the defendant was held liable for intentionally frightening wild foul that the plaintiff was attempting to capture for resale)).
¶ 32. Based on the conclusions reached above, we find that the first prong of our test for the right to a jury trial under Article I, Section 5, of the Wisconsin Constitution is met. Therefore, we also need to address the question of whether such an action was legal or equitable in 1848.
¶ 33. In short, we conclude that this action was legal in nature in 1848. The plaintiff in this case seeks monetary damages for loss sustained as a result of the unfair pricing.
III
¶ 34. In sum, we conclude that H & S has a constitutionally guaranteed right to a jury trial in a private cause of action under the Wisconsin Unfair Sales Act. We therefore reverse the ruling of the circuit court.
By the Court.—The judgment of the circuit court is reversed.
¶ 36. The majority‘s interpretation of the first prong of its test is much broader than previous cases of this court have held it should be. In interpreting the first prong, our primary focus must be on the pre-1848 actions at law, because those are the actions for which the right to a jury trial must, according to our constitution, “remain inviolate.” The logical interpretation of this language is that statutory causes of action that do not codify common law causes of action in a form substantially similar to causes of action as they existed, were known, or were recognized at common law before 1848 are not afforded such protection according to the plain language of the state constitution. Conversely, for the constitutional right to a jury trial to attach to a statutory cause of action, the modern statute must codify the pre-1848 cause of action substantially as it existed, as it was known, or as it was recognized at common law at the time the constitution was adopted.
¶ 38. In N.E. v. DHSS, 122 Wis. 2d 198, 361 N.W.2d 693 (1985), we found that there was no right to a jury trial in a juvenile delinquency proceeding, because that type of action simply did not exist prior to 1848. Id. at 203. Similarly, in Bekkedal v. City of Viroqua, 183 Wis. 176, 196 N.W. 879 (1924), we held that there was no constitutional right to a jury trial because special tax assessments, like the one at issue there, did not exist when the constitution was adopted. Id. at 192-93.
¶ 39. In the Ameritech case itself, the court of appeals noted, “there is no dispute that in 1848, the State had no right to commence a civil suit to collect forfeitures for deceptive advertising or violation of the [Wisconsin Consumer Act],” and thus the court found no constitutional right to a jury trial. State v. Ameritech, 185 Wis. 2d 686, 698, 517 N.W.2d 705 (Ct. App. 1994).
¶ 40. The majority correctly points out that none of the pre-1848 cases cited by H & S involves a cause of action that is codified in substantially the same form by the Unfair Sales Act. Majority op. at ¶¶ 24-26. However, unlike the majority, I do not find the causes of action listed in Blackstone‘s chapter on offences against public trade persuasive either.
¶ 41. The majority highlights three of Blackstone‘s causes of action—forestalling, regrating, and engrossing—and concludes that their character as examples of unfair trade practices makes them sufficiently similar to the Unfair Sales Act. I disagree. These offenses are certainly forerunners of modern antitrust and unfair trade practice statutes in general, as each involves the artificial manipulation of market factors by a market participant. However, they are only similar to the present cause of action in that general sense.
¶ 42. First, engrossing, regrating, and forestalling the market were criminal offenses under the common law, rather than private causes of action. As the majority notes, an aggrieved retailer such as Village Food would not have been able to bring a civil cause of action for engrossing, regrating, or forestalling under the common law. Majority op. at ¶ 29. This makes the old cause of action significantly different than the present one.
¶ 43. We addressed a similar issue in Bergren v. Staples, 263 Wis. 477, 57 N.W.2d 714 (1953). In Bergren, we held that there was no constitutional right to a jury trial when an employer‘s compensation insurer brought suit against the third-party tortfeasor in an attempt to be compensated for a worker‘s compensation claim. Id. at 482-83. Despite the various tort claims that could be
¶ 44. Here, the same reasoning applies. The sole reason that Village Food is able to bring the cause of action in this case is because of the existence of the statute. Therefore, the cause of action could not have existed, been known, or been recognized at common law prior to 1848. For that reason alone, I would hold that this cause of action does not meet the test adopted by the court.
¶ 45. Furthermore, the nature of each of the Blackstonian offenses cited by the majority is different enough from the civil cause of action under the Unfair Sales Act that I cannot reasonably say that they are substantially codified by the statute. Regrating and engrossing are more akin to modern anti-monopoly causes of action, as they each involved amassing goods in order to artificially raise market prices. Forestalling the market involved preventing goods from getting to market in order to artificially raise prices. Conversely, the present cause of action involves the violation of a minimum price requirement, statutorily set according to a complex formula, as it applies to the sale of a specific type of product. The Unfair Sales Act as a whole provides a detailed scheme for the regulation of commercial pricing practices in specific markets. The significant differences between a cause of action under this scheme and under Blackstone‘s causes of action are obvious.
¶ 46. The simple fact that the present cause of action involves behavior that affects market prices is, in my opinion, simply not sufficient to show that the
¶ 47. Because I would find that the Unfair Sales Act does not substantially codify a pre-1848 cause of action as it existed, was known, or was recognized at common law then, I would conclude that the first prong of the test adopted by the court has not been met. Therefore, I would not find it necessary to address the question of whether such an action was legal or equitable in 1848.
¶ 48. In sum, although I agree with the test adopted by the majority, I would conclude that H & S does not have a constitutionally guaranteed right to a jury trial in a private cause of action under the Wisconsin Unfair Sales Act. Although it has not yet chosen to do so, I would also note that the legislature has the ability to amend the act to create a statutory right to a jury trial. See Bergren, 263 Wis. at 483. I would affirm the ruling of the circuit court, and find that it properly granted Village Food‘s motion to strike H & S‘s demand for a jury trial in this case.
¶ 49. For the foregoing reasons, I respectfully dissent.
Notes
Any person who is injured or threatened with injury as a result of a sale or purchase of motor vehicle fuel in violation of sub. (3) may bring an action against the person who violated sub. (3) for temporary or permanent injunctive relief or an action against the person for 3 times the amount of any monetary loss sustained or an amount equal to $2,000, whichever is greater, multiplied by each day of continued violation, together with costs, including accounting fees and reasonable attorney fees. . . .
[T]he constitution provides that the right of trial by jury shall remain inviolate.
We suppose that this expression must have reference to the state of the law as it existed at the formation of the constitution, and mean that this right shall continue as it was at the time of the formation and adoption of the constitution by the people of this State or to speak, perhaps, with greater precision that it shall remain as full and perfect as it was at that time. (Citation omitted).
“[C]ost to retailer” means . . . [i]n the case of the retail sale of motor vehicle fuel by a person other than a refiner or a wholesaler of motor vehicle fuel at a retail station, the invoice cost of the motor vehicle fuel to the retailer within 10 days prior to the date of sale, or the replacement cost of the motor vehicle fuel, whichever is lower, less all trade discounts except customary discounts for cash, plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale and any cost incurred for transportation and any other charges not otherwise included in the invoice cost or the replacement cost of the motor vehicle fuel, plus a markup of 6% of that amount to cover a proportionate part of the cost of doing business; or the average posted terminal price at the terminal located closest to the retailer plus a markup of 9.18% of the average posted terminal price to cover a proportionate part of the cost of doing business; whichever is greater.
the average posted rack price, as published by a petroleum price reporting service, at which motor vehicle fuel is offered for sale at the close of business on the determination date by all refiners and wholesalers of motor vehicle fuel at a terminal plus any excise, sales or use taxes imposed on the motor vehicle fuel or on its sale, any cost incurred for transportation and any other charges that are not otherwise included in the average posted rack price.
4 William Blackstone, Commentaries on the Laws of England, ch. 12, at 158-59 (1778).buying or contracting for any merchandise or victual coming in the way to market, or dissuading persons from bringing their goods to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price, when there: any of which practices make the market dearer to the fair trader.