Village Food & Liquor Mart v. H & S Petroleum, Inc.

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2002 WI 92 SUPREME COURT CASE NO.: OF WISCONSIN 00-2493 COMPLETE TITLE: Village Food & Liquor Mart, Plaintiff-Respondent, v. H & S Petroleum, Inc., a Wisconsin Corporation, d/b/a Horizon Marathon and Shell, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 9, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Racine Dennis J. Barry JUSTICES: CONCURRED: CONCURS/DISSENTS: July 9, 2002 WILCOX, J., concurs in part, dissents in part (opinion filed). CROOKS and SYKES, J.J., join concurrence/dissent. DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant there was a brief by John M. Bjelajac and Hartig, Bjelajac, Cabranes & Koenen, S.C., Racine, and Robert E. Hankel and Knuteson, Powers & Wheeler, S.C., Racine, and oral argument by Robert E. Hankel. For the plaintiff-respondent there was a brief by Catherine M. Rottier, Sarah A. Zylstra and Boardman, Suhr, Curry & Field, LLP, Madison, and oral argument by Catherine M. Rottier. 2002 WI 92 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 00-2493 (L.C. No. 99 CV 907) STATE OF WISCONSIN : IN SUPREME COURT Village Food & Liquor Mart, Plaintiff-Respondent, FILED v. JUL 9, 2002 H & S Petroleum, Inc., a Wisconsin Corporation, d/b/a Horizon Marathon and Shell, Cornelia G. Clark Clerk of Supreme Court Defendant-Appellant. APPEAL from a judgment of County, Dennis J. Barry, Judge. ¶1 to the whether the Court for Racine Reversed. WILLIAM A. BABLITCH, J. decide Circuit Wisconsin In this case, we are asked Constitution protects a litigant's right to a jury trial in a civil suit for damages under the Unfair Sales Act, Wis. Stat. § 100.30 (1999-2000).1 a civil case that involved allegations of unfair In sales practices, the defendant, H & S Petroleum (H & S), made a demand 1 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise indicated. No. 00-2493 to the circuit court for a jury trial, which the plaintiff, Village Food & Liquor Mart (Village Food), moved to strike. ¶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 reverse ruling the of the question the circuit to this court court. We now hold that the and Wisconsin Constitution protects the right to a trial by jury for a civil suit brought under the Unfair Sales Act. I ¶3 alleging In 1999, Village a series of Wis. Stat. § 100.30. 103 different violated Food brought violations of suit the against Unfair H & S, Sales Act, Specifically, Village Food claimed that on occasions, the Horizon Marathon Wis. Stat. §§ 100.30(2)(am)1m.c and gas station 100.30(3), the minimum mark-up laws regarding the sale of motor vehicle fuel. Horizon Marathon was owned by H & S, and Horizon Marathon competed with Village Food in the motor vehicle fuel market. ¶4 damages In its plea for relief, Village Food sought $2000 in for each violation, and for violation, pursuant to § 100.30(5m).2 2 each day of continued Village Food also sought Wisconsin Stat. § 100.30(5m) provides: 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 2 No. 00-2493 costs and attorney fees, but made no claim for temporary or permanent injunctive relief. H & S demanded a trial by jury in the matter. ¶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 granted the motion to strike. agreed with Village Food and 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 Article I, Section 5 of the Wisconsin Constitution. ¶6 The court of appeals granted H & S leave to appeal the non-final order and certified the appeal to this court. accepted the certification, and we now reverse the circuit court's ruling. 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. . . . 3 We No. 00-2493 II ¶7 Article I, Section 5 of the Wisconsin Constitution governs a civil litigant's right to a jury trial in a Wisconsin court.3 That section states: 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. . . . Wis. Const. art. I, § 5. Here, we are asked if Article I, Section 5, guarantees H & S the right to a jury trial. Whether there is a constitutionally guaranteed right to a jury trial for a particular cause of action requires us to interpret a provision of the state constitution, which we do independently of the lower courts. State v. City of Oak Creek, 2000 WI 9, ¶18, 232 Wis. 2d 612, 605 N.W.2d 526. ¶8 forth We approach this question in two parts. the test constitutional action. by right which to a we jury determine trial for if a We first set there given is a cause of 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 3 Although H & S does attempt to draw comparisons between state court interpretation of Article I, Section 5 of the Wisconsin Constitution and federal Seventh Amendment jurisprudence, we note that it has been long-decided and the parties agree that the Seventh Amendment to the U.S. Constitution does not apply to actions in state court. Pearson v. Yewdall, 95 U.S. 294, 296 (1877); see also Green Spring Farms v. Spring Green Farms Assocs. Ltd. P'ship, 172 Wis. 2d 28, 33 n.2, 492 Wis. 2d 392 (Ct. App. 1992). 4 No. entitled to a jury trial under the test set forth 00-2493 in this opinion. A ¶9 part In Ameritech, the court of appeals set forth a two- test for assessing Article I, Section 5. statutory causes of action under 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 Article I, guarantees that the Section 5 of right a to the trial Wisconsin by jury Constitution "shall inviolate, and shall extend to all cases at law . . . ." remain This section clearly indicates that non-statutory causes of action at law, where a jury trial was guaranteed before the passage of the 4 This court granted review in State v. Ameritech Corp., 185 Wis. 2d 686, 517 N.W.2d 705 (Ct. App. 1994), but the vote was split evenly over whether to affirm or reverse the decision of the court of appeals. Justices Steinmetz, Wilcox, and Geske would have affirmed the court of appeals, while Chief Justice Heffernan, Justice Day, and Justice Bablitch would have reversed the court of appeals. Then-Justice Abrahamson did not participate in the decision. See State v. Ameritech Corp., 193 Wis. 2d 150, 151, 532 N.W.2d 449 (1995). 5 No. 00-2493 state constitution, would continue to have a guaranteed right to a jury trial attached even after the passage of the constitution.5 ¶11 It certainly follows then that, as the Ameritech court concluded, a cause of action created by statute after 1848 will have a constitutionally guaranteed right to a jury trial attached if that statute codifies a claim that existed in the common law conclude, before the adoption however, that this of the requirement constitution. from We Ameritech that the statute must specifically "codify" a prior common law cause of action before the right to a jury trial is warranted interprets our prior case law and the state constitution too narrowly. conclude Instead, that a consistent party has a with our prior constitutional statutory claim tried to a jury when: case right law, to have we a (1) 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 and (2) the action was regarded at law in 5 This court contemplated as much in Gaston v. Babcock, 6 Wis. 490 [*503], 494 [*506] (1887), stating: [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). 6 No. 1848. 23 00-2493 See Upper Lakes Shipping, Ltd. v. Seafarers' Int'l Union, Wis. 2d 494, 503, 128 N.W.2d 73 (1963); Gen. Drivers & Helpers Union Local 662 v. WERB, 21 Wis. 2d 242, 251-52, 124 N.W.2d 123 (1963); Town of Burke v. City of Madison, 17 Wis. 2d 623, 635, 117 N.W.2d 580 (1962); Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 89, 102 N.W.2d 393 (1960); see also State v. Hansford, 219 Wis. 2d 226, 237, 580 N.W.2d 171 (1998). ¶12 As we stated in Bekkedal v. City of Viroqua, 183 Wis. 176, 192, 196 N.W. 879 (1924), when we were considering the jury trial right as it related to a special tax assessment: 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 to, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848. court support this test. Previous decisions of this For example, in Bekkedal, we held that 7 No. 00-2493 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 not delinquency exist at adopted. the the proceeding, because time that the Wisconsin N.E., 122 Wis. 2d at 203. party did not have a such proceedings did Constitution was In each case, we found that 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. also See Gen. Drivers, 21 Wis. 2d at 252; Bergren v. Staples, 263 Wis. 477, 481-83, 57 N.W.2d 714 (1953). ¶14 We emphasize that application of this test will not result in affording the right to a jury trial in all statutory actions in which the legislature is silent with respect to the right of a jury trial. A party will only have a constitutional right to have a statutory claim tried to a jury when 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. legislature retains the For new statutory schemes, the flexibility to create an appropriate fact-finding procedure including the right to a jury trial if the legislature finds it appropriate. 483. 8 See Bergren, 263 Wis. at No. ¶15 00-2493 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." support Ameritech's holding in this respect. 17 Wis. 2d 623, we recognized that the Our cases In Town of Burke, 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 proceedings. by creditor's bills or other equitable In both Town of Burke and La Crosse National Bank we held there was no protected right to a trial by jury. ¶16 Thus, the constitutional language and our previous interpretations of this language lead us to the following twopart test: a party has a constitutional statutory claim tried to a jury when: created by common law the statute at the existed, was time of the right to have a (1) the cause of action known, adoption or of recognized the at Wisconsin Constitution in 1848; and (2) the action was regarded as at law in 1848. We now apply that test to the present case. 9 No. 00-2493 B ¶17 in To determine if the right to a jury trial is preserved this case, we apply the above test to the statute question the Unfair Sales Act, Wis. Stat. § 100.30. in Under this test, we must determine first if the cause of action created by § 100.30 existed, was known, or was recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848, and if so, we must then determine whether the action was one that was regarded as at law in 1848. If both questions can be answered has affirmatively, then H & S guaranteed right to a trial by jury. answered in the negative, the a constitutionally If either question is constitutional right is not guaranteed. ¶18 We begin Wis. Stat. § 100.30. by examining Section 100.30 the sets contours forth a of statutory scheme which forbids retailers, distributors, and wholesalers of certain types of goods (namely alcohol, tobacco products, and motor vehicle fuel) from selling their merchandise at an artificially low price in order to attract patronage and thereby cause harm to competing businesses and to consumers of those products. In enacting the statute, the legislature noted that such practices tend to cause commercial dislocations, interfere with free commerce, and mislead consumers. Wis. Stat. § 100.30(1). ¶19 created To prevent this commercial practice, the legislature a pricing scheme, whereby wholesalers, retailers and distributors of the specified goods are required to mark up the 10 No. selling price of formula.6 involved those specified goods in accordance 00-2493 with a This formula varies with respect to the type of entity (wholesaler, retailer, or distributor), the type of product, and where the good is sold (from a retail station or otherwise). 6 The formula in question in this case states: "[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. Wis. Stat. § 100.30(2)(am)1m.c. price" is defined as: The "average posted terminal 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. Wis. Stat. § 100.30(2)(a) 11 No. ¶20 00-2493 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 forfeiture action. (the Department) as a Wis. Stat. § 100.30(4). quasi-criminal Additionally, the Department may issue a cease and desist order, bring an action to enforce the cease and desist order, or bring an action for an injunction against the offending party. ¶21 present The case civil was action created asserted by the Wis. Stat. § 100.30(5). by Village legislature in Wis. Stat. § 100.30(5m); 1997 Wis. Act 55, § 24. Food in 1997. the See This private cause of action allows a person7 who is injured by a violation of the Unfair Sales Act to bring a civil action violator for damages or for injunctive relief. Id. against the The private cause of action applies only to sales of motor vehicle fuel. Id. ¶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 Wis. Stat. § 100.30(5m) claim tried to a jury because 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. We conclude that this first prong is met. 7 Under the Wisconsin Statutes, "'Person' includes all partnerships, associations and bodies politic or corporate." Wis. Stat. § 990.01(26). 12 No. ¶23 00-2493 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. that were Specifically, H & S points to several cases initiated the before present 1848, case, which and H & S where contends are trials were comparable to jury 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, recognized in constitution's the fraud, common adoption. deceit, and business slander law at the time of We are not persuaded were the state by these particular comparisons. ¶24 All of these cases involve causes of action that are different than the cause of action at issue under the Unfair Sales Act. Vliet, 1 Pin. 413, was a slander action by one person who had given false testimony in a trial before a justice of the peace; Wood, 1 Pin. 509, was an action for trespass that involved the taking of a wooden raft; Moore, 2 Pin. 99, was a replevin action where one party sought recovery of goods that had been levied by the sheriff; and Rich, 2 Pin. 88, was a breach of covenant of title. ¶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 13 No. 00-2493 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 William Commentaries Blackstone Public Trade." on the included Law a of chapter England on wherein "Offences Sir Against 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. ¶27 are the 8 Most notable among Blackstone's public trade offenses common law crimes of forestalling the market,8 "Forestalling the market" is defined as: 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. 4 William Blackstone, Commentaries on the Laws of England, ch. 12, at 158-59 (1778). 14 No. regrating,9 and engrossing.10 crimes specifically in 00-2493 Although H & S did not cite these argument to this court, we note that these causes of action are of the same "nature" as the present cause of action under the Unfair Sales Act. See General Drivers, 21 Wis. 2d at 252 (quoting NLRB v. Laughlin, 301 U.S. 1, 48 (1937)). These offenses were designed to prevent private citizens from trading outside of England's regulated mercantile system.11 They were enforced to ensure that revenue was generated for the holders of the public market and that dealers and speculators were unable to corner the market. These offenses are clearly forerunners of modern unfair trade practice statutes, as manipulation each of involves market the prices by prohibition a market under the of deliberate participant in a controlled market. ¶28 The cause of action Unfair Sales Act involves allegations of a similar unfair trade practice, that is, a violation of a minimum price requirement. Essentially, 9 Blackstone defines "regrating" as "the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. . . . For this also enhances the price of the provisions, as every successive seller must have a successive profit." Id. at 159. 10 "Engrossing" is defined by Blackstone as the "buying up large quantities of corn or other dead victuals, with the intent to sell them again. This must of course be injurious to the public, by putting it in the power of one or two rich men to raise the price of provisions at their own discretion." Id. 11 Thomas M. Jorde, The Seventh Amendment Right To Jury Trial Of Antitrust Issues, 69 Cal. L. Rev. 1, 64-65 (1981). 15 No. 00-2493 the unfair trade practice involves price cutting in a controlled market. [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 insufficient distinguishing trial in this case. Sales is, characteristic to we conclude, restrict a an jury They are essentially "counterpart[s]" in combating unfair trade practices. 697. Act See Ameritech, 185 Wis. 2d at 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. ¶29 the We note that engrossing, regrating, and forestalling market were all criminal offenses under the common rather than private causes of action, as is the claim here. law, As a result, an aggrieved retailer such as Village Food would not have been able to bring a civil cause of action for engrossing, 16 No. regrating, or forestalling under the common law. indicated above, the criminal provision that Wis. Stat. § 100.30(4). contained in which later was the Unfair was Sales part Act of 00-2493 However, as contains the a similar original act. See A civil action for equitable relief was original followed act by under affording Wis. Stat. § 100.30(5), private litigants the ability to bring a civil action for monetary damages pursuant to Wis. Stat. § 100.30(5m). The legislative intent was clearly to provide an additional means of enforcement. The fact that one is undertaken in the civil context, rather than the criminal context, should not deprive the parties of a jury trial in this instance. ¶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 Constitution in 1848. of the adoption of the Wisconsin As one commentator has observed: "The common law of unfair competition has always recognized that some kinds of price competition might be unlawful. however, unfair." lacked a workable definition of The common law, what prices were 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 17 No. 00-2493 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 Dunshee v. Standard Oil Co., 132 N.W. 371 (Iowa v. Buck, 119 N.W. 946 (Minn. 1913); 1911); Tuttle 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)). ¶31 The above shows that 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. cost implemented "with the The Act prohibits sales below intent or effect of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor . . . ." Wis. Stat. § 100.30(3). Like the torts based in unfair competition enumerated in the cases above, this statute limits the ability of one competitor to manipulate 18 No. the market with the intent to impair the 00-2493 business of a competitor. C ¶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 nature In short, we conclude that this action was legal in in 1848. The plaintiff in this case seeks monetary damages for loss sustained as a result of the unfair pricing. Wis. Stat. § 100.30(5m). at law. N.W. 497 plaintiff An action seeking money damages is one Gavahan v. Village of Shorewood, 200 Wis. 429, 431, 228 (1930). to seek Although injunctive the statute relief, pursued this equitable relief. the also permits plaintiff has the not As a result, we conclude that the second prong of our test is satisfied. 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 reversed. 19 of the circuit court is No. ¶35 part). JON P. WILCOX, J. 00-2493.jpw (concurring in part, dissenting in I agree with the majority's statement of the test by which to determine if the right to a jury trial is protected by Article I, Section 5 of the Wisconsin Constitution. However, I do not agree with the court's conclusion that a private action under the Unfair Sales Act, Wis. Stat. § 100.30 (1999-2000),12 is constitutionally guaranteed the right to a jury trial. Accordingly, I respectfully dissent from the judgment of the court. ¶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, interpretation of this "remain language inviolate." is that The statutory logical 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 12 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise indicated. 1 No. recognized at common law at the time the 00-2493.jpw constitution was adopted. ¶37 Our previous interpretation. decisions support such a narrow For example, in General Drivers & Helpers Union v. WERB, 21 Wis. 2d 242, 124 N.W.2d 123 (1963), a labor union alleged that the employer had violated the collective bargaining agreement by refusing to make certain payments to employees. Id. at 247. This action could easily have been characterized as a dispute, contract and breach certainly known at law in 1848. Pin. 501 (Wis. Terr. 1845). of contract actions were See, e.g., Baxter v. Payne, 1 However, this court noted that the specific action in General Drivers arose under a claim of unfair labor practices, which was not a cause of action that existed at the time that the Wisconsin Drivers, 21 Wis. 2d at 252. on the premise that different than Id. at 252. that the Constitution was adopted. Gen. This court's decision rested partly relationship of simple between parties the to parties a is contract. Therefore, we concluded that the litigants did not have a constitutionally protected right to a jury trial. ¶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 simply did not exist prior to 1848. that Id. at 203. type of action 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. 2 Id. at 192-93. No. ¶39 00-2493.jpw 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). our test These cases make it clear that the first prong of should be interpreted narrowly, and the majority's decision goes against this history. ¶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. find the However, unlike the majority, I do not causes of action listed in Blackstone's chapter on offences against public trade persuasive either. ¶41 of The majority highlights three of Blackstone's causes action forestalling, concludes that their regrating, character as and examples engrossing and 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 3 No. 00-2493.jpw retailer such as Village Food would not have been able to bring a civil cause of action for engrossing, forestalling under the common law. regrating, Majority op. at ¶28. or 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). there was no constitutional right In Bergren, we held that to a jury trial when an employer's compensation insurer brought suit against the thirdparty 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 brought in such a case, we recognized that the only way the employer's compensation insurer had a cause of action against the Wis. Stat. § 102.29(1). third-party Id. tortfeasor Because the was claim under was created solely by statute, we held that no constitutional right to a jury trial attached. ¶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 offenses Furthermore, the nature of each of the Blackstonian cited by the majority is different enough from the civil cause of action under the Unfair Sales Act that I cannot 4 No. reasonably statute. say that they are substantially 00-2493.jpw codified by the 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. a whole provides commercial a pricing detailed scheme practices in The Unfair Sales Act as for the specific regulation markets. of 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 substantially to codified show in a that form as the pre-1848 they claims were then. In existed essence, the majority's holding is that the mere classification of the cause action as an "unfair trade practice" is enough to constitutionally guarantee the right to a jury trial. This not only goes against our precedent, but essentially renders the test a nullity, as present causes of action of all sorts assessed under this test will only have to be compared generally to past causes of action in order to invoke the constitutional protection to a trial by jury. This result comports neither with the plain language nor the intent of the constitutional provision. 5 No. ¶47 not 00-2493.jpw Because I would find that the Unfair Sales Act does 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 statutory right to a jury trial. amend the act to create a 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. ¶50 I am authorized to state that CROOKS and DIANE S. SYKES join this opinion. 6 Justices N. PATRICK No. 1 00-2493.jpw

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