00-2493 Village Food & Liquor Mart v. H & S Petroleum, Inc.

Listen to this article

“[W]e conclude that a party has a constitutional right to have a statutory claim tried to a jury when: (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 1848. …

“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. … 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. …

“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. Wis. Stat. sec. 100.30(5m). An action seeking money damages is one at law. [citation]. Although the statute also permits the plaintiff to seek injunctive relief, the plaintiff has not pursued this equitable relief. As a result, we conclude that the second prong of our test is satisfied.”

Reversed.

DISSENTING IN PART: Wilcox, J., concurring in part and dissenting in part. “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. sec. 100.30 (1999-2000), is constitutionally guaranteed the right to a jury trial.

Accordingly, I respectfully dissent from the judgment of the court.”

Racine County, Barry, J.; Bablitch, J.

Attorneys:

For Appellant: John M. Bjelajac, Racine; Robert E. Hankel, Racine

For Respondent: Catherine M. Rottier, Sarah A. Zylstra, Madison