Wisconsin Supreme Court
Criminal Procedure — right to jury trial
The State is entitled to a jury trial on DTPA and Medicaid fraud claims.
“Pharmacia does not deny that common law cheating was regarded as ‘at law’ in 1848, and there is no reason to believe it was not. See 3 Blackstone at *165 (noting that a plaintiff can seek damages in a common law cheating action); see also Josma v. W. Steel Car & Foundry Co., 94 N.E. 945, 946 (Ill. 1911) (same); Vill. Food, 254 Wis. 2d 478, ¶33 (‘An action seeking money damages is one at law.’). Consequently, common law cheating was considered “at law” in 1848, both prongs of the Village Food test are satisfied with respect to the DTPA claim, and the State was entitled to a jury trial on that claim.”
“At common law, an action for fraud could sound either at law or in equity. Strom v. Goldman, Sachs & Co., 202 F.3d 138, 143-44 (2d Cir. 1999), abrogated on other grounds by Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). When heard in a court of equity, fraud was defined in a looser, more flexible fashion than it was in a legal proceeding. See Aaron v. SEC, 446 U.S. 680, 693 (1980) (‘[F]raud has a broader meaning in equity than at law.’) (internal brackets, quotation marks, and citations omitted). We need not delve deeper into the distinction, however, because common law fraud, as it was at law in 1848, is sufficiently analogous to Medicaid fraud to satisfy the second prong of the test. Compare Pasley v. Freeman, (1789) 100 Eng. Rep. 450 (K.B.) 457, 3 T.R. 51, 64 (describing common law fraud at law) with Wis. Stat. § 49.49(4m)(a)2. (setting forth the elements of Medicaid fraud). Pharmacia’s focus on the equitable remedies purportedly sought by the State is misplaced. Regardless of whether or not the State pursued some equitable relief, the question before us now is whether the cause of action as a whole is an essential counterpart to a cause of action considered ‘at law’ in 1848. We have answered that question in the affirmative. Consequently, the second prong of the Village Food test is met, and the State was entitled to a jury trial on its Medicaid fraud claim.”
Affirmed and Remanded.
Attorneys: For Appellant: Kushner, Beth, Milwaukee; Reid, Philip C., Milwaukee; Dodds, John C., Philadelphia; Smith-Klocek, Erica, Philadelphia; Henderson, Susannah, Philadelphia; Everett, John Clayton, Jr., Washington DC; Donovan, Maire, Philadelphia; Potalivo, Kathryn, Philadelphia; Kaplan, Abby Jane, Philadelphia; For Respondent: Remington, Frank D., Madison; Barnhill, Charles , Jr., Madison; Archibald, P. J., Madison; Eberle, Elizabeth J., Madison; Blonien, Barry J., Madison; Galland, George F., Jr., Chicago, IL