Miller Brands-Milwaukee, Inc. v. Case
Decision Date | 11 June 1991 |
Docket Number | No. 89-0984,INC,BRANDS-MILWAUKE,89-0984 |
Citation | 470 N.W.2d 290,162 Wis.2d 684 |
Parties | MILLER, A Wisconsin Corporation, Plaintiff-Respondent-Petitioner, d v. Karen A. CASE, Secretary of the Wisconsin Department of Revenue and all Department Agents and Employees, Defendants-Appellants. |
Court | Wisconsin Supreme Court |
James M. Shellow, orally argued, Robert R. Henak and Shellow, Shellow & Glynn, S.C., on briefs, Milwaukee, for plaintiff-respondent-petitioner.
Gerald S. Wilcox, Asst. Atty. Gen., argued, Donald J. Hanaway, Atty. Gen., on brief, for defendants-appellants.
Howard S. Goldman and Tomlinson, Gillman, Travers, Gregg & Kravat, S.C., Madison, amicus curiae, for Wisconsin Wholesale Beer Distributors Ass'n, Inc.
Edwin J. Hughes, Gila Shoshany and Stafford, Rosenbaum, Rieser & Hansen, Madison, amicus curiae, for Blue Ribbon Brands, Inc., Henricks Beverage, Inc., Jed's Distributing Co., LaCrosse Distributing Co., Midstate Distributors Corp., Pehler Bros., Quality Beverages of Wisconsin, Reinerio Beverages, Spooner Bottling Works, Stanley's Beer Depot, Vavruska Distributing and Zastrow the Beer Man.
James R. Sommers and Hunter & Sommers, Waukesha, amicus curiae, for Beloit Beverage Co., Better Brands Distributing Co. and Domanik Sales Co.
Thomas Armstrong, Michael H. Schaalman, Jeffrey A. Brauch and Quarles & Brady, of counsel, Anne L. Noyes and Miller Brewing Company, Milwaukee, of counsel, Walter R. Stewart and Stewart Law Office, Madison, amicus curiae, for Miller Brewing Co., United Cerebral Palsy of Southeastern Wisconsin, Inc. and Wisconsin Restaurant Ass'n.
Pamela H. Schaefer and Cook & Franke, Milwaukee, of counsel, Scott E. Flick and Howrey & Simon, Washington, D.C., and Shelley Sieveking and Anheuser-Busch, St. Louis, Missouri, amicus curiae, for Anheuser-Busch, Inc.
This case is before the court on a grant of a petition for review by Miller Brands-Milwaukee, Inc. (Miller Brands) of a court of appeals decision. Miller Brands-Milwaukee v. Case, 156 Wis.2d 800, 457 N.W.2d 896 (Ct.App.1990). The majority of the court of appeals (Eich, C.J., dissenting) reversed a summary judgment of the circuit court for Dane county, the Honorable Susan Steingass, presiding, which declared that "trade spending" as defined by Miller Brands in its complaint, and as modified by the circuit court in its judgment, i.e., purchasing drinks for customers of Class "B" licensees by employees of Miller Brands, does not violate Wisconsin's tied-house law, sec. 125.33(1)(a), Stats. 1987-88. 1
Miller Brands had brought a declaratory judgment action 2 pursuant to sec. 806.04, Stats. 1987-88 3 requesting the court to declare that sec. 125.33(1)(a), Stats. is not violated by a wholesaler's practice of trade spending on the premises of a Class "B" retail licensee, or, in the alternative, that sec. 125.33(1)(a), is unconstitutional.
Ruling on Miller Brands' motion for summary judgment, the circuit court held that Miller Brands' trade spending is not a violation of sec. 125.33(1)(a), Stats. The court of appeals reversed, holding that (1) the issue before it was ripe for declaratory judgment, (2) section 125.33(1)(a), is not unconstitutional, and (3) trade spending, regardless of the scope of the wholesaler's activities, violates sec. 125.33(1)(a).
The issues before us are whether Miller Brands is entitled to summary judgment on its declaratory judgment action, and whether sec. 125.33(1)(a), Stats. is unconstitutional. We hold that the issue presented to the circuit court was not ripe for declaratory judgment, and therefore Miller Brands' motion for summary judgment should have been denied and the action dismissed. Because of our holding on the first issue, we do not reach the second issue. The facts leading up to this dispute are uncontroverted. By letter of January 10, 1986, the Wisconsin Department of Revenue (DOR), informed the Wisconsin Wholesale Beer Distributors Association that Miller Brands' trade spending violates the tied-house provisions of sec. 125.33(1)(a). Miller Brands is a Wisconsin corporation licensed to sell fermented malt beverages at wholesale within the State of Wisconsin. It sells beer and other products of the Miller Brewing Company to retail customers who hold Class "B" licenses or permits issued by the State of Wisconsin.
On February 24, 1988, an agent for the DOR advised counsel for Miller Brands that the DOR would be conducting an investigation of Miller Brands' possible violation of sec. 125.33(1)(a), Stats. The agent requested the books, papers and records of Miller Brands to determine whether it had, in fact, violated the tied-house laws. Counsel for Miller Brands refused to allow the agent to inspect Miller Brands' books and records.
On February 25, 1988, Miller Brands filed a complaint together with a motion for a temporary injunction requesting the DOR be enjoined from attempting to obtain Miller Brands' books and records. The DOR stipulated to granting the injunction. Whether the DOR had authority to obtain records is not before us. On May 20, 1988, Miller Brands filed an amended complaint seeking a declaratory judgment that trade spending does not violate sec. 125.33(1)(a), Stats. or, in the alternative, that the application of the statute is unconstitutional.
On June 7, 1988, Miller Brands filed a motion for summary judgment. In its affidavit in support of the motion, Miller Brands provided the following definition of trade spending:
" 'Trade spending' " consists of the practice whereby sales people or other employees of a beer wholesaler purchase beverages for customers at Class " 'B' " licensed retail premises. The price paid for the beverages is the price charged to the public by the retailer. Although customers are encouraged to sample products distributed by the wholesaler, the offer to purchase is not withdrawn if the customer chooses a different drink.
The purpose of trade spending is to convince the customers of the licensed retail premises to sample products distributed by the wholesaler and to switch their preference to the wholesaler's brand.
The practice of trade spending for such advertising purposes is common throughout the beer industry.
A wholesaler's trade spending on retail premises promotes business competition and does not subject the retailer to control by the wholesaler.
These "facts," which also are identically reproduced in Miller Brands' amended complaint, were the sole "facts" provided to the circuit court.
Also on June 7, 1988, the DOR filed a motion to dismiss the complaint on the grounds that the case was not ripe for adjudication because there were no facts upon which to base a judgment and no action had been threatened or taken. In addition, the DOR asserted that a declaratory judgment regarding the constitutionality of trade spending would be inappropriate absent an examination of the specific facts of this case.
The DOR filed a brief in opposition to Miller Brands' motion for summary judgment, but did not supply the court with a supporting affidavit. In its brief, the DOR stated that it had no real information concerning the nature and purpose of Miller Brands' trade spending, because it had not been permitted to inspect Miller Brands' books, papers and records. It also stated that Miller Brands' general definition of trade spending, with which it supplied the court, did not in any way deal specifically with Miller Brands' trade spending. The DOR also disputed the accuracy of the definition.
After hearing argument on each party's motions, the circuit court granted Miller Brands' motion for summary judgment. It found that sec. 125.33(1)(a), Stats. is not unconstitutional, and that the following practice by Miller Brands is not a violation of sec. 125.33(1)(a):
The purchase of drinks by sales employees or supervisory personnel of Miller Brands during regular and periodic calls upon Class " 'B' " licenses who are customers of Miller Brands, under the following conditions:
(a) When the purchases are made during the retailers' normal business hours;
(b) When employees of Miller Brands do not offer to purchase drinks upon the condition that the customer purchase only a beverage distributed by Miller Brands;
(c) When employees of Miller Brands do not pay more for the drinks purchased than the retailer normally charges its customers for such drinks;
(d) When employees of Miller Brands do not purchase drinks from retailers that sell only Miller Brands products;
(e) When employees of Miller Brands do not have a set pattern of when they will be at a retailer such that the customers can predict in advance the dates on which drinks will be purchased for them; and
(f) When the purchases are periodic and are not made with the specific intent to influence, control or coerce the retailer into purchasing Miller Brands products. 4
The DOR appealed, and the court of appeals reversed. The majority of the court of appeals held that the factual allegations contained in Miller Brands' affidavit in support of its motion for summary judgment were sufficient, and that declaratory relief was proper. Miller Brands, 156 Wis.2d at 805, 457 N.W.2d 896. 5 In addition, the court held that trade spending violates sec. 125.33(1)(a), Stats., and that the statute survives Miller Brands' constitutional challenges. Id. at 805-806, 457 N.W.2d 896.
Judge Eich, in his dissent, agreed with the majority that the case was ripe for declaratory judgment and also agreed that sec. 125.33(1)(a), Stats. is not unconstitutional. Id. However, he was of the opinion that Miller Brands' activities did not violate the statute. Id.
In reviewing the grant of a motion for summary judgment, we are required to apply the standards set forth in sec. 802.08(2), Stats. 1987-88. 6 Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). First we must examine the pleadings to determine whether a claim for relief has been stated. If no...
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