Ryan v. State, 75-868-CR

• Decision Date: 01 July 1977
• Docket Number: No. 75-868-CR,75-868-CR
• Citation: 79 Wis.2d 83,255 N.W.2d 910
• Parties: Mark W. RYAN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.
• Court: Wisconsin Supreme Court

Page 910

255 N.W.2d 910

79 Wis.2d 83

Mark W. RYAN, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. 75-868-CR.

Supreme Court of Wisconsin.

Argued June 2, 1977.

Decided July 1, 1977.

The plaintiff in error, Mark W. Ryan (defendant), an alderman of the City of Milwaukee, was found guilty by a jury of violating sec. 946.12(5), Stats., misconduct in public office. The judgment was entered on October 2, 1975, and the order denying postconviction motions was entered on October 21, 1975. Ryan obtained writs of error to review the judgment and the order.

Gerald P. Boyle, Milwaukee, for plaintiff-in-error.

David J. Becker, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendant-in-error.

BEILFUSS, Chief Justice.

The defendant Ryan contends sec. 946.12(5), Stats., is unconstitutionally vague and unconstitutional as applied to the facts of this case. He also contends it was error to admit his testimony taken at the John Doe proceeding in evidence at his trial.

The statute in question is titled "Misconduct in public office." The subsection with which he was charged is as follows:

"Any public officer or public employe who does any of the following may be fined not more than $500 or imprisoned not more than one year or both: . . .

"(5) Under color of his office or employment, intentionally solicits or accepts for the performance of any service or duty anything of value which he knows is greater or less than is fixed by law."

The evidence introduced at the trial is not in dispute in any material respect.

In the spring of 1974, a John Doe proceeding was convened in the Circuit Court for Milwaukee County to investigate the transfer of liquor licenses in the City of Milwaukee. The facts which led to Ryan's conviction centered around the issuance and renewal of a Class B liquor license for a restaurant known as Mama Mia's, and a dog grooming license for the same location, both in Alderman Ryan's ward.

A Class B alcoholic liquor license is necessary to dispense liquor on a retail basis. Because of the quota law which limits the number of licenses to approximately 1,650, the city does not issue additional licenses. Usually anyone attempting to obtain a liquor license for nonlicensed premises must get a transfer from a present license-holder.

An application for a Class B liquor license must be submitted to the City License Clerk. The Milwaukee Police Department is asked to investigate the application and, in some cases, the State of Wisconsin, Department of Justice may take a position on whether the license should be granted. A hearing on the license application is held before the Utilities and License Committee, a subcommittee of the Milwaukee Common Council. Notice of the hearing is given to the applicant, the application is advertised as required by law and notice of the application is given to the alderman in whose district the new liquor license would be located. The application itself contains a space for an indication of whether the local alderman approves the license application. In 1972 the custom was that if an alderman opposed granting a liquor license in his or her district, the application for the license would be denied. The committee makes a recommendation to the Common Council as to whether the license should be granted. The Common Council then votes on whether to adopt the committee report. The committee report usually includes a great many applications and they are not considered individually by the council.

Liquor licenses must be renewed annually. After the license is originally granted, renewal is almost automatic unless there have been neighborhood complaints concerning the holder of the license, the holder of the license has been convicted of a crime, or if public improvements have changed the neighborhood. Only ten to twenty-five percent of the license-holders seeking renewal appear before the Utilities and License Committee. The City License Clerk and his staff make the determination on which renewal applicants need a hearing.

In March, 1972, one of the corporate owners of Mama Mia's Restaurant, Alvin Fernandez, initiated efforts to obtain a Class B liquor license. He obtained a list of people who did not renew their liquor licenses from the City License Clerk. He also contacted Alderman Ryan. He told Ryan his name and stated he was from Mama Mia's. He thanked Ryan for okaying his application for a liquor license and approving his obtaining the license. Ryan informed Fernandez that he did not know him and had other business in his office; he stated he would get back to him but he did not. At that time Ryan knew nothing about Fernandez' application.

Fernandez found someone who was willing to "sell" a nonrenewed license, and in October, 1972, purchased the license, contingent upon his application being approved by the Common Council. A corporation, Papa Mia, Ltd., was formed to obtain the liquor license. Because Fernandez was not a Milwaukee resident the license could not be issued to him. The registered agent for the corporation was Fernandez' mother-in-law, Leona A. Papko. She was a Milwaukee resident and the application for the license was made in her name.

The application for the license was made on October 9, 1972. Papa Mia, Ltd., was informed that the present zoning would not permit the granting of a liquor license to Mama Mia's. In November, Fernandez, his attorney and Leona Papko attended a Utilities and License Committee meeting concerning the application for Mama Mia's. Before the license application for Mama Mia's was considered, the committee acted upon another application. Someone that Fernandez believed to be an alderman made a strong recommendation that the license under consideration not be renewed. The committee then recommended that the license be cancelled. From this observation Fernandez concluded that the alderman had the power to prevent a license renewal. The committee then considered the Mama Mia application for the license and it was approved contingent upon a zoning change or variance and approval by the full council. Subsequently the area was zoned for local business which permitted the liquor license. Ryan was not a member of the Utilities and License Committee, nor was he present at the meeting.

Prior to the grant of the license, Ryan was informed that Mama Mia's was applying for a license and he received a copy of the letter to Papa Mia, Ltd., indicating that the present zoning would not permit the grant of a liquor license. Every application for a liquor license contains the question "Does local alderman recommend this transfer?" Mama Mia's application indicated that the local alderman, Ryan, approved the transfer. An applicant could answer that question "Yes" without consulting the alderman. However the City License Clerk consulted with Ryan about the necessary zoning change if Mama Mia's was to obtain a license; therefore the applicant had no reason to believe that the answer on the application that the local alderman recommended the liquor license transfer was not accurate.

In 1973 and 1974, Mama Mia's license renewal applications were routinely approved without hearing.

In October or November of 1972, Fernandez' attorney introduced him to Ryan. The meeting was very brief with discussion limited to "small talk." After Fernandez learned that the Common Council approved his liquor license, he telephoned Ryan. Fernandez thanked Ryan for "granting (his) liquor license." Fernandez testified that the following conversation took place:

"A. Mr. Ryan answered, and I said, 'Hello'. I said, 'Mr. Mark Ryan?' He said, 'Yes'. I said, 'This is Al Fernandez from Mama Mia Restaurant.'

"Q. What then was said by you or by him?

"A. I said, 'I would like to thank you for granting my liquor license.

"Q. What if anything else was said?

"A. He said, 'Oh, that's all right,' I said, 'I would like to do something for you but I don't want to construe it as a bribe. I have some gift certificates I would like to send you. Could they be construed as a bribe?' He laughed, and he said, 'No, you are permitted to send me a Christmas gift.'

"Q. What if anything was said or done after that?

"A. He said he really didn't need it, I should send it to his wife."

In December, 1972, Fernandez sent two gift certificates from Milwaukee clothing stores, each worth $150, to Mr. and Mrs. Ryan. In June, 1973, Fernandez again telephoned Ryan. He stated he wanted to open a dog grooming business on the same premises and had the Health Department's permission. Ryan, noting that Fernandez ran a clean business, stated he had no objection. In December, 1973, Fernandez mailed two more gift certificates, each worth $150, to Mr. and Mrs. Ryan. All four gift certificates were used by the Ryans in February, 1974.

Subsequent to the John Doe proceeding, Ryan was charged with a violation of sec. 946.12(5), Stats., and was convicted by a jury.

Ryan argues that sec. 946.12(5), Stats., is unconstitutionally vague on its face. He notes:

"It is a maxim of constitutional law that:

" 'A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.' Connally vs. General Construction Co., 269 U.S. 385, 391, (1926) 46 S.Ct. 126, 70 L.Ed. 322."

However,

"The test of vagueness of a penal statute is whether it gives reasonable notice of the prohibited conduct to those who would avoid its penalties. . . .

"Vagueness rests upon the procedural due-process requirement of a fair notice and the defendant cannot hypothesize fact situations but is confined to the conduct charged when it is so obviously within the zone of prohibited conduct that no reasonable man could have any doubt of its criminality. (Cases omitted.)" State v. Driscoll, 53 Wis.2d 699, 701-02, 193 N.W.2d 851 (1972). Accor...