State ex rel. Skibinski v. Tadych

• Decision Date: 07 June 1966
• Citation: 142 N.W.2d 838,31 Wis.2d 189
• Parties: STATE ex rel. Gerard B. SKIBINSKI, Plaintiff-Appellant, v. John A. TADYCH, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 838

142 N.W.2d 838

31 Wis.2d 189

STATE ex rel. Gerard B. SKIBINSKI, Plaintiff-Appellant, v. John A. TADYCH, Defendant-Respondent.

Supreme Court of Wisconsin.

June 7, 1966.

Howard H. Koppa, Sp. Prosecutor, Milwaukee, for appellant.

Nicholas C. Catania, Milwaukee, Albert R. Tadych, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

At the time of the primary election in 1964 the plaintiff was the incumbent supervisor of the 12th District of Milwaukee county. The defendant and two other candidates opposed him and the plaintiff polled 2,085 votes and the defendant, who was runner-up candidate, polled 1,168. In the run-off election the following month the defendant received 3,157 votes and the plaintiff 2,889, and as a result the defendant was elected county supervisor. During the campaign a number of handbills were circulated in the 12th District by the defendant and on his behalf. Six statements in these handbills and an oral statement by the defendant are the basis of this ouster action.

To constitute a violation of the Corrupt Practices Act, sec. 12.17, Stats., it is necessary that the statements concerning a candidate be false, knowingly made or published, and be intended or tend to affect the voting at an election. They must be statements of fact, not conclusions or opinions. State ex rel. Hampel v. Mitten (1938), 227 Wis. 598, 278 N.W. 431; State ex rel. Mattison v. Baudhuin (1955), 270 Wis. 249, 70 N.W.2d 674. A violation of sec. 12.17 to constitute the basis of an ouster from office under sec. 12.24, Stats., must be deliberate, wilful and substantial. The remedy of ouster is not available for insubstantial or technical violations which would not affect the result of the election, nor is the law intended to be a trap for the innocent or unwary candidate. State ex rel. Hampel v. Mitten, supra; State ex rel. Pelishek v. Washburn (1937), 223 Wis. 595, 270 N.W. 541; State ex rel. Orvis v. Evans (1938), 229 Wis. 304, 282 N.W. 14; State ex rel. Mattison v. Baudhuin, supra. Section 12.24, Stats., dealing with forfeiture of office is a severe remedy and provides that if a candidate for any office has violated the provisions of the Corrupt Practices Act, ch. 12, Stats., in the conduct of his campaign for nomination or election and, if the candidate is not a member of the legislature or congress, the court shall enter judgment declaring his election void, ousting and excluding him from such office and declaring it vacant.

Six statements appearing in various handbills and one oral statement are claimed to be false in fact and attributable to the defendant. In reviewing these claims we must examine the evidence in the light most favorable to the plaintiff and draw all reasonable inferences in his favor since the dismissal was against him. In this respect, there is no difference between an involuntary nonsuit and a motion to dismiss on the grounds the plaintiff failed to establish a prima facie case. In both, the sufficiency of the evidence is at issue. Lee v. Milwaukee Gas Light Co. (1963), 20 Wis.2d 333, 122 N.W.2d 374; Schoenfeldt v. Babcock (1965), 26 Wis.2d 569, 133 N.W.2d 262; Bartz v. Braun (1961), 14 Wis.2d 425, 427, 111 N.W.2d 431.

It is claimed the following is a false statement of fact, 'During the past year, 1963, Skibinski WASTED $1,506.46 of the TAXPAYER'S hard earned MONEY, in one year alone, traveling about the country, attending various conventions, and in general HAVING A GOOD TIME at the taxpayers expense.' The evidence establishes Skibinski actually spent that amount of money on conventions during 1963. Whether he wasted the money or whether the amount was hard earned by the taxpayers or whether he had a good time seems to us not to be statements of fact but to fall within the field of conclusions, comment and opinion.

The handbill also contained the following statement which is claimed to be a false misstatement of fact, 'At the present time the 12th District is the 'laughing stock' of the County because of the fact its Supervisor is missing half the time having a 'good time' at conventions at taxpayers expense.' This statement too falls within the realm of opinion and comment. Certainly the characterization 'laughing stock of the County' is not to be taken literally, nor is the plaintiff directly accused of being absent from the meetings of the board of supervisors half of the time. The plaintiff argues this statement is false because it charges him with absence from his job half of the time when his attendance record at the county-board meetings was 95 percent, not 50 percent. But the plaintiff's interpretation of the statement is not reasonable. The emphasis is the plaintiff spent too much time having a good time at conventions. Attending meetings of the board of supervisors is only part of the duties of the supervisor.

The same handbill stated, 'SKIBINSKI is a LEADER of a GROUP urging the passage of NEGRO HOUSING LAWS for the State of Wisconsin which would force South Side property owners and others to rent their property to Negroes. If the property owners were found guilty of violating any of the provisions of this proposed law, they could be fined up to $500.00 or imprisoned up to 6 months, or both.' The plaintiff argues this statement is false because he is not the leader of any group which urged the passage of negrohousing laws. After some confusion in the testimony of the plaintiff, he testified he was a member of the parish unit of the Christian Family Movement and also a member of the Catholic Family Life Program and that during 1963 he was southeastern chairman of the latter group. He testified the two groups were related and he was aware that the Christian Family Movement was interested in and supported fair-occupancy or open-housing laws and indirectly knew that such bills were pending before the Wisconsin legislature in 1963. The plaintiff contends he was not a leader of the group and the group did not lobby for negro-housing laws which were different than open-housing laws.

It is plain from the evidence that during the 1963 legislature Bill 49, A was introduced which prohibited discrimination in the sale of housing and in providing public accommodations. This bill was known variously as the 'open occupancy bill,' the 'Amos and Andy bill,' and as a 'Negro housing bill.' It is likewise clear the Christian Family Movement was in favor of the open-occupancy or housing bill and against discrimination. We think this statement is sufficiently founded in fact not to be a false statement. The plaintiff puts a too narrow construction upon the statement in order to prove its falsity. An officer of a group is often called its leader and a group may urge the passage of a bill without lobbying.

During the campaign certain handbills were distributed under the caption of 'The 12th Ward Voters Guide.' Apparently four issues of this so-called voters guide were distributed. From the evidence it is a fair inference this guide may be properly attributed to the defendant and the defendant distributed some of the handbills. It is not unknown in a political campaign for a candidate or a group supporting a candidate to publish literature as a 'voter's guide' which purports to be a disinterested authority and source of information but whose real identity is conspicuous by its absence.

In one of the issues, the plaintiff's travels were itemized. Seven trips are shown and the total cost of each for the year 1963. The voters guide then makes this statement, 'The above costs of 'SKIBINSKI'S TRAVELS,' in the amount of $1,506.46 are for one year alone. Now Skibinski has been traveling to conventions in this manner for the last four years. Consequently, if you multiply the $1,506.46 spent by Skibinski last year by 4, the number of years that he has been in office, you arrive at an amount in excess of $6,000.00 squandered by Skibinski in traveling about the country to conventions.' It is claimed this statement is false because the plaintiff did not spend $6,000 in traveling about the country to conventions during his 4-year term of office and also because he did not squander any money. This statement must be read with the itemization which appears preceding it. It is true the impression is attempted to be created that if the plaintiff spent this amount of money in each of the 4 years he would have squandered $6,000. Whether $1,500 or $6,000 was squandered is a question of opinion of what constitutes squandering. Furthermore, the statement is not a categorical statement of fact that Skibinski did in fact spend $6,000 in traveling during...