State v. Nowakowski, S

• Decision Date: 10 April 1975
• Docket Number: No. S,S
• Citation: 227 N.W.2d 697,67 Wis.2d 545
• Parties: STATE of Wisconsin, Respondent, v. Richard C. NOWAKOWSKI, Appellant. tate 184.
• Court: Wisconsin Supreme Court

Page 697

227 N.W.2d 697

67 Wis.2d 545

STATE of Wisconsin, Respondent, v. Richard C. NOWAKOWSKI, Appellant.

No. State 184.

Supreme Court of Wisconsin.

April 10, 1975.

Warshafsky, Rotter & Tarnoff, S.C., Milwaukee, for appellant; Ted M. Warshafsky and Randall E. Reinhardt, Milwaukee, of counsel.

Wisconsin Civil Liberties Union, Milwaukee, for amicus curiae; Michael S. Jacobs, Madison, of counsel.

Paul J. Gossens, Asst. Atty. Gen., Milwaukee, for respondent.

DAY, Justice.

On October 1, 1974, Richard C. Nowakowski (defendant) was convicted of one count of failure to report a campaign contribution of $800 worth of postage stamps, while a candidate for reelection to the Milwaukee County Board of Supervisors, in a report filed April 20, 1972, in violation of secs. 12.09(1) and 12.09(3)(a), Stats.1971. ¹ He was sentenced to pay a fine of $1,000 or one year in the county jail and pursant to sec. 12.70 ² mandatory ouster from office as a supervisor of the Milwaukee county board, which position he held at the time of his conviction. A supplemental judgment of ouster from office was entered pursuant to secs. 12.28(1) ³ and 17.03(5). ⁴

The charge on which the defendant was convicted was one count of a two-count indictment issued by a grand jury against the defendant on March 28, 1973.

The second count of failing to report a $60 campaign contribution was dismissed on motion of the state prior to trial.

The offense with which the defendant was charged and convicted is a felony. He was charged with failing to report a political contribution from one Angelo Ditello, president of National Transit Cartage Company, of $800's worth of postage stamps. The jury found the defendant had wilfully failed to include the donation in his campaign report as required by statute.

At the trial, Mr. Ditello testified that he was the president of a corporation known as National Transit Cartage Company and that in 1971 and part of 1972 his company was located at 2619 South Fifth street in Milwaukee. He testified the company had made efforts to lease and buy property from Milwaukee county and that in January, 1972, they leased two and a half acres from the county south of the terminal on Fifth street. He testified that in late 1971 and 1972 in their operation they had 19 tractors, 2 straight trucks, and 25 trailers, which varied in length from 23 to 40 feet; that the trailers were parked south of the terminal and the tractors were parked across the street. He had wanted to acquire the property across the street and said he talked to Supervisor Nowakowski at a county board meeting early in 1971. He said he offered to either purchase the property or lease it, but that the defendant was against it at that time. He had also tried to lease or buy this property in 1965 or 1966. On November 5, 1971, Mr. Ditello met with the defendant at Baker's restaurant; the meeting had been arranged by Mr. Ditello; he discussed the property across from his business and the defendant said there was too much opposition as far as the neighborhood people were concerned and he would not go along with that piece of property being sold to Ditello or to the trucking industry. Prior to Christmas of 1971, Mr. Ditello met with Mr. Nowakowski at Como's restaurant and they discussed a committee hearing where the interest of Roman Electric Company in acquiring part of the property known as the car barns nearby had been talked about. The defendant said he was favorable to a plan whereby Ditello's company would share the property in question with Roman Electric. He testified that Mr. Nowakowski said, '. . . now that we have finished with that discussion, there is something you can do for me if possible. I have a campaign coming up and I have a large mailing, and I need some stamps. . . . I could use 10,000 eight-cent stamps.' Mr. Ditello said he would think about it. About the middle of January, the defendant called, asking whether or not Mr. Ditello would do anything about the stamps. He answered he had not given it much thought but that he would give him the stamps. After he got the stamps he called the defendant and asked him how he wanted to handle it and the defendant said to bring them to the defendant's house and he gave Mr. Ditello his address. He told his son to deliver them but no one was home. He then called the defendant and told him there was no one home. The defendant said he would be there shortly. Mr. Ditello personally delivered the stamps; there was no one at home, but he left the stamps at the front door and then later called the defendant and told him that he had delivered the stamps and was told by the defendant that he had received them. Mr. Ditello also testified that the defendant was free to use those stamps in his campaign. Mr. Ditello did move his operation to a site nearby but testified that he left the property after a year and a half because of opposition from the people in the area.

The state also introduced into evidence the minutes of the County Highway Committee for September 2, 1971, October 26, 1971, November 18, 1971 and January 6, 1972. The minutes for January 6, 1972, regarding the purchase or rental of the north shore car barn property located at Fifth and Harrison street showed that the attorney for National Transit Cartage Company appeared and urged the committee to authorize the sale of the land and stated that the interested parties would negotiate among themselves, which included the Roman Electric Company. The minutes show that 'Supervisor Nowakowski recommended that the land be sold, stating that it would be put back on the tax rolls.'

The state introduced the Preliminary Statement filed pursuant to sec. 12.09(5) (a), Stats., of 'Supervisor Nowakowski Victory Comm.,' showing the date of organization as March 5, 1972. The stamp on the document shows it was filed with the Milwaukee county election commission on March 8, 1972. This is the so-called 'voluntary committee' made up of others supporting the candidate. Its filings are separate and apart from a filing by a candidate or by a personal campaign committee of a candidate under the statute. In this case, the defendant did not have a personal campaign committee. The state also introduced the financial statements of the victory committee for March 24, March 28 and April 16, 1972, none of which showed a receipt of $800 in stamps from Mr. Ditello. The state also introduced the personal campaign statements of the defendant for the pre-primary, post-primary, pre-election and post-election filings required under the law, none of which showed a receipt by the defendant of the $800 in stamps. The post-election filing was the one in question, dated April 20, 1972.

The defendant testified in his own behalf, stating he had been a supervisor for ten and a half years and was the chairman of the Milwaukee county board. He stated that he had asked Lynn Nowakowski, who was not a relative, to serve as the treasurer of a voluntary committee in his behalf during the late part of 1971. He stated that throughout he was campaigning heavily and that in December, January, February and March, people from the voluntary committee were meeting in his home. He said that early in January there was a discussion at his house with members of the voluntary committee about a first-class mailing in his district and that he told them he had a contributor who would probably contribute enough stamps for a mailing by the committee. He testified the man he had in mind was Mr. Ditello. He said he first met Mr. Ditello at a board meeting in the late summer of 1971 and had told him at the time that he was opposed to Ditello's getting a lease to add to his property because he was next door to Darling Freight; that it was because of noise and traffic conditions that he could not agree to having a second truck firm right where there were residences, and he stated he never changed his mind on that issue. He said in the fall of 1971 he was again approached by Mr. Ditello about adding to the property and told him that the answer was 'no.' He said he advised Mr. Ditello that Roman Electric was interested in purchasing the old north shore car barns, but that there was too much property for their needs and he suggested he join with Roman Electric to try and purchase or lease that acreage which would put him two and a half blocks away from the truck terminal. He said the conversation took place at the October 26th board meeting and he said he was on record favoring Mr. Ditello's lease of the car barn property with Roman Electric. He said he next saw Mr. Ditello in November of 1971 at Baker's restaurant and then again in December at Como's. He stated he asked Mr. Ditello for the stamps right before Christmas and that up to that time there had never been any discussion about a contribution. He stated he actually had no objection to either Darling Freight or Ditello working out an arrangement with Roman Electric. He said that the north shore car barns are approximately two and a half blocks to the south of Fifth and Harrison and the truck terminal site of National Transit. He said that on October 26th he publicly went on record as supporting a resolution for leasing the car barn property to Roman Electric and the other truck line and afterwards he had told Ditello that it would be fine if he could work it out with Roman Electric. The committee meeting minutes of January 6th show a request for sale of the north shore car barn at which Mr. Ditello appeared by attorney and stated they were discussing the matter with Roman Electric. The defendant stated that this is the land he had discussed with Mr. Ditello in October of 1971 and that that was a different piece of land than the one he had objected to. He said his contact about getting the stamps was in mid-January of 1972 and that after they were received he acknowledged receipt and that he thanked Mr. Ditello. He said the stamps were intended for district-wide...