State v. Tronca
| Decision Date | 30 June 1978 |
| Docket Number | No. 76-425-CR,76-425-CR |
| Citation | 84 Wis.2d 68,267 N.W.2d 216 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Patrick TRONCA, Defendant-Appellant, Mark W. Ryan and Charles N. Wolfe, Defendants. Mark W. RYAN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
William M. Coffey, Milwaukee (argued), Joseph M. Amidon and Coffey & Coffey, Milwaukee, on the brief for defendant-appellant.
Michael A. I. Whitcomb, Milwaukee (argued), Gerald P. Boyle, Milwaukee, on the brief for defendant Mark Ryan.
Maryann S. Calef, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-respondent.
This case arises out of charges of misconduct in public office. Three defendants were charged, Mark W. Ryan, an alderman of the City of Milwaukee, Patrick Tronca, and Charles N. Wolfe. Each of them was charged with two counts of misconduct in public office, party to a crime, under sec. 946.12(3), 1 Stats., and sec. 939.05. All three defendants were found guilty on Count 2, and each of them was fined. 2 Tronca and Ryan have asked for review by this court.
Tronca filed an appeal from the judgment of conviction and from the order denying postconviction motions. A writ of error was issued to review the denial of Ryan's postconviction motion. The cases were tried together and have been consolidated for review in this court. Wolfe apparently has not sought review of his conviction, and the merits of his case are not before the court. Tronca and Ryan have filed a consolidated brief on this appeal.
The principal claims advanced therein are that nothing was done by Alderman Ryan which constituted an exercise of discretion and that, if he did in fact exercise discretionary power, he did not do so in a manner inconsistent with the duties of his office; that, even were the facts sufficient to show that Ryan, as a public officer, was guilty of misconduct, Tronca, as a private citizen, could not be a party to the crime of misconduct in public office; and that the misconduct in public office statute, sec. 946.12, Stats., is unconstitutional, because it is vague and overbroad.
Additionally, it is claimed that the application of sec. 939.05, Stats., the party-to-a-crime statute, when applied to misconduct in public office, aggravates the constitutional problem in both respects.
We conclude that none of these arguments has substantial merit. We affirm the judgment and orders sought to be reviewed.
The basic facts are not in dispute, and no argument is made that the evidence was insufficient to convict beyond a reasonable doubt if the law was properly applied by the trial court. The underlying facts show that Paul and Ada Lie were the part owners and operators of the Peking Gardens restaurant, which was located in the aldermanic district of Mark Ryan. Ryan was not a member of the committee of the common council which had the official authority to act in respect to removing restrictions on liquor licenses. However, it was acknowledged that, in Milwaukee, a practice known as "aldermanic privilege" was recognized and honored by the licensing committee. Under this practice, it was extremely rare that action was taken on a liquor license over the objection of the local alderman, even though that alderman, strictly speaking, had no right to vote or participate in the committee's decision. The aldermanic privilege was specifically recognized in the recent case of Ryan v. State, 79 Wis.2d 83, 87, 255 N.W.2d 910 (1977). That case involved the same defendant Ryan who was a party to the present appeal.
The record shows that, when the Lies wished to obtain a Class B liquor license for their restaurant, they contacted Alderman Ryan. Only after Charles Wolfe contacted the Lies and received $4,500 from them, did Alderman Ryan approve the transfer of a liquor license to Peking Gardens restaurant. Under that license, the Lies commenced serving liquor in December 1973. This transaction was the basis for Count 1 of the criminal complaint. The complaint in that respect, however, was dismissed following the preliminary examination for lack of probable cause.
The basic facts outlined above have been recited in the briefs of both the state and the defendants.
The license obtained by the Lies after the transaction with Wolfe and with Ryan's approval contained a "service-bar-only" restriction, which meant that liquor could only be served to patrons seated at tables. In March of 1974, Ada Lie went to Wolfe in an attempt to have the restriction lifted so that bar service would be available in the restaurant. Wolfe stated that, for the sum of $1,500 the restriction could be lifted; and Wolfe told Paul Lie that only Alderman Ryan could see to it that the restriction was lifted. Ada Lie then met with Alderman Ryan, and the subject and contents of the conversation with Alderman Ryan appear in her testimony at trial:
The record additionally shows that the price for removing the restriction was raised to $2,500, because Alderman Ryan was offended because he believed that Ada Lie was attempting to bribe him directly.
On the day following the one on which the conversation between Ada Lie and Mark Ryan took place, Paul Lie paid $1,000 of the $2,500 to Wolfe. The money had previously been marked by agents of the State Department of Justice. Lie stopped at Tronca's residence, and a search there the following day revealed nine of the ten marked $100 bills. On the same day the money was paid, Wolfe, in the presence of Paul Lie, placed a call to a person he referred to as his boss, and it was established at trial that the person called was the defendant, Patrick Tronca.
Despite these efforts to have the "service-bar-only" restriction lifted, the record shows that the Lies never made an official application to the license committee and apparently no change was actually made in the restricted license which had been granted at an earlier time to the Peking Gardens restaurant. It was on this evidence that the three defendants were convicted.
The basic position of the trial court was that the evidence showed that Ryan had exercised a discretionary power in a manner inconsistent with the duties of his office with the intent to obtain a dishonest advantage for Tronca and Wolfe and that all three of the defendants were parties to this basic crime.
The initial argument advanced by the defendants was that whatever Ryan did, it was not a discretionary power of office, because his informal aldermanic privilege to suspend, or in effect veto, action of the licensing committee was not a formal discretionary power officially conferred by statute. Counsel for the defendants contends that public officers such as Ryan have only such powers as are conferred upon them by statute and the only additional powers granted them by implication are those necessary for the exercise of duties expressly granted.
The question, then, is whether the power of aldermanic privilege which has been conferred upon an alderman by practice and usage in the City of Milwaukee is a discretionary power of office as that power is referred to in sec. 946.12(3), Stats.
When that statute was considered in 1953, the notes of the Judiciary Committee on the Criminal Code carried the following comment Judiciary Committee Report on the Criminal Code, Wisconsin Legislative Council, February 1953, p. 176.
The defendants assert that the comments clearly demonstrate that a discretionary power can only be one which is official and formally delegated and that the powers exercised by virtue of the aldermanic privilege do not fit that category. It is true that the aldermanic privilege is not an officially conferred power of office, but it has been sanctioned by practice and usage and specifically found to be a fact of political life in municipal government in the City of Milwaukee in State v. Ryan, supra.
Neither the state nor the defendants have cited any cases from this or other jurisdictions which discuss in detail the applicability of informal but recognized discretionary powers to criminal misconduct in office. There are, however, a number of cases, some of which have been referred to by the parties, which construe similar statutes which use different operative phrases. These cases are instructive and persuasive, but by reason of the different terminology and nomenclature of the statutes construed are not in themselves controlling.
Two Wisconsin cases which...
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State v. Rabe
...would contravene legislative purpose. United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978); State v. Tronca, 84 Wis.2d 68, 80, 267 N.W.2d 216 (1978). As noted in Austin " '(T)he rule of strict construction (of penal statutes) is not violated by taking the common-sens......
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State v. Bruckner
...contends that penal statutes like sec. 940.203(4) should be strictly construed and interpreted in his favor. See State v. Tronca, 84 Wis.2d 68, 80, 267 N.W.2d 216, 221 (1978). A legislature "expresses its purpose by words" 62 Cases of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 5......
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City of Milwaukee v. Nelson
...the first amendment rights of third parties." Milwaukee v. K.F., 145 Wis.2d 24, 40, 426 N.W.2d 329 (1988) (citing State v. Tronca, 84 Wis.2d 68, 89, 267 N.W.2d 216 (1978)). Nelson has made a similar argument here suggesting that a person could be subject to a loitering offense while taking ......
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Larson v. Burmaster, 2005AP1433.
...substantive due process and "has the effect of preventing the limiting, by indirection, of constitutional rights." State v. Tronca, 84 Wis.2d 68, 89, 267 N.W.2d 216 (1978). ¶ 27 Not only do the Larsons fail to cite any case law or make a reasoned argument as to why these statutes might be o......