State v. Waste Management of Wisconsin, Inc.
| Decision Date | 03 March 1978 |
| Docket Number | No. 75-412-CR,75-412-CR |
| Citation | 81 Wis.2d 555,261 N.W.2d 147 |
| Parties | , 1978-1 Trade Cases P 61,813 STATE of Wisconsin, Respondent, v. WASTE MANAGEMENT OF WISCONSIN, INC., d/b/a City Disposal Company, Appellant. |
| Court | Wisconsin Supreme Court |
The defendant-appellant, Waste Management of Wisconsin, Inc., doing business in Dane county as City Disposal Company, was convicted of conspiring to restrain trade in the garbage hauling industry in Dane county in violation of sec. 133.01(1), Stats.
On February 28, 1973, a grand jury indicted Waste Management, along with McKinley Standridge, its general manager in Dane county, for conspiring to restrain competition in the garbage hauling business. The indictment charged defendants with conspiring to allocate customers and to submit rigged bids for garbage hauling services. Also named as unindicted conspirators were Tony Pellitteri Trucking Service, Inc., and Jerry Beecher, doing business as Doug's Sanitation Service, Inc. The alleged conspiracy included the submission of rigged sealed bids to the University of Wisconsin, the Forest Products Laboratory, the Veterans Administration and the United States Army Reserve.
On July 31, 1975, following a nine-day trial, and after two earlier mistrials, a jury acquitted the defendant, McKinley Standridge, and convicted the defendant, Waste Management. The trial court imposed a $4,000 fine and denied all of the defendant's motions for postconviction relief. Waste Management appeals.
Robert H. Friebert (argued), D. Jeffrey Hirschberg and Friebert & Finerty, Milwaukee, on briefs, for appellant.
Alan M. Lee, Asst. Atty. Gen. (argued), with whom on the brief were Bronson C. La Follette, Atty. Gen., and William L. Gansner, Asst. Atty. Gen., for respondent.
An appellate court is not a performing bear, required to dance to each and every tune played on an appeal. Here appellant raises twenty-nine challenges to a judgment of conviction. However, we find the challenges to fit into five categories and will discuss each category. Any of the twenty-nine issues raised and not discussed in any of the five categories can be deemed to lack sufficient merit or importance to warrant individual attention.
The indictment by the grand jury stated that "the offense charged and the acts stated were contrary to sec. 133.01(1) and (3), Stats." 1 Subsection (1) contains six sentences. Only the first two are here involved. The first sentence declares illegal every "contract or combination in the nature of a trust or conspiracy in restraint of trade or commerce." The second sentence declares "(e)very combination, conspiracy, trust, pool, agreement or contract intended to restrain or prevent competition in the supply or price of any article or commodity . . ." to be an illegal restraint of trade. (Emphasis supplied.)
The charging portion of the indictment charged that the defendants and the coconspirators "did feloniously engage in an unlawful combination and conspiracy intended to restrain competition in the supply or price of an article or commodity." Before the first trial, 2 the Honorable W. L. Jackman held that waste removal was not "an article or commodity" and therefore was not within the scope of the second sentence, but that the indictment alleged acts which, "if true, would constitute a violation of sec. 133.01(1), particularly, the first sentence." Before the second trial, the trial judge, the Honorable Norris Maloney, granted the state's motion to amend the indictment to state that "the defendants . . . did . . . engage in an unlawful combination and conspiracy to restrain trade or commerce in this state." This amendment did no more than incorporate into the language of the indictment Judge Jackman's earlier order that the indictment charged an offense under the first sentence of sec. 133.01(1). In effect, the amendment struck the references to acts "intended to restrain competition in the supply or price of an article or commodity," leaving the allegation as to conspiracy "to restrain trade or commerce in this state."
The amendment here permitted was in the nature of a formal deletion of words, not a substitution of one charge for another. Deleted was the reference to the second sentence of sec. 133.01(1). Remaining was reference to the first sentence of that statute. The test in this state is whether the defendant was prejudiced by this change. 3 As with an information, an indictment must inform the accused of what particular acts he is alleged to have committed. 4 Notice to the accused, not perfection in draftmanship, is the key. Thus, where an indictment enables the defendant to understand the offense charged so that he can prepare his defense, "designation even of a completely wrong statute has been held not to vitiate an information or indictment." 5 Similarly, our court refused to quash an indictment which cited a relevant statute but failed to include one element of the crime where the defendant and the jury were apprised of the elements that the state would need to prove to get a conviction. 6
In the case before us, the defendant was informed long before trial that the state was required to proceed solely on the theory that the defendant violated the first and not the second sentence of sec. 133.01(1). This amendment in the indictment is no foundation for a claim of prejudice. The amended indictment charged this defendant with the crime of which he was convicted, and he knew well in advance of trial what that crime was.
The important question is whether the indictment charged a crime under the first sentence of sec. 133.01(1), Stats. The defendant contends that the state antitrust statute cannot be applied to customer allocation or price fixing in service industries because of the existence of the second sentence. 7 It is contended that because the second sentence prohibits restraints in the supply or price only of articles or commodities, garbage haulers, and others in service industries, can fix prices and allocate territories with impunity. This contention was raised in the Milwaukee Braves Case. 8 While the Braves decision ultimately rested on other grounds, as to the claim that the second sentence restricts the meaning of the first, this court concluded: "(T)he insertion of the second sentence in 1921 did not limit the broad language of the first or third sentences to the types of combination described in the second." 9
It is true, as the defendant asserts, that in the Braves Case the court also said: "(T)he first sentence of sec. 133.01(1), Stats., still embraces other types of restraint of trade not specifically enumerated or described." 10 But to read this sentence as meaning that all restraints "enumerated" in the second sentence are excluded from the first is not consistent with the Braves Case as a whole. The Major League's concerted refusal to deal with the Milwaukee Brewers was one act for which the League was convicted, and that act was a restraint on the supply of a service baseball in Milwaukee. In the Braves Case we did not find that the first sentence prohibition against this restraint on trade was erased by the fact that this practice also affected the price or supply of a service. While the Braves Case held only that the second sentence did not, by reason of its reference to articles or commodities, limit the subject of the first sentence, we now hold that the specific activities prohibited by the second sentence are also prohibited by the first. This holding is particularly apt where, as here, the conspiracy alleged goes well beyond an agreement to fix prices. While impact upon prices is involved, conspiracy here alleged was basically an allocation of customers. One party to the conspiracy was to be given territorial-type rights to a particular customer, including state and federal agencies of government, while the other parties were to submit noncompetitive bids to insure that this allocation of "turf" was not upset. In holding that the second sentence of the statute is but one nonexclusory example of conduct prohibited by the first sentence, we are in accord with a long line of state cases holding that the broad variety of anticompetitive practices prohibited by the Sherman Act 11 are illegal under the state act. 12 Acts found to be illegal restraints upon trade under the first sentence of the Wisconsin antitrust act are not decriminalized by the second section of sec. 133.01 even though they may affect supplies and prices of a service instead of an "article or commodity."
Before the first and second trials there were extensive evidentiary hearings on defendant's claim of illegal electronic surveillance by the state. At the first such hearing witness Jim Pellitteri testified that on advice of his attorney he taped his telephone conversations with the defendant which he later turned over to the state and on three occasions wore a microphone given him by the state to monitor conversations with employees of the defendant. On this and other evidence adduced at the hearing Judge Jackman concluded that the tapes were lawful one-party consent tapes made by Pellitteri and that no other electronic surveillance was conducted by the state. Before the second trial a second evidentiary hearing was held. Jim Pellitteri also took a polygraph test to determine whether his version of the making of tapes was true. On the basis of the two hearings and the polygraph test, Judge Maloney found that the tapes were lawful one-party consent tapes and that the defendant proved no other electronic surveillance by the state. The tapes which Pellitteri made and turned over to the state were not introduced as evidence before the grand jury or at the trial.
On this appeal defendant claims that both trial courts erred in finding no proof that the state...
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