GJS TRIAL MANUAL MAIL

STATE v. TRONCA,
84 Wis.2d 68 (1978)
267 N.W.2d 216
 
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CITATIONS SUBSEQUENT TO TRONCA

STATE, Plaintiff-Respondent,
v.
TRONCA, Defendant-Appellant:

RYAN, and another, Defendants.
RYAN, Plaintiff in error,
v.
STATE, Defendant in error.

Supreme Court # 76-425-CR.

Argued   7 June 1978.
Decided 30 June 1978.

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Tronca APPEALS from a judgment and an order
of the circuit court for Milwaukee county:

JEROLD E. MURPHY, Judge of the circuit court
for Fond du Lac county, presiding.

Affirmed.

WRIT OF ERROR (Ryan) to review an order of
the circuit court for Milwaukee county:

JEROLD E. MURPHY, Judge of the circuit court
for Fond du Lac county, presiding.

Affirmed.

For the appellant there was a brief by
William M. Coffey, Joseph M. Amidon, and
Coffey & Coffey, and oral argument by
William M. Coffey; and the brief was
joined in by Gerald P. Boyle for defendant
Mark Ryan, with oral argument by
Michael A. I. Whitcomb, all of Milwaukee.

For the respondent the cause was argued
by Maryann S. Calef, assistant attorney
general, with whom on the brief was
Bronson C. La Follette, attorney general.

HEFFERNAN, J.

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 Section 946.12(3), [1] Stats.,
and Section 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.

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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,
Section 946.12, Stats., is unconstitutional,
because it is vague and overbroad.

Additionally, it is claimed that the
application of Section 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.

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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:

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A    I told him that I wanted my service bar
   restriction lifted, and it is costing me
   $1500, and I have the money with me, and
   I asked if he would okay it, and he said
     if I have no objectors that he would
   okay it, then he explained to me what
   objectors were.

Q    What did he explain?

A    He said objectors were people from the
   neighborhood, people from the business,
   and they object to our operation.

   He said I should remove the objectors,
   and he said he can give me the okay.

   He said you have to
   remove the objectors.

   So these people took care of you the
   last time, so he asked, are you willing
   to do what they say, so I said   do you
   mean that if I paid him the $1500 that I
   remove all the objectors, and he said
   that's what it takes.

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.

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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
Section 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:

   Subsection 946.12(3) states in effect
   that an officer or employe must act
   honestly in performing duties or
   exercising powers which
   involve discretion.

   If any officer or employe has discretion
   as to the time or manner in which to
   perform a duty or discretion as to
   whether or not to perform a function of
   his office or employment, he is guilty
   of misconduct only if he acts in a
   manner inconsistent with the duties of
   his office or employment or the rights
   of others and with intent to obtain a
   dishonest advantage for himself or
   another, that is, "corruptly."

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   Judicial or quasi-judicial functions
   call for the exercise of judgment, and
   if the officer acts honestly although
   with not the best of judgment,
   he is not guilty.

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 arose under a
former bribery statute are relevant,

Murphy v. State,
124 Wis. 635,
102 N.W. 1087 (1905),

and

State v. Hibicke,
263 Wis. 213,
56 N.W.2d 818 (1953).

In each of them the underlying statute made
criminal the payment of money made with the
intent to influence the vote, opinion, or
judgment of a public officer in a matter then
pending or which might be brought before the
officer in his "official capacity."

In Murphy v. State, the defendant was an
alderman of the City of Milwaukee who
received money to influence his
vote on an ordinance.

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He argued that the proposed ordinance
would have been void in any event,
because the common council had no
authority to permit public property
to be used for private purposes.

His claim was that the ordinance could
not, therefore, have been before him
in his official capacity.

This court rejected that argument, reasoning
that, even were the ordinance found to be
a nullity, the council had a duty to act,
even though the only proper action would
have been to reject the ordinance.

The defendant's official duty was, therefore,
not to be measured with reference to the
ultimate validity of the proposed action.

In State v. Hibicke, the court accepted
the defense of the defendant constable,
who was bribed in connection with
obtaining a trailer park license.

The court found that the constable had no
duty in respect to recommending or
reporting on trailer park licenses.

There was nothing to show, as in the instant
case, that the officer had any privilege
which was equivalent to the aldermanic
privilege of Ryan.

Each of these cases are cited in 73 A.L.R.3d
374 (1976) for the general proposition that
it is no defense to show that an officer had
no authority in the particular circumstances
to perform the act, if the act is within the
general scope of his duties and he was
acting under the color of authority.
 

The rule is followed in its
general form elsewhere.

In

United States v. Birdsall,
233 U.S. 223 (1914),

the court held that it is not necessary that
an officer's action be prescribed by statute
or any written rule   that official action
could be simply an established usage or
a common law type of power which gave
sanction to informal procedures
in exercise of authority.

In

Kable v. State,
17 Md. App. 16,
299 A.2d 493 (1973),

a police officer took money with
the request that certain motor
vehicle charges be nolle prossed.

His defense was that the bribe could not
have been for the purpose of influencing
him in his official duties, because only
the prosecutor had the authority
to dismiss the charge.

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The court rejected this defense, because the
record showed that a practice and usage had
developed whereby the police officer made
recommendations to the prosecutor.

The court therein held the term, "official
duties," was broad enough to include corrupt
action that in some way bore a relationship
to his official duties, even though the act
was technically beyond his legally
prescribed responsibilities.

The same rationale was applied in

State v. Hendricks,
66 Ariz. 235,
186 P.2d 943 (1947),

where official duties were not implicated but
the officer in the corrupt bargain purported
to act under color of office.

The Arizona court held that the rationale of
Hendricks was not applicable in a later case,

State v. Bowling,
5 Ariz. App. 436,
427 P.2d 928 (1967).

There, a defense was upheld when the facts
showed that it was not a customary or an
accepted usage for legislators to make
recommendations for the granting or
denial of liquor licenses.

In essence, the legislator in Bowling was
exonerated, because there was no proof of
an established custom or usage equivalent
to the aldermanic privilege which Ryan
possessed in the case before us.

In

Commonwealth v. Avery,
301 Mass. 605,
18 N.E.2d 353 (1938),

a town selectman was found guilty of
accepting a bribe to secure the employment of
a doctor as a welfare physician, even though
the employment of the doctor was not a matter
which could be brought before him in his
official capacity as selectman.

The Supreme Judicial Court of Massachusetts
recognized that a selectman exercises an
influence on the management of town affairs
which could not be measured by reference
to express statutory definitions of
official powers.

It was held that he exercised the powers
de facto and that the general bribery
statute applied.

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It is apparent from these cases that the
powers of a public official, which are
subject to control by various types of
misconduct statutes, are not limited to
expressly conferred powers but apply to
de facto powers which arise by custom
and usage and which are exercised under
the color of office and which, by virtue
of the office, tend to have a corrupt
influence on public affairs.

Although we recognize the general rule relied
upon by the defendants as stated in

State v. Schaller,
70 Wis.2d 107,
233 N.W.2d 416 (1975),

that penal statutes are to be strictly
construed in favor of the accused, it is
equally true that this rule of construction
does not mean that only the narrowest
possible construction must be adopted in
disregard of the purpose of the statute.

See,

United States v. Bramblett,
348 U.S. 503 (1955).

In the instant case, the discretion
which Ryan exercised was under
the color of his office.

It was a discretion recognized by a long
period of custom and usage, and the power
was one that had a substantial influence
on the affairs of the municipal
government of Milwaukee.

It was a discretionary power of his office,
which could be exercised corruptly, either
by an act of omission or commission.

We also conclude that the argument made by
the defendants   that there was in fact
no exercise of the discretionary power
by Ryan in this case   is unfounded.

The basis of defendants' argument is that at
the most Alderman Ryan did no more than to
agree to exercise power in the future, but
the power was never exercised, because the
Lies never made application to have the
license restriction lifted.

The state takes the position that the statute
should not be construed to require the
fulfillment of a corrupt bargain before any
criminal conduct can be said to occur.

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It relies on a number of federal cases
which, in the main, are based on statutory
language somewhat different than that
involved in the present case.

The federal statutes generally make criminal
the act of one who solicits or accepts
anything of value in exchange for a promise
to influence, or endeavor to influence,
governmental conduct.

They nevertheless are persuasive in
support of the state's position.

Section 946.12(3), Stats., under which the
defendants have been charged, is not as
explicit as the federal statutes in
respect to situations where a corrupt
bargain was made but where circumstances
did not impel its fulfillment.

The Wisconsin statute does, however, prohibit
the corrupt exercise of discretionary  power
"whether by act of commission or omission."

By using such terms, it is apparent that
the legislature prescribed a broad
scope of conduct which could be
misconduct in public office.

The Judiciary Committee Report on the
Criminal Code relied upon by
the defendants states:

   Subsection 946.12(3) states in effect
   that an officer or employe must act
   honestly in performing duties or
   exercising powers which involve
   discretion.

In the instant case Ryan affirmatively
acted under the color of office and under the
de facto powers of the aldermanic privilege
when he assured Lies and agreed to the
proposition that he would not oppose
the lifting of the liquor license
restriction if money were paid to Wolfe.

He exercised his powers of office
affirmatively when he made that agreement.

It was an agreement which could have been
reached on an honest basis and on a rational
consideration of the merits, but the
agreement, an official act, was
corrupt and dishonest.

The agreement constituted the exercise
of discretionary power within the
meaning of the statute.

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It is difficult to understand the logic of
the defendants' further argument that the
exercise of the discretionary power was not
"inconsistent with the duties of his office."

As the comment of the committee referred
to above states, the statute requires

   that an officer or employe must act
   honestly in performing duties or
   exercising powers which involve
   discretion.

The duties of common council members of
the City of Milwaukee are set forth in part
in the Milwaukee City Charter Sections 4.26
and 5.13. Section 4.26 provides that a common
council member may not vote upon any matter
in which he may be directly or indirectly
interested.

By telling the Lies that he would exercise
his aldermanic privilege favorably to them
only if money were paid to Wolfe, Ryan
evinced his interest in the matter to be
considered by the licensing committee.

He in effect agreed not to vote or exercise
his aldermanic privilege of vetoing
possible license committee action.

The effect of this was to affirmatively
sanction possible license committee approval.

This was contrary to the intendments of
Section 4.26 and was inconsistent
with the duties of office.

Section 5.13 of the Milwaukee City Charter
provides criminal sanctions for any officer
who for any consideration whatsoever agreed
to vote affirmatively or negatively, or to
refrain from voting, or to use his influence
in any manner for a corrupt consideration.
 

What Ryan did in the instant case was to
bargain away his discretion, which was to be
exercised for the benefit of his constituents
generally, in exchange for dishonest
consideration or advantage to
Wolfe and Tronca.

This was without doubt inconsistent
with his duties of office.

Counsel for the defendants argues, correctly,
that the statute provides, as separate
elements of the crime, the requirement
that the conduct be

   inconsistent with the duties of his
   office" and the requirement that the
   conduct be done "with intent to obtain a
   dishonest advantage."

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He is also correct in asserting that
there must be proof of each element.

Both elements are proved here,
albeit by the same transaction.

The transaction with the Lies
demonstrated conduct inconsistent
with the duties of office.

In addition, the transaction showed that it
was done with the intent to gain a dishonest
advantage for Tronca and Wolfe.

Both elements of the crime were proved.

It is equally clear that Ryan's conduct was
inconsistent with the rights of the Lies,
because they were obliged to pay a large
sum of money for the purpose of having
their license application considered,
when they had the right to have it
considered on the merits without payment.

However, counsel for the defendants is
correct in his assertion that this latter
element of the crime was not charged, nor
apparently was it argued in the trial court;
and we consider the state's reliance upon it
inappropriate under the circumstances.

The alternative element, "intent to obtain
a dishonest advantage," was proved,
and we find that proof sufficient.

Tronca argues that he could not be convicted
as a party to a crime on the charge of
misconduct in public office, because
he is not a public officer.

This court, with rare exceptions explainable
in terms of legislative intent, has rejected
the proposition that one must be capable of
committing the substantive crime in order to
be subject to criminal liability as a party
to the crime under Section 939.05, Stats.

See,

State v. Ewald,
63 Wis.2d 165, 174,
216 N.W.2d 213 (1974).

Moreover, the Judiciary Committee Report on
the Criminal Code, Wisconsin Legislative
Council, February 1953, Page 5, states a
general legislative intent to include
cases under Section 939.05, Stats., although
it would be impossible for the person
charged as a party to the crime to
commit the substantive offense.

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The committee stated:

   This Section does not require that all
   persons concerned in the crime be
   charged with the commission of it,
   but it provides that they may be.

   In a case where it would be ludicrous to
   charge the defendant with the actual
   commission of the crime, as where a
   woman has aided and abetted the rape
   of another woman, the defendant may
   be charged with aiding and abetting
   the crime.

There have indeed been cases in which this
court has held that Section 939.05, Stats.,
did not apply to a specific penal statute.

Tronca cites

State v. Dried Milk Products Co-operative,
16 Wis.2d 357,
114 N.W.2d 412 (1962).

The issue in that case was whether the owner
of the truck, as opposed to the driver,
without specific proof of unlawful intent on
the owner's part, could be charged as a party
to the crime of driving an overloaded truck.

The court held that Section 939.05 had no
application to the overload statutes, because
that statute specifically provided for the
vicarious liability of the owner.

In general, it can also be said that, where
the legislative intent is demonstrated by a
specific provision within a statute to impose
vicarious liability or where the legislative
intent is otherwise clear, the general
party-to-a-crime statute is not applicable.

Such limitations are not apparent here,
and the general admonitions of the framers
of the criminal code indicate that the
party-to-a-crime statute is applicable unless
legislative intention to the contrary is
either explicit or implicit in the statute.

Even under this principle, the defendants
argue that party-to-a-crime is not
applicable in the instant case.

They assert that, since Section 946.12,
Stats., does not explicitly penalize the
aider or abettor or conspirator who operates
in conjunction with a public officer, no
liability should be permitted under the
party-to-a-crime statute.

Defendant points out that, where bribery
penalties are imposed, e.g., Section 946.10,
Stats., criminal liability falls on both
the public officer and the person
who offers a bribe.

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The argument apparently is that, had the
legislature intended to impose criminal
liability on one who is a party to official
misconduct, it would have specifically
provided for such liability, as it did
in respect to the bribery statutes.

We think the rationale based on the bribery
statutes inappropriate, because those
statutes impose criminal sanction on
citizens who offer a bribe.

They do not purport to deal with an
individual such as Tronca, who operates as
the public officer's partner in illegal
conduct or as a go-between, as Wolfe and
Tronca did in the instant case.

The situations are so unlike that it is not
reasonable to infer from the bribery statute
a statutory intent which would be applicable
to one who is charged with party to the
crime of official misconduct.

We conclude, consistent with the general
policy of the criminal law and the consistent
application of Section 939.05, Stats., by
this court to all crimes except those where
the legislative intent was clearly to the
contrary, that the charge of party to the
crime was appropriate in the instant case.

See generally, Impossibility of Consummation
of Substantive Crime as Defense in Criminal
Prosecution for Conspiracy or Attempt to
Commit Crime, 37 A.L.R.3d 375 (1971).

The defendants raise three
constitutional arguments.

They argue that Section 946.12(3), Stats.,
together with Section 939.05, is
unconstitutionally vague;

that

Section 946.12(3) is in itself
unconstitutionally vague;

and that the two statutes, when taken
together, are unconstitutional in still
another respect in that they are overbroad.

We conclude that each of these
arguments is without merit.

In the recent case of Ryan v. State, supra,
we restated this court's understanding of
the claim of unconstitutional vagueness.

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We said, citing other cases:

   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. . "

   State v. Driscoll,
   53 Wis.2d 699, 701-02,
   193 N.W.2d 851 (1972).

   Accord,

   State v. Courtney,
   74 Wis.2d 705, 709-11,
   247 N.W.2d 714 (1976)."

Ryan v. State, supra at 90.

In that case, we held that the companion
subsection of Section 946.12, Stats.,
was not unconstitutionally vague.

We said that a statute will be held to be
vague in the constitutional sense only if
it is so obscure that persons of common
intelligence must necessarily guess at its
meaning and differ as to its applicability.

See also,

State v. Starks,
51 Wis.2d 256,
186 N.W.2d 245 (1971).

A statute must also define the crime with
sufficient definiteness that there is
an ascertainable standard of guilt.

Jones v. State,
55 Wis.2d 742,
200 N.W.2d 587 (1972).

The statute need not meet impossible
standards of specificity, however, to survive
a challenge under the vagueness doctrine.

State v. Zwicker,
41 Wis.2d 497,
164 N.W.2d 512 (1969),
appeal dismissed 396 U.S. 26.

All that is required is a
fair degree of definiteness.

State v. Courtney,
74 Wis.2d 705,
247 N.W.2d 714 (1976).

It is argued that one aspect of the vagueness
problem posed in this case is the uncertainty
in respect to what persons come within the
scope of the act.

We have said, however, that a statute is not
impermissibly vague if there is sufficient
warning to one wishing to obey the law that
his conduct comes near the proscribed area.

State v. Evjue,
253 Wis. 146,
33 N.W.2d 305 (1948).

The United States Supreme Court in

Grayned v. City of Rockford,
408 U.S. 104 (1972),

stated that, even if there be an inherent
vagueness of some terms utilized by a
statute, the vagueness may be dispelled
by other provisions of the same statute.

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Defendant's argument is that the term,

"discretionary power,"

is necessarily vague.

It is indeed, as we pointed out, an
all-encompassing term and sweeps broadly.

It is defined, however, in other
terms of the statute.

The act or omission must be done in the
person's capacity as a public officer or
employee or under color of office.

It must be exercised in a manner inconsistent
with the duties of office or the rights
of others, and it must be done with the
intent to obtain a dishonest advantage
either for the actor or for another.

The statute, read reasonably in its entirety,
clearly gives notice of the nature of the
penalties and the applicability of the
statute to the conduct engaged in by
each of the defendants.

The statute is not unconstitutionally vague.

Moreover, the defendants herein have no
standing to challenge the statute on the
ground that it did not give notice, for
the evidence showed that each of them
was aware of the criminality of his
conduct and the consequences.

Tronca was secretive in his telephone
conversation with Paul Lie and
refused to identify himself.

He merely stated to Lie that

   "Charlie Wolfe knows me."

Wolfe told Lie that the payments would
have to be made in cash because he

   "did not want to go to jail."

Ryan, according to the record, took umbrage
at what he thought to be Ada Lie's attempt
to bribe him directly and insisted that
the payment be made to Wolfe.

There is no intimation in the record that
Ryan did not fully understand the basic
illegality of the entire transaction.

Each of the defendants was well aware
that he was approaching the area
proscribed by the statute.

Apparently they were not bent
upon obedience of the law.

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

The conduct of each of them was so clearly
within the proscription of the statute
that any reasonable person would
know that it was prohibited.

The additional argument that the conjunction
of Section 946.12(3), Stats., with
Section 939.05 results in vagueness
is equally ill-founded.

Defendants' argument rests upon the
conception that there is an inherent
contradiction between the special
liability that is imposed upon public
officers and the making of private
citizens parties to the crime.

We see none.

The party-to-a-crime statute broadens
the scope of criminal liability to
cover persons who aid and abet or
conspire with public officers.

In the absence of some clear legislative
intent to limit the liability substantively
arising under Section 946.12(3) to public
officers, we conclude that the
party-to-a-crime statute is as adaptable to
the misconduct-in-office statute as it is to
other statutes which define criminal conduct.

We see this as merely a boiler-plate
party-to-the-crime situation.

The argument that the statute is
unconstitutionally overbroad is
imaginative but specious.

The defendants correctly assert that
legitimate lobbying for the purpose of
influencing legislative or executive
decisions is protected by the first amendment
to the Constitution of the United States.

From that premise, which we accept,
defendants move to the non sequitur that:

   Thus, a lobbyist would be chargeable
   with this offense [party-to-the-crime
   misconduct-in-public office] for efforts
   to influence a legislator to achieve a
   desired political result and to take
   action toward that end, where the
   legislator exercises his vote in
   violation of his duties and with
   the requisite corrupt intent.

We do not see the logic of this argument.

The defendants' basic constitutional
assumption is, however, correct.

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

The problem of overbreadth arises when the
language of the statute, given its normal
meaning, is so broad that the sanctions
of the statute may apply to conduct which
the state is not entitled to regulate.

State v. Starks, supra, at 263.

In such situations, unlike a situation where
the vagueness doctrine is implicated, a
defendant may hypothesize situations where
the statute is so broad that it would chill
legitimate activities and apply to fact
situations where the regulation sought
to be imposed would violate fundamental
first-amendment rights.

A statute which can be so construed may
cause others to refrain from a legitimate
exercise of free speech.

See,

Herzbrun v. Milwaukee County,
504 F.2d 1189, 1193 (7th Cir. 1974).

The overbreadth doctrine is based on the
requirement of substantive due process and
has the effect of preventing the limiting,
by indirection, of constitutional rights.

State v. Driscoll,
53 Wis.2d 699,
193 N.W.2d 851 (1972).

Lobbying, although subject to some
regulation, when carried out legitimately
is entitled to constitutional protection
as a first-amendment right; but the mere
recitation of a possible unconstitutional
application of the statute to lobbying
does not lead to the conclusion that the
statute is unconstitutionally overbroad.

The example cited above from the defendants'
brief is bizarre, and prosecution would not
be brought except in a case of the most
flagrant abuse of prosecutorial discretion.

The example assumes that a lobbyist who for
legitimate purposes by legitimate means seeks
to have certain legislative action taken
would be prosecuted and found guilty under
this statute if a legislator by consistent
but unrelated conduct exercised his vote
in violation of his duties with
a corrupt intent.

By no stretch of the imagination, under
the skeletal hypothesis of defense counsel
counsel is there anything to show a
conspiracy, an aiding, an abetting,
or any other factors that would trigger
a party-to-the-crime charge.

If there were, the conduct would fall within
the ambit of the statutes and the lobbyist,
as well as the legislator, would be
indulging in conduct not protected
by the first amendment.

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

In Herzbrun, supra, the Court of Appeals
for the Seventh Circuit noted that the
overbreadth doctrine is strong medicine
and that the overbreadth of the statute

   "must not only be real, but substantial
   as well, judged in relation to the
   statute's plainly legitimate sweep."

(at 1195)

It is apparent in the instant case that the
lobbying hypothetical raised by the
defendants is not real or substantial in
relation to the indisputably legitimate
purpose and scope of the statute.

No prosecutor could reasonably apply
the statute to lobbying activities
of a legitimate nature.

The statute would be applicable only if
the lobbyist indulged in such conduct in
conjunction with the misconduct of the
public officer that the situation established
a substantial relationship to the evil
proscribed by the statute.
 

True, a lobbyist who indulges in activity
identical to that of Wolfe and Tronca and who
served as go-between between the public
officer and those who sought to buy his
influence would be within the proscription of
the statute, but no legitimate lobbying
activity is chilled or jeopardized by the
statute and the application of the
party-to-the-crime principle to it.

We conclude that the activities of the
defendants in this case fall within the
proscriptions of Section 946.12(3), Stats.

The conduct of Ryan was the exercise of a
discretionary power in a manner inconsistent
with the duties of his office.

Tronca, who was not a public officer, but
who actively participated in the transaction,
was properly charged and convicted of
being party to the crime.

The statutes neither separately nor in
conjunction with each other are
unconstitutionally vague or overbroad.

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

The judgment of conviction of Tronca is
affirmed, and the orders denying the
postconviction motions of the defendants
Ryan and Tronca are affirmed.

By the Court.   Judgment and orders affirmed.

[1]
   946.12 Misconduct in public office.

   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: . . .

   946.12(3)

   Whether by act of commission or
   omission, in his capacity as such
   officer or employe exercises a
   discretionary power in a manner
   inconsistent with the duties of
   his office or employment or the
   rights of others and with intent
   to obtain a dishonest advantage
   for himself or another.


[2]
   Count 1 was dismissed after the
   preliminary examination for
   lack of probable cause.

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

 

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

TABLE OF AUTHORITIES CITING ABOVE CASE:

Cemetery Services v.
Department of Regulation & Licensing,
221 Wis.2d 817 (Ct.App. 1998)

State v. Smith,
215 Wis.2d 84 (Ct.App. 1997)
572 N.W.2d 496

State v. Ruesch,
214 Wis.2d 548 (Ct.App. 1997)
571 N.W.2d 898

State v. Thiel,
183 Wis.2d 505 (1994)
515 N.W.2d 847

State v. White,
180 Wis.2d 203 (Ct.App. 1993)
509 N.W.2d 434

State v. Pittman,
174 Wis.2d 255 (1993)
496 N.W.2d 74

State v. Bruckner,
151 Wis.2d 833 (Ct.App. 1989)
447 N.W.2d 376

City of Milwaukee v. Nelson,
149 Wis.2d 434 (1989)
439 N.W.2d 562

State v. C.A.J.,
148 Wis.2d 137 (Ct.App. 1988)
434 N.W.2d 800

Milwaukee v. K.F.,
145 Wis.2d 24 (1988)
426 N.W.2d 329

State v. Howell,
141 Wis.2d 58 (Ct.App. 1987)
414 N.W.2d 54

State v. Muehlenberg,
118 Wis.2d 502 (Ct.App. 1984)
347 N.W.2d 914

State v. Schmit,
115 Wis.2d 657 (Ct.App. 1983)
340 N.W.2d 752

State v. Olson,
106 Wis.2d 572 (1982)
317 N.W.2d 448

State v. Banks,
105 Wis.2d 32 (1981)
313 N.W.2d 67

State v. Lederer,
99 Wis.2d 430 (Ct.App. 1980)
299 N.W.2d 457

In Matter of Complaint Against Seraphin,
97 Wis.2d 485 (1980)
294 N.W.2d 485

Schroeder v. State,
96 Wis.2d 1 (1980)
291 N.W.2d 460

Milwaukee v. Wilson,
96 Wis.2d 11 (1980)
291 N.W.2d 452

State v. Rabe,
96 Wis.2d 48 (1980)
291 N.W.2d 809

State v. Hill,
91 Wis.2d 446 (Ct.App. 1979)
283 N.W.2d 451

Wisconsin Associaton of Food Dealers v.
City of Madison,
89 Wis.2d 311 (Ct.App. 1979)
278 N.W.2d 481

State v. Tronca,
84 Wis.2d 68 (1978)
267 N.W.2d 216STATE v. TRONCA,
84 Wis.2d 68 (1978)
267 N.W.2d 216

72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 911

CITATIONS SUBSEQUENT TO RYAN

STATE, Plaintiff-Respondent,
v.
TRONCA, Defendant-Appellant:

RYAN, and another, Defendants.
RYAN, Plaintiff in error,
v.
STATE, Defendant in error.

Supreme Court # 76-425-CR.

Argued   7 June 1978.
Decided 30 June 1978.
                                      Page 72

Tronca APPEALS from a judgment and an order
of the circuit court for Milwaukee county:

JEROLD E. MURPHY, Judge of the circuit court
for Fond du Lac county, presiding.

Affirmed.

WRIT OF ERROR (Ryan) to review an order of
the circuit court for Milwaukee county:

JEROLD E. MURPHY, Judge of the circuit court
for Fond du Lac county, presiding.

Affirmed.

For the appellant there was a brief by
William M. Coffey, Joseph M. Amidon, and
Coffey & Coffey, and oral argument by
William M. Coffey; and the brief was
joined in by Gerald P. Boyle for defendant
Mark Ryan, with oral argument by
Michael A. I. Whitcomb, all of Milwaukee.

For the respondent the cause was argued
by Maryann S. Calef, assistant attorney
general, with whom on the brief was
Bronson C. La Follette, attorney general.

HEFFERNAN, J.

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 Section 946.12(3), [1] Stats.,
and Section 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.
                                      Page 73

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,
Section 946.12, Stats., is unconstitutional,
because it is vague and overbroad.

Additionally, it is claimed that the
application of Section 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.

                                      Page 74

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:
                                      Page 75

A    I told him that I wanted my service bar
   restriction lifted, and it is costing me
   $1500, and I have the money with me, and
   I asked if he would okay it, and he said
     if I have no objectors that he would
   okay it, then he explained to me what
   objectors were.

Q    What did he explain?

A    He said objectors were people from the
   neighborhood, people from the business,
   and they object to our operation.

   He said I should remove the objectors,
   and he said he can give me the okay.

   He said you have to
   remove the objectors.

   So these people took care of you the
   last time, so he asked, are you willing
   to do what they say, so I said   do you
   mean that if I paid him the $1500 that I
   remove all the objectors, and he said
   that's what it takes.

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.
                                      Page 76

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
Section 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:

   Subsection 946.12(3) states in effect
   that an officer or employe must act
   honestly in performing duties or
   exercising powers which
   involve discretion.

   If any officer or employe has discretion
   as to the time or manner in which to
   perform a duty or discretion as to
   whether or not to perform a function of
   his office or employment, he is guilty
   of misconduct only if he acts in a
   manner inconsistent with the duties of
   his office or employment or the rights
   of others and with intent to obtain a
   dishonest advantage for himself or
   another, that is, "corruptly."
                                      Page 77

   Judicial or quasi-judicial functions
   call for the exercise of judgment, and
   if the officer acts honestly although
   with not the best of judgment,
   he is not guilty.

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 arose under a
former bribery statute are relevant,

Murphy v. State,
124 Wis. 635,
102 N.W. 1087 (1905),

and

State v. Hibicke,
263 Wis. 213,
56 N.W.2d 818 (1953).

In each of them the underlying statute made
criminal the payment of money made with the
intent to influence the vote, opinion, or
judgment of a public officer in a matter then
pending or which might be brought before the
officer in his "official capacity."

In Murphy v. State, the defendant was an
alderman of the City of Milwaukee who
received money to influence his
vote on an ordinance.
                                      Page 78

He argued that the proposed ordinance
would have been void in any event,
because the common council had no
authority to permit public property
to be used for private purposes.

His claim was that the ordinance could
not, therefore, have been before him
in his official capacity.

This court rejected that argument, reasoning
that, even were the ordinance found to be
a nullity, the council had a duty to act,
even though the only proper action would
have been to reject the ordinance.

The defendant's official duty was, therefore,
not to be measured with reference to the
ultimate validity of the proposed action.

In State v. Hibicke, the court accepted
the defense of the defendant constable,
who was bribed in connection with
obtaining a trailer park license.

The court found that the constable had no
duty in respect to recommending or
reporting on trailer park licenses.

There was nothing to show, as in the instant
case, that the officer had any privilege
which was equivalent to the aldermanic
privilege of Ryan.

Each of these cases are cited in 73 A.L.R.3d
374 (1976) for the general proposition that
it is no defense to show that an officer had
no authority in the particular circumstances
to perform the act, if the act is within the
general scope of his duties and he was
acting under the color of authority.
 

The rule is followed in its
general form elsewhere.

In

United States v. Birdsall,
233 U.S. 223 (1914),

the court held that it is not necessary that
an officer's action be prescribed by statute
or any written rule   that official action
could be simply an established usage or
a common law type of power which gave
sanction to informal procedures
in exercise of authority.

In

Kable v. State,
17 Md. App. 16,
299 A.2d 493 (1973),

a police officer took money with
the request that certain motor
vehicle charges be nolle prossed.

His defense was that the bribe could not
have been for the purpose of influencing
him in his official duties, because only
the prosecutor had the authority
to dismiss the charge.

                                      Page 79

The court rejected this defense, because the
record showed that a practice and usage had
developed whereby the police officer made
recommendations to the prosecutor.

The court therein held the term, "official
duties," was broad enough to include corrupt
action that in some way bore a relationship
to his official duties, even though the act
was technically beyond his legally
prescribed responsibilities.

The same rationale was applied in

State v. Hendricks,
66 Ariz. 235,
186 P.2d 943 (1947),

where official duties were not implicated but
the officer in the corrupt bargain purported
to act under color of office.

The Arizona court held that the rationale of
Hendricks was not applicable in a later case,

State v. Bowling,
5 Ariz. App. 436,
427 P.2d 928 (1967).

There, a defense was upheld when the facts
showed that it was not a customary or an
accepted usage for legislators to make
recommendations for the granting or
denial of liquor licenses.

In essence, the legislator in Bowling was
exonerated, because there was no proof of
an established custom or usage equivalent
to the aldermanic privilege which Ryan
possessed in the case before us.

In

Commonwealth v. Avery,
301 Mass. 605,
18 N.E.2d 353 (1938),

a town selectman was found guilty of
accepting a bribe to secure the employment of
a doctor as a welfare physician, even though
the employment of the doctor was not a matter
which could be brought before him in his
official capacity as selectman.

The Supreme Judicial Court of Massachusetts
recognized that a selectman exercises an
influence on the management of town affairs
which could not be measured by reference
to express statutory definitions of
official powers.

It was held that he exercised the powers
de facto and that the general bribery
statute applied.
                                      Page 80

It is apparent from these cases that the
powers of a public official, which are
subject to control by various types of
misconduct statutes, are not limited to
expressly conferred powers but apply to
de facto powers which arise by custom
and usage and which are exercised under
the color of office and which, by virtue
of the office, tend to have a corrupt
influence on public affairs.

Although we recognize the general rule relied
upon by the defendants as stated in

State v. Schaller,
70 Wis.2d 107,
233 N.W.2d 416 (1975),

that penal statutes are to be strictly
construed in favor of the accused, it is
equally true that this rule of construction
does not mean that only the narrowest
possible construction must be adopted in
disregard of the purpose of the statute.

See,

United States v. Bramblett,
348 U.S. 503 (1955).

In the instant case, the discretion
which Ryan exercised was under
the color of his office.

It was a discretion recognized by a long
period of custom and usage, and the power
was one that had a substantial influence
on the affairs of the municipal
government of Milwaukee.

It was a discretionary power of his office,
which could be exercised corruptly, either
by an act of omission or commission.

We also conclude that the argument made by
the defendants   that there was in fact
no exercise of the discretionary power
by Ryan in this case   is unfounded.

The basis of defendants' argument is that at
the most Alderman Ryan did no more than to
agree to exercise power in the future, but
the power was never exercised, because the
Lies never made application to have the
license restriction lifted.

The state takes the position that the statute
should not be construed to require the
fulfillment of a corrupt bargain before any
criminal conduct can be said to occur.

                                      Page 81

It relies on a number of federal cases
which, in the main, are based on statutory
language somewhat different than that
involved in the present case.

The federal statutes generally make criminal
the act of one who solicits or accepts
anything of value in exchange for a promise
to influence, or endeavor to influence,
governmental conduct.

They nevertheless are persuasive in
support of the state's position.

Section 946.12(3), Stats., under which the
defendants have been charged, is not as
explicit as the federal statutes in
respect to situations where a corrupt
bargain was made but where circumstances
did not impel its fulfillment.

The Wisconsin statute does, however, prohibit
the corrupt exercise of discretionary  power
"whether by act of commission or omission."

By using such terms, it is apparent that
the legislature prescribed a broad
scope of conduct which could be
misconduct in public office.

The Judiciary Committee Report on the
Criminal Code relied upon by
the defendants states:

   Subsection 946.12(3) states in effect
   that an officer or employe must act
   honestly in performing duties or
   exercising powers which involve
   discretion.

In the instant case Ryan affirmatively
acted under the color of office and under the
de facto powers of the aldermanic privilege
when he assured Lies and agreed to the
proposition that he would not oppose
the lifting of the liquor license
restriction if money were paid to Wolfe.

He exercised his powers of office
affirmatively when he made that agreement.

It was an agreement which could have been
reached on an honest basis and on a rational
consideration of the merits, but the
agreement, an official act, was
corrupt and dishonest.

The agreement constituted the exercise
of discretionary power within the
meaning of the statute.
                                      Page 82

It is difficult to understand the logic of
the defendants' further argument that the
exercise of the discretionary power was not
"inconsistent with the duties of his office."

As the comment of the committee referred
to above states, the statute requires

   that an officer or employe must act
   honestly in performing duties or
   exercising powers which involve
   discretion.

The duties of common council members of
the City of Milwaukee are set forth in part
in the Milwaukee City Charter Sections 4.26
and 5.13. Section 4.26 provides that a common
council member may not vote upon any matter
in which he may be directly or indirectly
interested.

By telling the Lies that he would exercise
his aldermanic privilege favorably to them
only if money were paid to Wolfe, Ryan
evinced his interest in the matter to be
considered by the licensing committee.

He in effect agreed not to vote or exercise
his aldermanic privilege of vetoing
possible license committee action.

The effect of this was to affirmatively
sanction possible license committee approval.

This was contrary to the intendments of
Section 4.26 and was inconsistent
with the duties of office.

Section 5.13 of the Milwaukee City Charter
provides criminal sanctions for any officer
who for any consideration whatsoever agreed
to vote affirmatively or negatively, or to
refrain from voting, or to use his influence
in any manner for a corrupt consideration.
 

What Ryan did in the instant case was to
bargain away his discretion, which was to be
exercised for the benefit of his constituents
generally, in exchange for dishonest
consideration or advantage to
Wolfe and Tronca.

This was without doubt inconsistent
with his duties of office.

Counsel for the defendants argues, correctly,
that the statute provides, as separate
elements of the crime, the requirement
that the conduct be

   inconsistent with the duties of his
   office" and the requirement that the
   conduct be done "with intent to obtain a
   dishonest advantage."
                                      Page 83

He is also correct in asserting that
there must be proof of each element.

Both elements are proved here,
albeit by the same transaction.

The transaction with the Lies
demonstrated conduct inconsistent
with the duties of office.

In addition, the transaction showed that it
was done with the intent to gain a dishonest
advantage for Tronca and Wolfe.

Both elements of the crime were proved.

It is equally clear that Ryan's conduct was
inconsistent with the rights of the Lies,
because they were obliged to pay a large
sum of money for the purpose of having
their license application considered,
when they had the right to have it
considered on the merits without payment.

However, counsel for the defendants is
correct in his assertion that this latter
element of the crime was not charged, nor
apparently was it argued in the trial court;
and we consider the state's reliance upon it
inappropriate under the circumstances.

The alternative element, "intent to obtain
a dishonest advantage," was proved,
and we find that proof sufficient.

Tronca argues that he could not be convicted
as a party to a crime on the charge of
misconduct in public office, because
he is not a public officer.

This court, with rare exceptions explainable
in terms of legislative intent, has rejected
the proposition that one must be capable of
committing the substantive crime in order to
be subject to criminal liability as a party
to the crime under Section 939.05, Stats.

See,

State v. Ewald,
63 Wis.2d 165, 174,
216 N.W.2d 213 (1974).

Moreover, the Judiciary Committee Report on
the Criminal Code, Wisconsin Legislative
Council, February 1953, Page 5, states a
general legislative intent to include
cases under Section 939.05, Stats., although
it would be impossible for the person
charged as a party to the crime to
commit the substantive offense.

                                      Page 84
The committee stated:

   This Section does not require that all
   persons concerned in the crime be
   charged with the commission of it,
   but it provides that they may be.

   In a case where it would be ludicrous to
   charge the defendant with the actual
   commission of the crime, as where a
   woman has aided and abetted the rape
   of another woman, the defendant may
   be charged with aiding and abetting
   the crime.

There have indeed been cases in which this
court has held that Section 939.05, Stats.,
did not apply to a specific penal statute.

Tronca cites

State v. Dried Milk Products Co-operative,
16 Wis.2d 357,
114 N.W.2d 412 (1962).

The issue in that case was whether the owner
of the truck, as opposed to the driver,
without specific proof of unlawful intent on
the owner's part, could be charged as a party
to the crime of driving an overloaded truck.

The court held that Section 939.05 had no
application to the overload statutes, because
that statute specifically provided for the
vicarious liability of the owner.

In general, it can also be said that, where
the legislative intent is demonstrated by a
specific provision within a statute to impose
vicarious liability or where the legislative
intent is otherwise clear, the general
party-to-a-crime statute is not applicable.

Such limitations are not apparent here,
and the general admonitions of the framers
of the criminal code indicate that the
party-to-a-crime statute is applicable unless
legislative intention to the contrary is
either explicit or implicit in the statute.

Even under this principle, the defendants
argue that party-to-a-crime is not
applicable in the instant case.

They assert that, since Section 946.12,
Stats., does not explicitly penalize the
aider or abettor or conspirator who operates
in conjunction with a public officer, no
liability should be permitted under the
party-to-a-crime statute.

Defendant points out that, where bribery
penalties are imposed, e.g., Section 946.10,
Stats., criminal liability falls on both
the public officer and the person
who offers a bribe.

                                      Page 85

The argument apparently is that, had the
legislature intended to impose criminal
liability on one who is a party to official
misconduct, it would have specifically
provided for such liability, as it did
in respect to the bribery statutes.

We think the rationale based on the bribery
statutes inappropriate, because those
statutes impose criminal sanction on
citizens who offer a bribe.

They do not purport to deal with an
individual such as Tronca, who operates as
the public officer's partner in illegal
conduct or as a go-between, as Wolfe and
Tronca did in the instant case.

The situations are so unlike that it is not
reasonable to infer from the bribery statute
a statutory intent which would be applicable
to one who is charged with party to the
crime of official misconduct.

We conclude, consistent with the general
policy of the criminal law and the consistent
application of Section 939.05, Stats., by
this court to all crimes except those where
the legislative intent was clearly to the
contrary, that the charge of party to the
crime was appropriate in the instant case.

See generally, Impossibility of Consummation
of Substantive Crime as Defense in Criminal
Prosecution for Conspiracy or Attempt to
Commit Crime, 37 A.L.R.3d 375 (1971).

The defendants raise three
constitutional arguments.

They argue that Section 946.12(3), Stats.,
together with Section 939.05, is
unconstitutionally vague;

that

Section 946.12(3) is in itself
unconstitutionally vague;

and that the two statutes, when taken
together, are unconstitutional in still
another respect in that they are overbroad.

We conclude that each of these
arguments is without merit.

In the recent case of Ryan v. State, supra,
we restated this court's understanding of
the claim of unconstitutional vagueness.

                                      Page 86

We said, citing other cases:
 

   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. . "

   State v. Driscoll,
   53 Wis.2d 699, 701-02,
   193 N.W.2d 851 (1972).

   Accord,

   State v. Courtney,
   74 Wis.2d 705, 709-11,
   247 N.W.2d 714 (1976)."

Ryan v. State, supra at 90.

In that case, we held that the companion
subsection of Section 946.12, Stats.,
was not unconstitutionally vague.

We said that a statute will be held to be
vague in the constitutional sense only if
it is so obscure that persons of common
intelligence must necessarily guess at its
meaning and differ as to its applicability.

See also,

State v. Starks,
51 Wis.2d 256,
186 N.W.2d 245 (1971).

A statute must also define the crime with
sufficient definiteness that there is
an ascertainable standard of guilt.

Jones v. State,
55 Wis.2d 742,
200 N.W.2d 587 (1972).

The statute need not meet impossible
standards of specificity, however, to survive
a challenge under the vagueness doctrine.

State v. Zwicker,
41 Wis.2d 497,
164 N.W.2d 512 (1969),
appeal dismissed 396 U.S. 26.

All that is required is a
fair degree of definiteness.

State v. Courtney,
74 Wis.2d 705,
247 N.W.2d 714 (1976).

It is argued that one aspect of the vagueness
problem posed in this case is the uncertainty
in respect to what persons come within the
scope of the act.

We have said, however, that a statute is not
impermissibly vague if there is sufficient
warning to one wishing to obey the law that
his conduct comes near the proscribed area.

State v. Evjue,
253 Wis. 146,
33 N.W.2d 305 (1948).

The United States Supreme Court in

Grayned v. City of Rockford,
408 U.S. 104 (1972),

stated that, even if there be an inherent
vagueness of some terms utilized by a
statute, the vagueness may be dispelled
by other provisions of the same statute.

                                      Page 87

Defendant's argument is that the term,
"discretionary power," is necessarily vague.

It is indeed, as we pointed out, an
all-encompassing term and sweeps broadly.

It is defined, however, in other
terms of the statute.

The act or omission must be done in the
person's capacity as a public officer or
employee or under color of office.

It must be exercised in a manner inconsistent
with the duties of office or the rights
of others, and it must be done with the
intent to obtain a dishonest advantage
either for the actor or for another.

The statute, read reasonably in its entirety,
clearly gives notice of the nature of the
penalties and the applicability of the
statute to the conduct engaged in by
each of the defendants.

The statute is not unconstitutionally vague.

Moreover, the defendants herein have no
standing to challenge the statute on the
ground that it did not give notice, for
the evidence showed that each of them
was aware of the criminality of his
conduct and the consequences.

Tronca was secretive in his telephone
conversation with Paul Lie and
refused to identify himself.

He merely stated to Lie that

   "Charlie Wolfe knows me."

Wolfe told Lie that the payments would
have to be made in cash because he

   "did not want to go to jail."

Ryan, according to the record, took umbrage
at what he thought to be Ada Lie's attempt
to bribe him directly and insisted that
the payment be made to Wolfe.

There is no intimation in the record that
Ryan did not fully understand the basic
illegality of the entire transaction.

Each of the defendants was well aware
that he was approaching the area
proscribed by the statute.

Apparently they were not bent
upon obedience of the law.

                                      Page 88

The conduct of each of them was so clearly
within the proscription of the statute
that any reasonable person would
know that it was prohibited.

The additional argument that the conjunction
of Section 946.12(3), Stats., with
Section 939.05 results in vagueness
is equally ill-founded.

Defendants' argument rests upon the
conception that there is an inherent
contradiction between the special
liability that is imposed upon public
officers and the making of private
citizens parties to the crime.

We see none.

The party-to-a-crime statute broadens
the scope of criminal liability to
cover persons who aid and abet or
conspire with public officers.

In the absence of some clear legislative
intent to limit the liability substantively
arising under Section 946.12(3) to public
officers, we conclude that the
party-to-a-crime statute is as adaptable to
the misconduct-in-office statute as it is to
other statutes which define criminal conduct.

We see this as merely a boiler-plate
party-to-the-crime situation.

The argument that the statute is
unconstitutionally overbroad is
imaginative but specious.

The defendants correctly assert that
legitimate lobbying for the purpose of
influencing legislative or executive
decisions is protected by the first amendment
to the Constitution of the United States.

From that premise, which we accept,
defendants move to the non sequitur that:

   Thus, a lobbyist would be chargeable
   with this offense [party-to-the-crime
   misconduct-in-public office] for efforts
   to influence a legislator to achieve a
   desired political result and to take
   action toward that end, where the
   legislator exercises his vote in
   violation of his duties and with
   the requisite corrupt intent.

We do not see the logic of this argument.

The defendants' basic constitutional
assumption is, however, correct.

                                      Page 89

The problem of overbreadth arises when the
language of the statute, given its normal
meaning, is so broad that the sanctions
of the statute may apply to conduct which
the state is not entitled to regulate.

State v. Starks, supra, at 263.

In such situations, unlike a situation where
the vagueness doctrine is implicated, a
defendant may hypothesize situations where
the statute is so broad that it would chill
legitimate activities and apply to fact
situations where the regulation sought
to be imposed would violate fundamental
first-amendment rights.

A statute which can be so construed may
cause others to refrain from a legitimate
exercise of free speech.

See,

Herzbrun v. Milwaukee County,
504 F.2d 1189, 1193 (7th Cir. 1974).

The overbreadth doctrine is based on the
requirement of substantive due process and
has the effect of preventing the limiting,
by indirection, of constitutional rights.

State v. Driscoll,
53 Wis.2d 699,
193 N.W.2d 851 (1972).

Lobbying, although subject to some
regulation, when carried out legitimately
is entitled to constitutional protection
as a first-amendment right; but the mere
recitation of a possible unconstitutional
application of the statute to lobbying
does not lead to the conclusion that the
statute is unconstitutionally overbroad.

The example cited above from the defendants'
brief is bizarre, and prosecution would not
be brought except in a case of the most
flagrant abuse of prosecutorial discretion.

The example assumes that a lobbyist who for
legitimate purposes by legitimate means seeks
to have certain legislative action taken
would be prosecuted and found guilty under
this statute if a legislator by consistent
but unrelated conduct exercised his vote
in violation of his duties with
a corrupt intent.

By no stretch of the imagination, under
the skeletal hypothesis of defense counsel
counsel is there anything to show a
conspiracy, an aiding, an abetting,
or any other factors that would trigger
a party-to-the-crime charge.

If there were, the conduct would fall within
the ambit of the statutes and the lobbyist,
as well as the legislator, would be
indulging in conduct not protected
by the first amendment.
                                      Page 90

In Herzbrun, supra, the Court of Appeals
for the Seventh Circuit noted that the
overbreadth doctrine is strong medicine
and that the overbreadth of the statute

   "must not only be real, but substantial
   as well, judged in relation to the
   statute's plainly legitimate sweep."

(at 1195)

It is apparent in the instant case that the
lobbying hypothetical raised by the
defendants is not real or substantial in
relation to the indisputably legitimate
purpose and scope of the statute.

No prosecutor could reasonably apply
the statute to lobbying activities
of a legitimate nature.

The statute would be applicable only if
the lobbyist indulged in such conduct in
conjunction with the misconduct of the
public officer that the situation established
a substantial relationship to the evil
proscribed by the statute.
 

True, a lobbyist who indulges in activity
identical to that of Wolfe and Tronca and who
served as go-between between the public
officer and those who sought to buy his
influence would be within the proscription of
the statute, but no legitimate lobbying
activity is chilled or jeopardized by the
statute and the application of the
party-to-the-crime principle to it.

We conclude that the activities of the
defendants in this case fall within the
proscriptions of Section 946.12(3), Stats.

The conduct of Ryan was the exercise of a
discretionary power in a manner inconsistent
with the duties of his office.

Tronca, who was not a public officer, but
who actively participated in the transaction,
was properly charged and convicted of
being party to the crime.

The statutes neither separately nor in
conjunction with each other are
unconstitutionally vague or overbroad.

                                      Page 91

The judgment of conviction of Tronca is
affirmed, and the orders denying the
postconviction motions of the defendants
Ryan and Tronca are affirmed.

By the Court.   Judgment and orders affirmed.

[1]
   946.12 Misconduct in public office.

   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: . . .

   946.12(3)

   Whether by act of commission or
   omission, in his capacity as such
   officer or employe exercises a
   discretionary power in a manner
   inconsistent with the duties of
   his office or employment or the
   rights of others and with intent
   to obtain a dishonest advantage
   for himself or another.

[2]
   Count 1 was dismissed after the
   preliminary examination for
   lack of probable cause.

                                          END

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

TABLE OF AUTHORITIES CITING ABOVE CASE:

Cemetery Services v.
Department of Regulation & Licensing,
221 Wis.2d 817 (Ct.App. 1998)

State v. Smith,
215 Wis.2d 84 (Ct.App. 1997)
572 N.W.2d 496

State v. Ruesch,
214 Wis.2d 548 (Ct.App. 1997)
571 N.W.2d 898

State v. Thiel,
183 Wis.2d 505 (1994)
515 N.W.2d 847

State v. White,
180 Wis.2d 203 (Ct.App. 1993)
509 N.W.2d 434

State v. Pittman,
174 Wis.2d 255 (1993)
496 N.W.2d 74

State v. Bruckner,
151 Wis.2d 833 (Ct.App. 1989)
447 N.W.2d 376

City of Milwaukee v. Nelson,
149 Wis.2d 434 (1989)
439 N.W.2d 562

State v. C.A.J.,
148 Wis.2d 137 (Ct.App. 1988)
434 N.W.2d 800

Milwaukee v. K.F.,
145 Wis.2d 24 (1988)
426 N.W.2d 329

State v. Howell,
141 Wis.2d 58 (Ct.App. 1987)
414 N.W.2d 54

State v. Muehlenberg,
118 Wis.2d 502 (Ct.App. 1984)
347 N.W.2d 914

State v. Schmit,
115 Wis.2d 657 (Ct.App. 1983)
340 N.W.2d 752

State v. Olson,
106 Wis.2d 572 (1982)
317 N.W.2d 448

State v. Banks,
105 Wis.2d 32 (1981)
313 N.W.2d 67

State v. Lederer,
99 Wis.2d 430 (Ct.App. 1980)
299 N.W.2d 457

In Matter of Complaint Against Seraphin,
97 Wis.2d 485 (1980)
294 N.W.2d 485

Schroeder v. State,
96 Wis.2d 1 (1980)
291 N.W.2d 460

Milwaukee v. Wilson,
96 Wis.2d 11 (1980)
291 N.W.2d 452

State v. Rabe,
96 Wis.2d 48 (1980)
291 N.W.2d 809

State v. Hill,
91 Wis.2d 446 (Ct.App. 1979)
283 N.W.2d 451

Wisconsin Associaton of Food Dealers v.
City of Madison,
89 Wis.2d 311 (Ct.App. 1979)
278 N.W.2d 481

State v. Tronca,
84 Wis.2d 68 (1978)
267 N.W.2d 216
 
 
72 74 76 78 80 82 84 86 88 90
73 75 77 79 81 83 85 87 89 91

 
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