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Wiener v. J. C. Penney Co.

Supreme Court of Wisconsin
Oct 14, 1974
222 N.W.2d 149 (Wis. 1974)


In Wiener v. J. C. Penney Co. (1974), 65 Wis.2d 139, 222 N.W.2d 149, we considered post-State v. Penney legislation that prohibited pre-State v. Penney class actions for usury.

Summary of this case from Mussallem v. Diners' Club, Inc.


Nos. 41-48.

Argued June 5, 1974. —

Decided October 14, 1974.

APPEALS from orders of the circuit court for Milwaukee county: ANDREW W. PARNELL, Reserve Circuit Judge, Presiding. Affirmed.

For the appellants there was a joint brief by Warshafsky, Rotter Tarnoff of Milwaukee, attorneys for Michael Tuccelli, Robert Mitchell, James Matthews and Thomas Moylan; Meldman Kahn of Milwaukee, attorneys for William Wiener; Ted M. Warshafsky, of Milwaukee, and Aram Hartunian and Pressman Hartunian of Chicago, Illinois, of counsel; and oral argument by Ted M. Warshafsky and Aram A. Hartunian.

For the respondents there were joint briefs by Foley Lardner of Milwaukee, attorneys for J. C. Penney Company, Inc., Gimbel Brothers, Inc., Nelson Bros. Furniture Co., and Niss Sons, Inc.; Quarles Brady of Milwaukee, attorneys for Sears, Roebuck Co., Boston Store and Community Stores Corp.; Isaksen, Werner, Lathrop Heaney of Madison, of counsel, for J. C. Penney Company, Inc.; and Hoyt, Greene, Meissner Walsh, S.C., of Milwaukee, of counsel, for Gimbel Brothers, Inc.; and oral argument by James P. Brody of Milwaukee for J. C. Penney Company, Inc., and Nelson Bros. Furniture Co.; and John S. Holbrook, Jr., for Sears, Roebuck Co., Boston Store and Community Stores Corp.

Each of the eight cases consolidated in this appeal arises in the wake of State v. J. C. Penney Co. handed down October 9, 1970, where this court held, in response to an action brought by the attorney general, that the 1 1/2 percent monthly service charge on retail revolving charge accounts constituted usury under sec. 138.05 (1) (a), Stats. The only issues in that case were whether revolving charge accounts were subject to the usury laws and whether further imposition of usurious charges under these accounts should be enjoined. No questions were presented or decided concerning the effect of the court's decision on private civil penalty actions.

In each of these eight actions, one named plaintiff claims to sue for himself and all other Wisconsin citizens who entered into a credit agreement with defendant. The complaints allege that each member of the class was charged usurious rates of interest in connection with purchases made under the agreement and seek an accounting and penalties for usury violations occurring during a six-year period ending on the date the action was commenced. As an alternative to this class suit, each complaint also alleges a similar cause of action on behalf of the named plaintiff alone. In addition, complaints in cases 41-46 contain both class and individual causes of action seeking punitive damages for fraud.

The credit agreements in cases 41, 43, 44, and 45 are called "revolving charge accounts," containing terms that appear similar or identical to those considered in the 1970 Penney Case. In cases 42, 46, 47, and 48, the complaint states that the credit agreement "allowed a customer to make numerous purchases on one account" and called for "a single monthly payment of a set amount for the agreed upon period of time." This agreement was not given a label in No. 42, but was called the "Sears Easy Payment Account" in No. 46, the "Niss add-on credit account" in No. 47, and the "Community Stores add-on charge account" in No. 48.

In each case defendant filed a demurrer challenging the named plaintiff's right to maintain a class action. In an order dated June 17, 1971, the trial court sustained demurrers to the class actions based on fraud, but in the same order and in orders dated June 29, 1971, and August 17, 1971, overruled demurrers to the class actions for penalties under the usury statute. Only the latter action was appealed; thus, issues pertaining to class actions for fraud dropped out of the case.

Subsequent to the filing of briefs and oral argument in this court, two additional subsections were added to sec. 138.06, Stats., during a special session of the legislature.

Ch. 308, Laws of 1971 (effective May 11, 1972).

"138.06 (6) In connection with a sale of goods or services on credit or any forbearance arising therefrom prior to October 9, 1970, there shall be no allowance of penalties under this section for violation of s. 138.05, except as to those transactions on which an action has been reduced to a final judgment as of the effective date of this subsection (1972).

"(7) Notwithstanding sub. (6), a seller shall, with respect to a transaction described in sub. (6), refund or credit the amount of interest, to the extent it exceeds the rate permitted by s. 138.05 (1) (a), which was charged in violation of s. 138.05 and paid by a buyer since October 8, 1968, upon individual written demand therefor made on or before March 1, 1973, and signed by such buyer. A seller who fails within a reasonable time after such demand to make such refund or credit of excess interest shall be liable in an individual action in an amount equal to 3 times the amount thereof, together with reasonable attorney's fees."

As a result of this legislative action, this court reversed the orders overruling the demurrers, and remanded the cases to the lower court for "consideration of the scope of the new legislation and its effect upon plaintiffs' causes of action." The court did not rule on the meaning of the new subsections but did note: "This bill on its face eliminates the allowance of penalties," and further commented:

Wiener v. J. C. Penney Co. (1972), 55 Wis.2d 61, 64, 197 N.W.2d 756.

"The effect, if any, of this statute on class actions of the type brought on these appeals was not and could not have been considered in the filed briefs. It is at least arguable that the legislature's intent was to affect the type of cases now before us."

Id. at page 63.

On remand, in the lower court, defendants filed amended demurrers in each case asserting that the complaint improperly united several causes of action, that the new statutes deprived plaintiffs of the right to maintain a class action, and that the class alleged in the complaint was an improper class. The trial court found that the new legislation eliminated plaintiffs' right to recover penalties and to maintain a class action, and in an order dated October 22, 1973, sustained the demurrers in each case. Plaintiffs appeal from this order.

One issue is presented by this consolidated appeal, to wit:

Is sec. 138.06 (7), Stats., constitutional?

Under sec. 138.06 (3), Stats., a borrower who pays usurious interest may recover all the interest, principal (up to $2,000), and charges paid on the loan or forbearance within two years of the date the action is commenced. The trial court held, however, and plaintiffs do not dispute on appeal, that sec. 138.06 (6) and (7) remove the right of pre-October 9, 1970, credit sale usury victims to recover penalties and to maintain any class actions. As plaintiffs' brief unequivocally concedes at page 14:

"These amendments effectively wrought two changes in the law with respect to persons who were charged usurious interest rates on transactions prior to October 9, 1970 [emphasis in original]:

"(1) The measure of damages was changed to eliminate penalties;

"(2) Class actions were forbidden."

Thus, plaintiffs acknowledge that the procedure outlined in sec. 138.06 (7) for recovery of excess interest provides them their sole statutory recourse for pre-October 9, 1970, credit sale usury violations.

Plaintiffs do not contest the constitutionality of sec. 138.06 (6), Stats., which eliminated penalties and only allows recovery of excess interest. They do, however, argue that sec. 138.06 (7), which outlaws class actions, is unconstitutional in two respects: because it denies them equal protection of the laws in violation of the fourteenth amendment to the United States Constitution and art. I, sec. 1 of the Wisconsin Constitution and because it violates art. I, sec. 9 of the Wisconsin Constitution. Equal Protection

Sec. I of the fourteenth amendment to the United States Constitution provides in part: ". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Art. I, sec. 1, of the Wisconsin Constitution provides: ". . . All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

Art. I, sec. 9, of the Wisconsin Constitution provides: ". . . Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws."

A. . Plaintiffs claim that the prohibition on class actions contained in sec. 138.06 (7), Stats., violates their right to the equal protection of the laws in two ways:

". . . First, it distinguishes one group of usury victims from all other persons having legal claims of various kinds and denies to that group the right to bring a class action. Second, while the amendment imposes this serious deprivation on the pre- Penney group, it does not do so to post- Penney usury victims."

Before evaluating these contentions it is first necessary to set forth the standard of review applicable to equal protection claims arising under the fourteenth amendment to the United States Constitution and art. I, sec. 1, of the Wisconsin Constitution. As this court has stated many times, both amendments guarantee the same individual rights and impose the same restrictions on the legislature.

Chicago North Western Ry. v. La Follette (1969), 43 Wis.2d 631, 643, 169 N.W.2d 441; State ex rel. La Follette v. Reuter (1967), 36 Wis.2d 96, 110, 153 N.W.2d 49; State ex rel. Sonneborn v. Sylvester (1965), 26 Wis.2d 43, 49, 50, 132 N.W.2d 249.

Legislation regulating economic and fiscal affairs enjoys a presumption of constitutionality. As stated in Simanco, Inc. v. Department of Revenue:

"Only if a challenger can show that the classification is arbitrary and has no reasonable purpose or relationship to the facts or a justifiable and proper state policy will a legislative classification fall on the grounds of a denial of equal protection. Dandridge v. Williams (1970), 397 U.S. 471, 90 Sup. Ct. 1153, 25 L. Ed. 2d 491; Morey v. Doud (1957), 354 U.S. 457, 77 Sup. Ct. 1344, 1 L. Ed. 2d 1485; Vanden Broek v. Reitz (1971), 53 Wis.2d 87, 191 N.W.2d 913; State ex rel. Schopf v. Schubert (1970), 45 Wis.2d 644, 173 N.W.2d 673."

A presumption of constitutionality has been specifically accorded to classifications in the usury statutes. In Country Motors v. Friendly Finance Corp., upholding the exclusion of corporations from certain protections under the usury law, the court said:

(1961), 13 Wis.2d 475, 485, 109 N.W.2d 137, quoting State v. Neveau (1941), 237 Wis. 85, 99, 294 N.W. 796, 296 N.W. 622.

"`[T]he classification made by the legislature is presumed to be valid unless the court can say that no state of facts can reasonably be conceived that would sustain it.'"

In State ex rel. Ford Hopkins Co. v. Mayor, as noted by plaintiffs, the court enumerated five standards pertaining to statutes attacked on equal protection grounds:

(1937), 226 Wis. 215, 222, 276 N.W. 311.

(1) All classifications must be based upon substantial distinctions which make one class really different from another.

(2) The classifications adopted must be germane to the purpose of the law.

(3) The classifications must not be based upon existing circumstances only. They must not be so constituted as to preclude additions to the numbers included within a class.

(4) To whatever class a law may apply, it must apply equally to each member thereof.

(5) The characteristics of each class should be so far different from those of other classes as to reasonably suggest at least the propriety, having regard to the public good, of substantially different legislation.

However, in State ex rel. La Follette v. Reuter the court held that before a statute will be held unconstitutional for violating these standards, the attacker must meet a very heavy burden of proof and persuasion:

". . . to declare an act of the legislature as to a classification violative of the equal-protection clause, it is first necessary to prove that the legislature has abused its discretion beyond a reasonable doubt."

Applying these principles to the case at hand, we are convinced that sec. 138.06 (7), Stats., is constitutional. This statute was passed at the urging of the governor during a special session of the legislature. In his message to the session, the governor warned that this court's 1970 Penney decision exposed retailers across the state to potentially bankrupting liability from hundreds of thousands of penalty claims under the usury laws. Faced with this prospect, the legislature could reasonably have concluded that elimination of penalty claims and a prohibition on class actions were necessary to protect the state economy. It cannot be said, therefore, that this legislation serves no legitimate public purpose.

Journal of the Senate (Special Session, 1972), April 19, 1972, pp. 9, 10. The governor said in part: "Another matter that I would ask you to consider in this session is of great and immediate economic consequence to our state and cannot wait until 1973 for resolution. . . .
"In October, 1970, the State Supreme Court found that the one and one-half percent monthly charge commonly used in revolving credit accounts was a violation of our usury law. This decision affected retailers throughout the state, as was evidenced by the fact that they promptly reduced their monthly charges to one percent a month. However, as you know, they will be permitted to resume the one and one-half percent charge next March 1 as a result of the passage of the Wisconsin Comprehensive Consumer Credit Act.
"There could be literally hundreds of small retailers in our state who are threatened with potential bankruptcy unless this Legislature intervenes. Under present law, the penalty for violation of the usury statute is the refunding of all interest paid, plus a refund of up to $2,000 of principal. If this penalty is applied to sales of goods on credit terms made prior to the Supreme Court decision, it would mean the return of every interest dollar and the refund of the entire purchase price on hundreds of thousands of accounts — while still allowing the customer to keep the merchandise. A recent study of 32 stores in 20 Wisconsin cities showed that every one of them would face bankruptcy should the full penalty be exacted. Projecting that result throughout the state, you can readily understand my concern as Chief Executive charged with responsibility for the healthy economy of the state in terms of taxes, jobs and business opportunities."

Penalty claims under the usury statutes are particularly severe. Moreover, even limited to the recovery of excess interest, class actions involving hundreds of thousands of claimants could be ruinous to many defendants both in terms of the ultimate judgment, as well as the costs of litigation, particularly the expense of complying with any extensive discovery orders.

Plaintiffs argue, however, that to prohibit class actions for usury claims while continuing to permit class actions for other types of claims is a denial of equal protection. This argument overlooks the special circumstances surrounding passage of the bill which reveal a rational justification for this difference in treatment. Prior to Penney, this court had never ruled on the question as to whether the credit plan involved in that case violated the usury law. The legislature might therefore have reasonably concluded that until Penney Wisconsin retailers offered their credit plans in good faith and therefore should not be subject to severe penalties.

See 54 Op. Atty. Gen. (1965), 235, where, following a very lengthy discussion, the attorney general stated that there were no controlling Wisconsin judicial opinions on the subject.

These considerations also provide a rational justification for treating post- and pre- Penney usury victims differently. After the Penney decision was announced on October 9, 1970, all retailers in the state were effectively put on notice that the usury law applied to revolving charge accounts. Any further violations could not be considered in good faith, and thus the new legislation only limits liability for pre-October 9, 1970, claims. Contrary to plaintiffs' assertions, this court has frequently upheld reasonable classifications that are based on time, and it cannot be said here that the judgment of the legislature represented by this statute, was unreasonable.

See Jelinski v. Eggers (1967), 34 Wis.2d 85, 94, 148 N.W.2d 750 (zoning ordinance constitutional which permits prior existing but prohibits future nonconforming uses); Estate of Bloomer (1958), 2 Wis.2d 623, 631, 87 N.W.2d 531 (debtor not denied equal protection where statute of limitations protects him from one type of claim but not another); Werlein v. Milwaukee Electric Ry. Transport Co. (1954), 267 Wis. 392, 400, 66 N.W.2d 185 ("statutory classifications based upon time are generally recognized as valid").

We conclude, therefore, that sec. 138.06 (7), Stats., does not deny plaintiffs the equal protection of the laws.

B. Denial of a Remedy for Wrongs Contrary to Art. I, Sec. 9, Wisconsin Constitution.

Plaintiffs argue that the prohibition on class actions contained in sec. 138.06 (7), Stats., violates art. I, sec. 9, of the Wisconsin Constitution, which provides:

"Remedy for Wrongs. SECTION 9. Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws."

Plaintiffs' basic contention is that, deprived of the ability to maintain a class action to recover excess interest, they are denied any meaningful remedy because the amount of excess interest due any one individual would be too small to justify litigation.

This argument overlooks both the nature of the rights guaranteed by art. I, sec. 9, and the nature of the remedy provided under sec. 138.06 (7), Stats. As this court pointed out in Metzger v. Department of Taxation:

"Our court has consistently held that sec. 9, art. I of our constitution does not entitle Wisconsin litigants to the exact remedy they desire, but merely to their day in court. New York Life Ins. Co. v. State (1927), 192 Wis. 404, 412, 211 N.W. 288, 212 N.W. 801. Under sec. 9, art. I, the legislature may impose reasonable limitations upon the remedies available to parties. Hoffmann v. Milwaukee E. R. L. Co. (1906), 127 Wis. 76, 82, 83, 106 N.W. 808; Neuhaus v. Clark County (1961), 14 Wis.2d 222, 229, 111 N.W.2d 180".

In Metzger the court held that the circuit court had no authority to enjoin a department of taxation gift tax assessment where the taxpayer had not exhausted his administrative remedies. Similar to the argument plaintiffs have made in the case at bar, the taxpayer in Metzger had contended that the administrative procedures were so time-consuming, expensive, and inconvenient, they left him, in effect, no adequate remedy. The court rejected this contention, first stating:

"[S]ec. 9, art. I concludes with the phrase `conformably to the laws.' In this case the procedure of which plaintiffs complain as violative of the constitutional section is not only `conformably to the laws,' it is the law established by the legislature."

Id. at page 128.

and finally concluding:

"In the case at bar the legislature has provided the exclusive procedures by which the plaintiffs may have their day in court. Denying plaintiffs immediate injunctive relief in no way violates sec. 9, art. I of the Wisconsin constitution. If present procedures are inconvenient and unsuitable, the legislature is the proper forum in which to seek a change."

Id. at page 130.

Sec. 138.06 (7), Stats., provides that retail sellers shall refund excess interest charged before October 9, 1970, upon written individual demand. Plaintiffs complain that this procedure is inadequate, because obviously the sellers will resist the law. There is no indication in the record or in the briefs, however, that plaintiffs have availed themselves of this procedure. Thus, we cannot accept their contention that this remedy is unreasonable. That retailers would flagrantly disregard the clear command of this law is something that cannot be taken for granted.

If the retail seller refuses to refund the excess, under sec. 138.06 (7), Stats., the claimant may sue for triple the amount due plus reasonable attorney's fees. This may not provide the remedy plaintiffs desire, but it is a "certain remedy," "conformably to the laws," and gives them their "day in court."

We conclude, therefore, that sec. 138.06 (7), Stats., does not violate art. I, sec. 9 of the Wisconsin Constitution.

Since plaintiffs' arguments against the constitutionality of sec. 138.06 (7), Stats., cannot be sustained, it follows that because the legislative enactment so provides, no class actions may be maintained that arose out of pre-October 9, 1970, usury claims.

As to any allegedly usurious transactions occurring after October 9, 1970, we make no ruling. We find in none of the complaints any affirmative statement that usurious rates were actually charged after October 9, 1970. The lower court never mentioned nor considered this problem and the briefs here do not raise the issue.

By the Court. — Orders affirmed.

DAY, J., took no part.

Summaries of

Wiener v. J. C. Penney Co.

Supreme Court of Wisconsin
Oct 14, 1974
222 N.W.2d 149 (Wis. 1974)

In Wiener v. J. C. Penney Co. (1974), 65 Wis.2d 139, 222 N.W.2d 149, we considered post-State v. Penney legislation that prohibited pre-State v. Penney class actions for usury.

Summary of this case from Mussallem v. Diners' Club, Inc.

In Wiener, the court held that the usury statute, amended after institution of the action, merely replaced one remedy with another and changed the procedure for recovery.

Summary of this case from Hunter v. Sch. Dist. Gale-Ettrick-Trempealeau
Case details for

Wiener v. J. C. Penney Co.

Case Details

Full title:WIENER, a member of the class of persons who have paid usurious charges to…

Court:Supreme Court of Wisconsin

Date published: Oct 14, 1974


222 N.W.2d 149 (Wis. 1974)
222 N.W.2d 149

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