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Stepniewski v. Superintendent John Gagnon and Attorney General of

decided: April 12, 1984.

RICHARD STEPNIEWSKI, PETITIONER-APPELLEE,
v.
SUPERINTENDENT JOHN GAGNON AND ATTORNEY GENERAL OF THE STATE OF WISCONSIN, RESPONDENT-APPELLANTS



Appeal from the United States District Court for the Eastern District of Wisconsin, No. 82 C 139 -- Myron L. Gordon, Judge.

Pell, Bauer, Circuit Judges, and Marovitz, Senior District Judge.*fn*

Author: Bauer

BAUER, Circuit Judge.

Petitioner-Appellee Richard Stepniewski filed a petition for a writ of habeas corpus in the district court claiming that his conviction without proof of criminal intent violates his constitutional right to due process of law. The district court agreed and granted the writ. Stepniewski v. Gagnon, 562 F. Supp. 329 (E.D. Wis. 1983). We reverse.

I

On February 15, 1980, Stepniewski was convicted in Milwaukee County Circuit Court of twelve counts of home improvement trade practice violations, contrary to Wis. Stats §§ 100.20(2) and 100.26(3) (1972). The court sentenced Stepniewski to one year incarceration plus six consecutive and five concurrent one year sentences, stayed by probation, for each of the twelve convictions. Upon a showing by the prosecution that Stepniewski was on probation for a felony theft by contractor conviction involving misappropriation of $24,000, the trial court imposed an additional six-month period of incarceration, to be served consecutively, under Wisconsin's Habitual Criminal Statute, Wis. Stats. § 939.62 (1977). Both the Wisconsin Court of Appeals, State v. Stepniewski, 101 Wis. 2d 731, 306 N.W.2d 306 (1981), and the Wisconsin Supreme Court, State v. Stepniewski, 105 Wis. 2d 261, 314 N.W.2d 98 (1982), affirmed the convictions.

The evidence at the state trial revealed that the petitioner on several occasions failed to specify in writing starting and completion dates for various projects. On other occasions, the petitioner did specify such dates, but the projects were never completed. In two cases when the work was left undone, the houses were severely damaged by winter weather. Many homeowners victimized by the petitioner were elderly and retired. Ten victims made down payments ranging from $500 to $4,000. Only three of the down payments were returned to the victims. The seven convictions for the regulatory offenses were based on the petitioner's failure to specify contract starting and completion dates on the contracts. The remaining five violations involved Stepniewski's failure ever to complete certain projects, although the contract dates were specified.*fn1

Section 100.20(2) of the Trade Practices Act grants the Wisconsin Department of Agriculture authority to "issue general orders forbidding methods of competition in business or trade practices in business which are determined by the department to be unfair." Stepniewski was convicted under Section 10026.(3) of the Act for violating home improvement contractor regulations. Section 100.26(3) states in part:

Any person . . . who intentionally refuses, neglects or fails to obey any regulation made under section . . . 100.20 shall, for each offense, be punished by a fine of not less than twenty-five nor more than five thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment.

Wis. Admin. Code, Chapter AG 110, issued pursuant to section 100.20(2), states in part:

AG 110.02 Prohibted trade practices. No seller shall engage in the following unfair methods of competition or unfair trade practices:

(7) PEFORMANCE . . . .

(b) Fail to begin or complete work on the dates or within the time period specified in the home improvement contract, or as otherwise represented, unless the delay is for reason of labor stoppage, unavailability of supplies or materials, unavoidable casualties, or any other case beyond the seller's control. Any changes in ...


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