Weekly Case Digests – January 18, 2021 – January 22, 2021

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7^th Circuit Digests

7^th Circuit Court of Appeals

Case Name: United States of America v. Lindani Mzembe

Case No.: 20-1265

Officials: KANNE, ROVNER, and HAMILTON, Circuit Judges.

Focus: Sentencing Guidelines

This appeal presents several related issues about how federal judges should decide whether sentences in federal prosecutions should run consecutively to or concurrently with separate sentences in unrelated state prosecutions. The issues arise in an unusual way in this case because the state court had already decided to impose a long sentence consecutive to the federal offender’s federal sentence. Intervening changes in federal law then required resentencing in federal court, where the consecutive v. concurrent question could be revisited. The defendant-appellant argues that, in refusing to make the new federal sentence concurrent with the intervening state sentence, the district judge erred (a) by giving an inadequate explanation for his decision, (b) by deferring to the state court’s intervening judgment to make the sentences consecutive, and (c) by imposing an unreasonably severe sentence that is a de facto life sentence. We find no reversible error, so we affirm the new federal sentence.

Affirmed

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7^th Circuit Court of Appeals

Case Name: Tai Matlin, et al., v. Spin Master Corp, et al.,

Case No.: 20-1039; 20-1049

Officials: EASTERBROOK, MANION, and KANNE, Circuit Judges.

Focus: Fee Award – Attorney’s Fees

Plaintiffs Tai Matlin and James Waring have spent seventeen years embroiled in disputes related to the intellectual property claims at issue in this case. In that time, arbitrators have sorted out many aspects of this IP kerfuffle, including that a company called Gray Matter is on the hook alone for paying certain royalties to Matlin and Waring. So, in 2017, when Matlin and Waring filed the suit now on appeal seeking those royalties from companies other than Gray Matter, they knew—or should have known—that they had a loser on their hands. And the district court recognized as much by sanctioning Matlin and Waring and ordering them and their former counsel, Stoltmann Law Offices, to pay certain costs and fees expended by Defendants Swimways and Spin Master.

Accordingly, we affirm the district court’s decision granting costs and fees to Swimways and Spin Master in the amount of $271,926.92. We also deny Appellees’ motion for sanctions under Federal Rule of Appellate Procedure 38.

Affirmed

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7^th Circuit Court of Appeals

Case Name: State of Wisconsin, Department of Workforce Development-Division of Vocational Rehabilitation v. United States Department of Education, et al.,

Case No.: 20-1016; 20-1115

Officials: WOOD, BRENNAN, and SCUDDER, Circuit Judges.

Focus: Randolph-Sheppard Act Violation – Arbitration

The Randolph-Sheppard Act provides economic opportunities by granting blind persons priority to operate vending facilities at certain government properties. When a blind vendor, Jocelyn Belsha, was awarded certain vending operations in Racine County, Wisconsin, a different blind vendor, Theresa Taylor, became unhappy and challenged the award.

The Act is a federal law administered by state licensing agencies, so Taylor’s challenge traveled first through Wisconsin’s regulatory process, and then through federal administrative proceedings. Eventually an arbitration panel, convened to resolve Taylor’s federal grievance, awarded her money damages and a permanent vending machine services contract for a site in Racine. Federal courts review such an award as a final action of a federal agency under the Administrative Procedure Act.

The district court vacated the arbitration panel’s decision, ruling that there were no material deficiencies in the choice of Belsha for the Racine site, the arbitration panel’s key factual findings were not supported by substantial evidence, and the arbitration panel’s ultimate conclusion was arbitrary and capricious. We agree with the district court and affirm its decision for the state licensing agency and against Taylor.

Affirmed

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WI Court of Appeals Digests

WI Court of Appeals – District III

Case Name: Constance Louise Brookshaw v. Patrick Richard Brookshaw

Case No.: 2019AP961

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Abuse of Discretion – Divorce Proceedings

Patrick Brookshaw appeals a judgment of divorce. Patrick contends the circuit court erroneously exercised its discretion by: (1) failing to make explicit findings relating to the statutory factors in deciding not to deviate from a 50/50 property division; (2) failing to hold a hearing to determine what, if any, portion of Constance Brookshaw’s attorney fees were the result of Patrick’s improper conduct; and (3) requiring Patrick to pay interest on the amounts he was ordered to pay Constance at rates different from the statutory rate set forth in WIS. STAT. § 815.05(8) (2017-18).  We reject these arguments and affirm.

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WI Court of Appeals – District III

Case Name: Elite Construction Custom Homes of Appleton, LLC, v. Bee Moua

Case No.: 2019AP1734

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Damages and Attorney’s Fees

Bee Moua appeals a judgment that awarded Elite Construction Custom Homes of Appleton, LLC, $8,685 in damages and $6,752.50 in attorney fees and costs. Moua argues the circuit court erred by: (1) awarding attorney fees to Elite; (2) awarding damages to Elite under the parties’ mediation agreement; and (3) concluding Elite did not fail to mitigate its damages. We reject each of Moua’s arguments and affirm.

In addition, we conclude Elite is entitled to recover the attorney fees that it incurred in connection with this appeal. We therefore remand this matter for the circuit court to determine the amount of additional attorney fees that Elite is entitled to recover and to amend the existing judgment to include that amount.

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Jack B. Gramza

Case No.: 2020AP100-CR

Officials: Brash, P.J., Dugan and Donald, JJ.

Focus: Sentence Modification

Jack B. Gramza appeals an order of the circuit court denying his request for sentence modification upon his successful completion of the Substance Abuse Program (SAP). Under the statute authorizing this program, within thirty days of completion, the defendant’s sentence is required to be modified, converting the remaining period of initial confinement to extended supervision, and the defendant is to be released.

Gramza had pled guilty to operating a motor vehicle while intoxicated as a seventh offense (OWI-7th), which, by statute, requires a mandatory minimum term of initial confinement of three years. However, Gramza completed the SAP approximately six months into his sentence, and seeks release pursuant to the SAP statute. He further argues that failing to authorize his release under the SAP would violate the double jeopardy clause.

The circuit court interpreted the conflict between the OWI-7th statute and the SAP statute as requiring that the mandatory minimum term of initial confinement for an OWI-7th be served by a defendant, regardless of whether the SAP was completed. The circuit court also rejected Gramza’s double jeopardy argument. We agree, and therefore affirm the order of the circuit court.

Recommended for Publication

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Chester J. Mass

Case No.: 2018AP1665-CR

Officials: Neubauer, C.J., Reilly, P.J., and Davis, J.

Focus: Ineffective Assistance of Counsel

Chester J. Mass appeals from a judgment convicting him of first-degree intentional homicide, and an order denying his postconviction motion seeking a new trial on grounds of ineffective assistance of counsel. Mass maintains that his trial counsel provided ineffective assistance by failing to retain an expert to counter the medical examiner’s trial testimony. Because we conclude that trial counsel did not perform deficiently, we affirm.

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WI Court of Appeals – District IV

Case Name: City of Beaver Dam v. Diane Lynn Tomko

Case No.: 2020AP1002

Officials: FITZPATRICK, P.J.

Focus: Constitutionality – Operation of Motor Vehicle

Diane Tomko, pro se, appeals an order of the Dodge County Circuit Court finding her guilty of operating a motor vehicle without insurance, operating a motor vehicle without registration, operating a motor vehicle without an operator’s license, and resisting an officer. Tomko was found guilty of each citation by the City of Beaver Dam Municipal Court and unsuccessfully appealed those findings to the circuit court.

On appeal, Tomko argues that state laws prohibiting the operation of a motor vehicle that is unregistered, see WIS. STAT. § 341.04(1), the operation of a motor vehicle without an operator’s license, see WIS. STAT. § 343.05, and the operation of a motor vehicle without insurance, see WIS. STAT. § 344.62(1), impermissibly interfere with her constitutional right to drive on public highways “freely unencumbered.” Tomko is wrong.

The constitutionality of driver licensing, registration, and insurance statutes is a question of law. State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90. A statute is presumed to be constitutional and the party challenging the statute’s constitutionality bears the burden of “prove[ing] that the statute is unconstitutional beyond a reasonable doubt.” Id. (quoted source omitted).

The Wisconsin Supreme Court has held that driving on the highways of this state is not a right but is, instead, a privilege that may be subjected to reasonable regulations. See Steeno v. State, 85 Wis. 2d 663, 671, 271 N.W.2d 396 (1978); State v. Seraphine, 266 Wis. 118, 123, 62 N.W.2d 403 (1954). The regulation of the nation’s highways is primarily the responsibility of the states, and that power is “broad and pervasive.” See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 523 (1959). “[A] state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles.” Hendrick v. Maryland, 235 U.S. 610, 622 (1915). “[T]o this end [a state] may require the registration of such vehicles and the licensing of their drivers,” id., and may require drivers to obtain liability insurance coverage, see Sprout v. City of South Bend, 277 U.S. 163, 171-72 (1928).

Tomko’s other assertions about the constitutionality of the relevant Wisconsin Statutes are incoherent. I reject those arguments on that basis. State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (declining to address inadequately developed arguments). Accordingly, I reject Tomko’s constitutional challenge and affirm the order of the circuit court.

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WI Supreme Court Digests

WI Supreme Court

Case Name: Office of Lawyer Regulation v. Carl Robert Scholz

Case No.: 2020 WI 84

Focus: Attorney Disciplinary Hearing

This disciplinary matter comes to the court on Attorney Scholz’s appeal of a report and recommendation filed by Referee Kim M. Peterson. The referee concluded that Attorney Scholz committed ten counts of professional misconduct in connection with his representation of A.B., and recommended a one-year suspension of Attorney Scholz’s law license. Attorney Scholz challenges the recommended suspension; he argues that it is excessive in light of the totality of the facts and circumstances surrounding his representation of A.B. and he seeks a more lenient sanction.

When we review a referee’s report and recommendation in an attorney disciplinary case we affirm the referee’s findings of fact unless they are found to be clearly erroneous, and we review the referee’s conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline given the particular facts of each case, independent of the referee’s recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

After reviewing this matter and considering Attorney Scholz’s appeal, we accept the referee’s factual findings and legal conclusions. However, we have determined that a two-year suspension, as originally sought by the Office of Lawyer Regulation (OLR), is appropriate. We reserve the question of restitution, pending receipt of supplemental briefing requested by separate order of this court, and we impose the costs of this proceeding on Attorney Scholz.

Attorney’s license suspended

Concur:

Dissent:

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