The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S555 3. Rommain Steven Isham of Duluth, Minnesota claims $3,650,000.00 for compensation pursuant to § 775.05, Wis. Stats. On July 19, 1990, the claimant was convicted of sexually assaulting an 8 year old child and served 10 years in prison as a result of his conviction. The claimant states that he suffered severe physical and sexual abuse while in prison due to his label as a "child molester". The claimant states that he served his entire sentence in prison because he refused to attend sex offender treatment, which would have made him eligible for an earlier release. The claimant states that he refused this treatment because of his innocence. In 2009, while investigating a different case, DOJ Division of Criminal Investigation Special Agent James Ohm had cause to speak with the claimant's ex-girlfriend, the mother of his alleged victim. The mother told Agent Ohm that the claimant was not guilty of the crime of which he'd been convicted and that her son recanted his testimony when he was 13 years old. The son confirmed this information to Agent Ohm via telephone. Agent Ohm contacted the Douglas County District Attorney's Office and was told to investigate the matter. Agent Ohm discovered that several years after recanting to his mother, the victim made a formal statement to the Sheboygan County Sheriff's Department recanting his testimony. Agent Ohm interviewed the victim in person and found him credible. Agent Ohm also corroborated the victim's recantation with his brother and ex-girlfriend. Based on Agent Ohm's investigation the Douglas County DA filed a motion to vacate the claimant's conviction. A hearing was held in May 2010, during which Agent Ohm and the former victim, Jeremy Kaseno, then 28 years old, testified. Mr. Kaseno testified that he was very young when he made the charges and that he became caught up in the lie and was afraid to tell the truth. He also testified that his life was in turmoil at the time, having been in foster care and then suffering the death of his grandfather with whom he lived for a short time. He also testified that he felt pressured by his abusive father to maintain the lie. Mr. Kaseno expressed remorse for his lie and support for overturning the claimant's conviction. The conviction was vacated on May 11, 2010. The claimant requests reimbursement in the amount of $1,000 per day of his incarceration.
The Douglas County District Attorney's Office declined to respond to this claim.
The Board concludes that there is clear and convincing evidence the claimant was innocent of the crime for which he was convicted and that pursuant to § 775.05, Stats., the claim should be paid in the amount of $25,000.00 from the Claims Board appropriation § 20.505 (4)(d), Stats.
4. ABC for Health, Inc. of Madison, Wisconsin claims $176,250.00 for damages related to termination of a contract with OCI pursuant to a federal Consumer Assistance Program grant through the US Department of Health and Human Services. The claimant states that in July 2010, OCI solicited its assistance in applying for the grant. The claimant states that it provided substantial assistance to OCI in planning for and drafting the grant application. Upon notice of receipt of the grant in November 2010, OCI contracted with the claimant to complete the grant objectives. On February 9, 2011, OCI notified the claimant that it was terminating the contract effective March 12, 2011. The claimant alleges that OCI terminated the grant for invalid reasons, basing the decision to terminate on information that failed to accurately measure the claimant's progress on the grant objectives. The claimant also alleges that OCI decided to terminate the grant based on political, not policy reasons and that the decision to terminate the contract was made without any meaningful evaluation of the project's value or impact. The claimant further states that OCI's summary termination of the contract diminishes the trust and credibility of the state and constitutes an abuse of agency power. Finally, the claimant alleges that OCI's termination of the contract violated the claimant's right to due process of law. The claimant states that it was solicited as a grant partner and expended considerable resources to develop the grant proposal and implement grant-related programs. In doing so, the claimant believes that it developed a reasonable expectation of property interest in the grant and that OCI violated the claimant's due process rights when it terminated the grant without allowing the claimant to challenge the termination. The claimant believes that the Claims Board should grant the claim based on equity and fairness.
OCI recommends denial of this claim. OCI was awarded the Consumer Assistance Program grant in October 2010. In November 2010, OCI entered into a sub-grant agreement with the claimant. OCI points to Article 12 of that agreement, which states: "OCI may terminate this Agreement with or without cause by delivering written notice to ABC - no less than thirty (30) days prior to the effective date of the termination." OCI states that its notification of contract termination met the requirements set forth in Article 12 of the Agreement. OCI states that the claimant agreed to a contract allowing termination without cause and that the claimant's due process argument has no merit because the contract was for a fixed term and specifically allowed termination without cause. OCI believes the claimant did not have a property interest in the grant sufficient to require OCI to give the claimant an opportunity to challenge the termination.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles. (Member Hagedorn not participating.)
5. Jeff Jayko of Johnsburg, Illinois claims $406.11 for damage to his boat motor allegedly caused by an incident at Little St. Germain Lake in St. Germain, Wisconsin. On July 31, 2011, the claimant was launching his boat at the recently renovated boat launch on Little St. Germain Lake. As the claimant proceeded to back the boat away from the launch into the lake, the boat's motor suddenly stopped and the steering locked up. The claimant checked his motor and found thick, black matting wrapped around the propeller and out drive. With the assistance of friends he was able to cut the matting away from the propeller and out drive. He then attempted to restart the motor but discovered that the shift cable, which is part of the linkage between the control lever and the transmission, was severely stretched and would not operate properly. The claimant contacted DNR several days later and was given information on how to file a claim. The claimant received a repair estimate of $406.11 to repair the shift cable damage and requests reimbursement for that amount.
DNR recommends denial of this claim. DNR points to Wisconsin's Recreational Immunity Law, § 895.52, Stats., which provides immunity to the state for property damage incurred during recreational activities on public land, unless the damage is caused by a malicious act. DNR states that there was no malicious act in this instance. DNR notes that the Little St. Germain Lake boat launch had been renovated in the spring of 2010. As part of that renovation, landscape fabric was placed under heavy rock at the end of the landing to hold the lakebed in place. DNR states that some boat owners "power load" their boats instead of winching them onto their trailers. This practice of power loading creates a blowback thrust that can shift the rock away, causing the fabric to float up. DNR therefore believes that if there is any blame to be assigned, it should go to the claimant's fellow boaters who engage in this practice. In addition, DNR's mechanic staff does not believe that the lakebed matting caught in the claimant's propeller would have caused the shift cable to stretch. Staff point to safety features inside the prop which would have been more likely to take the impact of the prop being fouled, before any impact would have been carried up to the shift cable. DNR staff notes that because of the regular stresses of recreational boating, shift cables will fail with time. DNR staff believes it is more likely that the shift cable on the claimant's boat was simply at the end of its useful life. Finally, DNR believes the estimate provided by the claimant is somewhat suspect because it does not appear to come from a legitimate marina or dealership. Based on these reasons, DNR believes there is no legal or equitable basis for paying this claim.
S556 The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
6. Christopher Burrowes of Milwaukee, Wisconsin claims $15,000.00 compensation pursuant to § 775.05, Wis. Stats. On February 7, 2007, the claimant was convicted of first degree sexual assault of a child. In December 2009, the alleged victim, Denise Beck, recanted her testimony and admitted to Milwaukee County District Attorney's Office investigators that she had lied during her testimony. Ms. Beck told the investigators that she had been involved in a sexual relationship with her adult uncle when she was 11 years old. She stated that when her mother became suspicious, she made the sexual assault accusation against the claimant, an acquaintance of hers, in order to protect her uncle. The investigators found Ms. Beck's December 2009 statement credible and the Milwaukee County District Attorney's Office filed a Motion to Vacate Conviction and Dismiss Charges. Based on this new evidence, the court vacated the claimant's conviction on December 16, 2009. The claimant requests reimbursement at the statutory rate of $5,000 per year for the three years he served in prison.
The Milwaukee County District Attorney's Office declined to respond to this claim.
The Board concludes that there is clear and convincing evidence the claimant was innocent of the crime for which he was convicted and that pursuant to § 775.05, Stats., the claim should be paid in the amount of $15,000.00 from the Claims Board appropriation § 20.505 (4)(d), Stats.
The Board concludes:
That the following claims are denied:
Jessica and Tina Kosnar
David J. Loveland
ABC for Health, Inc.
Jeff Jayko
That payment of the below amounts to the identified claimants from the following statutory appropriations is justified under S 16.007, Stats:
Rommain S. Isham $25,000.00 § 20.505 (4)(d)
Christopher Burrowes $15,000.00 § 20.505 (4)(d)
Dated at Madison, Wisconsin this 11th day of October, 2011.
Steve Means
Chair, Representative of the Attorney General
Gregory D. Murray
Secretary, Representative of the Secretary of Administration
Pamela Galloway
Senate Finance Committee
Patricia Strachota
Assembly Finance Committee
Brian Hagedorn
Representative of the Governor
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