The Board recommends that the claim be paid in the amount of $10,097.23 based on equitable principles. The Board further recommends that payment be made from the District Attorney appropriation s.
20.475(1)(d), Stats. [Members Albers and Wiley dissenting.]
7. Robert and Carole Hawthorne of Waukesha, Wisconsin claim $4,731.95 for overpayment of corporate income taxes for the 1993. The claimants own their own cleaning business. The claimants state that they failed to file the taxes in question because of a series of personal family crises. Between 1992 and 1995 Robert Hawthorne was disabled and unable to work, Carole's mother was diagnosed with cancer and her father died, two of their children moved back home, Robert's mother died, and and Carole's mother was the victim of a car-jacking during which she was injured. Claimant Carole Hawthorne states that she was overwhelmed trying to run the business alone, while her husband was disabled. She alleges that she had their accountant do the taxes but that she put them in a file and forgot to mail them. She states that when she received the assessment from the DOR, she was so involved the the family difficulties that she simply paid the assessment without questioning it. The claimants state that once their personal situation improved, they went to an accountant and filed the taxes. They allege that their accountant had told them in 1998 that he would request a refund of the overpaid amount but that they found out in March 2000 that he never did so. Due to the inordinate number of personal hardships faced by the claimants during this period, they request a refund of their overpayment.
The Department of Revenue recommends denial of this claim. The DOR states that these claimants have a history of non-filing with the Department. According to the DOR's records, the claimants failed to file a 1993 corporate income tax return for their business. The assessment for this return was issued on October 30, 1995, and paid in full on April 12, 1996. Department records indicate that the actual 1993 return was filed on April 27, 1998. The Department is sympathetic to the claimants' personal challenges, however, section 71.75(5), Wis. STats., prohibits the DOR from refunding the amount collected on the original assessment since no refund was filed within the prescribed two-year period.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
8. Georgianne Henning of Fond du Lac, Wisconsin claims $15,695.00 for refund of overpayment of 1993 income taxes. The claimant's husband passed away in June 1999 and she alleges that it was not until after his death that she became aware that he had not filed taxes. The claimant states that her husband was responsible for handling all the household financial matters and that she was completely unaware that there were tax problems until began to open her husband's mail after his death. The DOR issued an assessment for the 1993 taxes, which was paid by a levey on Mr. Henning's bank account. Under section
71.75(5), Stats., the claimant had until October 1997 to file a claim for refund of the overpayment, however, she states that she was unaware that the assessment even existed and therefore had had no opportunity to file for a refund. The claimant also believes that the 1993 assessment made by the DOR was excessive. The 1992 income used by the DOR auditor to estimate the Hennings' tax liability was $120,000. The 1993 income amount used was $380,000--three times greater than the 1992 income amount. The claimant believes that the DOR uses inflated assessment figures for the purpose of creating an incentive for taxpayers to file their own corrected returns. However, in this instance the claimant believes this inflated amount constitutes cruel and unusual punishment because she did not even know the assessment existed and therefore had now way to contest it. Finally, the claimants is requesting refund of a $15,695 overpayment, while the DOR alleges that the overpayment amount is only $11,343.21. The claimant states that the DOR's own transcripts of the claimants' account were used in calculating the $15,695 overpayment, which the claimant believes is correct.
The Department of Revenue recommends that this claim be denied. According to DOR records, a joint estimate based on failure to file 1993 income taxes was issued in October 1995, with a due date of December 11, 1995. The actual return was not filed until September 1999. The DOR states that Mr. Henning worked with a revenue agent over a four-year period, during which he filed for amnesty and entered into an installment agreement. However, Mr. Henning defaulted on the installment agreement and was denied amnesty because he failed to file the required returns. The DOR states that Mr. Henning was notified of the statute of limitations. The DOR does not feel that the Hennings' failure to communicate with each other is reason to extend the period to claim a refund for the 1993 assessment. The DOR disputes the claim that that its 1993 assessment was excessive when the previous filing history is considered. According to Department records, the Hennings' 1991 net tax was reported to be $3,253. That liability jumped to $16,141 in 1992 and the Department's 1993 estimated liability was $26,093. Finally, the Department's calculation of the tax, penalties, interest and fees indicated an overpayment of $11,343.21, not $15,695 as the claimant alleges.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
S706
9. Ronald Springer of Washington, Illinois, claims $11,018.59 for value of lost automobile and attorneys fees allegedly incurred due to an error by the Wisconsin DOT. The claimant states that in 1993, he made a personal loan to Daphne Adams to purchase a vehicle in Illinois. The vehicle was titled in the State of IL and the IL title listed Mr. Springer (Springer Farms) as the lienholder. Ms. Adams made arrangements to make payments directly to a savings account rather than to the claimant. Ms. Adams had difficulty keeping up with the loan payments and she asked if her mother, Beverly DeBoer, could take over the payments. Ms. DeBoer signed a promissory note similar to the one originally signed by Ms. Adams. The claimant states that Ms. DeBoer stopped making payments in April 1996 and that in November 1996 he contacted an attorney to try and collect the loan, however, the attorney was unable to do so. In 1997, Ms. Adams requested a new title from the State of IL. The State of IL apparently issued a new title to Ms. Adams instead of sending it to the lienholder, Mr. Springer. Ms. Adams allegedly signed this new title over to Ms. DeBoer, who apparently then applied for a WI title and stated on her application that there were no liens against the vehicle. WI DOT issued a WI title without listing Springer Farms as the lienholder. With this clear title, Ms. DeBoer then got a loan from a WI bank. She defaulted on this loan and the vehicle was repossessed and resold. The claimant has been limited by serious health problems and therefore was not able to take action to regain the vehicle or collect on the loan. The claimant feels that Wisconsin incorrectly issued a clear title, without which Ms. DeBoer would not have been able to get a loan against the vehicle.
The DOT recommends denial of this claim. IL is a "lienholder state" where the certificate of title is issued to and held by the lienholder until the lien is satisfied. Both Ms. Adams and Ms. DeBoer failed to make regular payments. By April 1996, the total paid on the loan was only $3,702.27. No action was taken by the claimant to collect on this delinquent loan during this entire period. In December 1996, Ms. Adams applied for a vehicle title in IL. On the application, she checked box number 1, marked "Title Only," she also checked box 18 indicating that the previous title had been surrendered, and in box 27 she indicated that the reason for the request was "lost title". Boxes 1, 18 and 27 are directly in conflict with one another. The IL Vehicle Services Office has admitted that they made a mistake in the issuance of the title from this application. Furthermore, IL law requires that original or duplicate titles are mailed out, they are not issued over the counter. If there is a lienholder, the new title is mailed directly to that lienholder, in this case, the claimant. The claimant has offered no explanation for how Ms. Adams gained possession of the IL title and suggests that she may have stolen it from him. While it is true that WI DOT issued a clear title on a vehicle that had a lien recorded in IL, that issuance was based on upon an application certifying that there were no liens. Furthermore, it appears that the original IL title was either given to Ms. Adams by the claimant or stolen from him, which created the opportunity for Ms. Adams to apply for a new IL title. Ms. Adams knew that she owed the claimant money yet she not only failed to pay the claimant, she borrowed more money and misrepresented the status of the vehicle title to the bank. The DOT believes that the real cause of the claimant's losses were his failure to properly monitor the loan, the errors by the IL title office, and the fraudulent actions of Ms. Adams and Ms. DeBoer.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
10. Peggy S. Thran of Winter, Wisconsin claims $250.00 for damage to a ring allegedly incurred while the claimant was working at the Department of Corrections in August 1999. The claimant states that she and two other staff members were moving the desk in her office, when one of the other employees suddenly shoved hard on the desk without warning. The claimant states that her finger got smashed between the desk and the wall, causing her ring to break. She requests reimbursement of the $250, the amount of her insurance deductible. The claimant states that DOC has paid other claims for property damage by DOC employees in the pas and she does not feel that her case is any different, even though she no longer works at DOC.
The Department of Corrections recommends denial of this claim. The DOC states that Captain Tegels, one of the employees assisting the claimant, first suggested that they get inmate workers to move the desk and that the claimant turned down this suggestion. Captain Tegels then reluctantly helped move the desk and the claimant's ring was damaged because of the negligent placement of her hand between the desk and the wall. The DOC does not believe that the state agencies should act as an insurer for the claimant, since the damage occurred because she did not wait for the appropriate staff or inmate help to move the desk. Furthermore, the claimant placed her hand in a spot where she should have anticipated it might get jammed between the wall and the desk. The DOC believes that any connection with the Department's business is too remote to justify payment of this claim.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
11. Ken Truman of Marshfield, Wisconsin claims $96.97 for cost to replace television allegedly damaged by the Department of Corrections employees in October 1999, when the claimant was transferred from Jackson Correctional Institution to a halfway house in Marshfield, WI. The claimant alleges that the TV worked correctly before he was transferred but that when he unpacked it and plugged it in at the halfway house, the TV no Longer worked. The claimants states that it was a DOC employe who moved the TV from his cell at Jackson Correctional to this room at the halfway house. The claimant believes that it is obvious that something happened while the DOC was transporting the television and he requests reimbursement for his loss.
The Department of Corrections recommends denial of this claim. The DOC agrees that the claimant, who was convicted of sexual assault of a child, was transported from Jackson Correctional directly to the Division of Community Corrections' Marshfield Field Office and then to his now residence. Officer Tim Glaeser Transported the claimant and his TV, which was packed in a box. The DOC states that Officer Glaeser placed the box containing the TV into a state van and later took the box in to the claimant's room at the halfway house. The DOC states that Officer Glaeser had indicated that nothing unusual happened regarding the TV during that time and that and that he did not remove it from the box. The DOC believes that Officer Glaeser exercised reasonable care in handling the TV. The DOC believes that there is no evidence that any state employe was negligent and that there is no equitable basis for payment of this claim. The DOC does not believe that the state should act as an insurer for criminal offenders' personal property.
The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employes and this claim is not one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
12. Anthony W. Wielgosz of Necedah, Wisconsin claims $340.34 for cost of towing boat that had become stuck in a boat launch at Buckhorn State Park. The claimant states that the right wheel of his boat trailer became lodged in a hole in the boat landing. The claimant states that he unsuccessfully attempted t pull the wheel out by hand and then tried pulling the boat out with his truck, which resulted in damage to his rear bumper. The claimant eventually had to call a towing service to extract the trailer from the hole. The claimant only requests reimbursement for his towing costs. He replaced the damaged bumper on his truck by himself, at a cost of $55.
S707
The Department of Natural Resources recommends payment of this claim based on equitable grounds. Section
895.52, Stats., provides that the Department is not legally liable for this claim and therefore the Department is unable to reimburse the claimant directly. The DNR acknowledges that the claimant's loss is attributable to defective planking at the boat landing. This defective planking has now been corrected. At the time of the incident, the planking was underwater and was not visible to the claimant. The Department does not believe he was at fault in this situation and recommends payment of this claim from the Department appropriation s.
20.370(1)(mu), Stats.
The Board concludes the claim should be paid in the amount of $340.34 based on equitable principles. The Board further concludes, under authority of s.
16.007(6m), Stats., payment should be made from the Department of Natural Resources appropriation s.
20.370(1)(mu), Stats.
13. Barbara Hestekin of Eau Claire, Wisconsin claims $5000.00 for relocation costs related to the condemnation of her house due to a highway project. The claimant is completely disabled and lives on Social Security Disability payments. The claimant owned a home appraised a $37,000, with two of $31,203.76 and $5,501.66. Due to her disability, she received a $125 monthly subsidy on her first mortgage, which lowered her payment to $175/month. Her second mortgage was completely paid by disability insurance. DOT purchased her home for $39,000. They paid off her first and second mortgages and taxes, leaving a $1,000.20 payment to the claimant. DOT informed the claimant that she would probably be eligible for a replacement housing payment of $5,150; estimating the purchase cost of a comparable home at $42,150. DOT paid the claimant $2,415.50 for moving expenses and closing costs. The claimant attempted to purchase a comparable home but she could not qualify for financing. She was no longer eligible for first time home buyer loans and was denied by private lenders because of her low income. DOT offered to arrange priority status for a public housing rental unit, however, the claimant did not wish to give up being a homeowner. She was eventually able to purchase a home with the assistance of a co-signer, but was forced to purchase a home of lesser value than her previous home. When the claimant applied to DOT for relocation assistance, she was denied because her new home was not of comparable value, she had a co-signer, and the home was purchased without a DOT required inspection. The claimant sued DOT but the case was dismissed for lack of statutory provisions under which she could be paid.
DOT does not dispute the facts of the claim and believes there is equitable basis for partial payment. DOT believes that the claimant should be awarded the $5,150.00 replacement housing payment that she would have received if she had been able to purchase a comparable home. DOT also recommends payment of simple interest at 9%, for a total award of $6,256.39. DOT strongly opposes payment of the entire claim, which would amount to DOT paying the value of the claimant's property twice.
This claim was originally considered at hearing on June 8, 1995, at which time the claimant requested payment of $30,140.00. The board voted at this meeting to offer the claimant $4,000 direct payment (the board's statutory limit at the time) or to recommend payment of $6,256.39 to the legislature. The claimant opted for legislation, which was introduced several times without passage. The claimant now requests direct payment of $5,000.00, the board's current statutory limit.
The Board concludes the claim should be paid in the amount of $5,000.00 based on equitable principles. The Board further concludes, under authority of s.
16.007(6m), Stats., payment should be made from the Department of Transportation appropriation s.
20.395(3)(cq), Stats.
14. Frederick Saecker of Redwing, Minnesota has filed a claim with the Claims Board for innocent conviction under section
775.05, Stats. At this time, he has an action for legal malpractice pending in the 7th Circuit against his trial attorney. The claimant requests that the board consider his claim prior to the resolution of his outstanding legal action.
The Board concludes that it is premature to consider this claimant's claim until after he has exhausted all other avenues of relief.
The Board concludes:
1. The claims of the following claimants should be denied:
Veaster Tillmon, Jr.
Hazel Samuel
Westra Construction
Robert and Carole Hawthorne
Georgianne Henning
Ronald Springer
Peggy S. Thran
Ken Truman
Anthony W. Wielgosz
2.
Payment of the following amounts to the following claimants is justified under s.
16.007, Stats:
Roque Chavez $1,170.00
Ameritech, Inc. $5,000.00
Barbara Hestekin $5,000.00
3. The claim of Frederick Saecker should not be considered until all outstanding legal appeals have been exhausted.
The Board recommends:
Payment of $10,097.23 from the Department of District Attorneys to Jodi Dabson Bollendorf for attorney's fees incurred in relation to her job as an Assistant District Attorney.
Dated at Madison, Wisconsin this 13 day of July 2000.
Alan Lee, Chair
Representative of the Attorney General
Edward D. Main, Secretary
Representative of the Secretary of Administration
Sheryl Albers
Assembly Finance Committee
Brian Burke
Senate Finance Committee
Lawrence A. Wiley
Representative of the Governor
__________________
State of Wisconsin
Office of the Governor
November 24, 2000
The Honorable, The Senate:
I am pleased to transmit my Stripper XX 2000 Oil Overcharge Plan for consideration by the Joint Committee on Finance (JCF) at the next s.
13.10, Wis. Stats., meeting. As required by s.
14.065, Wis. Stats. I am also forwarding a copy to the Chief Clerk of the Assembly.
This year's Plan allocates $821,497.70 new Stripper monies plus all future accruing interest. If accepted and implemented, the recommended programs will reduce our dependence on petroleum based motor fuels and make our agricultural industry, commercial buildings and homes more energy efficient.
In addition to the JCF's action, the United States Department of Energy must also conduct a review to determine if Wisconsin's Plan conforms with Federal requirements and established definitions of restitution. The Department of Administration staff will be available to provide additional information that may be required. I appreciate your usual support.
Sincerely,
Tommy G. Thompson
Governor
Referred to committee on Health, Utilities, Veterans and Military Affairs.
State of Wisconsin
Revisor of Statutes Bureau
December 1, 2000
To the Honorable, the Senate:
The following rules have been published:
Sincerely,
GARY L. POULSON
Deputy Revisor
__________________
The committee on Agriculture, Environmental Resources and Campaign Finance Reform reports and recommends:
Relating to the wastewater fee program.
No action taken.
Relating to clean water fund program financial assistance.
No action taken.
Relating to the brownfield site assessment grant program administration.
No action taken.
Alice Clausing
Chairperson
The committee on Health, Utilities, Veterans and Military Affairs reports and recommends:
Relating to whether an alleged failure to comply with an interconnection agreement has a significant adverse effect on another party to the agreement.
