Senate Journal
One-Hundred and First Regular Session
FRIDAY, December 6, 2013
The Chief Clerk makes the following entries under the above date.
Chief Clerk's Entries
Amendments Offered
hist14961Senate Substitute Amendment 1 to Senate Bill 242 offered by Senator Petrowski.
hist14979Senate Amendment 1 to Senate Bill 394 offered by Senator Lasee.
Senate Enrolled Proposals
The Chief Clerk records:
hist14973Senate Bill 384
Report correctly enrolled on 12-6-2013.
Petitions and Communications
Legislative Reference Bureau Corrections
Corrections In:
2013 SENATE BILL 384
Prepared by the Legislative Reference Bureau
(December 6, 2013)
In enrolling, the following correction was made:
hist150241. Page 32, line 14: delete “appointment “ has” and substitute
appointment” has”.
2. Page 34, line 11: delete “a beneficiaries” and substitute “beneficiaries”.
3. Page 47, line 18: delete “who is a related” and substitute “who is related”.
4. Page 75, line 18: delete “is amended” and substitute “are amended”.
5. Page 120, line 21: delete “attorneys fees” and substitute “attorney fees”.
6. Page 133, line 10: delete “trust,” and substitute “trust,”.
7. Page 137, line 8: delete “(6)” and substitute “(6),”.
8. Page 150, line 13: delete “is amended” and substitute “are amended”.
9. Page 159, line 5: delete “are amended” and substitute “is amended”.
10. Page 162, line 2: delete “instrument, in” and substitute “instrument,
State of Wisconsin
Claims Board
December 2, 2013
Enclosed is the report of the State Claims Board covering the claim of David R. Turnpaugh heard on September 11, 2013, and determined on November 25, 2013. Those claims approved for payment pursuant to the provisions of s.16.007 and 775.05 Stats., have been paid directly by the Board.
This report is for the information of the Legislature. The Board would appreciate your acceptance and publication of it in the Journal to inform the members of the Legislature.
CLAIM NO. 2009-031-CONV
This is a final determination of the State of Wisconsin Claims Board regarding a claim brought by Mr. David R. Turnpaugh on July 23, 2013. Mr. Turnpaugh brought his claim under Wis. Stat. §775.05 for compensation for innocent convicts. The Claims Board held a hearing on this matter on September 11, 2013, at which Mr. Turnpaugh appeared along with counsel.
The procedural and historical background for this decision is long and complex, and need not be repeated in its entirety. Notably, however, this is the third time that Mr. Turnpaugh has appeared in front of the Claims Board on this matter. On December 28, 2010, the Claims Board issued its first decision in this matter after a hearing, denying Mr. Turnpaugh’s petition to the Claims Board for compensation as an innocent convict under Wis. Stat. §775.05, wherein it concluded that Mr. Turnpaugh had not presented clear and convincing evidence that he was innocent of the crime for which he was convicted and that he failed to show that he was imprisoned within the meaning of Wis. Stat. §775.05. Mr. Turnpaugh appealed that decision. The Claims Board decision was originally upheld in circuit court, but eventually overturned on appeal. See, Turnpaugh v. Claims Board, Milwaukee County Circuit Court Case No. 11-CV-1362, September 7, 2011, and Turnpaugh v. Claims Board, 2012 WI App 72, 342 Wis. 2d 182.
Specifically, the Court of Appeals held that Mr. Turnpaugh was innocent as a matter of law and had proved his innocence under the requisite standard of Wis. Stat. §775.05. Turnpaugh v. Claims Board, 2012 WI App 72 at ¶6-8. The Court of Appeals also held that Mr. Turnpaugh had been imprisoned under the meaning of Wis. Stat. §775.05. Id., at ¶10. The Court of Appeals then remanded the matter back to the Claims Board for “an assessment of what ‘will equitably compensate’ under the guidelines set out in Wis. Stat. §775.05(4).” Id., at ¶11.
On December 12, 2012, the Claims Board took up Mr. Turnpaugh’s claim again on remand, held a hearing and issued a decision. On remand, the Claims Board held that although he was innocent as a matter of law of the crime for which he was convicted, Mr. Turnpaugh’s conduct contributed to his conviction and therefore he was not equitably entitled to receive compensation under the standards of Wis. Stat. §775.05. See, Turnpaugh v. Claims Board, Milwaukee County Circuit Court Case No. 13-CV-789, June 12, 2013. Mr. Turnpaugh then appealed this decision under chapter 227 and, on appeal the circuit court found that “it was unreasonable for the Claims Board to find that in this case the Defendant’s conduct contributed to his own conviction” under the standards of Wis. Stat. §775.05(4). Id. Accordingly, the circuit court remanded the matter again back to the Claims Board to determine “how much money would equitably compensate the petitioner for his wrongful conviction and attorney’s fees.” Id.
In light of the above history the Claims Board’s authority and discretion in this case on remand is extremely limited. Moreover, it is important to underscore that the Claims Board’s current decision and monetary award is strictly based on the facts as presented in this matter, and the specific court decisions bearing on this case. Accordingly, the Claims Board’s obligations in this case are narrow and clear. It must make a monetary award under Wis. Stat. §775.05(4). The statute states, in relevant part, as follows:
the claims board shall find the amount which will equitably compensate the petitioner, not to exceed $25,000 and at a rate of compensation not greater than $5,000 per year for the imprisonment. Compensation awarded by the claims board shall include any amount to which the board finds the petitioner is entitled for attorney fees, costs and disbursements.
1. Equitable Compensation for The Term of Imprisonment
The statute requires compensation at a rate not greater than $5,000 per year for imprisonment. The facts and record of this case are clear. Mr. Turnpaugh spent three days in custody and 57 days on electronic monitoring. See Claimant Letter of Attorney Nelson dated August 28, 2013, page 2.
Given that the law clearly requires compensation at a rate “not greater than $5,000” per year, the Claims Board believes it is reasonable and rational to equitably compensate Mr. Turnpaugh on a pro rata basis for every day of imprisonment. Because the legislature has set a maximum annual cap of $5,000 per year for compensation, the legislature has clearly given the Claims Board the authority to award lesser amounts per year, and therefore lesser amounts for imprisonments lasting less than one year. In addition, the Claims Board has a history of issuing awards on a pro rata basis. See, e.g., Claim of Aaron Ben Woods (March 22, 1982), Claim of Carlton Pugh (March 22, 1982), and Claim of Leonard Proite (October 17, 1983). Therefore, in view of the statute and the Claims Board’s precedent, we conclude that Mr. Turnpaugh’s award will be based on a mathematical pro rata distribution. $5,000 divided by 365 days equals $13.70 per day. $13.70 times 60 days of imprisonment equals $822.00.
Under certain circumstances, and because there is no minimum compensation requirement, this pro rata rate could be decreased based on the equities. For example, confinement to electronic monitoring seems to be significantly less of a deprivation of liberty than actually being confined to jail or prison. However, given the long history of this case, the Claims Board has determined that no such discounting is appropriate here.
Mr. Turnpaugh argues that he should receive $10,000 in total compensation because his imprisonment related to two convictions. This is the first time that Mr. Turnpaugh has raised this particular argument; it did not appear in his original claim or in his prior argument on remand.