Wisconsin Legislature: 2019-06-06 Senate Journal

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 and that this claim would be best resolved in a court of law. Therefore, this claim is denied.

5. Pastori M. Balele of Madison, Wisconsin claims $1,114.91 for refund of court-ordered costs allegedly paid twice. Claimant is a former state employee. Between 1987 and 2001, he pursued several lawsuits against various state agencies. In 2002, the court ordered claimant to pay damages to the Department of Justice in three cases, $1,114.91 for one case and $500 each for two additional cases. Claimant submits a carbon copy of a $1,114.00 check dated 10/10/2002 as proof that he paid the first of those three debts at that time. He left state service in 2002. In 2011, claimant began applying for positions at various state agencies but was unsuccessful. He filed a complaint against the Department of Corrections, but the Department of Workforce Development rejected his complaint because he allegedly had not paid his court-ordered debt. Claimant later requested a hearing and allegedly submitted evidence that he had paid the debt. He points to an April 2017 DWD preliminary decision that concluded that he had paid all his debts pursuant to the 2002 court order. Claimant states that DWD asked him to submit additional evidence proving payment, such as a more recent credit report, because the 2004 credit report he provided showed the debt as still outstanding. He alleges that he was confused and wrote another check for $1,114.91 in December 2017. Claimant points to his November 2017 credit report, which does not list the debt, as proof of prior payment. He also points to the fact that the state garnished his wages while he was a state employee and alleges that they would not have stopped doing so until the debt had been paid. In addition, he notes that the Department of Revenue never tried to collect the amount from his tax refunds even though these types of debts are usually referred to DOR for collection. Claimant believes that employees at various state agencies are harassing him because he is black and that DOJ employees are corrupt. He believes that DOJ has presented no legal defenses to his claim and requests reimbursement.

DOJ recommends denial of this claim. DOJ records indicate that claimant paid the $1,114.91 debt on 12/20/17 and a satisfaction of judgment was filed on 1/3/18. DOJ notes that claimant still has unsatisfied court-ordered debts. DOJ notes that the October 2002 check carbon copy provided by claimant is not proof that claimant submitted the check to the state or that the state cashed it. DOJ notes that DWD’s preliminary determination that claimant had paid his debts was later rejected by the administrative law judge reviewing the decision and by the Labor and Industry Review Commission (LIRC), which found that there was no evidence for making such a determination. DOJ notes that claimant presents his April 2004 credit report (with the debt) and his November 2017 credit report (without the debt) as proof of payment. However, claimant alleges that he paid the debt in October 2002, not between 2004 and 2017. In addition, DOJ notes that there are several outstanding court-ordered obligations not shown on the credit reports and that LIRC determined that credit reports were not sufficient evidence of payment. Claimant also submits a copy of a 1995 garnishment statement as evidence that the debt was paid in this manner. However, the debt in question was not ordered until 2002 and claimant left service later that year, so this also fails to prove payment. Finally, DOJ states that claimant’s argument that these types of debts are “usually” referred to DOR for collection is incorrect. These debts may be referred to DOR, but it is not a routine practice and was not done in this case. DOJ believes claimant has provided no evidence that this debt was paid twice and recommends denial of this claim.

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 Finkelmeyer did not participate and exited closed session prior to deliberations.]

6. Kelley Avery of New Lisbon, Wisconsin claims $139.52 for repayment of restitution deducted from his inmate account. Claimant was convicted in 1996. At that time, restitution was ordered in an amount “to be determined.” In February and May 1997, the court ordered restitution based on memos submitted by a DOC Parole Agent. The forms stated that claimant waived his right to a hearing and agreed with the restitution amount. The court ordered the restitution even though neither form was signed by claimant. In late 2016, the Department of Corrections updated its accounting software and began deducting restitution from claimant’s inmate account. Claimant filed a lawsuit to stop the deductions and in July 2017 the court vacated the restitution order and set claimant’s restitution at zero. Claimant notes that DOC has conceded that the 1997 restitution order was not valid by refunding some of the money to his account. DOC refused to refund the remaining money because it already had been distributed to other parties. Claimant believes DOC cannot claim that it was unaware the restitution order was invalid when it was a DOC parole agent who submitted unsigned forms to the court, falsely asserting that claimant had been notified of and agreed with the restitution amount. Claimant requests reimbursement of the remaining restitution taken from his account.

DOC recommends denial of this claim because the department was following the directives of a valid court order and was not negligent. DOC notes that claimant’s Amended Judgment of Conviction filed in July 2017 states “Previous restitution order now vacated by the Court.” DOC was collecting restitution based on a court order and had no basis to believe that order was not valid. DOC is charged with the supervision of inmates, including their funds. Wis. Stat. § 301.32(1), authorizes DOC to use inmate funds “for the benefit of the prisoner” and paying down an inmate’s lawful debt is clearly to his benefit. DOC notes that 2015 Act 355 amended § 301.32 to expressly authorize DOC to use an inmate’s funds for payment towards applicable surcharges, victim restitution, or the benefit of the prisoner. DOC points to Division of Adult Institution Policy 309.45.02, which provides that if an inmate receives an amended Judgement of Conviction, DOC is not responsible to seek reimbursement from the entity that received the funds. DOC believes that doing so would revictimize the victim. In addition, DOC points to State v. Minniecheske, which found that a sentencing court lacks competency to order the state to reimburse inmates for money taken from their accounts.

7. Mekious D. Bullock, Sr. of Waupun, Wisconsin claims $190.46 for repayment of restitution deducted from his inmate account. Claimant was convicted in 2007. In November 2016, the Department of Corrections deducted 50% for restitution from gift money claimant received from his family. Claimant states that deducting restitution from gift money violated his Judgment of Conviction (JOC) which states that restitution shall be paid pursuant to Wis. Stat. § 973.05(4)(b). That section provides that restitution can be deducted from: “not more than 25 percent of the defendant’s commissions, earnings, salaries, wages, pension benefits under ch. 102, and other money due or to be due in the future…” Claimant points to two court cases, Kerby v. Litscher and Howard v. Litscher which he says support his interpretation of the statute—that these deductions cannot be made from gift monies. Claimant filed an inmate complaint, but it was denied. Claimant alleges that a Financial Program Supervisor lied during DOC’s investigation when she stated that his original account had been set up “incorrectly” as deductions from wages only. Claimant believes that his JOC clearly states that deductions should only come from wages. Claimant contests DOC’s assertion that Act 355 gave them the authority to deduct this money because Act 355 had an effective date of 7/1/16 and is not retroactive. Because claimant was convicted in 2007, he believes this act does not apply to him. Claimant also does not believe DOC should be able to deny the refund because the money has already been disbursed to other parties. DOC failed to follow the instructions given on his JOC and should not now be able to deny refunding the money.

DOC recommends denial of this claim because the department was following the directives of a valid court order and was not negligent. DOC states that when a JOC intends that deductions come only from wages, it clearly states “pay only” or “wages only” on the form. Claimant’s JOC does not have this language. DOC states that claimant’s account was originally set up as “wages only” in error, a mistake which was caught when DOC switched to a new accounting system in late 2016. DOC notes that the Inmate Complaint filed by claimant was denied and that he also failed to appeal and therefore has not exhausted his administrative remedies prior to bringing this claim. DOC points to 2015 Act 355, which amended § 301.32 to expressly authorize DOC to use an inmate’s funds for payment towards applicable surcharges, victim restitution, or the benefit of the prisoner. DOC notes that even before Act 355, Wis. Stat. § 301.32(1), authorized DOC to use inmate funds “for the benefit of the prisoner” and paying down an inmate’s lawful debt is clearly to his benefit. Finally, DOC states that the money in question was not held by DOC for its own benefit but was disbursed to meet his court-ordered financial obligations.

8. Oscar Garner of Waupun, Wisconsin claims $173.25 for money taken from his inmate account by the Department of Corrections. Clamant was convicted in 2003 in case no. 02CF7012. Claimant’s Judgement of Conviction indicated that he owed a total of $665 for fines and surcharges ($320 fine, $20 court cost, $5 other, $70 mandatory victim/witness surcharge, and $250 DNA surcharge). The DNA surcharge was later vacated by the court, leaving a balance of $415. Claimant did not owe any restitution related to this case. At the time of his conviction, claimant had $500 bail on deposit. $415 of the bail money was applied to claimant’s fines and surcharges, bringing the balance to zero. The remaining $85 was returned to the person who had posted the bail. Claimant notes that this money would not have been returned had he still owed money related to this case. In November 2016, claimant received a letter from DOC regarding several withdrawals made from his account for court obligations relate to two cases. The letter indicated that DOC had withdrawn $173.25 from claimant’s account for allegedly unpaid obligations in case no. 02CF7012. Claimant filed an inmate complaint protesting that his debts for this case had been paid off by his bail on deposit and that DOC should not have taken additional funds. His complaint was denied. Claimant believes that DOC has provided no proof that he owed an additional $173.25 and requests return of that money.

DOC recommends denial of this claim. DOC states that claimant’s original court obligations for case no. 02CF7012 were $665. After the court made adjustments, claimant owed $580 total. Claimant’s bail money went towards $415 of these obligations and $85 was returned to the person who paid the bail. Claimant then owed $165 in remaining court obligations, which the DOC collected, along with a $8.25 statutory surcharge. These obligations were explained to claimant in November 2016. Claimant filed an inmate complaint in January 2017 and DOC again explained the obligations to him and denied his complaint. DOC notes that claimant never appealed this denial and therefore did not exhausted his administrative remedies prior to bringing this claim. In March 2017, DOC sent another letter explaining the deductions. This letter did contain an error, mistakenly referring to the obligations as “restitution” rather than costs, but the fact that these deductions had been explained to claimant twice before should have mitigated any confusion caused by the error. Finally, DOC points to § 301.31, which authorizes DOC to use an inmate’s funds to pay obligations of that have been reduced to judgment. Wis. Stat. § 301.32(1), expressly authorized DOC to use inmate funds to be paid towards applicable surcharges, victim restitution, or “for the benefit of the prisoner” and paying down an inmate’s lawful debt is clearly to his benefit. Finally, DOC states that the money in question was not held by DOC for its own benefit but was disbursed to meet claimant’s court-ordered financial obligations.

9. James R. Harris of Stanley, Wisconsin claims $906.06 for restitution money deducted from his inmate account by the Department of Corrections. Claimant was sentenced in 1995 with restitution in an amount “to be determined.” In 1996, a probation and parole agent recommended $4,000 restitution and the court ordered restitution in that amount. Claimant states that his Judgment of Conviction (JOC) was not amended to reflect that restitution and that he was never notified. Claimant alleges that the court’s restitution order was in violation of Wis. Stat. § 973.20(13)(c) and State v. Evans, which found that letting the probation department determine restitution amounts was not authorized by statute. Claimant notes that in 2009 (seven years before DOC began collecting the restitution) the probation office notified the District Attorney that the restitution order in claimant’s case was invalid and that the DA should notify the court that the order should be vacated. The DA failed to take any action in response to this memo. DOC began collecting this restitution in November 2016 after the installation of new accounting software. Claimant filed a motion to stop this collection and the court vacated his restitution order in June 2018. By that time, DOC had collected $906.06 from claimant’s account but refused to refund the money. Claimant believes the restitution order was invalid from day one and that DOC must return the funds. Claimant also believes that Wis. Stat. § 893.40 barred DOC from collecting this money more than 20 years after his conviction.

DOC recommends denial of this claim. DOC states that it collected this restitution money pursuant to a court order and stopped collection upon receipt of the amended JOC vacating the order. DOC notes that the amended JOC did not order DOC to reimburse claimant for money already collected. DOC points to the fact that the 2009 letter from probation to the DA’s office stated that the DA “may” want to take action, however, the JOC was not amended until 2018. DOC states that it is not time-barred by Wis. Stat. § 893.40, because that section applies to a statute of limitations for commencement of an action on a civil judgment and DOC had not initiated an action against claimant, but was collecting outstanding obligations imposed by the court, which DOC is mandated to collect. DOC points to Wis. Stat. § 301.31, which authorizes DOC to use inmate funds to pay prisoner obligations that have been reduced to judgement and Wis. Stat. § 301.32(1), which authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. DOC believes that paying down an inmate’s lawful debts is to his benefit. Finally, DOC states that the money collected was not held by DOC for its own benefit but was disbursed to pay his court obligations. Division of Adult Institution Policy 309.45.02 provides that DOC is not responsible for clawing back money already disbursed when an amended JOC is received.

10. Frank Penigar, Jr. of Stanley, Wisconsin claims $1,272.03 for restitution money deducted from his inmate account by the Department of Corrections. Claimant was convicted in 1996 and the Judgment of Conviction (JOC) at that time indicated that restitution amount was “to be determined.” In October 1999, a DOC probation and parole agent submitted a memo to the court setting the restitution amount at $2,000. That memo indicated that the amount had “been reviewed with the defendant and the defendant disagrees with the amount of restitution.” A document with the claimant’s signature indicating he disagreed with the restitution amount accompanied this memo. This notice that claimant disagreed with the restitution amount triggered the need for a hearing. A hearing was scheduled but later canceled based on the submission of another DOC memo in May 2000, which stated that claimant agreed with the restitution amount. Claimant points to the fact that this memo does not contain his signature or initials as required. Based on this incorrect memo, the court canceled the restitution hearing and ordered $2,000 restitution. Claimant states that he was never notified of this order and was unaware this amount of restitution had been assigned. In November 2016, after installing new accounting software, DOC began deducting restitution from his account. Claimant believes these deductions, which began more than 20 years after his conviction, were in violation of Wis. Stat. § 893.40. In December 2016 he challenged the restitution order and the court found that proper procedures for determining the restitution amount were not followed and that the notice provided to claimant was untimely, unreasonable, and prejudicial. The court vacated the restitution order and set restitution at zero nunc pro tunc. Although DOC points to a November 1996 restitution memo signed by claimant, that memo was never submitted to the court. In fact, the state’s own response to claimant’s motion challenging the restitution stated: “Nothing provided to the State by the [DOC] shows that Mr. Penigar signed and/or initialed information/documents showing that he agreed with the restitution figure.” Claimant believes DOC was negligent in the way it determined the amount of restitution, by submitting inaccurate documents to the courts, and in the unreasonable delay in collecting the restitution. He requests return of the restitution money deducted from his account.

DOC recommends denial of this claim. DOC states that it collected restitution money from claimant’s account pursuant to a court order and stopped that collection as soon as it received the 2018 amended JOC. Although claimant alleges that he was unaware of the restitution order until 2016, DOC points to a November 1996 memo signed by claimant indicating that he agreed with the restitution amount. DOC states that it is not time-barred by Wis. Stat. § 893.40, because that section applies to a statute of limitations for commencement of an action on a civil judgment and DOC had not initiated an action against claimant, but was collecting outstanding obligations imposed by the court, which DOC is mandated to collect. DOC points to Wis. Stat. § 301.31, which authorizes DOC to use inmate funds to pay prisoner obligations that have been reduced to judgement and Wis. Stat. § 301.32(1), which authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. DOC believes that paying down an inmate’s lawful debts is to his benefit. Finally, DOC states that the money collected was not held by DOC for its own benefit but was disbursed to pay his court obligations. Division of Adult Institution Policy 309.45.02 provides that DOC is not responsible for clawing back money already disbursed when an amended JOC is received.

11. Dale M. Robinson of Fox Lake, Wisconsin claims $892.57 for money deducted from his inmate account by the Department of Corrections. Claimant states that DOC collected money from his account for obligations related to two cases, both of which had already been discharged. He states that he contacted the business office numerous times to notify them the cases were discharged but DOC continued to collect money for these obligations. Claimant points to Division of Adult Institutions Policy 309.45.02, section VII A. 1 and 2 which states that once an inmate informs the DOC Business Office that a case has been discharged the Business Office shall confirm the discharge and then “(v)erify and close appropriate obligations.” Claimant believes DOC has no authority to collect on discharged cases. He notes that the parties owed money related to his convictions could have filed civil claims to collect such monies but failed to do so, and the statute of limitations has expired. Claimant requests return of the money collected on these two cases.

DOC recommends denial of this claim. DOC notes that the version of DAI 309.45.02 in effect at the time these collections were made did not require staff to distinguish between discharged and active cases when collecting funds toward court-ordered obligations. In October 2017, DAI 309.45.02 was amended to permit but not require staff to stop collection on some obligations for discharged cases. DOC policy has never mandated that staff stop all collection for discharged cases. DOC points to Wis. Stat. § 301.31, which authorizes DOC to use inmate funds to pay prisoner obligations that have been reduced to judgement and, Wis. Stat. § 301.32(1), which authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. DOC believes that paying off an inmate’s debt, even if on a discharged case, is to his benefit. Finally, DOC states that the money collected was not held by DOC for its own benefit but was disbursed to pay his court obligations. DOC acted in conformance with the law and its own policy in this matter and claimant has presented no evidence of staff negligence.

The Board concludes:

That the following identified claimants are denied:

Robert Schlimm

Michels Corporation

Vitech Systems Group, Inc.

Timothy Smunt

Pastori Balele

Kelley Avery

Mekious D. Bullock, Sr.

Oscar Garner

James R. Harris

Frank Penigar, Jr.

Dale M. Robinson

Dated at Madison, Wisconsin this 30th day of May, 2019.

COREY FINKELMEYER

Chair, Representative of the Attorney General

AMY KASPER

Secretary, Representative of the Secretary of Administration

RYAN NILSESTUEN

Representative of the Governor

LUTHER OLSEN

Senate Finance Committee

_____________

Adjournment

Senator Fitzgerald, with unanimous consent, asked that the Senate stand adjourned until Tuesday, June 11, 2019.

Adjourned.

2:55 P.M.

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