Received on August 28, 2020.
Referred to the committee on Health and Human Services.
Legislative Audit Bureau
Best Practices for Transitioning from Virtual Instruction to In-Person Instruction
Pursuant to 2019 Wisconsin act 185.
Received on August 21, 2020.
Wisconsin Ethics Commission
Lobbyist Update
Pursuant to 13.685 (7), Wis. Stats.
Received on August 25, 2020.
Office of the Commissioner of Insurance
2019 Wisconsin Insurance Report
Pursuant to 601.46 (3), Wis. Stats.
Received on August 27, 2020.
University of Wisconsin System
FY 2019-20 Wisconsin Environmental Policy Act Report
Pursuant to 1.11 (2)(j). Wis. Stats.
Received on August 28, 2020.
State of Wisconsin Claims Board
Claims heard on August 11, 2020
Pursuant to 16.007 and 775.05, Wis. Stats.
Received on August 28, 2020.
Douglas County Clerk of Circuit Court
Annual Restitution Report
Pursuant to 973.20 (11)(e), Wis. Stats.
Received on August 31, 2020.
Department of Natural Resources
2020 Groundwater Coordinating Council Report
Pursuant to 15.347 (13)(g), Wis. Stats.
Received on August 31, 2020.
Referred to the committee on Natural Resources and Energy.
Department of Administration
Temporary Reallocation of Balances
Pursuant to 20.002 (11)(f), Wis. Stats.
Received on August 31, 2020.
Referred to the joint committee on Finance.
_____________
State of Wisconsin
Claims Board
August 28, 2020
Enclosed is the report of the State Claims Board covering the claims heard on August 11, 2020. 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.
Sincerely,
AMY KASPER
Secretary
STATE OF WISCONSIN CLAIMS BOARD
The State of Wisconsin Claims Board conducted hearings at the State Capitol Building in Madison, Wisconsin, on August 11, 2020, upon the following claims:
Claimant Agency Amount
1. Carter Dedolph University $2,882.00
Of Wisconsin
2. Benjamin Werlein Corrections $9,369.16
3. Ryan and Office of $8,294.53
Richard Leaver the Governor
The following claims were decided without hearings:
Claimant Agency Amount
4. Glenn Lemmenes Natural Resources $1,214.40
5. Richard A. Agriculture, Trade & $85,000.00
Lawrence Jr. Consumer Protection
6. Robert Schultz Agriculture, Trade $9,000.00
& Consumer Protection
7. Timmy Johnson Corrections $466.00
8. Norman Rhodes Corrections $229.60
9. Robert Tatum Corrections $255.37
10. Dominique Corrections $157.17
Tovsen-Caseres
11. Jibril Wilson Corrections $148.98
12. George Wilson Corrections $96.70
With respect to the claims, the Board finds:
(Decisions are unanimous unless otherwise noted.)
11.
Carter Dedolph of Hudson, Wisconsin claims $2,882.00 for the value of seven sails not provided as allegedly promised by an online boat auction. In September 2018, claimant was the winning bidder of the “Cow Sailboat” (Soma), put up for auction by UW-Madison’s Hoofer Sailing Club (HSC). Claimant points to the online auction description provided by HSC which stated: “All the parts and sails are still available to complete the refit that was started a few years back before funding ran out.” Claimant notes that when he picked up Soma it was heavily tarped, and he did not access the cabin to see that no sails were provided. In addition, there were no staff present with whom he could raise questions. In January 2019, claimant received a new “found” mainsail but no other sails. At that time claimant also received other parts for the Soma. Claimant states that he was told several times that there were “multiple boxes” of Soma’s parts and materials which had been removed from the boat and were “in storage.” Claimant continued to communicate with HSC for several more months. In July 2019, HSC told him they could not find any other sails for Soma. Claimant understands that Soma was “SOLD AS IS, WHERE IS” but he does not believe that statement negates the clear description on the auction site that “All the…sails are still available …” Claimant notes that Soma was a fully functioning sailboat through the 2015 sailing season and therefore would have had multiple sails. Claimant’s damage amount represents the cost of seven used sails in “fair to good condition,” one mainsail ($464), four headsails ($379 each), and two spinnaker sails ($451 each). Claimant believes the UW and HSC did not fulfill the terms of the auction and requests payment for the missing sails. UW points to the fact that the auction description clearly stated “SOLD AS IS, WHERE IS.” In addition, the auction description did not state that any specific number, type, or quality of sails were included in the purchase, only that they were “available” so that a purchaser would be able to complete refitting the boat. While it was the intention to provide the winning bidder with all of the parts that had been accumulated by UW to refit the sailboat, there was never a promise that all of the parts and sails that were original to Soma would be included in the purchase. There was certainly no promise of any specific number of sails “in good or fair condition.” Claimant had every opportunity to inspect Soma before accepting it. In fact, it was assumed he would need to remove the tarps in order to safely transport the boat by road. He chose not to do so and therefore accepted it “AS IS, WHERE IS.” UW notes that claimant’s winning bid was $250. As documented by claimant’s own exhibits, UW undertook great effort to satisfy his expectations, including conducting multiple searches to locate any parts related Soma, and providing a tiller, spinnaker pole and brand new mainsail after claimant had accepted and transported the sailboat. UW believes it is unreasonable for claimant to now demand a refund of more than 10 times the amount he paid for Soma 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.
22.
Benjamin Werlein of Carmel, Indiana claims $9,369.16 for refund of restitution money related to a 2006 conviction, which was deducted from his inmate account by the Department of Corrections. Claimant states that the victim in his case did not appear at a restitution hearing or provide a restitution amount within the appropriate time frame as required by law. A restitution hearing was never scheduled by the court, also in violation of the law. Claimant points to the fact that the court admitted its negligence in not scheduling a restitution hearing and vacated the restitution order on 4/15/19. Although claimant filed this claim against the Department of Corrections, he agrees that DOC was not negligent in collecting the restitution. However, it is not clear to claimant who bears responsibility to reimburse him. Claimant believes his rights were violated and that the State of Wisconsin Claims Board should take responsibility for paying this claim. Finally, claimant notes that there would be no “re- victimization” of the victim in this case because the medical expenses related to the restitution were paid by insurance companies that are no longer in business. DOC collected this restitution money pursuant to a valid court order that was not vacated until 2019. DOC notes that the amended JOC did not order DOC to reimburse claimant for money already collected and points to State v. Minniecheske, which supports DOC’s position that it is not required to reimburse clamant. DOC also points to Division of Adult Institution Policy 309.45.02, which provides that DOC is not responsible for clawing back money already disbursed to a victim when an amended Judgement of Conviction is received. In addition, DOC is authorized to use inmate funds to pay prisoner obligations that have been reduced to judgement and Wis. Stat., § 301.32 (1) authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. Finally, DOC points to the fact that claimant agrees that DOC was not negligent in collecting this money from his account. Because there was no negligence, DOC 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.
3. Ryan Leaver of Missoula, Montana and Richard Leaver of Beaver Dam, Wisconsin claim $8,294.53 for attorneys’ fees related to Ryan Leaver’s extradition from Montana to Wisconsin in 2011. In March 2011, the Outagamie County District Attorney’s Office filed charges against Mr. Leaver for theft of a rental car. Mr. Leaver states that he was innocent of this crime. He was arrested in Montana and in July 2011, the Outagamie County DA sent Wisconsin Governor Scott Walker a request to extradite Mr. Leaver to Wisconsin. Governor Walker issued the extradition order and transmitted it to the State of Montana. Mr. Leaver was extradited to Wisconsin on 8/5/11. Claimants allege that Mr. Leaver’s extradition was unlawful and illegal because prior to his extradition he submitted exculpatory evidence to Governor Walker’s Office proving Leaver was innocent of any crime and that there was no probable cause to arrest or extradite him. Claimants believe that based on this evidence, Governor Walker should have dropped the charges against Mr. Leaver and not issued the extradition order. As proof of Mr. Leaver’s innocence, claimants point to the fact that the charges against him were dismissed in January 2012. Claimants state that they incurred attorneys’ fees ($7,500 paid by Richard Leaver and $794.53 paid by Ryan Leaver) because of Governor Walker’s extradition order.
The Office of the Governor states that the extradition process is a mechanism for obtaining physical custody of an individual facing criminal charges in a state. The focus of the process is to ensure the correct individual is being extradited and that they do face charges in the state demanding the extradition. The Governor’s Office points to Wis. Stat., § 976.03 (20), uniform criminal extradition act, which prohibits the governor from inquiring into or considering the guilt or innocence of the person being extradited. The Governor’s Office also notes that the eventual dismissal of the charges against Mr. Leaver is irrelevant to his extradition, which was compliant with the law. Claimants have provided no evidence that either the Outagamie County DA’s extradition application or Governor Walker’s extradition order were illegal. The Governor’s Office notes that there is no record that Mr. Leaver challenged his extradition and that none of the claimed attorneys’ fees are for representation during the extradition. Mr. Leaver hired these attorneys after his extradition to Wisconsin and the fees relate to defending his criminal charge. The Governor’s Office believes claimants are not entitled to reimbursement from the state for Mr. Leaver’s criminal defense fees 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 Nilsestuen did not participate in deciding this claim.]
4. A. Glenn and Lorraine Lemmenes of Sheboygan Falls, Wisconsin claim $1,214.40 for vehicle damage and increased insurance premiums related to an accident at Kohler-Andre State Park on 11/27/19. Claimants are regular park visitors and proceeded to the south side of Parking Lot 6, where they routinely park in order to view Lake Michigan. When they attempted to enter the lot, they felt and heard their vehicle strike something. They immediately stopped and discovered that a low hanging rope had been strung across the entrance and caught on the underside of their vehicle, damaging the fender. Claimants note that there were no flags, signs, caution tape, or barricades giving clear warning that the lot was closed; only a low-hanging rope, which claimants did not see. They point to the fact that when they visited the park on 6/24/20, they saw a different parking lot entrance blocked by multiple sawhorses and orange cones, proving that Department of Natural Resources staff understand how to clearly mark a closed area. Although DNR’s recommendation to deny this claim relies on the recreational immunity statute, claimants are not attorneys and simply believe DNR should have made a reasonable effort to make it obvious that the lot was closed. They request reimbursement for their $1,000 insurance deductible and for two years of premium increases instituted by their insurance carrier as a result of the accident.
DNR appreciates claimants’ patronage of Kohler-Andre State Park but unfortunately cannot recommend payment of this claim. DNR notes that the north part of Lot 6 was open that day, and there were cars parked in that location. There were no vehicles parked in the south part of the lot, which was closed due to high water conditions. The rope was attached to a wood post on one side of the south lot entrance and to a wooden sawhorse on the other side and had been in place the entire day without incident before claimants drove into it. DNR believes it is unfortunate that claimants failed to see the rope but that the department is not liable for the damage to their vehicle. DNR is entitled to immunity pursuant to Wis. Stat., § 895.52, which relieved DNR of any duty of care to warn about the rope, and grants immunity from liability for any damages incurred because claimants were engaged in recreational activity. Finally, DNR believes it would be unreasonable to reimburse claimants for speculative and undocumented future insurance premium increases. 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 Katsma did not participate in deciding this claim.]
5. Richard Lawrence of Shell Lake, Wisconsin claims $85,000.00 for the value of deer injured or killed when they were spooked by low-flying planes conducting gypsy moth spraying in May 2019. Claimant states that the planes were extremely loud and flew low, directly over his pens. Claimant received notification that spraying would take place, however, the postcard stated that the planes would be flying “above treetops.” The closest trees to his pens are an eighth of a mile away, therefore, claimant never thought the planes would fly directly over the pens and had no concerns about his animals. He notes that planes did not fly over his pens during spraying conducted north of his farm in 2019. Claimant believes the postcard should have made it clear that the planes would be flying low over open areas, which would have caused him to take steps to protect his animals. Because the planes flew directly over the pens, his animals panicked, resulting in the death of one buck, one doe, one doe carrying three fawns, one doe carrying a single fawn, and two fawns aborted by an injured doe. Claimant had a $48,500 offer to purchase the buck. He had the remaining deceased deer and unborn fawns appraised based on the value of their genetics. He is not requesting reimbursement for the value of future breeding potential, even though the deceased does could have produced animals for years to come.
On 5/2/19, the Department of Agriculture, Trade & Consumer Protection mailed notices that gypsy moth spraying would take place in the area. The postcard stated the planes “will soon fly near or over your home or business,” that the planes would “fly low-just above the treetops” and would be very loud, and that the “noise may startle pets or livestock, so keep them inside, if possible, or monitor them.” There was a phone number, email address, and website on the card for any questions, however, claimant never contacted DATCP with any concerns. Had he done so, DATCP would have removed him from the spraying area. Despite the warning on the notice, claimant took no steps to protect his animals or mitigate any potential damage. DATCP notes that the planes flew a standard grid pattern that day, which is routine procedure during gypsy moth spraying. The last time DATCP sprayed in the vicinity of claimant’s farm was in 2012 when treating for gypsy moths west of the farm. Although DATCP admits no liability and has not encountered this problem with other deer farms, out of an abundance of caution the department will exclude deer farms from future gypsy moth spraying. DATCP objects to payment of this claim in the amount of $85,000. If the Claims Board believes payment should be made, DATCP recommends that the value of claimant’s animals be determined consistent with the department’s other indemnity programs. Those programs do not make awards for unborn or aborted animals and pursuant to Wis. Stat., § 95.31(4), “no payment may exceed $1,500 for an animal.” For that reason, DATCP believes any award made to claimant should be no more than $6,000. The Board concludes the claim should be paid in the reduced amount of $6,000 based on equitable principles. The Board further concludes, under authority of § 16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation § 20.115 (7)(qc), Stats. 6. Robert Schultz of Shell Lake, Wisconsin claims $9,000.00 for the value of a doe that died because she was spooked by low-flying planes conducting gypsy moth spraying and her two fawns, which starved after her death. Claimant does not recall receiving a postcard notifying him about the spaying. He was home on 5/29/19 when the planes flew over his property but was unable to check on his deer because he was headed back to work as an over the road trucker. He called his neighbor, Richard Lawrence, and asked him to check on his deer. Later that day, Lawrence called clamant and told him that he had found a severely injured doe that he had to put down. The doe had two fawns, which claimant hoped would be able to steal milk from another doe until he got home. Lawrence attempted to catch the fawns that afternoon and the next day without success. Claimant returned home on 6/5/19 and found one fawn dead. He returned again on 6/10/19 and found the second fawn dead. He requests reimbursement of $5,000 for the doe, $1,500 for the doe fawn, and $2,500 for the buck fawn.
The doe and two fawns at issue in this claim appear to have been housed on the property of Richard Lawrence. Although claimant states he does not recall receiving the postcard, the Department of Agriculture, Trade & Consumer Protection mailed notices that gypsy moth spraying would take place in the area. The postcard stated the planes “will soon fly near or over your home or business,” that the planes would “fly low-just above the treetops” and would be very loud, and that the “noise may startle pets or livestock, so keep them inside, if possible, or monitor them.” There was a phone number, email address, and website on the card for any questions or concerns. Richard Lawrence received the postcard but did not contact DATCP with any concerns and took no action to mitigate potential damage to the animals on his property, which included claimant’s deer. DATCP notes that the planes flew a standard grid pattern that day, which is routine procedure during gypsy moth spraying.
DATCP also notes that claimant does not appear to have made any significant effort to save the two orphaned fawns. Claimant did not visit the pens until five days after Lawrence failed to catch the fawns, then did not visit them again for another five days, and during that time apparently did not send anyone else to care for them. DATCP points to the fact that the statements made in this claim appear to contradict statements made to department staff during an investigation in September 2019. At that time, claimant told agency staff that Lawrence never handled his deer and that he lost “1 or 2 fawns, I think” due to the spraying. Nicole Harris, who does chores for claimant when he on the road, told staff she did not believe they lost any animals due to the spraying. Although DATCP admits no liability and has not encountered this problem with other deer farms, out of an abundance of caution the department will exclude deer farms from future gypsy moth spraying. DATCP objects to payment of this claim in the amount of $9,000. If the Claims Board believes payment should be made, DATCP recommends that the value of claimant’s animals be determined consistent with the department’s other indemnity programs, which would allow a maximum payment of $1,000 for the doe fawn and $1,500 each for the buck fawn and the adult doe. For that reason, DATCP believes any award made to claimant should be no more than $4,000.
The Board concludes the claim should be paid in the reduced amount of $4,000 based on equitable principles. The Board further concludes, under authority of § 16.007 (6m), Stats., payment should be made from the Department of Agriculture, Trade & Consumer Protection appropriation § 20.115 (7)(qc), Stats.