Derrick A. Sanders v. State of Wisconsin Claims Board

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 9, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP373 Cir. Ct. No. 2020CV1016

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

DERRICK A. SANDERS,

PETITIONER-APPELLANT,

V.

STATE OF WISCONSIN CLAIMS BOARD,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
STEPHEN E. EHLKE, Judge. Reversed and cause remanded with directions.

Before Kloppenburg, Fitzpatrick, and Nashold, JJ.

¶1 KLOPPENBURG, J. Derrick Sanders served twenty-six years in
prison for a crime that he did not commit. He submitted a claim to the Wisconsin
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Claims Board (the “Claims Board”) under WIS. STAT. § 775.05 (2019-20)1 seeking
compensation as an “innocent person[] who [has] been convicted of a crime.” See
§ 775.05(1). On appeal, Sanders argues that the Claims Board erred when it
awarded compensation under § 775.05(4) in the amount of the statutory maximum
of $25,000 without addressing Sanders’ request for additional compensation. We
conclude that the Claims Board made no findings or analysis discernible in the
record to demonstrate its exercise of discretion in determining whether the
statutory maximum is “an adequate compensation” as required under § 775.05(4).
Accordingly, we reverse and remand to the circuit court with directions to remand
to the Claims Board to properly exercise its discretion as to whether $25,000 is or
is not adequate compensation where, as here, additional compensation was
requested.

BACKGROUND2

¶2 The following undisputed facts are taken from the administrative
record filed by the Claims Board in the circuit court.

¶3 In October 1993, Sanders was convicted in Milwaukee County
circuit court of first-degree intentional homicide as party to a crime related to a

1
As we discuss in greater detail below, the legislature has provided in WIS. STAT.
§ 775.05 for compensation for “innocent persons who have been convicted of a crime” and who
have been imprisoned as a result of the conviction. Sec. 775.05(1)-(4).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
In his appellant’s brief, Sanders improperly labels the first page of his argument as
page number 1, after he has presented his statements of the case and of the facts. While the brief
appears to be well within the length allowed under WIS. STAT. RULE 809.19(8)(c)1., we remind
Sanders that the appellant’s certification that the brief meets the length requirements shall include
the statements of the case and of the facts, as well as the argument and conclusion. Id.

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fatal shooting, and he was sentenced to life imprisonment. Sanders maintained at
the time of conviction, and has consistently maintained since, that he was not
involved in or aware of the shooting. In 2017, Sanders filed a motion for
postconviction relief based in part on ineffective assistance of counsel. In August
2018, the circuit court granted the motion and issued a decision concluding that
the State failed to show that the facts regarding Sanders’ conduct satisfied the
elements of party to a crime liability. In September 2018, the State informed the
court on the record that it “could not prove that Mr. Sanders was a party to the
crime of the homicide.” The circuit court promptly vacated the judgment of
conviction and, on the State’s motion, dismissed the case.

¶4 In February 2019, Sanders filed with the Claims Board a claim under
WIS. STAT. § 775.05 seeking the statutory maximum compensation of $25,000
plus up to an additional $5,729,965 in damages for the twenty-six years he spent in
prison. See § 775.05(4). Sanders supported his claim with itemized damages
including approximately $30,000 for loss of property and $500,240 for lost
wages.3 He also calculated lost wages at higher incomes that he asserted he could
have earned in occupations such as law enforcement given that, at the time of his
arrest, he was employed, had no criminal record, had excelled in high school, and
had been honorably discharged from the United States Navy. He calculated lost
wages at annual incomes of $150,000 and $200,000, resulting in total amounts of
lost wages over twenty-six years of $3.9 million and $5.2 million, respectively.

3
Sanders determined the amount of his lost wages by calculating the amount of money
he would have earned working five days per week at his post-release hourly wage of $9.25 over
the twenty-six years that he was in prison.

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Sanders also sought unspecified damages for mental, physical, and emotional
distress, anxiety, and harassment from staff and inmates in prison.

¶5 Upon receipt of Sanders’ claim, the Claims Board forwarded a copy
of the claim to the Milwaukee County District Attorney John Chisholm asking for
that office’s recommendation regarding the “appropriate response to the claim.”
The District Attorney sent the Claims Board a letter stating that the claim was
reviewed by the prosecutor who had handled the 2018 dismissal of the case. The
letter continued, “Based upon his review of the facts surrounding the crime and
Mr. Sanders’ petition for compensation, the Milwaukee [County] District
Attorney’s Office does not oppose his petition.”

¶6 The Claims Board first considered Sanders’ claim on August 22,
2019, at which time it deferred decision of the claim “in order for a hearing to be
scheduled at which claimant and the Milwaukee County District Attorney’s Office
will be present to answer questions.” The Claims Board scheduled the hearing for
December 2019.

¶7 The following string of three emails between the Milwaukee County
District Attorney’s Office and the Claims Board in November 2019 was not
copied to Sanders. In the first email, the District Attorney’s Office informed the
Claims Board that it “will not have anyone to send to this upcoming hearing. We
have nothing further to add other than what was stated on the record in open court
by [the prosecutor] at the time this matter was dismissed.” In the second email,
the Claims Board followed up with this message: “[The District Attorney’s]
April 1, 2019, response to the Claims Board stated that the Milwaukee [District
Attorney]’s Office ‘does not oppose’ Mr. Sanders’ petition. To clarify, are you
saying that the [District Attorney]’s Office does not oppose payment of

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$5,754,965 to Mr. Sanders?” In the third email, the District Attorney’s Office
responded:

[The District Attorney’s] letter of April 1, 2019,
intends to express our general support for Mr. Sanders’
petition for compensation. We originally saw his form that
requested the statutory maximum amount of $25,000,
which we support. Regarding his other claims for
damages, which appears to have varied over the course of
this process, we are not taking any position on those claims,
as we understand the claims board is better situated to make
that determination.

¶8 At the hearing before the Claims Board, Sanders reviewed the record
of the proceedings in his criminal case and stated, “I was innocent, I always
maintained my innocence, and there is no proof, there is no evidence, there [are]
no facts to the contrary of that.” He then asked for compensation “for the 25-26
years I spent wrongfully convicted in the Wisconsin prison system.”

¶9 The Claims Board asked Sanders two questions. The first question
was: “[W]here did you come up with the $5 million?” Sanders explained his
earning potential based on his having had no criminal record and being ex-
military, and said, “I’m not trying to say I would have earned $5 million, what I’m
saying is compensation due to … the precedent that I’ve been seeing.” Sanders
referenced Wisconsin cases in which a person who had been wrongfully convicted
and spent twenty-four years in prison received $7.5 million, and a person who had
been wrongfully convicted and spent thirteen years in prison received $13 million.

¶10 The second question was: “[H]ave you actually made any efforts to
try to sue your [defense] attorney for malpractice?” Sanders responded that he had
filed a notice of claim and injury and was trying to contact attorneys in Wisconsin
from where he was living in Indiana. The hearing then ended.

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¶11 The Claims Board issued a written decision in February 2020 (the
“initial decision”). The Claims Board determined that “the evidence is clear and
convincing that Sanders was innocent of the charge” of which he was convicted
and awarded Sanders “compensation in the amount of $25,000.”

¶12 Sanders submitted a Petition for Rehearing, asserting that the
Claims Board’s decision erred in two respects: (1) the decision misstated the
District Attorney’s Office’s position; and (2) the decision did not address his claim
for additional damages beyond the statutory maximum. The Claims Board
responded with a letter denying the petition (the “rehearing decision”).

¶13 Sanders then filed a petition for judicial review of the Claims
Board’s decisions awarding compensation and denying rehearing. In a written
decision and order, the circuit court affirmed the Claims Board’s decisions and
dismissed Sanders’ petition. This appeal follows.

¶14 We will describe in pertinent detail the substance of the Claims
Board’s initial decision and its rehearing decision in the Discussion below.

DISCUSSION

¶15 Sanders argues that the Claims Board erred when it awarded
compensation in the amount of the statutory maximum of $25,000 without
addressing his request for additional compensation as required under WIS. STAT.
§ 775.05(4). We begin with the applicable law and standard of review, and then
proceed with our analysis.

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I. Applicable Law and Standard of Review

¶16 The legislature has provided in WIS. STAT. § 775.05 for
compensation for “innocent persons who have been convicted of a crime” and who
have been imprisoned as a result of the conviction. Sec. 775.05(1)-(4). Such a
person must first “petition the claims board for compensation for such
imprisonment.” Sec. 775.05(2). The Claims Board shall send a copy of the
petition to the prosecutor who prosecuted the petitioner and the judge who
sentenced the petitioner, for their information. Id. The Claims Board shall then
“hear[] the evidence on the petition,” and make a finding as to whether “the
evidence is clear and convincing that the petitioner was innocent of the crime for
which he or she suffered imprisonment.” Sec. 775.05(3). If the Claims Board
“finds that the petitioner was innocent and that he or she did not by his or her act
or failure to act contribute to bring about the conviction and imprisonment,” the
Claims Board shall then “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.” Sec. 775.05(4). “If the [C]laims [B]oard
finds that the amount it is able to award is not an adequate compensation it shall
submit a report specifying an amount which it considers adequate” to the
legislature. Id.

¶17 The Claims Board is not “bound by common law or statutory rules
of evidence, but shall admit all testimony having reasonable probative value,
excluding that which is immaterial, irrelevant or unduly repetitious.” WIS. STAT.
§ 16.007(2). The Claims Board’s findings and award are subject to judicial review
“as provided in ch. 227.” WIS. STAT. § 775.05(5).

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¶18 “When an appeal is taken from a circuit court order reviewing an
[administrative] agency decision, we review the decision of the agency, not the
circuit court.” Hilton ex rel. Pages Homeowners’ Ass’n v. DNR, 2006 WI 84,
¶15, 293 Wis. 2d 1, 717 N.W.2d 166; see also Tetra Tech EC, Inc. v. DOR, 2018
WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21; Turnpaugh v. State Claims Bd.,
2012 WI App 72, ¶1, 342 Wis. 2d 182, 816 N.W.2d 920. We uphold the agency’s
factual findings if they are supported by substantial evidence. WIS. STAT.
§ 227.57(6). We review the agency’s legal conclusions de novo. Tetra Tech, 382
Wis. 2d 496, ¶84; see also id., ¶¶78, 108 (citing § 227.57(10) and (11)) (directing
that a court give “‘due weight’ to the experience, technical competence, and
specialized knowledge of an administrative agency as [the court] consider[s] its
arguments” and exercises “independent judgment in deciding questions of law.”).

¶19 As stated, the legislature has directed the Claims Board to “find the
amount which will equitably compensate the petitioner” up to certain statutory
maximum amounts and to report to the legislature “if [it] finds that the amount it is
able to award is not an adequate compensation.” WIS. STAT. § 775.05(4). The use
of the term “equitably” together with “adequate” connotes an exercise of
discretion. See, e.g., Forest Cnty. v. Goode, 219 Wis. 2d 654, 683, 579 N.W.2d
715 (1998) (concluding that a statute authorizing injunctive relief does not
eliminate a circuit court’s equitable power in its exercise of discretion); Nationstar
Mortg. LLC v. Stafsholt, 2018 WI 21, ¶23, 380 Wis. 2d 284, 908 N.W.2d 784
(“The circuit court’s decision to grant equitable remedies is reviewed for an
erroneous exercise of discretion.”); GMAC Mortg. Corp. v. Gisvold, 215 Wis. 2d
459, 480, 572 N.W.2d 466 (1998) (“Foreclosure proceedings are equitable in
nature, and the circuit court has the equitable authority to exercise discretion
throughout the proceedings.”); Klawitter v. Klawitter, 2001 WI App 16, ¶8, 240

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Wis. 2d 685, 623 N.W.2d 169 (“We apply the erroneous exercise of discretion
standard in reviewing decisions in equity.”).

¶20 A reviewing court “shall not substitute its judgment for that of the
agency on an issue of discretion.” WIS. STAT. § 227.57(8). However,
“[d]iscretion is more than a choice between alternatives without giving the
rationale or reason behind the choice.” Reidinger, O.D., v. Optometry Examining
Bd., 81 Wis. 2d 292, 297, 260 N.W.2d 270 (1977).

In the first place, there must be evidence that
discretion was in fact exercised. Discretion is not
synonymous with decision-making. Rather, the term
contemplates a process of reasoning. The process must
depend on facts that are of record or that are reasonably
derived by inference from the record and a conclusion
based on a logical rationale founded upon proper legal
standards .… [T]here should be evidence in the record that
discretion was in fact exercised and the basis of that
exercise of discretion should be set forth.

Id. (quoted sources and internal quotation marks omitted). See also Argonaut Ins.
Co. v. Labor and Industry Com’n, 132 Wis. 2d 385, 391-92, 392 N.W.2d 837 (Ct.
App. 1986) (reversible error where hearing examiner denied request for
continuance “without giving the parties or the reviewing court any inkling of the
reasons underlying the decision,” concluding: “There is nothing in the record
before us to indicate that the examiner exercised her discretion as that term has
been defined by the courts, and her failure to do so is in itself an abuse of
discretion.”).

¶21 The parties’ arguments in this appeal also require that we construe
statutory provisions. “The interpretation and application of statutes present
questions of law that we review independently.” Brey v. State Farm Mut. Auto.
Ins. Co., 2022 WI 7, ¶9, 400 Wis. 2d 417, 970 N.W.2d 1. When interpreting a

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statute, our analysis begins with the statutory text. State ex rel. Kalal v. Circuit
Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.
“Statutory language is given its common, ordinary, and accepted meaning.” Id.
“Importantly, ascertaining the plain meaning of a statute requires more than
focusing on a single sentence or portion thereof.” Brey, 400 Wis. 2d 417, ¶11
(citation omitted). When deciding whether language is plain, courts must read the
words in context and with a view to the place of those words in the overall
statutory scheme. Id.; see also Kalal, 271 Wis. 2d 633, ¶46 (“Context is important
to meaning. So, too, is the structure of the statute in which the operative language
appears.”). “If this process of analysis yields a plain, clear statutory meaning, then
there is no ambiguity, and the statute is applied according to this ascertainment of
its meaning.” Id., ¶46 (citation omitted). We afford no deference to the agency’s
interpretation of the statute in question. WIS. STAT. § 227.10(2g); Clean
Wisconsin v. WDNR, 2021 WI 72, ¶10, 398 Wis. 2d 433, 961 N.W.2d 611.

II. Analysis

¶22 To repeat, Sanders argues that the Claims Board erred when it
awarded the statutory maximum amount of $25,000 without addressing his request
for additional compensation above the statutory maximum. We first present in
greater detail the contents of the Claims Board’s initial decision and its rehearing
decision. We next apply the legal principles stated above and explain our
conclusion that, on this record, the Claims Board failed to properly exercise its
discretion in awarding the statutory maximum of $25,000 to Sanders without
addressing his request for additional compensation. We then address and reject
the Claims Board’s arguments to the contrary.

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A. Claims Board’s Decisions

¶23 The Claims Board’s initial decision begins with a detailed recitation
of the facts, as presented by Sanders with supporting documentation, pertaining to
a fatal shooting in 1992 and the ensuing criminal proceedings. In this facts
section, the Claims Board reviews how those proceedings led to Sanders’
conviction in 1993 and the dismissal of his criminal case in 2018, after Sanders
had served twenty-six years of a life sentence in prison. This facts section ends
with one sentence regarding Sanders’ personal situation at the time of his arrest,
and two sentences stating his request for the statutory maximum and his request
for additional compensation based on awards “in prior Innocent Convict
Compensation claims.”

¶24 The initial decision continues with a section presenting the District
Attorney’s position on Sanders’ claim, as stated in the November 2019 email
exchange described in ¶7 above. The initial decision then proceeds to a final
section entitled “Discussion and Conclusion.” The first paragraph of this section
states the Claims Board’s obligation under WIS. STAT. § 775.05(3) to determine
whether there is clear and convincing evidence that Sanders is innocent of the
crime for which he was imprisoned. This section then engages in a detailed
analysis of the evidence pertinent to that determination. The final paragraph of
this section contains two sentences: (1) “Based on the above, the Board concludes
and finds that the evidence is clear and convincing that Sanders was innocent of
the charge discussed herein.”; and (2) “Accordingly, the Board further concludes
that compensation in the amount of $25,000 shall be awarded from the Claims
Board appropriation.”

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¶25 Sanders petitioned for rehearing, challenging the Claims Board’s
articulation of the District Attorney’s Office’s position and the Claims Board’s
failure to address his request for compensation above the statutory maximum. In
its decision denying rehearing, the Claims Board first states that the record
supports the initial decision’s statement of the District Attorney’s Office’s position
and attaches a copy of the November 2019 email string, described above, between
the Claims Board and the District Attorney’s Office showing that the initial
decision’s statement is correct. Second, the Claims Board states that “the absence
of an explicit statement regarding the request for additional damages does not
render the Board’s [initial] decision incomplete.” The Claims Board further states
that it is not required to submit a report to the legislature “specifying an amount
which it considers adequate” because it did not conclude that the statutory
maximum is “not adequate compensation.”

B. Failure to Properly Exercise Discretion

¶26 The legislature imposes two separate and distinct obligations on the
Claims Board in WIS. STAT. § 775.05. The first, stated in § 775.05(3) (“the
innocence obligation”), requires that the Claims Board determine whether there is
clear and convincing evidence that the petitioner is innocent of the crime for
which the petitioner was imprisoned. The second, stated in § 775.05(4) (“the
compensation obligation”), consists of two parts: (1) the Claims Board shall “find
the amount which will equitably compensate the petitioner” for the wrongful
conviction and imprisonment, “not to exceed $25,000 and at a rate of
compensation not greater than $5,000 per year for the imprisonment;” and (2) the
Claims Board shall recommend the “amount which it considers adequate” to the
legislature if it “finds that the amount it is able to award is not an adequate
compensation.” Sec. 775.05(4).

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¶27 The first part of the compensation obligation cabins the Claims
Board’s exercise of discretion to determine what amount will equitably
compensate the petitioner within certain maximum amounts. The second part of
the compensation obligation extends the Claims Board’s exercise of discretion to
determining whether the maximum amount that it is able to award is adequate and,
if it determines that it is not, requires that the Claims Board report to the
legislature the “amount which it considers adequate” beyond what it may itself
award. WIS. STAT. § 775.05(4).

¶28 The legislature’s use of the terms “equitable” and “adequate”
establishes the connection between these two discretionary determinations.
“Equitable” means “dealing fairly with” and “adequate” means “sufficient for a
specific need or requirement.” Equitable, MERRIAM-WEBSTER ONLINE
DICTIONARY, https://www.merriam-webster.com/dictionary/equitable (last visited
May 31, 2022); adequate, MERRIAM-WEBSTER ONLINE DICTIONARY,
https://www.merriam-webster.com/dictionary/adequate (last visited May 31,
2022). Applying these dictionary definitions to the two provisions that define the
Claims Board’s compensation obligation, the Claims Board must determine
whether the maximum amount that it is able to award is sufficient (“adequate”) to
fairly (“equitably”) compensate the petitioner.

¶29 Further, the clause that links the two provisions, “If the Claims
Board finds that the amount it is able to award is not an adequate compensation,”
also confirms this meaning of the two provisions defining the Claims Board’s
compensation obligation. This linking clause completes the provision that
precedes it and leads into the provision that follows it.

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¶30 Thus, WIS. STAT. § 775.05(4), read as a whole, requires that the
Claims Board, when it awards the statutory maximum amount, explain its
discretionary determination that the statutory maximum amount either does or
does not constitute adequate compensation. See Reidinger, 81 Wis. 2d at 297. If
the Claims Board decides that the amount that it is able to award is insufficient to
fairly compensate the petitioner, then it must determine an amount that is
sufficient to forward to the legislature. If the Claims Board, when faced with a
request for more than the statutory maximum amount of compensation, decides
that the amount that it is able to award is not insufficient, then it need not submit a
report to the legislature. However, in both situations the Claims Board must
exercise its discretion one way or the other; evaluating the adequacy of the amount
that it is able to award, supported by an explanation showing its exercise of
discretion.

¶31 As we now explain, the Claims Board’s initial decision and its
rehearing decision reflect its reasoning and decision-making only as to its findings
regarding the innocence obligation but not its exercise of discretion regarding the
compensation obligation.

¶32 Neither the Claims Board’s initial decision nor its rehearing decision
contain any fact-finding or analysis regarding its obligation under WIS. STAT.
§ 775.05(4) to demonstrate its exercise of discretion in determining whether,
having awarded the statutory maximum amount in response to Sanders’ request
for compensation above that amount, the amount that it is able to award is or is not
adequate to compensate Sanders for his wrongful conviction and twenty-six years
spent in prison. The discussion in the initial decision is prefaced solely by
reference to the part of the statute in § 775.05(3) that directs the Claim Board, in
the decision’s words, to “determine whether or not the evidence is clear and

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convincing that the petitioner was innocent of the crime for which he was
imprisoned.” The decision carefully analyzes the facts and “concludes and finds”
that it is. No similar preface or analysis precedes its “further” conclusion that
“compensation in the amount of $25,000 shall be awarded.” Indeed, there is no
reference at all in that conclusion, or the discussion that precedes it, either to
§ 775.05(4) or to the term “adequate.”

¶33 The rehearing decision does not help fill in the blanks. It only points
to the fact that the Claims Board “did not conclude that the amount which it was
able to award was ‘not adequate compensation,’” but does not address the initial
decision’s failure to provide an explanation for its determination that the amount
that it was able to award was adequate compensation. It then states in summary
fashion that because the decision did not contain a conclusion regarding the
inadequacy of the compensation amount, it was not required to submit a report to
the legislature. However, the Claims Board’s duty to submit a report to the
legislature arises only after it has exercised its discretion in first determining that
“the amount it is able to award is not an adequate compensation.” As stated, the
Claims Board must demonstrate its exercise of its discretion in determining, one
way or the other, whether the amount that it is able to award is adequate. That the
Claims Board’s decision did not contain a conclusion regarding the adequacy of
the compensation amount confirms that the decision does not reflect the Claims
Board’s exercise of discretion in making the determination relieving it of the duty
to submit a report to the legislature.

¶34 The rehearing decision also, in a wholly circular and conclusory
fashion, states that its failure to make any explicit statement about whether the
statutory maximum is adequate in Sanders’ situation “does not render the Board’s
decision incomplete.” On its face, the Board’s decision is incomplete, given its

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obligation under WIS. STAT. § 775.07(4) to determine whether the maximum
amount that it awarded constitutes adequate compensation in Sanders’ specific
situation where he requested more than the maximum amount that the Claims
Board is authorized to award under the statute. Neither decision contains any fact-
finding, analysis, or rationale regarding such a determination.

¶35 A reviewing court may affirm a discretionary determination when
the facts that formed the foundation for the determination are not specified but
“the undisputed record supports” the determination. Keane v. St. Francis Hosp.,
186 Wis. 2d 637, 668–69, 522 N.W.2d 517 (Ct. App. 1994) (citing Galuska v.
Kornwolf, 142 Wis. 2d 733, 419 N.W.2d 307 (Ct. App. 1987) (in mandamus
action, reviewing court is obliged to uphold discretionary decision if it can
conclude ab initio that there are facts in the record that would support the decision
had discretion been exercised on the basis of those facts). We now review “the
undisputed record” to assess whether it supports a discretionary decision that the
statutory maximum amount is not inadequate compensation. See Keane, 186
Wis. 2d at 668.

¶36 Here, there are few, if any, facts in the Claims Board’s decision
potentially pertaining to adequate compensation beyond a recitation of the facts
regarding Sanders’ criminal proceedings, his personal situation at the time of his
arrest, and the District Attorney’s Office’s position on his petition. More
importantly, in terms of a reviewing court’s ability to discern any rationale based
on those facts, there is no hint as to how the Claims Board might have related
those facts to a discretionary determination of adequate compensation.

¶37 As to the criminal proceedings, the decision references: Sanders’
acknowledgement that he participated in a beating of the victim directly prior to

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and separate from the fatal shooting in 1992; Sanders’ consistent claim that he was
not involved in or aware of the shooting; the shooter’s averment in an affidavit in
1996 and statement to law enforcement in 2018 that he alone was responsible for
the shooting; and the circuit court’s conclusion, based on the State’s position at the
postconviction motion hearing in 2018, that there was no factual basis for Sanders’
conviction of first degree intentional homicide as party to a crime. As to Sanders’
personal situation at the time of arrest, the decision references Sanders’
representation that “at the time of his arrest he was employed full-time, had no
criminal record and was an honorably discharged US Navy Veteran.” As to the
District Attorney’s Office’s position, the decision states that the Office does not
oppose Sanders’ claim for $25,000 and takes no position on his claim for
additional compensation.

¶38 It is possible that Sanders’ participation in the beating, his personal
situation at the time of arrest, and the District Attorney’s Office’s position might
all bear on a determination of whether the statutory maximum amount is adequate
compensation under WIS. STAT. § 775.05(4). However, there is no indication in
the record as to in what manner or context these facts were considered, or as to
how much relative weight the Claims Board may have given these and other facts.
Moreover, the initial decision notes that Sanders referenced the awards “in prior
Innocent Convict Compensation claims” but does not then engage in any analysis
comparing or contrasting those prior cases. Rather, as stated, in its discussion the
decision only analyzes the clear and convincing evidence of innocence component
of the statutorily required review under § 775.05(3).

¶39 The “undisputed record” may weigh in favor of or against the second
component of the statutorily required review under WIS. STAT. § 775.05(4): a
determination of whether the maximum amount that the Claims Board is able to

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award is adequate compensation in Sanders’ situation. However, this court “shall
not substitute its judgment for that of the agency on an issue of discretion.” WIS.
STAT. § 227.57(8). Where, as here, there are no discernable facts or rationale in
the record to support the conclusion that the Claims Board exercised its discretion
to make such a determination, we have no option but to remand for the Claims
Board to properly exercise its discretion. See Reidinger, 81 Wis. 2d at 297
(“Discretion is more than a choice between alternatives without giving the
rationale or reason behind the choice.”).

¶40 In sum, we conclude that the Claims Board made no findings or
analysis discernible in the record to demonstrate its exercise of discretion in
determining whether the statutory maximum is “an adequate compensation” in
Sanders’ situation as required by WIS. STAT. § 775.05(4).

¶41 Before turning to the Claims Board’s arguments to the contrary, we
briefly address Sanders’ arguments that the Claims Board erred in three additional
respects. We need not consider these additional issues because our conclusion that
the Claims Board failed to exercise its discretion disposes of this appeal. See
Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436,
842 N.W.2d 508 (“An appellate court need not address every issue raised by the
parties when one issue is dispositive.”). However, we briefly address them for the
sake of completeness.

¶42 First, Sanders suggests that at least three fact-specific decisions in
which the Claims Board has awarded compensation establish a prior practice of
awarding more than the statutory maximum whenever requested, or at least a
practice of specifically addressing the request for additional compensation, and the
Claims Board fails to explain its deviation from that practice in this case. WIS.

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STAT. § 227.57(8) (providing that a court shall reverse or remand if it determines
that the agency’s discretion is inconsistent with prior agency practices and the
“deviation therefrom is not explained to the satisfaction of the court.”). We have
reviewed the “Claims Board Precedent Log: [WIS. STAT.] § 775.05” in the
administrative record, which describes the details and disposition of approximately
fifty claims under § 775.05 since 1960. Our review of the log shows that, in those
very few cases in which the Claims Board made an award and the petitioner
requested more than the statutory maximum, the Claims Board’s practice was
variable in terms of whether and to what extent it explained its award. We agree
with the Claims Board that these cases are so few in number and fact-specific that
they do not establish a relevant prior agency practice of any kind. See Barron
Elec. Co-op v. Public Serv. Comm’n of Wis., 212 Wis. 2d 752, 771, 569 N.W.2d
726 (Ct. App. 1997) (one single, factually distinguishable decision does not
constitute a “prior agency practice” under § 227.57(8)).

¶43 Second, Sanders argues that the Claims Board’s failure to address
his request for additional compensation deprived him of his rights to sue the State
and of access to the courts. This argument lacks any support in the law. Only the
legislature may “authorize suits against the state.” Lister v. Board of Regents of
the Univ. of Wis. Sys., 72 Wis. 2d 282, 294, 240 N.W.2d 610 (1976). Here, the
legislature has provided the right to judicial review of Claims Board decisions, and
Sanders has fully availed himself of that right in these proceedings. See WIS.
STAT. § 775.05(5) (the Claims Board’s findings and award are subject to judicial
review “as provided in ch. 227.”). To the extent that Sanders is arguing that the
Claims Board is required to report to the legislature in order to allow him to sue
the State other than in a chapter 227 judicial review action, the language in
§ 775.05(4) refutes his argument. See § 775.05(4) (requiring that the Claims

19
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Board submit a report to the legislature only “[i]f the [C]laims [B]oard finds that
the amount it is able to award is not an adequate compensation.”).4

¶44 Third, Sanders argues that he was prejudiced by the Claims Board’s
failure to inform him of its “ex parte” communication with the Milwaukee County
District Attorney’s Office on that Office’s position regarding his petition. To
recap, in its April 2019 letter, the District Attorney’s Office stated that it “does not
oppose [Sanders’] petition.” In response to the Claims Board’s request for
clarification, the District Attorney’s Office expressed in a November 2019 email
“general support for Mr. Sanders’ petition for compensation,” specifically
supported his request for the statutory maximum, and took no position on, and
deferred to the Claims Board as “better situated” to consider, his request for
additional compensation.

¶45 A party may show a due process violation arising from an ex parte
communication if the communication “introduced new information on which the
[decision-maker] based its decision.” Marder v. Board of Regents of the Univ. of
Wis. Sys., 2005 WI 159, ¶33, 286 Wis. 2d 252, 706 N.W.2d 110. In Marder, our
supreme court quoted with approval the following explanation of when ex parte
communications may implicate due process, in a case brought by a former
employee challenging his termination from employment:

The introduction of new and material information by means
of ex parte communications to the deciding official
undermines the public employee’s constitutional due
process guarantee of notice (both of the charges and of the
employer’s evidence) and the opportunity to respond ….

4
Both parties state that a petitioner may also commence an action against the State if the
legislature does not allow the claim under WIS. STAT. § 775.01. Whether the parties are correct
does not matter to our analysis.

20
2021AP373

However, not every ex parte communication is a
procedural defect so substantial and so likely to cause
prejudice that it undermines the due process guarantee and
entitles the claimant to an entirely new administrative
proceeding. Only ex parte communications that introduce
new and material information to the deciding official will
violate the due process guarantee of notice.

Marder, 286 Wis. 2d 252, ¶28 (quoting Stone v. FDIC, 179 F.3d 1368, 1376-77
(Fed. Cir. 1999)).

¶46 Sanders argues that the District Attorney’s Office’s April 2019 letter
and the ex parte November 2019 email stated positions that differ in material
ways; that the Claims Board’s decisions misstate the Office’s initial position; and
that Sanders was unable to address the difference or contest two alleged factual
errors in the email, namely: (1) that his petition did not from the start include his
claim for additional compensation; and (2) that his claim for additional
compensation varied.

¶47 The Claims Board argues that Sanders has not shown that rules
prohibiting ex parte communications apply to its review of his petition. However,
Sanders in his appellant’s brief cites the Black’s Law Dictionary definition of “ex
parte communication” and applies that definition to the facts here to support his
argument that the November 2019 emails constitute new and material information
between the District Attorney’s Office and the Claims Board. The Claims Board
then argues that Sanders cannot show that he suffered any prejudice from the ex
parte communications because, according to the Claims Board, there is no
difference that matters between the Office’s positions as stated in the April 2019
letter and the November 2019 email. However, if there is no difference, then it is
not clear why the Claims Board sought clarification of the former position and
states in its initial decision only the latter position.

21
2021AP373

¶48 In any event, while the Claims Board’s initial decision presents only
the District Attorney’s Office’s statement of position as stated in the November
2019 email, as explained above, the initial decision contains no discussion of that
statement, either alone or in connection with the statement in the April 2019 letter.
The Claims Board’s rehearing decision similarly does not discuss the significance
of either statement. On remand the Claims Board may, as part of its exercise of
discretion, articulate on the record whether and how it considered either or both of
the District Attorney’s Office’s statements.5

C. Claims Board’s Arguments

¶49 The Claims Board begins by arguing that it need only address
additional compensation if it finds that the statutory maximum is inadequate.
However, this begs the question when, as explained above, there is no indication
in the record that the Claims Board exercised its discretion to determine whether
the statutory maximum is inadequate.

¶50 The Claims Board next argues that “the statute does not require the
Claims Board to make that affirmative finding” that the statutory maximum is
inadequate, and that its award of the statutory maximum here indicates that it
found that the statutory maximum is not inadequate. As explained above, the
statute requires the Claims Board to exercise its discretion to determine whether,

5
Sanders may also intend to make additional constitutional arguments, including that he
was denied his rights to equal protection and due process and that WIS. STAT. § 775.05 is
unconstitutional. As to these potential arguments, the Claims Board explains in its response brief
why those arguments fail and Sanders does not contest the Claims Board’s analyses in his reply
brief. Accordingly, we deem Sanders to have conceded that the Claims Board’s arguments as to
these issues are correct. See United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304
Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in reply brief to an argument made
in response brief may be taken as a concession).

22
2021AP373

when it has awarded the statutory maximum amount and the petitioner has
requested additional compensation above the statutory maximum amount, the
amount that it is able to award is or is not adequate compensation. See WIS. STAT.
§ 775.05(4). Saying that it suffices simply to vote to award the statutory
maximum, without any fact-finding or rationale supporting the discretionary
determination whether the statutory maximum is or is not adequate, eliminates the
parameters that guide our review of the exercise of discretion. See Loy v.
Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982) (A court properly
exercises its discretion when it examines the relevant facts, applies a proper
standard of law and, using a rational process, reaches “a conclusion that a
reasonable judge could reach.”). No such process is discernible simply from the
vote here, particularly when the vote is not accompanied by any reference to the
statute that guides the Claims Board’s exercise of discretion as to the
determination of whether the statutory maximum amount that it has awarded is or
is not adequate compensation.

¶51 Finally, the Claims Board argues that Sanders cannot show “that he
was in any way harmed [just] because the Claims Board did not explicitly state:
‘we find that $25,000 is adequate compensation.’” However, the Claims Board
cites no law supporting the proposition that a harmless error standard applies
where an agency fails on the record to demonstrate its exercise of discretion. The
case it does cite, Houslet v. DNR, 110 Wis. 2d 280, 329 N.W.2d 219 (Ct. App.
1982), certainly does not.6 In that case, the court upheld the denial by the
Department of Natural Resources of a dredging contract under the wetlands

6
Notably, the Claims Board fails to include a pin cite directing us to the language that
supports the proposition for which it cites the opinion.

23
2021AP373

regulations. Id. at 281. The court also ruled that the dredging contract statute
required that, in addition, the Department make a finding as to the potential for
water pollution. Id. at 291. However, the court concluded that it was not
necessary to remand for the Department to make such a finding because the
Department had “properly rejected” the contract under the wetlands regulations.
Id. While the court referred to the Department’s failure to make the water
pollution finding as harmless error, id. at 281, it is clear that the error was
harmless only because the Department had made findings required under different
regulations supporting its denial of the contract. Id. at 291. That is, the record
contained fact-finding and legal conclusions that supported a different, dispositive,
basis for upholding the Department’s decision. The Claims Board cites no part of
that opinion indicating that it concerned the Department’s exercise of discretion;
nor does the Claims Board cite any part of this record that contains similar fact-
finding or rationale showing a dispositive exercise of discretion.

¶52 Harmless error may properly apply when a decision maker sets forth
the basis of its discretion but that discretion is nonetheless erroneously exercised.
See, e.g., Martindale v. Ripp, 2001 WI 113, ¶¶4, 19-20, 246 Wis. 2d 67, 629
N.W.2d 698 (conducting a harmless error analysis when a circuit court
erroneously exercised its discretion in excluding expert testimony at trial, but
provided an explanation for the exclusion). However, the Claims Board points to
no legal authority applying a harmless error analysis when the record lacks any
findings or analysis to demonstrate the exercise of discretion. Under the law
stated above, in such a situation we search the record to see if supports the
exercise of discretion that was not expressly explained. We have explained why
we are unable to discern such support here. When an agency does not explicitly
exercise its discretion, and when there is no discernible fact-finding or rationale in

24
2021AP373

the record to support an implicit exercise of discretion, the concept of harmless
error does not relieve the reviewing court of the obligation to remand for the
agency to exercise its discretion as required by the statute.7

CONCLUSION

¶53 For the reasons stated, we reverse and remand to the circuit court
with directions to remand to the Claims Board to properly exercise its discretion as
to whether the statutory maximum amount of $25,000 that it awarded is or is not
adequate compensation where, as here, additional compensation was requested.

7
The dissent’s conclusion that an explanation will not change the result, ¶¶92, 97,
disregards the principles of statutory construction and relevant case law set forth above, as they
apply to the relief being ordered.

“Statutory interpretation centers on the ‘ascertainment of meaning,’ not the recitation of
words in isolation.” Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶13, 400 Wis. 2d 417,
970 N.W.2d 1. The dissent’s focus on the word “if” in ¶¶74-79, without considering the entire
text of WIS. STAT. § 775.05(4) in view of its structure and the logical relation of the two parts at
issue, reflects a “hyper-literal” approach. Id. That approach yields an unreasonable interpretation
that does not recognize either the discretionary authority granted in § 775.05(4) to the Claims
Board in considering a request for compensation by a person who has been unlawfully
imprisoned, or the gravity underlying the exercise of that discretionary authority when a person
has unlawfully suffered a loss of liberty.

Our supreme court has made clear that it is an erroneous exercise of discretion not to set
forth the basis of the exercise of discretion. Reidinger, O.D., v. Optometry Examining Bd., 81
Wis. 2d 292, 297, 260 N.W.2d 270 (1977). For forty-five years, that holding has remained intact.
In his appellant’s brief, Sanders cites Reidinger in support of his argument that the Claims Board
was required to explain its rationale. Although he includes this citation as part of his argument
that such an explanation is required by the Claims Board’s “prior practice,” the language he cites
from Reidinger applies independent of any prior practice. The Claims Board does not respond to
Sanders’ reliance on Reidinger in its response brief. The dissent similarly relegates Reidinger to
a footnote. ¶89 n. 15. Neither offers a persuasive reason why the Reidinger definition of the
exercise of discretion does not apply to this administrative discretionary decision subject to
judicial review under ch. 227.

Finally, it is consistent with Reidinger and the canons of statutory construction based on
the language of WIS. STAT. § 775.05(4) as a whole that we remand to the Claims Board to explain
its exercise of discretion.

25
2021AP373

By the Court.—Order reversed and cause remanded with directions.

Not recommended for publication in the official reports.

26
No. 2021AP373(D)

¶54 FITZPATRICK, J. (dissenting).

¶55 I respectfully dissent.

¶56 The majority opinion errs in stating that the State of Wisconsin
Claims Board must engage in a detailed explanation and analysis to support its
denial of Sanders’ request for a report to the legislature regarding compensation in
excess of $25,000. The majority opinion recasts the Claims Board into a tribunal
that sets a total value, such as a jury would, on claims that come before it pursuant
to WIS. STAT. § 775.05(4) (2019-20)1 and further requires that the Claims Board
spell out how the Board determined that exact amount. The unique, two-step
statutory mechanism in § 775.05(4) does not require either act of the Claims
Board, as shown by the language chosen by the legislature. The majority opinion
has grafted onto that statutory subpart a process the legislature has not sanctioned
and, as a result, those conclusions in the majority opinion are contrary to policy
choices made by the legislature. See Mayo v. Wisconsin Injured Patients &
Fams. Comp. Fund, 2018 WI 78, ¶¶26, 40, 383 Wis. 2d 1, 914 N.W.2d 678
(stating that courts “do not reweigh the policy choices of the legislature”).

¶57 The majority opinion also errs in giving credence to Sanders’
argument that a communication between a Claims Board analyst and the
Milwaukee County District Attorney’s Office was an improper ex parte

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
No. 2021AP373(D)

communication and is a basis to remand this matter to the Claims Board. That
argument should be rejected for at least the following reason. Under the
applicable law and facts, such communication was not material and did not
prejudice Sanders and, therefore, is not a basis to remand this matter to the Claims
Board.

¶58 I begin by briefly reviewing subject matters where I agree with the
majority opinion.

Points of Agreement

¶59 In briefing in this court, many of Sanders’ arguments are based on
his contention that his right to sue the State of Wisconsin for his imprisonment is
denied him because the Claims Board did not send a report to the legislature
regarding additional compensation over $25,000 for him pursuant to WIS. STAT.
§ 775.05(4). Within this argument, Sanders requests outright reversal of the
Claims Board decisions and an order from this court requiring the Claims Board to
send a report to the legislature specifying an amount of additional compensation
for Sanders beyond the $25,000 awarded. These portions of Sanders’ briefing in
this court do not request a remand for an explanation of the decisions of the
Claims Board. I agree with the majority opinion (Majority, ¶43) that Sanders’
argument regarding his right to sue the State of Wisconsin fails.

¶60 Sanders also argues that the Claims Board’s failure “to make a
recommendation or forward” to the legislature a specified amount of additional
compensation for him, without explanation, stands in violation of “prior case
practices” of the Claims Board. The Claims Board asserts that there is no prior
agency practice which requires the Claims Board to explain its reasoning when the
Board does not send a report to the legislature regarding additional compensation

2
No. 2021AP373(D)

for a petitioner beyond $25,000. The majority opinion (Majority, ¶42) agrees with
the Claims Board’s position regarding a purported prior practice of the Claims
Board, and so do I.2

The Majority Opinion Develops Arguments That Sanders Does Not Make

¶61 That leaves one remaining argument from Sanders regarding WIS.
STAT. § 775.05(4). In briefing in this court, Sanders contends that the Claims
Board erred because it did not explain its reasoning for not forwarding a report to
the legislature about additional compensation for him above $25,000. For two
reasons, the majority opinion’s analysis extends beyond the argument from
Sanders on this issue. First, Sanders’ contention is based solely on his assertion
that, for three other petitions, the Claims Board gave explanations regarding
additional compensation above $25,000.3 As explained above, the “prior case
practice” argument from Sanders has been rejected by this panel and cannot
support Sanders’ argument. Second, this argument from Sanders focuses on

2
The majority opinion (Majority, ¶48 n.4) briefly discusses constitutional arguments that
Sanders may intend to make in this court. I agree with the majority opinion that, by failing to
address the Claims Board’s arguments concerning constitutional issues in his reply brief, Sanders
has conceded that the Claims Board’s arguments are correct. As an additional reason, any
constitutional arguments Sanders intends to make are undeveloped and do not state valid
contentions of constitutional law. See State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct.
App. 1992) (holding that this court may decline to address undeveloped arguments because we
“cannot serve as both advocate and judge”).
3
As examples, briefing from Sanders on this point states the following. “In this case, the
Claims Board failed to address Mr. Sanders’ claim for additional compensation or forward his
claim to the Legislature without a rational basis or explanation, as it has done in prior Innocent
Convict compensation case practices.” “The Claims Board has failed to explain why it did not
address Sanders’ additional compensation claim as it did similar claims.” “The Claims Board has
failed to explain its rationale in its disparate treatment of Mr. Sanders’ case claim, from the
Hemauer, Stinson, and Avery cases.” “As such, WIS. STAT[]. § 227.57(8) governs this issue, and
the Claims Board abused its discretion when it deviated in Mr. Sanders’ case from its prior
practice it had done in the previous case of: Hemauer, Stinson, and Avery.”

3
No. 2021AP373(D)

convincing this court to order the Claims Board to send a report to the legislature
that contains a figure regarding additional compensation for him beyond the
$25,000 already awarded. I do not discern a developed argument from Sanders
requesting a remand to the Claims Board for an explanation and analysis as the
majority opinion orders. For those reasons, this argument from Sanders is, at best,
undeveloped and I reject it for at least those reasons. See Town of Wilson v. City
of Sheboygan, 2020 WI 16, ¶24 n.15, 390 Wis. 2d 266, 938 N.W.2d 493 (stating
that it is not up to an appellate court to make or develop arguments on behalf of a
party); Yorgan v. Durkin, 2006 WI 60, ¶13 n.4, 290 Wis. 2d 671, 715 N.W.2d 160
(“The proper procedure is to have an issue raised, briefed, and argued by the
parties before deciding it.”).

¶62 In addition, other reasons for my disagreement with my colleagues
in the majority will be addressed.

Limited Scope of Review

¶63 I now consider the limited scope of this court’s review of the
decisions of the Claims Board.4 The provisions of WIS. STAT. ch. 227 concern
administrative procedures and generally do not apply to the proceedings of the
Claims Board. WIS. STAT. § 227.03(5) (“This chapter [(ch. 227)] does not apply
to proceedings of the claims board, except as provided in [WIS. STAT. §] 775.05(5)
….”). That one exception states: “The findings and the award of the claims board
shall be subject to review as provided in ch. 227.” Sec. 775.05(5).

4
The members of the State of Wisconsin Claims Board are from the two other branches
of state government: a representative designated by the Governor; a representative of the
Department of Administration; a representative of the Department of Justice; and Chairpersons of
the Senate and Assembly Committees on Finance (or their designees). WIS. STAT. § 15.105(2).

4
No. 2021AP373(D)

¶64 It is Sanders’ burden to establish that the Claims Board decision
should be modified or reversed. Bethards v. DWD, Equal Rts. Div., 2017 WI App
37, ¶16, 376 Wis. 2d 347, 899 N.W.2d 364 (“In all events, the petitioner … bears
the burden of demonstrating that the agency decision should be modified or set
aside.”). Consistent with that, and also of importance to our review, is WIS. STAT.
§ 227.57(2), which states: “Unless the court finds a ground for setting aside,
modifying, remanding or ordering agency action or ancillary relief under a
specified provision of this section, it shall affirm the agency’s action.”
Sec. 227.57(2).

¶65 In these circumstances, the potential bases for our judicial review
under WIS. STAT. § 227.57 are the following: § 227.57(5) (“The court shall set
aside or modify the agency action if it finds that the agency has erroneously
interpreted a provision of law and a correct interpretation compels a particular
action, or it shall remand the case to the agency for further action under a correct
interpretation of the provision of law.”) (emphasis added); and § 227.57(8) (“The
court shall reverse or remand the case to the agency if it finds that the agency’s
exercise of discretion is outside the range of discretion delegated to the agency by
law … or is otherwise in violation of a constitutional or statutory provision.”)
(emphasis added). Both statutory subparts require this court to interpret the
applicable portion of a Claims Board statute, WIS. STAT. § 775.05(4), to determine
the authority granted to the Claims Board and the actions required of the Claims
Board.

¶66 That necessary focus on WIS. STAT. § 775.05(4) is confirmed by
WIS. STAT. § 227.02 which states: “Compliance with this chapter [(WIS. STAT.
ch. 227)] does not eliminate the necessity of complying with a procedure required
by another statute.” Further, the statutory language in § 775.05(4) is critical

5
No. 2021AP373(D)

because an agency, such as the Claims Board, has only those powers granted by
the legislature. See Koschkee v. Taylor, 2019 WI 76, ¶20, 387 Wis. 2d 552, 929
N.W.2d 600 (“As we have explained, an agency’s powers, duties and scope of
authority are fixed and circumscribed by the legislature ….” (internal quotation
marks and quoted source omitted)).

¶67 The majority opinion states that the Claims Board must engage in an
“explanation” and “analysis” “supporting” the Claims Board’s “determination
whether” the $25,000 award from the Claims Board “is or is not adequate.”
(Majority, ¶¶1, 30, 32, 34, 50, 52). It is solely the language in WIS. STAT.
§ 775.05 that allows Sanders the opportunity to obtain compensation through the
Claims Board. Therefore, the analysis must concentrate on the unique statutory
language and procedures set forth by the legislature for this situation. For the
following reasons, I disagree with the majority opinion’s conclusions.

Decisions of the Claims Board

¶68 For context, I pause to repeat the pertinent decisions of the Claims
Board. In its initial decision, the Claims Board awarded the maximum amount of
compensation to Sanders allowed pursuant to its own authority under WIS. STAT.
§ 775.05(4), $25,000, and stated: “Accordingly, the Board further concludes that
compensation in the amount of $25,000 shall be awarded from the Claims Board
appropriation [WIS. STAT.] § 20.505(4)(d).”

¶69 In addressing Sanders’ petition for rehearing, the Claims Board
Chair, on behalf of the Board, denied Sanders’ petition and stated in relevant part:

WIS[CONSIN] STAT. § 775.05(4) states, in part:

“If the claims board finds the amount it is
able to award is not adequate compensation it shall

6
No. 2021AP373(D)

submit a report specifying an amount which it
considers adequate to the chief clerk of each house
of the legislature, for distribution to the legislature
under [WIS. STAT. §] 13.172(2).” (Emphasis added
[by Claims Board].)

The Claims Board’s decision clearly states that the
board unanimously voted to award compensation in the
amount of $25,000. Because the Board did not conclude
that the amount which it was able to award was “not
adequate compensation,” it is not required to submit a
report to the legislature “specifying an amount which it
considers adequate.” Therefore, the absence of an explicit
statement regarding the request for additional damages
does not render the Board’s decision incomplete.5

The Unique Statutory Mechanism in WIS. STAT. § 775.05(4)

¶70 The legislature “has established a mechanism for [the]
compensation” of persons in Sanders’ position. Turnpaugh v. State Claims Bd.,
2012 WI App 72, ¶3, 342 Wis. 2d 182, 816 N.W.2d 920. The applicable language
in WIS. STAT. § 775.05(4) states that, once the Claims Board finds the petitioner is
eligible for compensation:

[T]he claims board shall find the amount which will
equitably compensate the petitioner, not to exceed
$25,000[6] …. If the claims board finds that the amount it
is able to award is not an adequate compensation it shall
submit a report specifying an amount which it considers
adequate to the chief clerk of each house of the legislature,
for distribution to the legislature under [WIS. STAT.
§] 13.172 (2).

5
The majority opinion at ¶¶22 and 33 concludes that the Claims Board did not
“address[]” Sanders’ request for additional compensation over $25,000. That is incorrect as
shown in the order of the Claims Board.
6
Deleted from this quote is language regarding a rate of compensation of not greater
than $5,000 per year and a sentence concerning amounts for attorney fees, costs and
disbursements. Those are not at issue in this appeal.

7
No. 2021AP373(D)

Sec. 775.05(4).

¶71 That statutory subpart sets forth a two-step mechanism, with discrete
processes, for the Claims Board. In the first step, the Claims Board is required to
find the amount which will “equitably compensate” Sanders, and that
compensation must be within the range from $0 to $25,000. WIS. STAT.
§ 775.05(4). Such statutory language establishes that the legislature has not tasked
the Claims Board in this first step to determine, as a jury would, the total value of
a petitioner’s claim.7 Instead, the Claims Board is only given the task of awarding
compensation to a petitioner within a range of $0 to $25,000, and the Board is not
to consider or determine in this first step a request of a petitioner for compensation
in excess of $25,000.8

¶72 The second step in this unique process is a mechanism set forth in
the final sentence of WIS. STAT. § 775.05(4). An aspect of the second step bears
mentioning. It is not within the authority of the Claims Board, or a court, to
require that a petitioner such as Sanders be given any compensation in excess of
$25,000. The legislature has reserved that particular decision to itself and, critical
to the analysis, the legislature has enacted a specific procedure it has concluded is
appropriate and essential for that purpose.

¶73 As WIS. STAT. § 775.05(4) describes, in this second step, the
legislature restricts what is required of the Claims Board and states that, “[i]f the

7
The majority opinion (Majority, ¶27) agrees that, in this first step, WIS. STAT.
§ 775.05(4) “cabins” the Claims Board’s determination.

Sanders’ arguments in this court focus exclusively on the second step of this statutory
8

mechanism. Nonetheless, in a later section of this dissent, I will discuss again this first step.

8
No. 2021AP373(D)

claims board finds that the amount it is able to award [($25,000)] is not an
adequate compensation,” then, and only then, does the remainder of that sentence
come into play. I agree with the circuit court and the Claims Board that the Board
is required to send a report to the legislature “[i]f,” and only if, “the claims board
finds that the [maximum] amount it is able to award [to a petitioner on its own
authority, $25,000] is not an adequate compensation.” Sec. 775.05(4).9

¶74 The legislature’s choice of the word “if” denotes the clear direction
that the remainder of the sentence concerning a report to the legislature is
conditional, and the Claims Board need do nothing further to satisfy WIS. STAT.
§ 775.05(4) unless it first decides that $25,000 is not adequate compensation for a
petitioner.

¶75 The U.S. Supreme Court has interpreted the meaning of the word
“if” in a statute. Dodd v. United States, 545 U.S. 353, 358-59 (2005). In that case
the court interpreted 28 U.S.C. § 2255, ¶6(3),10 which set the period of limitation
for a federal prisoner to request that their sentence be vacated, and provided in
relevant part: “A 1–year period of limitation shall apply to a motion under this
section. The limitation period shall run from … the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to

9
If the remainder of the sentence is triggered, the Claims Board must take exactly one
action: “submit a report” to the legislature “specifying an amount which [the Claims Board]
considers adequate.” WIS. STAT. § 775.05(4). The contents of the report—if step two is reached
at all—are minimal and the statute only mandates that the report contain a specification of “an
amount.” Id.
10
The provision considered in Dodd v. United States, 545 U.S. 353 (2005), is now found
at 28 U.S.C. § 2255(f)(3).

9
No. 2021AP373(D)

cases on collateral review.” Id. at 356-57 (emphasis added). The Court held that
the term “if” imposes a “condition on the applicability of this subsection” and
concluded that the prisoner “may take advantage of the date in the first clause of
¶6(3) only if the conditions” in the statute are met. Id. at 358-59 (emphasis
added).

¶76 In Boatman v. Hardee, 254 So. 3d 604 (Fla. Dist. Ct. App. 2018),
the Florida District Court of Appeal considered the following statutory language
regarding election law: “If a candidate’s check is returned by the bank for any
reason, the filing officer shall immediately notify the candidate ….” Boatman,
254 So. 3d at 608. The court referenced the Merriam-Webster definition of the
word “if” and stated that the word “if” is conditional. Id. “By conditioning that a
cashier’s check may be used ‘[i]f the candidate’s check is returned by the bank,’
… the statute clearly contemplates a process by which a cashier’s check may only
be used on the condition that the campaign check is returned by the bank.” Id. at
608-09 (emphasis added).

¶77 In Community Hospitals of Indiana, Inc. v. Von Arx, 700 N.E.2d
253 (Ind. Ct. App. 1998), the Indiana Court of Appeals interpreted the following
statutory language concerning payment for a commitment:

If the comfort and the care of an individual are not
otherwise provided:

(1) from the individual’s estate;

(2) by the individual’s relatives or friends; or

(3) through the financial assistance from the
division of family and children or a county office; the court
may order the assistance furnished and paid for out of the
general fund of the county.

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No. 2021AP373(D)

Community Hosps., 700 N.E.2d at 257 (emphasis added). The court concluded
that “the statutory language in question creates a condition precedent for financial
assistance from the general fund only if aid is not otherwise supplied or furnished
by [a person’s] relatives, friends, the division of family and children, or a county
department.” Id. (emphasis added).

¶78 In addition, courts may consider dictionary definitions in interpreting
statutes. “A dictionary may be utilized to guide the common, ordinary meaning of
words.” Noffke ex rel. Swenson v. Bakke, 2009 WI 10, ¶10, 315 Wis. 2d 350,
760 N.W.2d 156 (citing State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI
58, ¶53, 271 Wis. 2d 633, 681 N.W.2d 110). Two dictionary definitions of the
word “if” are relevant. If, MERRIAM-WEBSTER ONLINE DICTIONARY, available at
https://www.merriam-webster.com/dictionary/if (last visited June 2, 2022)
(defining “if” as meaning “in the event that,” “allowing that,” “on the assumption
that,” and “on condition that”); If, OXFORD ENGLISH DICTIONARY ONLINE,
available at https://www.oed.com/view/Entry/91152 (last visited June 2, 2022)
(defining “if” as “[i]ntroducing a clause of condition or supposition” and meaning
“on condition that,” “given or granted that,” “in (the) case that,” and “supposing
that”).

¶79 By the legislature using the word “if,” and therefore meaning “only
if,” the second step in this mechanism does not, as the majority opinion concludes,
mandate an explanation and analysis of the Claims Board’s reasoning. If the
legislature wanted an explanation and analysis from the Claims Board in the
second step as to why $25,000 is adequate compensation, the legislature would
have stated that. It did not, and that makes all the difference.

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No. 2021AP373(D)

¶80 The majority opinion’s conclusions demand an explanation and
analysis from the Claims Board regarding how much a petitioner’s claim is worth
and, after that, an application of the first and second steps of WIS. STAT.
§ 775.05(4) just described. Those majority opinion conclusions are untethered to
the language of § 775.05(4) and, as a result, are flawed. “[C]ourts should not add
words to a statute to give it a certain meaning.” Fond du Lac Cnty. v. Town of
Rosendale, 149 Wis. 2d 326, 334, 440 N.W.2d 818 (Ct. App. 1989); see State v.
Wiedmeyer, 2016 WI App 46, ¶13, 370 Wis. 2d 187, 881 N.W.2d 805 (“It is not
up to the courts to rewrite the plain words of statutes.”); Dawson v. Town of
Jackson, 2011 WI 77, ¶42, 336 Wis. 2d 318, 801 N.W.2d 316 (“We decline to
read into the statute words the legislature did not see fit to write.”).

¶81 The language of this statute has been, for all practical purposes
concerning this appeal, the same for over seventy-five years. See Le Fevre v.
Goodland, 247 Wis. 512, 19 N.W.2d 884 (1945).11 However, for reasons already

11
In the 1945 version of the statutes, WIS. STAT. § 285.05 read as follows:

Compensation for innocent convicts. (1) The
governor and the director of the state department of public
welfare constitute a commission for the relief of innocent
persons who have been convicted of crime.

(2) Any person who after May 10, 1913 shall serve a
term of imprisonment under conviction for a crime against the
state, of which crime he claims to be innocent, or any person
who has been pardoned on the ground of innocence and whose
imprisonment shall thereby be shortened, may petition the
commission for compensation for such wrongful imprisonment.

(continued)

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No. 2021AP373(D)

(3) After hearing the evidence on the petition, the
commission shall find either that it is clear beyond a reasonable
doubt that the petitioner was innocent of the crime for which he
suffered imprisonment, or that it is not clear beyond a reasonable
doubt that he was innocent. Upon the hearing the record of the
trial in which the conviction was had may be presented to the
commission for the purpose of enabling it to understand the
situation, but the finding of the commission shall be based only
on such evidence or circumstances as have been discovered or
have arisen since conviction.

(4) If the commission shall find that the petitioner was
innocent and that he did not by his act or failure to act contribute
to bring about the conviction and imprisonment for which he
seeks compensation, the commission shall find the amount which
will compensate him for his wrongful imprisonment but not to
exceed five thousand dollars and at a rate of compensation not
greater than fifteen hundred dollars per year for the
imprisonment. If the commission shall find that the amount it is
able to award will not be an adequate compensation it shall
report an amount to the legislature which it shall deem
adequate.

(5) The commission shall keep a complete record of its
proceedings in each case and of all the evidence. The findings
and the award of the commission shall be subject to review as
provided in [WIS. STAT. ch.] 227.

WIS. STAT. § 285.05 (1945) (emphasis added).

WISCONSIN STAT. § 285.05 was renumbered in 1979 by 1979 Wis. Act 32, § 53 to WIS.
STAT. § 775.05. Section 775.05 was amended by 1987 Wis. Act 186, § 81 as follows:

SECTION 81. 775.05 (4) of the statutes is amended to
read:

(continued)

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No. 2021AP373(D)

discussed and for reasons I discuss next, no court has interpreted WIS. STAT.
§ 775.05(4) as the majority opinion does now.

¶82 A closely related statute concerning the workings of the Claims
Board supports my conclusions. See Kalal, 271 Wis. 2d 633, ¶46 (holding that
context is important in interpreting statutes; thus, statutory language must be
interpreted in relation to surrounding and closely related statutes). With the
exception of sub. (2), WIS. STAT. § 16.007 concerns claims “which are referred to
the [Claims Board] by the department.”12 For those claims referred to the Claims
Board by that department, the legislature has required that “[t]he [Claims Board]
shall report its findings and recommendations, on all claims referred to it, to the
legislature.” Sec. 16.007(5). This statutory language confirms that, when the

775.05 (4). If the claims board finds that the petitioner
was innocent and that he or she did not by his or her act or
failure to act contribute to bring about the conviction and
imprisonment for which he or she seeks compensation, 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. If the claims
board finds that the amount it is able to award is not an adequate
compensation it shall submit a report specifying an amount
which it considers adequate to the chief clerk of each house of
the legislature which it deems adequate, for distribution to the
legislature under s. 13.172 (2).

1987 Wis. Act 186, § 81.

The pertinent language of WIS. STAT. § 775.05(4) since at least 1945 has been identical
other than the addition of the term “equitably” immediately prior to the word “compensate.”
12
“[D]epartment” in WIS. STAT. ch. 16 means the Department of Administration. WIS.
STAT. § 16.002(1). There is no basis to conclude that Sanders’ claim has been referred to the
Claims Board by that department.

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No. 2021AP373(D)

legislature wants an explanation and analysis (in the form of “findings and
recommendations”) on all of certain types of claims that the Claims Board
considers, it is fully capable of stating that. Such process is distinct from the
second step in WIS. STAT. § 775.05(4) because the Claims Board does not send
even the minimal “report” to the legislature (as previously described) unless the
Board determines that $25,000 is not adequate compensation. Here, the majority
opinion demands of the Claims Board an explanation and analysis that the
legislature has decided not to require.

¶83 In addition, the Claims Board is not required to prepare findings of
fact and conclusions of law regarding its reasoning as the majority opinion, in
effect, demands. An example of a provision of WIS. STAT. ch. 227 that does not
apply to the proceedings of the Claims Board is WIS. STAT. § 227.47(1)13 which
states in pertinent part:

[E]very proposed or final decision of an agency …
following a hearing and every final decision of an agency
shall be in writing accompanied by findings of fact and
conclusions of law. The findings of fact shall consist of a
concise and separate statement of the ultimate conclusions
upon each material issue of fact without recital of evidence.

Sec. 227.47(1). The legislature could have required that the procedures set out in
ch. 227 apply to the Claims Board, including the statutory subpart just quoted.
That the legislature exempted the Claims Board from this requirement supports the
conclusion that, in the second step in WIS. STAT. § 775.05(4), the Claims Board
need not prepare a detailed explanation and analysis concerning its decision that
$25,000 is adequate compensation.

13
As discussed earlier, the provisions of WIS. STAT. ch. 227 do not apply to proceedings
of the Claims Board other than for judicial review. See WIS. STAT. § 227.03(5).

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No. 2021AP373(D)

Other Errors in the Majority Opinion Analysis

¶84 I suggest that there are other errors in the majority opinion that I now
discuss.

¶85 Paragraph 49 of the majority opinion states that any reliance on the
explicit legislative directive that the Claims Board must take further action only
“if” the Claims Board decides that the $25,000 it is able to award is not adequate
compensation “begs the question.” I disagree. The statutory language is the
touchstone of the analysis and should not be shunted to the side.

¶86 To the extent the majority opinion considers the language of WIS.
STAT. § 775.05(4), it misses the mark. Paragraphs 28-29 of the majority opinion
attempt to link the two steps set out in § 775.05(4). However, the steps are
separate and distinct and require separate action (or inaction) by the Claims Board
consistent with the language chosen by the legislature. That each step concerns
the same general subject matter—i.e., the claim of a petitioner—does not lead to
this conclusion drawn by the majority opinion.

¶87 The majority opinion also relies on authorities that are
distinguishable from the specific language of WIS. STAT. § 775.05(4) enacted by
the legislature and the mechanisms mandated by the legislature.

¶88 Paragraph 19 of the majority opinion is an example of how the
majority attempts to graft onto WIS. STAT. § 775.05(4) requirements that are not in
that statutory subpart. The opinions relied on in that paragraph concern common
law duties and equitable authority of courts rather than the applicable statutory

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No. 2021AP373(D)

language.14 At any rate, an opinion relied on by the majority states that a court’s
equitable authority must be exercised consistent with pertinent statutes. See
GMAC Mortg. Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d 466 (1998) (a
court’s equitable authority is constrained by “statutory mandate”). Put another
way, the use of the term “equitable” does not create a free-wheeling tool that calls
for agencies and courts to ignore statutes.

¶89 Similarly, the opinions relied on in ¶20 of the majority opinion
concern common law certiorari standards and common law principles that apply
regarding an agency decision to deny a continuance.15 The analysis in those
opinions does not consider the question of what is required of the Claims Board at
this second step of the process as set forth in WIS. STAT. § 775.05(4).

¶90 In sum, and for those reasons, I disagree with the majority opinion
conclusions regarding the statutory process required of the Claims Board.

The Claims Board’s Award of $25,000

¶91 Sanders does not dispute that the amount awarded to him by the
Claims Board is the maximum amount that the Claims Board has authority to
award pursuant to the first step of WIS. STAT. § 775.05(4). Sanders does not argue
that, within the first step, the Claims Board was required to explain and analyze

14
See Forest Cnty. v. Goode, 219 Wis. 2d 654, 683, 579 N.W.2d 715 (1998); Nationstar
Mortg. LLC v. Stafsholt, 2018 WI 21, ¶23, 380 Wis. 2d 284, 908 N.W.2d 784; GMAC Mortg.
Corp. v. Gisvold, 215 Wis. 2d 459, 480, 572 N.W.2d 466 (1998); Klawitter v. Klawitter, 2001 WI
App 16, ¶8, 240 Wis. 2d 685, 623 N.W.2d 169.
15
See Reidinger, O.D., v. Optometry Examining Bd., 81 Wis. 2d 292, 297, 260 N.W.2d
270 (1977); Argonaut Ins. Co. v. LIRC, 132 Wis. 2d 385, 391-92, 392 N.W.2d 837 (Ct. App.
1986).

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No. 2021AP373(D)

why it awarded the maximum amount that the Claims Board had authority to
award. Instead, Sanders’ arguments in this appeal focus solely on the second step
of § 775.05(4), what he refers to as his “additional compensation claim.”

¶92 Nonetheless, if one assumes for a moment that, at the first step of the
Claims Board decision under WIS. STAT. § 775.05(4), the Board was required to
give an “explanation” and “analysis,” neither Sanders nor the majority opinion
contend that such an explanation will result in any change in the amount Sanders
is awarded under the authority granted to the Claims Board in the first step of
§ 775.05(4). Accordingly, any such error would be harmless.

¶93 The harmless error doctrine applies to administrative proceedings.
This is borne out in case law. Our supreme court, in a review of an administrative
agency decision, has referred to purported error of an agency as “harmless
procedural error.” See Responsible Use of Rural and Agric. Land (RURAL) v.
PSC, 2000 WI 129, ¶47, 239 Wis. 2d 660, 619 N.W.2d 888 (“If, however, there
was any error in applying [Sec. 96 of 1997 Wis. Act 204]’s expedited procedures
considering the date or terms of the Power Purchase Agreement, or the capacity of
the proposed project, that error would have been harmless procedural error.”).16
Further, the burden is on the party claiming error to establish that the agency error
is “prejudicial.” Id., ¶48 (“The burden is on RURAL to establish that a claimed
procedural error is prejudicial.” (citing Nu-Roc Nursing Home, Inc. v. DHSS,
200 Wis. 2d 405, 418, 546 N.W.2d 562 (Ct. App. 1996))).

16
This point regarding harmless error in agency judicial review is confirmed by WIS.
STAT. § 227.57(4), which requires “material error” before a court remands to an agency for
“further action.”

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No. 2021AP373(D)

¶94 In addition, in Houslet v. DNR, 110 Wis. 2d 280, 329 N.W.2d 219
(Ct. App. 1982), the DNR denied Houslet’s application to dredge a lake. Houslet,
110 Wis. 2d at 282. The DNR’s initial denial of Houslet’s application was upheld
by an independent hearing examiner after an evidentiary hearing. Id. Houslet
appealed to the circuit court for WIS. STAT. ch. 227 review, and the circuit court
held that the examiner erred in “failing to make a finding concerning the potential
pollutant effect of the proposed dredging.” Id. at 283. The circuit court also held
that the examiner erred in “concluding as a matter of law that part of the area
which the applicant desires to dredge is a wetland area” according to wetlands
regulations. Id. The circuit court remanded the matter to the DNR for
reconsideration based on these holdings. Id. at 284.

¶95 On appeal, this court reversed the circuit court and concluded that
the examiner properly denied the application under the wetlands regulations. Id.
at 281. This court also held that the DNR’s failure to make findings as to potential
pollutant effects did not require a remand to the DNR: “A remand to the
department is not necessary in this case, however, because we have concluded that
the contract at issue was properly rejected under the wetlands regulation.” Id. at
291. Moreover, this court explicitly stated: “We hold that the … [DNR’s] failure
to make a specific finding concerning the potential pollutant effects of the
dredging project was harmless error which does not warrant remand to the
department for reconsideration.” Id. at 281.17

17
The majority opinion is correct that the Claims Board brief in this court does not give
a “pin cite” to Houslet v. DNR, 110 Wis. 2d 280, 329 N.W.2d 219 (Ct. App. 1982). (See
Majority, ¶51 n.5). Nonetheless, the Claims Board’s discussion of Houslet is correct.

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No. 2021AP373(D)

¶96 Those opinions stand for the unremarkable proposition that, in
judicial review of an agency decision, appellate courts do not remand for further
explanation from the agency if such an explanation will not change the result.

¶97 In sum, any possible error in the Claims Board not explaining why,
pursuant to its own authority through the first step of WIS. STAT. § 775.05(4), it
awarded the maximum amount of $25,000 to Sanders is harmless and caused
Sanders no prejudice. Sanders received all the Claims Board could give him under
its own authority granted by the legislature. A remand to explain why, under the
first step of § 775.05(4), the Claims Board gave him that maximum amount will
not change the result.

Communication with Milwaukee County District Attorney’s Office

¶98 Sanders argues that a communication between a Claims Board
analyst and the Milwaukee County District Attorney’s Office —of which Sanders
was not aware until after the initial decision of the Claims Board—renders the
Claims Board proceedings “invalid” and is a basis for this court to reverse the
decision of the Claims Board. I disagree with the majority opinion’s direction
(Majority, ¶48) that the Claims Board “may” “articulate on the record whether and
how it considered either or both of the District Attorney’s Office’s statements.”
Rather, I conclude for the following reasons that Sanders’ argument fails.

¶99 Sanders’ argument states that only one set of communications
between the Claims Board analyst and the Milwaukee County District Attorney’s
Office “is the subject of this appeal” and, accordingly, I focus on those two emails.
The Claims Board’s analyst sent an email to the Milwaukee County District
Attorney’s Office which stated: “DA Chisholm’s April 1, 2019, response to the
Claims Board stated that the Milwaukee DA’s Office ‘does not oppose’

20
No. 2021AP373(D)

Mr. Sanders’ petition. To clarify, are you saying that the DA’s Office does not
oppose payment of $5,754,965 to Mr. Sanders? Please advise.” The District
Attorney’s Office responded through the Milwaukee County Chief Deputy District
Attorney who wrote:

[District Attorney Chisholm’s] letter of April 1,
2019, intends to express our general support for
Mr. Sanders’ petition for compensation. We originally saw
his form that requested the statutory maximum amount of
$25,000, which we support. Regarding his other claims for
damages, which appears to have varied over the course of
this process, we are not taking any position on those claims,
as we understand the claims board is better situated to make
that determination.

¶100 Consistent with that response, the Claims Board, in its initial
decision, stated: “The [Milwaukee County] DA’s Office takes no position on
Mr. Sanders’ claims for additional damages and believes the Claims Board is
better suited to make a determination regarding those damages.”

¶101 Sanders filed a petition for rehearing with the Claims Board, in part,
because the April 1, 2019 letter from Milwaukee District Attorney Chisholm
stated that the Milwaukee County District Attorney’s Office “does not oppose
[Sanders’] petition.” Sanders asserted that there was an error in the initial decision
as, at the time, he was not aware that the Milwaukee County District Attorney’s
Office had clarified its position in the above-quoted email. The Claims Board
concluded that a rehearing need not be granted on that basis because Sanders’
assertion was “not supported by the record.” The Claims Board stated that its
initial decision was correct in that the Milwaukee County District Attorney’s
Office took no position on Sanders’ claim for additional damages beyond $25,000
and, as a result, there was no material error of fact as Sanders contended. In
briefing in this court, Sanders contends that this was an improper ex parte

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No. 2021AP373(D)

communication between the Claims Board and the Milwaukee County District
Attorney’s Office, and we should reverse the Claims Board’s decision on that
basis.

¶102 The Claims Board argues that Sanders has not established that any
prohibition concerning ex parte communications applies to the Claims Board’s
review of his petition. Courts consider applicable statutes to determine whether ex
parte communications are prohibited in an administrative proceeding. See Marder
v. Board of Regents of Univ. of Wis. Sys., 2005 WI 159, ¶25, 286 Wis. 2d 252,
706 N.W.2d 110. Nothing in the applicable statutes leads to the conclusion that ex
parte communications are barred in proceedings of the Claims Board.

¶103 WISCONSIN STAT. § 227.50 concerns “[e]x parte communications in
contested cases.” Sec. 227.50. However, the provisions of § 227.50(1)
concerning ex parte communications in administrative proceedings “come[] into
play only if the contested case provisions of [WIS. STAT.] § 227.42(1) apply.”
Marder, 286 Wis. 2d 252, ¶24. Sanders does not argue that his petition was a
“contested case” in the Claims Board pursuant to § 227.42. Further, as noted
earlier, WIS. STAT. § 227.03(5) states that WIS. STAT. ch. 227 does not apply to
proceedings of the Claims Board except for “review as provided in ch. 227.” WIS.
STAT. § 775.05(5).

¶104 Sanders offers two arguments that ex parte communications are
prohibited in Claims Board proceedings, but each fails. Sanders relies on WIS.
STAT. § 16.007(2) in that it refers to “official notice of any generally recognized
fact or established technical or scientific fact.” See § 16.007(2). But, Sanders
gives no viable contention linking that phrase to ex parte communications.
Sanders also relies on the definition of “ex parte communication” from Black’s

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No. 2021AP373(D)

Law Dictionary. The majority opinion (Majority, ¶47) repeats that contention but
does not explain how or why a definition in Black’s Law Dictionary establishes a
basis to conclude that the Claims Board is prohibited from receiving ex parte
communications, and I discern no such basis.

¶105 Making an argument that Sanders does not make regarding these two
emails, the majority opinion relies on due process considerations. See Majority,
¶45. Of note, the case law quoted in the majority opinion states that the pertinent
information must be “material” to potentially violate due process considerations.
Marder, 286 Wis. 2d 252, ¶28. In the same vein, and as Sanders concedes,
complaints regarding ex parte communications require Sanders to establish that
any error was “material” and “prejudiced” Sanders. Seebach v. PSC, 97 Wis. 2d
712, 721, 295 N.W.2d 753 (Ct. App. 1980) (“The instant petitioners have not
demonstrated that receipt of the petition prejudiced them to a material degree.
They bear this burden of proof.”).

¶106 I next consider Sanders’ assertions of materiality and prejudice from
the communication between the Claims Board policy analyst and the Milwaukee
County District Attorney’s Office. Even if one assumes that due process
considerations come into play, Sanders’ arguments fail.

¶107 First, Sanders contends that “the Claims Board Program & Policy
Analyst[] held improper influence on the Claims Board’s decision making.” In an
attempt to support that argument, Sanders asserts: “Yet, [the analyst]’s continued
contact with [the Chief Deputy District Attorney] by email, without notice to
Mr. Sanders, shows that she occupied a position adverse to Mr. Sanders’ interest.”
Apparently, this is an assertion of bias against Sanders by the Claims Board
members. I agree with the Claims Board’s argument in this court that “Sanders

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No. 2021AP373(D)

fails to connect any dots to explain how or why there could have been any
‘improper influence’ or how or why that would show prejudice.”

¶108 Second, Sanders argues, “[i]t must be noted that according to the
Claims Board’s rules and/or procedures, once the DA’s office declined to appear
at the hearing and stated it had nothing further to add, the Claims Board should
have decided the merits of the case based on the written materials submitted.”
Sanders’ argument boils down to the following. According to Sanders, the Claims
Board should have made a decision without relying on clarification from the
Milwaukee County District Attorney’s Office. The necessary premise of Sanders’
argument is that the initial letter to the Claims Board from District Attorney
Chisolm regarding Sanders’ petition was a stipulation or concession from the
District Attorney that the Claims Board should award millions of dollars to
Sanders, and the Claims Board was bound by that stipulation or concession.
According to Sanders, by not holding the District Attorney to an ambiguous
statement in the initial letter from him, this changed the result to his detriment.
Sanders’ argument has no basis in fact or law and must be rejected.

¶109 Third, Sanders argues as follows:

Furthermore, in seeking clarification of the District
Attorney’s office position concerning additional
compensation, [the analyst] nor the Claims Board ever
contacted DA Chisolm, the author of the April 1, 2019
letter which was in question.

The importance of contacting DA Chisolm to
clarify his position was imperative in that it was initially
Chisolm who stated on the record that the Milw. County
District Attorney’s office did not oppose Sanders’ claim;
thus, if the DA’s office position had changed, which clearly
it did as [the Chief Deputy District Attorney’s] position
was different than Chisolm’s April 1, 2019 position, then it
should have either been DA Chisolm to communicate such

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No. 2021AP373(D)

change, or at the very least, indication that Chisolm was in
fact contacted regarding such change.

Sanders’ argument continues:

In his response to [the analyst], [the Chief Deputy
District Attorney] made statements that need to be clarified
and explained. [The Chief Deputy District Attorney]
stated: “[District Attorney Chisolm]’s letter of April 1,
2019, intends to express our general support for
Mr. Sanders’ petition for compensation. We originally saw
his form that requested the statutory maximum amount of
$25,000, which we support. Regarding his other claims for
damages, which appear to have varied over the course of
this process, we are not taking any position on those
claims.” Sanders argues this statement is factually false
and needs clarification.

¶110 Sanders asserts that District Attorney Chisolm supported Sanders’
claim for millions of dollars but the Chief Deputy District Attorney, when asked,
unilaterally changed the position of the Milwaukee County District Attorney’s
Office on compensation for Sanders in excess of $25,000. I agree with the Claims
Board that Sanders’ argument fails and is not supported by the record. Nothing in
any submission, and nothing that can be reasonably drawn from the record and the
Chief Deputy District Attorney’s response, shows that the statements from the
Chief Deputy District Attorney about the District Attorney’s position were “false.”

¶111 In sum, Sanders’ argument that a communication from a Claims
Board analyst seeking clarification about the Milwaukee County District
Attorney’s Office’s position, and a response, is a basis to reverse the decision of
the Claims Board fails. Sanders has shown no basis to conclude that such
communications were material or caused him prejudice.

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No. 2021AP373(D)

CONCLUSION

¶112 For those reasons, I respectfully dissent and would affirm the order
of the circuit court that affirmed the decisions of the Claims Board.

26