Derrick A. Sanders v. State of Wisconsin Claims Board ( 2023 )

2023 WI 60SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP373
COMPLETE TITLE: Derrick A. Sanders,
Petitioner-Appellant,
v.
State of Wisconsin Claims Board,
Respondent-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 327, 978 N.W.2d 398(2022 – unpublished)
OPINION FILED: June 30, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Stephen E. Ehlke
JUSTICES:
REBECCA GRASSL BRADLEY, J., announced the mandate of the Court,
and delivered an opinion, in which ZIEGLER, C.J., and
ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring
opinion. KAROFSKY, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY and DALLET, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent-petitioner, there were briefs
filed by Hannah S. Jurss, assistant attorney general, with whom
on the briefs was Joshua L. Kaul, attorney general. There was an
oral argument by Colin T. Roth, assistant attorney general.
For the petitioner-appellant, there was a brief filed by
Matthew Splitek and Quarles & Brady LLP, Madison. There was an
oral argument by Matthew Splitek.
2023 WI 60NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP373
(L.C. No. 2020CV1016)
STATE OF WISCONSIN : IN SUPREME COURT
Derrick A. Sanders,
Petitioner-Appellant,
FILED
v. JUN 30, 2023
State of Wisconsin Claims Board, Samuel A. Christensen
Clerk of Supreme Court
Respondent-Respondent-Petitioner.
REBECCA GRASSL BRADLEY, J., announced the mandate of the Court,
and delivered an opinion, in which ZIEGLER, C.J., and
ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring
opinion. KAROFSKY, J., filed a dissenting opinion, in which ANN
WALSH BRADLEY and DALLET, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 REBECCA GRASSL BRADLEY, J. In 1992, Derrick A.
Sanders and two others "severely beat[]" James.1 After the
assault, Sanders's co-actors took James to another location.
Sanders did not accompany them. One of the co-actors shot James
in the head, killing him.
1James is a pseudonym. We use it to preserve victim
privacy. See Wis. Stat. § 950.04(1v)(ag) (2021–22).
No. 2021AP373
¶2 Sanders twice pled no contest to first-degree
intentional homicide as party to a crime; consequently, he spent
about 26 years in prison. He incorrectly believed the State
could prove that charge even though he participated only in the
assault. The first plea was vacated in 1995. The State brought
the charge again, and Sanders entered the second plea. In 2018,
the second plea was vacated.
¶3 Months later, Sanders petitioned the State Claims
Board for compensation, seeking over $5.7 million. The Board
awarded $25,000, the maximum under Wis. Stat. § 775.05(4) (2019–
20).2 Section 775.05(4) provides, in relevant part, "[i]f
the . . . [B]oard finds that" $25,000 "is not adequate
compensation it shall submit a report specifying an amount which
it considers adequate to the chief clerk of each house of the
legislature[.]" The Board did not find $25,000 inadequate;
therefore, it did not submit a report.
¶4 Sanders sought judicial review, arguing the Board
should have made a finding regarding the adequacy of $25,000.
The circuit court rejected his argument, affirming the Board.3
In a split decision, the court of appeals reversed. Sanders v.
State of Wis. Claims Bd., No. 2021AP373, unpublished slip op.
(Wis. Ct. App. June 9, 2022). We granted review.
Unless otherwise indicated, all subsequent references to
2
the Wisconsin Statutes are to the 2019–20 version.
The Honorable Stephen E. Ehlke, Dane County Circuit Court,
3
presided.
2
No. 2021AP373
¶5 We reject Sanders's argument. It is incompatible with
the plain meaning of Wis. Stat. § 775.05(4). Section 775.05(4)
requires the Board to submit a report in the event that the
Board finds $25,000 inadequate. The Board did not so find.
Accordingly, we reverse the court of appeals.4
I. BACKGROUND
¶6 The governing statute requires the Board to use a
multiple-step process when it receives a claim. First, the
Board must hold an evidentiary hearing to determine "either that
the evidence is clear and convincing that the petitioner was
innocent of the crime for which he . . . suffered imprisonment,
or that the evidence is not clear and convincing that
he . . . was innocent." Wis. Stat. § 775.05(3). "If
the . . . [B]oard finds 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 Board proceeds to
address compensation. § 775.05(4).
The court of appeals also suggested the Board engaged in
4
improper ex parte communications with the Milwaukee County
District Attorney's Office. Sanders v. State of Wis. Claims
Bd., No. 2021AP373, unpublished slip op., ¶48 (Wis. Ct. App.
June 9, 2022). It concluded the issue needed to be explored on
remand. Id. The State asks us to resolve this issue. Sanders
does not develop an argument in response. "An argument to which
no response is made may be deemed conceded for purposes of
appeal." Waukesha County v. S.L.L., 2019 WI 66, ¶42, 387
Wis. 2d 333, 929 N.W.2d 140 (Hoffman v. Econ. Preferred Ins.,
2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590). We do not
address the ex parte communications issue because it has been
abandoned.
3
No. 2021AP373
¶7 As to compensation, the Board must first "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." Wis. Stat. § 775.05(4).
Second, "[i]f the . . . [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
chief clerk of each house of the legislature[.]" Id.¶8 In this case, the Board found Sanders was innocent of
the crime for which he was imprisoned. He did not participate
in the murder——only the assault. It also found he did not
contribute to his conviction even though he twice pled no
contest. No party challenges these findings. Sanders takes
issue with the Board only for not making a finding regarding
adequacy.
¶9 After the Board awarded Sanders $25,000, Sanders filed
a petition for rehearing. The Board, via its Chairman, denied
the petition. The denial letter explains:
The . . . Board's decision clearly states that the
[B]oard . . . 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.
¶10 The circuit court affirmed the Board, noting Sanders
did not cite any "administrative rule, policy, or prior practice
4
No. 2021AP373
that requires the Board to expressly address his additional
damages claims in its final decision." As the court continued:
He relies solely on the final sentence of Wis. Stat.
§ 775.05(4) . . . . I find Sanders'[s] reliance on
this portion of the statute unpersuasive. . . . [T]he
Board did not make a finding that $25,000 was
inadequate compensation and it was therefore not
required to take further action.
Over one judge's dissent, the court of appeals reversed and
remanded to the circuit court with directions to remand to the
Board. Sanders, No. 2021AP373, ¶1.
II. STANDARD OF REVIEW
¶11 Sanders argues Wis. Stat. § 775.05(4) compels the
Board to make a finding regarding adequacy. The interpretation
of a statute is a question of law subject to our independent
review. State v. Neill, 2020 WI 15, ¶14, 390 Wis. 2d 248, 938
N.W.2d 521 (quoting State v. Hinkle, 2019 WI 96, ¶14, 389
Wis. 2d 1, 935 N.W.2d 271).
¶12 Our rejection of Sanders's interpretation triggers
another issue: Was the Board required to explain why it did not
make a finding? Our consideration of this issue turns on a
question of statutory interpretation and accordingly is also
subject to our independent review. See id. Specifically, Wis.
Stat. § 775.05(5) authorizes judicial review only of the Board's
"findings and the award," so we must determine the meaning of
that phrase. We assume, without deciding, that the first issue—
—whether the Board was required to make a finding——falls within
the purview of § 775.05(5). We conclude the Board is not so
required; it has discretion. Our assumption, however, does not
5
No. 2021AP373
extend to the Board's exercise, or non-exercise, of this
discretion.
III. DISCUSSION
¶13 In this court's seminal 2004 decision, State ex rel.
Kalal v. Circuit Court for Dane County, we confirmed textualism
is the correct methodology for statutory interpretation. 2004
WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. Kalal is binding on
"all Wisconsin courts"——indeed, it is "the most cited
[Wisconsin] case of modern time[.]" See Daniel R. Suhr,
Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969, 969–70
(2017); see also State v. Hayes, 2004 WI 80, ¶104 n.1, 273
Wis. 2d 1, 681 N.W.2d 203 (Sykes, J., concurring) ("[T]he
principles of statutory interpretation articulated by this court
in . . . Kalal . . . [cannot] be dismissed as mere 'spirited
discussions' or 'vigorous discussions' by 'part of the
court.' . . . Needless to say, Kalal is binding precedent.").
(emphasis added). Under this well-established textualist
methodology, we begin and end with a plain-meaning analysis of
Wis. Stat. § 775.05 because its text is unambiguous. See
Enbridge Energy Co. v. Dane County, 2019 WI 78, ¶19, 387
Wis. 2d 687, 929 N.W.2d 572 (quoting Kalal, 271 Wis. 2d 633,
¶45).
¶14 We interpret the relevant words of the statute in
accordance with their "common and approved usage"; however,
"technical words and phrases and others that have a peculiar
meaning in the law" are "construed according to such meaning."
See Wis. Stat. § 990.01(1). To determine common and approved
6
No. 2021AP373
usage, we consult dictionaries. See State v. McKellips, 2016
WI 51, ¶32, 369 Wis. 2d 437, 881 N.W.2d 258 (citing State v.
Sample, 215 Wis. 2d 487, 499–500, 573 N.W.2d 187 (1998)). To
determine the meaning of legal terms of art, we consult legal
dictionaries. State v. Schaefer, 2008 WI 25, ¶¶29–31, 308
Wis. 2d 279, 746 N.W.2d 547 (consulting Black's Law Dictionary
to determine the meaning of "discovery").
¶15 We read the relevant words of the statute "in the
context in which . . . [they] are used; not in isolation but as
part of a whole; in relation to the language of surrounding or
closely-related statutes." James v. Heinrich, 2021 WI 58, ¶20,
397 Wis. 2d 517, 960 N.W.2d 350 (quoting Kalal, 271 Wis. 2d 633,
¶46). We also consider traditional canons of construction,
which serve as "helpful, neutral guides" for our analysis. Id.,¶23 n.12 (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 61 (2012)).
¶16 Lastly, we consider statutory history, which can be
relevant to plain meaning. Brey v. State Farm Mut. Auto. Ins.,
2022 WI 7, ¶20, 400 Wis. 2d 417, 970 N.W.2d 1 (quoting James,
397 Wis. 2d 517, ¶26); Wis. Stat. § 990.001(7) ("A revised
statute is to be understood in the same sense as the original
unless the change in language indicates a different meaning so
clearly as to preclude judicial construction. If the revision
bill contains a note which says that the meaning of the statute
to which the note relates is not changed by the revision, the
note is indicative of the legislative intent.").
¶17 Wisconsin Stat. § 775.05(4) states, in relevant part:
7
No. 2021AP373
[T]he claims board shall find the amount which will
equitably compensate the petitioner, not to exceed
$25,000 . . . . 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[.]
The key word in Wis. Stat. § 775.05(4) is "if." As the State
argues, "[t]his case presents a straight-forward statutory
interpretation question that, at base, asks whether the
[l]egislature actually means 'if' when it uses the word 'if.'"
"If" means "[i]n the event that" or "[o]n the condition that[.]"
if, The American Heritage Dictionary (5th ed. 2011); see also
if, Random House Unabridged Dictionary (2d ed. 1993) (defining
"if" as "in case that" or "on condition that"); if, Funk &
Wagnalls New Standard Dictionary of the English Language (1923)
(defining "if" as "provided or on condition that"). For
example, consider the hit song, "If You Leave," which includes
the following lyrics: "if you leave, don't look back."
Orchestral Manoeuvres in the Dark, If You Leave (A&M 1986).
These lyrics are not an unconditional command to never look
back; rather, they state a directive applicable upon the
fulfillment of the "if" condition, which may never be satisfied.
See Wisconsin Bill Drafting Manual § 2.08(2) (2023–24) ("If you
are expressing a condition that may never occur, use 'if' to
introduce the condition, not 'when' or 'where.'"). The
directive, "don't look back," is simply irrelevant unless "you"
left. The lyrics are also not a command to decide whether to
leave.
8
No. 2021AP373
¶18 Applying these definitions, Wis. Stat. § 775.05(4)
requires the Board to submit a report "in the event that" or "on
the condition that" the Board finds $25,000 inadequate. The
Board did not so find. As noted in the letter denying the
petition for rehearing, "the Board did not conclude that the
amount which it was able to award was 'not adequate
compensation[.]'"
¶19 In contrast to the structure of the preceding
subsection, Wis. Stat. § 775.05(4) does not command the Board to
make a finding regarding the adequacy of $25,000. The "whole-
text canon" instructs "interpreter[s] to consider the entire
text, in view of its structure and of the physical and logical
relation of its many parts." Brey, 400 Wis. 2d 417, ¶13
(quoting Scalia & Garner, Reading Law, at 167). The language of
§ 775.05(4) is notably distinct from § 775.05(3), which states:
"the . . . [B]oard shall find either that the evidence is clear
and convincing that the petitioner was innocent of the crime for
which he . . . suffered imprisonment, or that the evidence is
not clear and convincing that he . . . was innocent." The
legislature could have used similar language in § 775.05(4) but
did not. The differences between the two subsections inform our
analysis.
¶20 Wisconsin Stat. § 775.11(3) similarly informs our
analysis. The statute is closely related because it appears in
the same chapter of the Wisconsin Statutes. State v. Reyes
Fuerte, 2017 WI 104, ¶27, 378 Wis. 2d 504, 904 N.W.2d 773(citing City of Janesville v. CC Midwest, Inc., 2007 WI 93, ¶24,
9
No. 2021AP373
302 Wis. 2d 599, 734 N.W.2d 428). For context, § 775.11(1)
provides: "Any state employee against whom charges are filed
under . . . [Wis. Stat. §] 940.29, and who is subsequently found
not guilty, shall be reimbursed by the state for reasonable
attorney fees and costs in defending such action." Subsection
(3) declares: "On receipt of such a claim the . . . [B]oard
shall determine whether the claim is authorized by this section
and if so shall determine the amount of attorney fees and costs
incurred and shall allow such attorney fees and costs as in its
judgment are reasonable." Effectively, Sanders would have us
rewrite Wis. Stat. § 775.05(4) with language parallel to
§ 775.11(3). Specifically, Sanders presses an interpretation of
§ 775.05(4) that would require the Board to determine whether
the amount it is able to award is not an adequate compensation,
and if so, to submit a report to the legislature. The statute,
however, does not say this, and "[i]t is not up to the courts to
rewrite the plain words of statutes[.]" Neill, 390 Wis. 2d 248,
¶23 (quoting State v. Wiedmeyer, 2016 WI App 46, 370
Wis. 2d 187, 881 N.W.2d 805) (second modification in the
original). "Rather, we interpret the words the legislature
actually enacted into law." Id. (quoting State v. Fitzgerald,
2019 WI 69, ¶30, 387 Wis. 2d 384, 929 N.W.2d 165).
¶21 Sanders does not reconcile his interpretation with
Wis. Stats. §§ 775.05(3) or 775.11(3) and even acknowledges, "it
is true" that Wis. Stat. § 775.05(4) "does
not . . . specifically direct the Board to determine whether its
award is 'adequate.'" He claims, however, a fair reading of
10
No. 2021AP373
§ 775.05(4) necessarily implies this direction. He first claims
two words are materially the same: "equitably" and "adequate."
Recall that the Board, before the report issue is even reached,
must "find the amount which will equitably compensate the
petitioner, not to exceed $25,000[.]" § 775.05(4) (emphasis
added). Then, "[i]f the . . . [B]oard finds that the amount it
is able to award is not an adequate compensation it shall submit
a report[.]" Id. (emphasis added). Conflating the two words,
Sanders argues: "the Board cannot 'find the amount which will
equitably compensate' an exoneree without determining whether
such an amount is adequate equitable compensation. The two
questions [1] whether an amount is 'the amount which will
equitably compensate the petitioner' and [2] whether the same is
'an adequate compensation' are indistinct."
¶22 The problem with this reasoning is twofold. First, we
normally "presume . . . different words have different
meanings." Parsons v. Assoc. Banc-Corp., 2017 WI 37, ¶26, 374
Wis. 2d 513, 893 N.W.2d 212 (quoting Pawlowski v. Am. Fam. Mut.
Ins., 2009 WI 105, ¶22, 322 Wis. 2d 21, 777 N.W.2d 67). The
"presumption of consistent usage" canon holds, "[a] word or
phrase is presumed to bear the same meaning throughout a text; a
material variation in terms suggests a variation in meaning."
Scalia & Garner, Reading Law, at 170. Sanders's argument
relies, by his own admission, on "equitably" and "adequate"
being "indistinct." Second, under the "surplusage" canon
"[s]tatutory language is read where possible to give reasonable
effect to every word, in order to avoid surplusage." James, 397
11
No. 2021AP373
Wis. 2d 517, ¶21 (quoting Kalal, 271 Wis. 2d 633, ¶46; citing
Scalia & Garner, Reading Law, at 174). As the State argues:
[I]f "equitably compensate" were the same as "adequate
compensation," then how could the . . . Board ever
simultaneously determine that an amount within the
statutory maximum is indeed "equitabl[e]
compensat[ion] (as it is required to do . . . ) while
also choosing to affirmatively find that the amount it
awarded as "equitabl[e] compensate[ion]" was "not an
adequate compensation" and submit a report? Put
differently, if the inquiries were one-and-the-same,
then the . . . Board's submitting a report to the
[l]egislature would necessarily mean that its award
was not "equitabl[e] compensat[ion]."
Under Sanders's interpretation, the Board's initial
determination that the statutory maximum is "equitable
compensation"——and, inherently, adequate——effectively prevents
it from ever concluding that amount is inadequate. For this
reason, Sanders cannot overcome the presumption that different
words have different meanings.
¶23 Sanders also misunderstands the "predicate act" canon,
which holds, "[a]uthorization of an act also authorizes a
necessary predicate act." Scalia & Garner, Reading Law, at 192.
For example, "permission to harvest the wheat on one's land
implies permission to enter the land for that purpose." Id.According to Sanders:
The final sentence of . . . [Wis. Stat. §] 775.05(4)
tells the Board what it must do "if" it finds that
"the amount it is able to award is not an adequate
compensation." . . . [A] necessary predicate of the
Board's making——or even declining to make——that
finding is a prior determination whether the Board's
award is adequate.
12
No. 2021AP373
Problematically for Sanders, no one suggests the Board is not
authorized to make a finding regarding adequacy. Sanders would
turn authorization into a command. For this reason, the canon
does not aid his proffered interpretation. As Sanders candidly
concedes, the canon is "not on all fours."
¶24 Lastly, Sanders advances an unpersuasive statutory-
history argument. In 1913, the legislature enacted the
following:
If the board shall find that the petitioner was
innocent of the crime or offense for which he has
suffered imprisonment, 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 board shall proceed to find the
amount which will compensate the petitioner for his
wrongful imprisonment. Such board may award a
compensation to the petitioner so found innocent of
not to exceed five thousand dollars in any case, and
at a rate of compensation not greater than fifteen
hundred dollars per year for the imprisonment so
unjustly suffered. If the board shall find that the
amount they may be able to award will not be an
adequate compensation to the petitioner they shall
report an amount to the legislature which they shall
deem to be adequate and shall recommend the
appropriation by the legislature to the petitioner of
the amount in excess of the amount they may have
awarded.
§ 4, ch. 189, Laws of 1913 (emphasis added).
¶25 Sanders construes relevant amendments as merely
stylistic, suggesting we should infer the plain meaning of Wis.
Stat. § 775.05(4) by considering the language of its
predecessor. In his view, the predecessor board (a different
entity than the Board) was first required to find the total
amount of money the petitioner would need to be compensated——
13
No. 2021AP373
without regard to a statutory maximum. If the amount needed
were more than the statutory maximum, that amount, he claims,
would be necessarily inadequate, thereby requiring a finding and
report.
¶26 The 1913 statute did not require the board to make a
finding regarding the adequacy of the statutory maximum
compensation. It used conditional language, like the current
statute. In this case, statutory history does not affect our
plain-meaning analysis.
¶27 Next, we consider whether the Board was required to
explain why it did not make a finding regarding adequacy.
Sanders is entitled to judicial review under Wis. Stat. ch. 227,
which governs administrative procedures and review; however,
Wis. Stat. § 227.03(5) provides, "[t]his chapter does not apply
to proceedings of the . . . [B]oard, except as provided in [Wis.
Stats. §§] 775.05(5), 775.06(7) and 775.11(2)." We therefore
examine § 775.05(5), the only applicable statute among the
enumerated exceptions.
¶28 Wisconsin Stat. § 775.05(5) does not subject all
aspects of the Board's decision-making process to judicial
review; rather, it states: "The . . . [B]oard shall keep a
complete record of its proceedings in each case and of all the
evidence. The findings and the award of the . . . [B]oard shall
be subject to review as provided in ch. 227." Section 775.05(5)
states an exception to the general exclusion of Board
proceedings articulated in Wis. Stat. § 227.03(5). Under that
14
No. 2021AP373
exception, we may review only the Board's "findings" and "the
award."
¶29 As used in Wis. Stat. § 775.05(5), "findings" is a
legal term of art——it is a "word[]" with "a peculiar meaning in
the law[.]" Wis. Stat. § 990.01(1). "Findings" is synonymous
with "finding[s] of fact." finding, Black's Law Dictionary
(11th ed. 2019). A "finding of fact" is "[a] determination by a
judge, jury, or administrative agency of a fact supported by the
evidence in the record[.]" Id. at finding of fact; see also
finding of fact, Mellinkoff's Dictionary of American Legal Usage
(1992) ("[A] determination by the jury, or by a judge in a case
tried without a jury, that the evidence proves that something is
a fact."). For example, the phrase "finding of fact" is used
appropriately in the following sentence: "[H]e agreed with the
jury's finding of fact that the driver did not stop before
proceeding into the intersection[.]" finding of fact, Black's
Law Dictionary. A "finding of fact" is capable of being
reviewed on appeal to determine whether "substantial evidence in
the record" supports its validity. See Wis. Stat. § 227.57(6).
¶30 Although the word "finding" is sometimes used in an
informal manner to refer to non-factual determinations, the word
was not so used in Wis. Stat. § 775.05(5). Wisconsin Stat.
§ 775.06 is a closely-related statute; it appears in the "same
chapter" (indeed, it immediately follows § 775.05), and it uses
"similar terms." See Reyes Fuerte, 378 Wis. 2d 504, ¶27 (citing
CC Midwest, Inc., 302 Wis. 2d 599, ¶24). Additionally, Wis.
Stat. § 227.03(5) cross-references both statutes as exceptions
15
No. 2021AP373
to the general exclusion of Board proceedings from judicial
review. Cf. id. (explaining statutes are closely related if one
references the other (citing CC Midwest, Inc., 302 Wis. 2d 599,
¶24)). For context, § 775.06(1) provides:
The . . . [B]oard shall hear petitions from law
enforcement officers employed by the state who have
judgments against them for damages caused while in
their line of duty where they acted in good faith and
who have incurred charges for counsel fees and costs
in defending said action.
Subsection (7) says: "The . . . [B]oard shall keep a complete
record of its proceedings in each case and of all the evidence.
The findings, conclusions, determination and award shall be
subject to review as provided in ch. 227." Under the surplusage
canon, discussed above, "findings" is not synonymous with
"conclusions" or the "determination." See James, 397
Wis. 2d 517, ¶21 (quoting Kalal, 271 Wis. 2d 633, ¶46; citing
Scalia & Garner, Reading Law, at 174). While § 775.06(7)
authorizes judicial review of "conclusions" and the
"determination," § 775.05(5) does not. Section 775.05(5) is
narrower in scope, indicating "findings" is used in its formal,
legal sense.
¶31 Under the text of Wis. Stat. § 775.05(4), "the award"
is the "[c]ompensation awarded" by the Board. The report is not
a part of "the award," because the statute provides for the
filing of a report if "the amount" the Board is "able to award
is not an adequate compensation." § 775.05(4); see also Wis.
Stat. § 20.505(4)(d) ("A sum sufficient for payments of award
made by the . . . [B]oard . . . under . . . [§] 775.05(4)[.]").
16
No. 2021AP373
¶32 We conclude the Board's decision not to make a non-
required finding regarding adequacy is not a "finding" in the
legal sense of the word as used in the statute. See Wis. Stat.
§ 775.05(5). It is not possible to apply a substantial evidence
standard to the Board's exercise or non-exercise of its
discretion because the Board did not determine the truth or
falsity of a fact in declining to make a finding regarding
adequacy. Additionally, this exercise or non-exercise of
discretion does not impact "the award"——only whether to submit a
report, which is not a part of "the award[.]" See id.Accordingly, the Board's exercise or non-exercise of its
discretion in this regard is not subject to judicial review.
IV. THE CONCURRENCE
¶33 The concurrence author does not join any part of our
opinion——not even those portions with which he agrees. "[I]t is
this court's function to develop and clarify the law." State ex
rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 436, 424
N.W.2d 385 (Wis. 1988) (citations omitted). Without cause, the
concurrence author deprives the people of precedent on a novel
issue, preferring instead to act as a court of one.
¶34 The concurrence discusses only two portions of our
opinion in explaining the author's decision to deny this opinion
precedential value. First, the concurrence discusses the
meaning of the word "findings." According to the concurrence,
our opinion "reaches beyond the issues raised by the parties and
addresses the reviewability of findings in this statutory
scheme." Concurrence, ¶50. The concurrence is wrong.
17
No. 2021AP373
¶35 Sanders argued, "[r]eversal and remand are necessary
so the Board can exercise its discretion." He claims, like the
dissent, that the Board erroneously exercised its discretion by
not documenting its decision-making process. In response, the
Board argues certain aspects of its decision making are not
subject to judicial review. Specifically, it argues a court may
review only: "(1) its decision about whether a claimant has
demonstrated by clear and convincing evidence that he was
innocent . . . ; and (2) its decision about the amount of
equitable compensation, not to exceed $25,000."
¶36 Although we adopt a slightly different rationale than
the Board's argument, any suggestion that we have deviated
significantly from the parties' presentation of this case is
false. The concurrence misunderstands either the parties'
arguments or the party presentation principle. Regardless,
"[w]e sit here to decide the law as we find it, and not as the
parties or others may have supposed it to be." Wis. Jud. Comm'n
v. Woldt, 2021 WI 73, ¶66, 398 Wis. 2d 482, 961 N.W.2d 854(Rebecca Grassl Bradley, J., concurring/dissenting) (quoting
Ross v. Bd. of Outagamie Cnty. Supervisors, 12 Wis. 26, 44
(1860) (Dixon, C.J., dissenting)). "In a legal system in which
appellate opinions not only establish the meaning of law, but do
so through precedent that binds future litigants, courts cannot
cede to the parties control over legal analysis." St. Augustine
Sch. v. Taylor, 2021 WI 70, ¶103, 398 Wis. 2d 92, 961 N.W.2d 635(Rebecca Grassl Bradley, J., dissenting) (quoting Amanda Frost,
The Limits of Advocacy, 59 Duke L.J. 447, 453 (2009)). This
18
No. 2021AP373
court has a duty to independently research, analyze, and
interpret the law on behalf of the nearly 6 million people of
Wisconsin. See State v. Alexander, 2015 WI 6, ¶83, 360
Wis. 2d 292, 858 N.W.2d 662 (Gableman, J., concurring) ("[I]t is
axiomatic that this court is not bound by the issues presented
or the arguments made by the parties.").
¶37 Strict application of the party presentation principle
is especially unsuited for the Wisconsin Supreme Court. This
court is not a lower court; it serves a law-developing function.
State v. Grawien, 123 Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App.
1985) ("The Wisconsin Supreme Court, unlike the court of
appeals, has been designated by the constitution and the
legislature as a law-declaring court. While the court of
appeals also serves a law-declaring function, such
pronouncements should not occur in cases of great moment."
(internal citation omitted)); see also State v. Herrmann, 2015
WI 84, ¶154, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J.,
concurring) ("Unlike a circuit court or the court of appeals,
the supreme court serves a law development purpose[.]"). The
concurrence's application of this non-binding principle would
turn this court into a circuit court, "consign[ing] the state's
highest court to selecting winners and losers in litigation
rather than declaring law." St. Augustine Sch., 398 Wis. 2d 92,
¶105.
¶38 Ironically, the concurrence deviates from the party
presentation principle in this very case. As the dissent points
out, the Board "concede[d]"——in very explicit terms——that it
19
No. 2021AP373
should lose under the 1913 statute. See dissent, ¶71. Under a
strict application of the party presentation principle, Sanders
should prevail unless we are willing to declare that subsequent
amendments were substantive. Recognizing the Board's error, the
concurrence properly deviates from the principle. The
concurrence author has deviated from the principle in other
cases as well. See, e.g., 5 Walworth, LLC v. Engerman
Contracting, Inc., 2023 WI 51, __ Wis. 2d __, __ N.W.2d __
(overruling a decision of this court even though no party asked
this court to do so); Friends of Frame Park, U.A. v. City of
Waukesha, 2022 WI 57, 402 Wis. 2d 1, 976 N.W.2d 263(majority/lead op.) (adopting an argument neither party advanced
in order to overrule a long line of court of appeals decisions).
¶39 The concurrence's claim that the definition of
"findings" is unnecessary to resolve this case is also difficult
to follow. Concurrence, ¶50. The concurrence appears to agree
the Board has discretion to make or not make a finding.
Discretionary decisions typically are subject to judicial
review. Accordingly, some discussion as to why this particular
exercise of discretion is not subject to review is warranted,
particularly because Sanders argues the Board erroneously
exercised its discretion.
¶40 The concurrence also declines to join this opinion's
critique of the dissent. The concurrence declares the dissent's
analysis is a "well-reasoned, good-faith reading of the statute"
ostensibly not rooted in "public policy." Id., ¶52. The
concurrence does not, however, explain why the dissent is wrong
20
No. 2021AP373
or address the irrelevancy of the dissent drawing comparisons
between the amount of compensation available under Wisconsin's
law versus other states' statutes. The dissenters believe
policy is a legitimate consideration in conducting a statutory
analysis. In other cases, the dissenters have quite clearly
advocated for a so-called "holistic approach" to statutory
interpretation. See, e.g., Clean Wis., Inc. v. DNR, 2021 WI 71,
¶41, 398 Wis. 2d 386, 961 N.W.2d 346 (Dallet, J., concurring).
The dissent's focus on, for example, the amount of compensation
available in New Hampshire to the wrongfully convicted makes
much more sense in the context of the dissenters' other separate
writings. See dissent, ¶56 n.1. The concurrence's
unwillingness to critique an anti-textual analysis does not.
¶41 On a final note, the concurrence characterizes our
response as "overly emphatic[.]" Concurrence, ¶51. If the
concurrence means to suggest our analysis of important legal
issues is thorough, we take it as a compliment. If the
concurrence disagrees on the legal principles presented, we
would welcome a discourse but the concurrence does not cite any
law or even secondary sources to support its position.
V. THE DISSENT
¶42 The dissent would hold the Board is
"require[d] . . . to make an adequacy determination when the
Board awards the $25,000 maximum despite a wrongly imprisoned
petitioner's request for more." Dissent, ¶55. Alternatively,
for the sake of argument, the dissent would hold, "[t]he choice
to refrain from determining adequacy is . . . a discretionary
21
No. 2021AP373
choice." Id., ¶75. Either way, the dissent faults the Board
for not "document[ing] and explain[ing]" its decision. Id.,
¶76.
¶43 The dissent's conclusions are grounded in public
policy, not law. The dissent begins with what it
mischaracterizes as "context" for "determin[ing]
whether . . . [the Board] fulfilled its statutory duty in
Sanders' case." Id., ¶58. The dissent derives "context" not
from the statutory text but from its own policy preferences.
The dissent's "context" consists of the following complaint:
"Wisconsin is lagging far behind" the other 38 states that have
created compensation schemes for the wrongfully convicted. Id.,
¶56 (citation omitted). Wisconsin "currently has the lowest per
year compensation cap at $5,000 and the second lowest total
compensation cap at $25,000." Id. (citation omitted). "Only
New Hampshire's total compensation cap is lower, at $20,000."
Id., ¶56 n.1 (citation omitted). "The difference between
Wisconsin's cap and those in other states is significant." Id.,
¶57. The dissent then imbues its interpretation of the
statutory text with its subjective view of "common sense," but
unambiguous statutes are not empty vessels to be filled with
judicial sensibilities. See id., ¶¶69, 81. In claiming the
court's analysis will "shield[] the Board from [judicial]
review," "incentivize[]" the Board to act unscrupulously, and
"allow[] the Board to add insult to injury," the dissent makes a
policy argument about what the statute should say, not a
22
No. 2021AP373
textualist argument about what the statute actually says. See
id., ¶¶81 n.8, 85.
¶44 Although the dissent's public policy discussion is
interesting, it has no relevance to the legal questions
presented in this case, regardless of the number of years
Sanders spent in prison. Courts decide what the law is, not
what it should be. In the course of executing this judicial
function, we neither endorse nor condemn the legislature's
policy choices.
¶45 Following the dissent's policy discussion, it commits
multiple analytical errors in interpreting the statutory text.
First, it conflates the Board's mandatory duty to submit a
report upon a finding of inadequacy with a non-existent duty to
make a finding regarding adequacy. Repeatedly, the dissent
emphasizes the statute uses "mandatory language"——"it shall
submit a report"——but the dissent overlooks the conditional
nature of the words preceding the mandatory language. See,
e.g., id., ¶¶54, 67. The mandatory language becomes operative
only if the condition——a finding of inadequacy——is fulfilled.
¶46 Second, the dissent interprets the word "findings"
beyond its generally accepted legal meaning:
"[F]inding" is often used . . . to mean a decision or
a determination. See Find, American Heritage
Dictionary (5th ed. 2022) ("To come to a legal
decision or verdict."). Wisconsin Stat. § 775.05 uses
"find" in this general sense . . . . As such, there
is no indication in the statute that the word
"finding" in . . . § 775.05(5) was meant in a limited
sense to exclude some types of decisions, rather than
23
No. 2021AP373
as a general synonym for "decision" or
"determination."
Id., ¶27. As a preliminary matter, the dissent incorrectly
cites a non-legal dictionary for a legal definition. Legal
precision favors using legal dictionaries for defining legal
concepts embedded in laws. Additionally, the legislature
generally does not use "synonyms." See Wisconsin Bill Drafting
Manual, § 2.04(5) ("Avoid using synonyms. Use different words
for different meanings and the same word when the same meaning
is intended."). By interpreting "finding" to be synonymous with
various other phrases, the dissent would subject all aspects of
the Board's decision making to judicial review. In so doing,
the dissent's interpretation effectively amends Wis. Stat.
§ 227.03(5) as follows: "This chapter does not apply to
proceedings of the . . . [B]oard, except as for claims filed
under provided in" § 775.05. We do not have the power the
dissent would usurp from the legislature.
¶47 Lastly, the dissent suggests Wis. Stat. § 775.06 is
not a closely-related statute because it references "findings,
conclusions, determination, and award," whereas Wis. Stat.
§ § 775.05(5) uses only the phrase "findings and the award[.]"
See dissent, ¶80 n.7. If the dissent's view were correct, few
if any statutes would be closely related, and we would interpret
a statute "in isolation[.]" James, 397 Wis. 2d 517, ¶20
(quoting Kalal, 271 Wis. 2d 633, ¶46). This court has
repeatedly rejected such a cramped construction of statutes.
Id. (quoting Kalal, 271 Wis. 2d 633, ¶46).
24
No. 2021AP373
VI. CONCLUSION
¶48 The people have not given this court the power to
"second-guess" the legislature's policy choices. Johnson v.
WEC, 2021 WI 87, ¶3, 399 Wis. 2d 623, 967 N.W.2d 469. "Judicial
deference to the policy choices enacted into law by the
legislature requires that statutory interpretation focus
primarily on the language of the statute." Kalal, 271
Wis. 2d 633, ¶44. "While textualism cannot prevent the
incursion of policy preferences into legal
analysis . . . without textualism, such encroachment is
certain." Friends of Frame Park, U.A. v. City of Waukesha,
2022 WI 57, ¶96, 403 Wis. 2d 1, 976 N.W.2d 263 (Rebecca Grassl
Bradley, J., concurring) (quoting Woldt, 398 Wis. 2d 482, ¶92).
The court of appeals majority "grafted onto . . . [Wis. Stat.
§ 775.05(4)] a process the legislature has not sanctioned";
accordingly, its conclusions——and the dissent's——"are contrary
to policy choices made by the legislature." Sanders,
No. 2021AP373, ¶56 (Fitzpatrick, J., dissenting) (citing Mayo v.
Wis. Injured Patients & Fams. Comp. Fund., 2018 WI 78, ¶¶26, 40,
383 Wis. 2d 1, 914 N.W.2d 678).
By the Court.——The decision of the court of appeals is
reversed.
25
No. 2021AP373.bh
¶49 BRIAN HAGEDORN, J. (concurring). After the Claims
Board awarded Derrick Sanders the statutory maximum of $25,000,
Wis. Stat. § 775.05(4) required the Board to submit a report to
the legislature if the Board found the award inadequate. No
report was submitted. Sanders maintains the Board erred because
it did not explain why the award to Sanders was adequate. The
statute is only triggered, however, if the Board finds the
amount of the award inadequate. If the Board does not find the
amount inadequate, there is no statutory mandate to explain why
it decided against making a finding that § 775.05 does not
require the Board to make. I agree with the lead opinion's
statutory analysis explaining why this is so, reasoning that
largely mirrors Judge Fitzpatrick's dissent at the court of
appeals.
¶50 The lead opinion goes further, however. It reaches
beyond the issues raised by the parties and addresses the
reviewability of findings in this statutory scheme. Because
this discussion is not necessary to resolve the dispute, was not
briefed, and could have wider implications, I believe it would
be unwise to address that issue authoritatively in this case.
¶51 The lead opinion answers with an extended discussion
of the party presentation principle for reasons I do not
understand. Every member of the court agrees that sometimes our
case-deciding, law-clarifying function requires us to go beyond
the precise contours of the parties' legal arguments. A
majority of this court——and as far as I am aware, almost every
court in the country——also agrees we usually should not do so,
1
No. 2021AP373.bh
particularly when resolving a case does not require it. That is
the case here. Therefore, the lead opinion's overly emphatic
response to a rather standard judicial decision-making principle
makes little sense.
¶52 Additionally, the lead opinion engages in a lengthy
critique of the dissent for allegedly rooting its conclusions in
public policy rather than law. While I reject an approach to
statutory interpretation that incorporates one's preferred
policy outcome, I simply do not see that in the dissent's
analysis. The briefing on both sides of this case was
excellent, and in my view, the dissent presents a well-reasoned,
good-faith reading of the statute. Sometimes judges endeavoring
to faithfully interpret statutes disagree; no nefarious motive
need be invoked. Although I disagree with the dissent's
analysis, the critique by the lead opinion misses the mark.
¶53 For these reasons, I respectfully concur.
2
No. 2021AP373.jjk
¶54 JILL J. KAROFSKY, J. (dissenting). Derrick Sanders
wrongfully spent 26 years imprisoned for a homicide that he did
not commit. Because he was wrongly imprisoned by the State, the
Wisconsin Claims Board awarded him $25,000, the statutory
maximum that the Board itself is authorized to award from its
appropriation fund. Wisconsin Stat. § 775.05(4) says that "[i]f
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 . . . ." Despite this directive, the
Board said nothing about whether or not the $25,000 award was
adequate to compensate Sanders for his 26 years of imprisonment,
nor did the Board submit a report to the legislature. Yet a
majority of this court holds that the Board did everything it
was required to do under the statute. This holding transforms
the mandatory language of the statute into a mere suggestion and
erroneously shields the Board from judicial review. As such, I
respectfully dissent.
¶55 I begin with a brief history of Wisconsin's practice
of compensating innocent people who were wrongly imprisoned by
the State. I then provide some necessary factual background.
Next, I look to Wis. Stat. § 775.05(4) and explain how the
statute requires the Board to make an adequacy determination
when the Board awards the $25,000 maximum despite a wrongly
imprisoned petitioner's request for more. Finally, I explain
how the Board's failure to explain and document its decision
1
No. 2021AP373.jjk
allows it to evade review, contrary to Wis. Stat. § 775.05(5)
and Wis. Stat. ch. 227.
I. HISTORY
¶56 In 1913, Wisconsin was first off the starting blocks
in compensating innocent people wrongfully imprisoned by the
state. Shelley Fite, Compensation for the Unjustly Imprisoned:
A Model for Reform in Wisconsin, 2005 Wis. L. Rev. 1181, 1182
(2005). Since then, thirty-eight states and the federal
government have followed in our tracks. See The National
Registry of Exonerations, Compensation by the Numbers: State
Statutory Compensation (Apr. 6, 2023), https://perma.cc/N9RC-
9EZM. Now, despite once leading the pack in compensating
individuals for the "sacrifices which the state imposes on
[them] for the public purpose of punishing crime," Wisconsin is
lagging far behind. See John H. Wigmore, The Bill to Make
Compensation to Persons Erroneously Convicted of Crime, 3 J. Am.
Inst. Crim. L. & Criminology 665, 665 (1913). This state
currently has the lowest per year compensation cap at $5,000 and
the second lowest total compensation cap at $25,000.1 The
National Registry of Exonerations, Compensation Statutes: A
National Overview (June 2, 2022), https://perma.cc/6XRD-PT6D.
¶57 The difference between Wisconsin's caps and those in
other states is significant. The majority of states
compensating for wrongful conviction provide at least $50,000
per year of wrongful imprisonment, ten times Wisconsin's per-
Only New Hampshire's total compensation cap is lower, at
1
$20,000. N.H. Rev. Stat. § 541-B:14.
2
No. 2021AP373.jjk
year cap. Innocence Project, Key Provisions in Wrongful
Conviction Compensation Laws (May 27, 2022),
https://perma.cc/39LX-7EJJ. Even setting aside comparisons to
other states, the total compensation cap set by Wisconsin
legislators in 1913 ($5,000), adjusted for inflation, translates
to more than $150,000 in today's dollars, six times the current
cap of $25,000. See Bureau of Labor Statistics, Inflation
Calculator, https://www.bls.gov/data/inflation_calculator.htm
(accessed Apr. 21, 2023).
¶58 However, these low caps do not serve as an absolute
ceiling. Section 775.05(4) includes an escape hatch which
instructs the Board to submit a report to the legislature if the
maximum allowable award is inadequate compensation for a
wrongfully convicted petitioner. See Wis. Stat. § 775.05(4).
Within this context, we examine the Board's decision to
determine whether it fulfilled its statutory duty in Sanders'
case.
II. BACKGROUND
¶59 The lead opinion minimizes the fact that Sanders
wrongfully spent 26 years in prison, while emphasizing that
Sanders participated in an earlier battery of the victim——a
crime that Sanders was not convicted of and a fact that is
irrelevant to our review of the Board's decision. In order to
clarify which facts are relevant to our review, I provide a
brief summary of the Board's decision here.
¶60 In 2018, the Circuit Court for Milwaukee County
vacated Sanders' conviction for first-degree intentional
3
No. 2021AP373.jjk
homicide. After 26 years in prison, Sanders walked free.
Subsequently, Sanders petitioned the Board for compensation,
seeking around $530,000 for lost wages and assets, and around
$5.2 million in lost earning potential.2 The Milwaukee County
District Attorney's Office did not oppose the petition.
¶61 The Board made two determinations. First, it
determined that Sanders had shown by clear and convincing
evidence that he was innocent and did not contribute to his
conviction. Second, it decided to award Sanders $25,000, less
than $1,000 per year of wrongful imprisonment.
¶62 The Board offered a detailed rationale for its
determination that Sanders was innocent. It explained that a
court had found that there was no factual basis for Sanders' no
contest plea to first-degree intentional homicide. It noted
that Sanders consistently maintained he had not been involved in
the homicide, and that one of the men actually involved in the
homicide had signed a statement that Sanders was neither present
nor involved. The Board additionally explained that the "unique
facts" of the case showed that Sanders had not contributed to
his own conviction, despite his no contest plea. Specifically,
Sanders had always maintained his innocence, sought a plea
withdrawal, and met the high legal standard to merit withdrawal.
2 In his hearing before the Board, Sanders explained that
"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 then referenced two prior cases before
the Board, one in which a petitioner received $7.5 million after
being wrongfully imprisoned for 24 years, and another in which a
petitioner received $13 million after being wrongfully
imprisoned for 13 years.
4
No. 2021AP373.jjk
¶63 By contrast, the Board provided zero rationale for its
decision to award Sanders the statutory maximum without
requesting more from the legislature. The Board merely restated
that Sanders was innocent of the crime for which he was
convicted, and that "[a]ccordingly, the Board further concludes
that compensation in the amount of $25,000 shall be awarded"
from its appropriation fund. We do not know whether the Board
considered Sanders' role in the beating of the victim prior to
the crime. We do not know whether the Board considered Sanders'
factually unsupported no contest plea. We do not know whether
the Board considered how Sanders' case compared with those
wrongfully convicted petitioners who were awarded millions of
dollars. We do not even know whether the Board considered
adequacy at all or whether it ceased consideration of the case
upon awarding the statutory maximum from the appropriation fund.
The reality is that we do not know anything about the Board's
rationale for not sending a report to the legislature.
¶64 Having established the relevant background, I turn to
Wis. Stat. § 775.05 and explain why the Board was required to
document and explain its decision regarding the adequacy of the
award.
III. ANALYSIS
¶65 Wisconsin Stat. § 775.05 requires the Board to (1)
determine whether or not its award to Sanders was adequate; and
(2) provide at least some rationale for its determination so
that a court may review its determination under Wis. Stat. ch.
227. See Wis. Stat. § 775.05(4)-(5). The Board failed to meet
5
No. 2021AP373.jjk
both of these requirements. Therefore, the Board's action
should be reversed and remanded with instructions to correct
that failure. I discuss each of these points in turn below.
A. The Board Must Determine Adequacy.
¶66 The text and history of Wis. Stat. § 775.05(4) make it
clear that the Board was required to determine whether or not
its award to Sanders was adequate. The relevant portion of Wis.
Stat. § 775.05(4) reads as follows:
If the claims board finds that the petitioner was
innocent . . . 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 . . . . 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 . . . .
Wis. Stat. § 775.05(4) (emphasis added).
¶67 The statute uses the mandatory language "shall,"
requiring the Board to report to the legislature if it "finds
the amount it is able to award is not an adequate compensation."
Wis. Stat. § 775.05(4). In order to comply with this
requirement, the Board must first determine whether or not the
amount it is able to award is adequate. Because an award is
either adequate or it is not, the word "if," coupled with the
report requirement, sets up a binary decision tree with two
options. Option 1: the Board decides that the award is
adequate, so it is not required to submit a report to the
legislature. Option 2: the Board decides that the award is
6
No. 2021AP373.jjk
inadequate, so it is required to submit a report to the
legislature.
¶68 The lead opinion relies almost entirely on the
proposition that the word "if" creates a third option for the
Board, and allows the Board to entirely refrain from determining
whether or not the award is adequate. This reading of the
statute strains credulity. By the lead opinion's logic, Wis.
Stat. § 775.05 includes a mandatory requirement that the Board
submit a report to the legislature if it finds that the maximum
award is inadequate. But it simultaneously allows the Board to
avoid that requirement at whim regardless of the adequacy or
inadequacy of the award.
¶69 The lead opinion's foray into 80s pop music
illustrates the absurdity of its position. The "if" condition
presented by the lyrics "if you leave" creates two options:
leave or stay. It is unlikely that any listener of sound mind
would determine that the singer was also presenting a third
choice: refuse to decide whether to stay or leave and instead
exist in some bizarre metaphysical state outside of staying or
leaving. The same is true of the statute. There are two
options——the award is adequate or it is inadequate——and the lead
opinion treads outside the bounds of common sense in determining
there is a third option.
¶70 Returning from the lead opinion's musical interlude, I
now turn to the statutory history of Wis. Stat. § 775.05(4),
which confirms that the Board is required to determine whether
7
No. 2021AP373.jjk
its award is adequate. The 1913 version of the statute read, in
pertinent part, as follows:
If the board shall find that the petitioner was
innocent . . . the board shall proceed to find the
amount which will compensate the petitioner for his
wrongful imprisonment. Such board may award a
compensation to the petitioner so found innocent of
not to exceed five thousand dollars in any case, and
at a rate of compensation not greater than fifteen
hundred dollars per year for the imprisonment so
unjustly suffered. If the board shall find that the
amount they may be able to award will not be an
adequate compensation to the petitioner they shall
report an amount to the legislature which they shall
deem to be adequate . . . .
Section 3203a(4), ch. 189, Laws of 1913.
¶71 It is clear that the 1913 statute first required the
Board to find the amount that would compensate the petitioner
for the time spent wrongfully imprisoned, and then separately
enabled the Board to award up to the statutory maximum. The
Board concedes as much. The fact that a subsequent 1935
revisor's bill condensed this language and combined the first
two sentences together did not change the Board's duty to
determine the correct amount of compensation.
¶72 "A revisor's bill ordinarily does not result in a
change in the meaning of the statutes revised," and it did not
result in a change in meaning here. S. Milwaukee Sav. Bank v.
Barrett, 2000 WI 48, ¶37, 234 Wis. 2d 733, 611 N.W.2d 448; see
also Wis. Stat. § 990.001(7) ("If the revision bill contains a
note which says that the meaning of the statute to which the
note relates is not changed by the revision, the note is
indicative of the legislative intent."). The revisor's bill in
8
No. 2021AP373.jjk
question noted that its purpose was to "make the statutes more
clear, concise, and compact," rather than make substantive
changes, and that "[t]he absence of a note to any section of the
bill means that only verbal changes [were] intended." 1935 S.B.
75 (directing the reader to see the first note in 1935 S.B. 50);
1935 S.B. 50. There was no note appended to the section at
issue here, and therefore no substantive change was intended.
The 1913 and 1935 statutes required the Board to determine the
amount that will compensate the petitioner, regardless of the
statutory maximum, and the statute continues to do so in its
current form.
¶73 In analyzing the statutory history, the lead opinion
misses the point. It focuses on the 1913 statute's conditional
statement, while ignoring the requirement that "the board shall
proceed to find the amount which will compensate the petitioner
for his wrongful imprisonment." The act of "find[ing] the
amount which will compensate" a person necessarily implies some
determination of how much is required to appropriately
recompense the person for the loss suffered. See "Compensate,"
Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/compensate (last visited June 23, 2023)
("to make an appropriate and usually counterbalancing payment
to" (emphasis added)). Necessarily, in deciding the proper
amount of compensation, the Board has already determined the
adequacy of the amount it is statutorily able to award.3
3This determination is a matter of simple math: is the
amount which will compensate the petitioner greater than the
amount the statute allows the Board to award?
9
No. 2021AP373.jjk
¶74 It is not surprising, therefore, that the Board
conceded that the 1913 version of the statute required it to
determine how much would compensate the petitioner, regardless
of the statutory maximum. Where the Board goes wrong, of
course, is in arguing that a revisor's bill made substantive
changes to that requirement, when the revisor's bill made
explicit that there were no substantive changes.
¶75 As explained, the text and history of the statute
make clear the Board was required to determine whether or not
its award would adequately compensate Sanders. But even if we
were to assume the lead opinion's reading of the statute is
correct——and the Board is allowed to refrain from determining
whether the award is adequate——the Board is still required to
make a determination that it must document and explain. The
choice to refrain from determining adequacy is still a
discretionary choice.4 Under either reading, the statute
requires the Board to exercise its discretion in making a
decision, and (as the next section explains) document the
rationale behind the decision.
4 An example of when the Board arguably made such a
determination is when it decided not to submit a report to the
legislature on behalf of a petitioner because "a legislative
committee [was] presently considering a range of issues
concerning innocent convicts. The committee may make
recommendations on the issue of compensation for innocent
convicts." State of Wisconsin Claims Board, Decisions re:
December 2, 2004 hearings (Dec. 14, 2004),
https://claimsboard.wi.gov/Documents/Decision_Conv_2004-12-
02%20Avery,%20Steven.pdf.
10
No. 2021AP373.jjk
B. The Board Must Document Its Decision-Making Process.
¶76 Having established that Wis. Stat. § 775.05 requires
the Board to determine whether or not its award is adequate,
regardless of the statutory maximum, I now turn to the
requirement that the Board must document and explain that
decision.
¶77 The Board's decisions regarding compensation for
wrongfully convicted petitioners are subject to judicial review
"as provided in ch. 227."5 Wisconsin Stat. § 775.05(5) provides
that the Board "shall keep a complete record of its proceedings
in each case and of all the evidence. The findings and the
award of the claims board shall be subject to review as provided
in ch. 227." Section 227.57(8) instructs a court to reverse or
remand the cause when an "exercise of discretion is outside the
range of discretion delegated to the agency by law; is
inconsistent with a . . . prior agency practice . . . or is
otherwise in violation of a constitutional or statutory
provision." In order for a court to determine whether the
Board's exercise of discretion is within these bounds, the Board
must document its decision and the rationale behind it. See
Reidinger v. Optometry Examining Bd., 81 Wis. 2d 292, 297-298,
260 N.W.2d 270 (1977) ("Discretion is not synonymous with
5Wisconsin Stat. § 227.03(5) states that chapter 227 "does
not apply to proceedings of the claims board, except as provided
in ss. 775.05(5), 775.06(7), and 775.11(2)." Section 775.05(5)
relates to proceedings regarding compensation for innocent
convicts——the relevant proceeding in this case. As such,
chapter 227 review standards apply to the "findings" and "award"
of the subject proceedings in this case. See Wis. Stat.
§ 775.05(5).
11
No. 2021AP373.jjk
decision-making. Rather, the term contemplates a process of
reasoning . . . there should be evidence in the record that
discretion was in fact exercised and the basis of that exercise
of discretion should be set forth.").
¶78 This is not a new concept. We have long said that
discretionary decision-making requires some documented evidence
of the decision-maker's rationale. See, e.g., Arrowhead United
Tchrs. Org. v. Wis. Emp. Rels. Comm'n, 116 Wis. 2d 580, 603, 342
N.W.2d 709 (1984); Madison Gas & Elec. Co. v. Pub. Serv. Comm'n
of Wisconsin, 109 Wis. 2d 127, 136-137, 325 N.W.2d 339 (1982);
Hacker v. State Dep't of Health & Soc. Servs., 197 Wis. 2d 441,
476-480 541 N.W.2d 766 (1995) (all evaluating discretionary
determinations in the context of ch. 227 review). Documentation
is the necessary implication of ch. 227 review. In order to
determine whether a reasoning process is outside a decision-
maker's range of discretion, inconsistent with prior practice,
or in violation of the law, there must be some indication of the
decision-maker's reasoning process. To decide otherwise allows
discretionary decision-makers subject to review to avoid review
of their decisions, thereby contravening § 227.57. Worse, it
allows decision-makers to make determinations based on reasons
that are well outside the bounds of rational decision-making,
without any means for those negatively affected by arbitrary
decisions to challenge them.
¶79 The lead opinion asserts that the Board was not
required to document anything about the adequacy of the award
because "the Board's decision not to make a non-required finding
12
No. 2021AP373.jjk
regarding adequacy is not a 'finding' in the legal sense of the
word as used in the statute." See lead op., ¶32. This is
incorrect. As I have explained above, the Board is required to
decide whether or not the award is adequate. And the Board's
adequacy decision is clearly a "finding" that is subject to
review under the plain language of the statute. See Wis. Stat.
§ 775.05(4) ("If the claims board finds that the amount . . . is
not an adequate compensation . . . ."); Wis. Stat. § 775.05(5)
(The findings and the award of the claims board shall be subject
to review . . . .). Consequently, the Board must document
whether or not it found the statutory maximum adequate and its
rationale for that decision.
¶80 However, even if we assume for the sake of argument
that the statute does not require the Board to make an adequacy
determination, the lead opinion's limited reading of the word
"finding"——a reading that excludes the Board's decision to avoid
deciding adequacy——simply does not comport with the way the word
"find" is used in the statute. The lead opinion insists that
"find" is a legal term of art and is synonymous to "findings of
fact," but "finding" is often used in a broader sense to mean a
decision or a determination. See Find, American Heritage
Dictionary of the English Language (5th ed. 2022) ("To come to a
legal decision or verdict."). Wisconsin Stat. § 775.05 uses
"find" in this general sense each time it describes a decision
the Board makes, without regard to whether the Board is finding
a fact or making a more discretionary determination, such as
"find[ing] the amount which will equitably compensate the
13
No. 2021AP373.jjk
petitioner, not to exceed $25,000."6 As such, there is no
indication in the statute that the word "finding" in Wis. Stat.
§ 775.05(5) was meant in a limited sense to exclude some types
of decisions, rather than as a general synonym for "decision" or
"determination."7
¶81 Under a commonsensical reading of Wis. Stat.
§ 775.05(4), the Board is required to find whether or not the
statutory maximum is adequate——a finding that clearly is subject
to review under ch. 227. Wis. Stat. § 775.05(5). But even
under a reading that allows the Board to refrain from deciding
6 See Wis. Stat. § 775.05(3) ("the claims board shall find
either that the evidence is clear and convincing that the
petitioner was innocent of the crime . . ."); Wis. Stat.
§ 775.05(4) ("If the claims board finds that the petitioner was
innocent and that he or she did not . . . contribute to bring
about the conviction . . . , the claims board shall find the
amount which will equitably compensate the petitioner, not to
exceed $25,000 . . . . 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 . . . ."
(emphasis added)).
7 The language the lead opinion points to in Wis. Stat.
§ 775.06(7), "findings, conclusions, determination, and award"
mirrors language used earlier in that particular section. See
Wis. Stat. § 775.06(4) ("the findings, conclusions,
determination, and award of, or denial thereof, shall be based
on all the evidence . . . "). Wisconsin Stat. § 775.05, by
contrast, includes no such language, but instead uses the word
"finding" throughout to describe each of the decisions the Board
makes.
14
No. 2021AP373.jjk
adequacy, the decision to refrain is still subject to review.8
Because the Board is subject to ch. 227 review, it is required
to document the rationale behind its discretionary decisions——
including its decision regarding the adequacy of an award.
C. The Board Failed to Document Its Decision-Making Process.
¶82 Turning to the Board's decision here, the record is
devoid of any evidence indicating the Board exercised discretion
regarding the adequacy of the award. In its decision, the Board
did not address whether $25,000 was adequate, but wrote only
that it found Sanders innocent, and "[a]ccordingly, the Board
further concludes that compensation in the amount of $25,000
shall be awarded from the Claims Board appropriation."
Additionally, in its decision to deny Sanders' petition for
rehearing, the Board wrote only that "the Board did not conclude
that the amount which it was able to award was 'not adequate
compensation.'"
¶83 Neither of those brief statements provide evidence
that "discretion was in fact exercised" when the Board
determined the adequacy of the award, nor do they set forth "the
In addition to shielding the Board from review of its
8
decision to refrain from considering adequacy, the lead opinion
effectively shields the Board from review of any decision not to
send a report to the legislature. The Board is incentivized to
say nothing, even if it actively finds that the award is
adequate. As already established (and not refuted by the lead
opinion), the Board's finding of adequacy is reviewable under
Wis. Stat. §§ 227.03(5) & 775.05(5). However, the Board may
refrain from documenting its finding of adequacy and thus evade
review because the reviewing court must assume from the empty
record——as the lead opinion appears to do in this case——that
adequacy was not considered.
15
No. 2021AP373.jjk
basis of that exercise of discretion." See Hacker, 197 Wis.2d
at 478 (quoting Reidinger, 81 Wis.2d at 298). The Board's
decision does not mention whether it determined the award was
adequate, much less the basis for that determination. Likewise,
the order denying rehearing, which stated that "the Board did
not conclude that the amount which it was able to award was 'not
adequate compensation'" failed to establish that an adequacy
determination was made. Although a double negative often
colloquially translates into the corresponding positive, the
Board's use of the double negative here establishes only the
negative——the Board refrained from making a decision regarding
adequacy. Even accepting that the Board did determine $25,000
was adequate, the Board failed to set forth any basis for that
determination in its order. Accordingly, the court of appeals
was correct in remanding the matter to the Board to properly
exercise its discretion as to whether $25,000 was adequate.
¶84 It bears repeating that requiring some documentation
of the Board's decision-making is not simply an exercise in
ensuring that the Board dot its I's and cross its T's, but
instead is a matter of real substantive importance. Perhaps the
Board did have a legitimate reason for not recommending a higher
amount to the legislature. The problem is that we do not know
the reason, or whether there was any reasoning at all. The lead
opinion's decision allows the Board to evade review of
determinations made on potentially illegitimate or arbitrary
grounds by simply not documenting the grounds for its decision.
16
No. 2021AP373.jjk
This directly contravenes the legislature's directive that the
Board be subject to review. See Wis. Stat. § 775.05(5).
IV. CONCLUSION
¶85 Sanders spent twenty-six years in prison for a crime
he did not commit. To be awarded even a cent for those lost
decades, he was required to clear a high bar that only 179
petitioners have cleared since 2000——prove to the Board by clear
and convincing evidence that he was innocent. Here the lead
opinion allows the Board to add insult to injury by absolving
the Board of its duty to follow the legislature's directive to:
(1) determine whether or not the statutory maximum is adequate;
and (2) explain its reasoning such that a court can review——and
Sanders can understand——the rationale behind its determination.
Because the Board did not do so here, I respectfully dissent.
¶86 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
9 State of Wisconsin Claims Board, Innocent Convict
Compensation Decisions (accessed Jun. 2, 2023),
https://claimsboard.wi.gov/Pages/InnocentConvictDecisions.aspx.
17
No. 2021AP373.jjk
1