Derrick A. Sanders v. State of Wisconsin Claims Board

2023 WI 60, 992 N.W.2d 126, 408 Wis. 2d 370

• Court: Wisconsin Supreme Court
• Decided: June 30, 2023
• Docket: 2021AP000373
• Status: Published

Opinion

2023 WI 60

SUPREME 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REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 404 Wis. 2d 327, 978 N.W.2d 398 (2022 – unpublished)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 60 NOTICE 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.

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).

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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

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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

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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.

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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.

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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.

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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.

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