The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
10. Frank Penigar, Jr. of Stanley, Wisconsin claims $1,272.03 for restitution money deducted from his inmate account by the Department of Corrections. Claimant was convicted in 1996 and the Judgment of Conviction (JOC) at that time indicated that restitution amount was “to be determined.” In October 1999, a DOC probation and parole agent submitted a memo to the court setting the restitution amount at $2,000. That memo indicated that the amount had “been reviewed with the defendant and the defendant disagrees with the amount of restitution.” A document with the claimant’s signature indicating he disagreed with the restitution amount accompanied this memo. This notice that claimant disagreed with the restitution amount triggered the need for a hearing. A hearing was scheduled but later canceled based on the submission of another DOC memo in May 2000, which stated that claimant agreed with the restitution amount. Claimant points to the fact that this memo does not contain his signature or initials as required. Based on this incorrect memo, the court canceled the restitution hearing and ordered $2,000 restitution. Claimant states that he was never notified of this order and was unaware this amount of restitution had been assigned. In November 2016, after installing new accounting software, DOC began deducting restitution from his account. Claimant believes these deductions, which began more than 20 years after his conviction, were in violation of Wis. Stat. § 893.40. In December 2016 he challenged the restitution order and the court found that proper procedures for determining the restitution amount were not followed and that the notice provided to claimant was untimely, unreasonable, and prejudicial. The court vacated the restitution order and set restitution at zero nunc pro tunc. Although DOC points to a November 1996 restitution memo signed by claimant, that memo was never submitted to the court. In fact, the state’s own response to claimant’s motion challenging the restitution stated: “Nothing provided to the State by the [DOC] shows that Mr. Penigar signed and/or initialed information/documents showing that he agreed with the restitution figure.” Claimant believes DOC was negligent in the way it determined the amount of restitution, by submitting inaccurate documents to the courts, and in the unreasonable delay in collecting the restitution. He requests return of the restitution money deducted from his account. DOC recommends denial of this claim. DOC states that it collected restitution money from claimant’s account pursuant to a court order and stopped that collection as soon as it received the 2018 amended JOC. Although claimant alleges that he was unaware of the restitution order until 2016, DOC points to a November 1996 memo signed by claimant indicating that he agreed with the restitution amount. DOC states that it is not time-barred by Wis. Stat. § 893.40, because that section applies to a statute of limitations for commencement of an action on a civil judgment and DOC had not initiated an action against claimant, but was collecting outstanding obligations imposed by the court, which DOC is mandated to collect. DOC points to Wis. Stat. § 301.31, which authorizes DOC to use inmate funds to pay prisoner obligations that have been reduced to judgement and Wis. Stat. § 301.32(1), which authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. DOC believes that paying down an inmate’s lawful debts is to his benefit. Finally, DOC states that the money collected was not held by DOC for its own benefit but was disbursed to pay his court obligations. Division of Adult Institution Policy 309.45.02 provides that DOC is not responsible for clawing back money already disbursed when an amended JOC is received. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
11. Dale M. Robinson of Fox Lake, Wisconsin claims $892.57 for money deducted from his inmate account by the Department of Corrections. Claimant states that DOC collected money from his account for obligations related to two cases, both of which had already been discharged. He states that he contacted the business office numerous times to notify them the cases were discharged but DOC continued to collect money for these obligations. Claimant points to Division of Adult Institutions Policy 309.45.02, section VII A. 1 and 2 which states that once an inmate informs the DOC Business Office that a case has been discharged the Business Office shall confirm the discharge and then “(v)erify and close appropriate obligations.” Claimant believes DOC has no authority to collect on discharged cases. He notes that the parties owed money related to his convictions could have filed civil claims to collect such monies but failed to do so, and the statute of limitations has expired. Claimant requests return of the money collected on these two cases.
DOC recommends denial of this claim. DOC notes that the version of DAI 309.45.02 in effect at the time these collections were made did not require staff to distinguish between discharged and active cases when collecting funds toward court-ordered obligations. In October 2017, DAI 309.45.02 was amended to permit but not require staff to stop collection on some obligations for discharged cases. DOC policy has never mandated that staff stop all collection for discharged cases. DOC points to Wis. Stat. § 301.31, which authorizes DOC to use inmate funds to pay prisoner obligations that have been reduced to judgement and, Wis. Stat. § 301.32(1), which authorizes DOC to use inmate funds to pay surcharges, victim restitution, or for the benefit of the prisoner. DOC believes that paying off an inmate’s debt, even if on a discharged case, is to his benefit. Finally, DOC states that the money collected was not held by DOC for its own benefit but was disbursed to pay his court obligations. DOC acted in conformance with the law and its own policy in this matter and claimant has presented no evidence of staff negligence. The Board concludes there has been an insufficient showing of negligence on the part of the state, its officers, agents or employees and this claim is neither one for which the state is legally liable nor one which the state should assume and pay based on equitable principles.
The Board concludes:
That the following identified claimants are denied:
Robert Schlimm
Michels Corporation
Vitech Systems Group, Inc.
Timothy Smunt
Pastori Balele
Kelley Avery
Mekious D. Bullock, Sr.
Oscar Garner
James R. Harris
Frank Penigar, Jr.
Dale M. Robinson
Dated at Madison, Wisconsin this 30th day of May, 2019.
COREY FINKELMEYER
Chair, Representative of the Attorney General
AMY KASPER
Secretary, Representative of the Secretary of Administration
RYAN NILSESTUEN
Representative of the Governor
LUTHER OLSEN
Senate Finance Committee
_____________
Adjournment
Senator Fitzgerald, with unanimous consent, asked that the Senate stand adjourned until Tuesday, June 11, 2019.
Adjourned.
2:55 P.M.
