Turnpaugh v. State Claims Bd.

Decision Date22 May 2012
Docket NumberNo. 2011AP2365.,2011AP2365.
Citation816 N.W.2d 920,342 Wis.2d 182,2012 WI App 72
PartiesDavid R. TURNPAUGH, Petitioner–Appellant, v. STATE of Wisconsin CLAIMS BOARD, Respondent–Respondent.
CourtWisconsin Court of Appeals

OPINION TEXT STARTS HERE

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael A. Baird of Stupar & Schuster, S.C., Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general and Anne C. Murphy, assistant attorney general.

Before FINE, KESSLER and BRENNAN, JJ.

FINE, J.

[342 Wis.2d 183]¶ 1 David R. Turnpaugh appeals the circuit court order affirming a decision by the State of Wisconsin Claims Board denying his claim under Wis. Stat. § 775.05 seeking compensation as an “innocent person [ ] who [has] been convicted of a crime.” See§ 775.05(1). We review the decision of the Claims Board and not that of the circuit court. See Wisconsin Dep't of Revenue v. Menasha Corp., 2008 WI 88, ¶ 46, 311 Wis.2d 579, 611, 754 N.W.2d 95, 111. We reverse.

I.

¶ 2 This is Turnpaugh's second appeal in defense of his rights. In the first, State v. Turnpaugh, 2007 WI App 222, 305 Wis.2d 722, 741 N.W.2d 488, we reversed his conviction by a jury of violating Wis. Stat. § 944.30(1) because there was no evidence in the trial Record that he committed the act made criminal by that section. Turnpaugh, 2007 WI App 222, ¶¶ 3–8, 305 Wis.2d at 725–728, 741 N.W.2d at 490–491. Simply put:

“Turnpaugh was charged with and convicted of violating Wis. Stat. § 944.30(1) in connection with what the State said was his propositioning an undercover police officer. Turnpaugh, 2007 WI App 222, ¶¶ 3, 4, 305 Wis.2d at 725, 726, 741 N.W.2d at 490.

• Under § 944.30(1), a person is guilty of a Class A Misdemeanor if he or she [h]as or offers to have or requests to have nonmarital sexual intercourse for anything of value.’ Turnpaugh, 2007 WI App 222, ¶ 2, 305 Wis.2d at 725, 741 N.W.2d at 489 (quoting § 944.30(1)).

• “ ‘Sexual intercourse’ requires ‘vulvar penetration.’ Wis. Stat. § 939.22(36) (“ ‘Sexual intercourse’ requires only vulvar penetration and does not require emission.”).Turnpaugh, 2007 WI App 222, ¶ 3, 305 Wis.2d at 725, 741 N.W.2d at 490 (one set of quotemarks omitted).

• The only evidence that Turnpaugh referenced sex in his conversation with the undercover police officer was her testimony that: He said that he was looking for sex and he wanted me to masturbate and that he wanted to watch.’ Id., 2007 WI App 222, ¶ 4, 305 Wis.2d at 726, 741 N.W.2d at 490.

• Thus, Turnpaugh was not guilty as a matter of law of the only substantive crime charged. Id., 2007 WI App 222, ¶ 7, 305 Wis.2d at 727, 741 N.W.2d at 490–491.1

Nevertheless, the Claims Board argues, and the circuit court agreed, that Turnpaugh did not prove that he was innocent of the crime for which he was convicted. The Claims Board also asserts that although it found that Turnpaugh “was sentenced to 60 days in Milwaukee County Jail for the prostitution charge and ultimately served three days in custody,” he was not “imprisoned” as that term is used in Wis. Stat. § 775.05(2) & (3). We disagree with both those contentions.

II.

¶ 3 The legislature, recognizing that our criminal-justice system occasionally convicts innocent persons, has established a mechanism for their compensation. SeeWis. Stat. § 775.05(1) (“The claims board shall hear petitions for the relief of innocent persons who have been convicted of a crime.”). Thus, as material, § 775.05(2) provides: “Any person who is imprisonedas the result of his or her conviction for a crime in any court of this state, of which crime the person claims to be innocent, and who is released from imprisonment for that crime after March 13, 1980, may petition the claims board for compensation for such imprisonment.” Section 775.05(3) provides [a]fter hearing the evidence on the petition, the claims board shall find either that the evidence is clear and convincing that the petitioner was innocent of the crime for which he or she suffered imprisonment, or that the evidence is not clear and convincing that he or she was innocent.” Further, [t]he findings and the award of the claims board shall be subject to review as provided in ch. 227.” § 775.05(5).

¶ 4 Under Wis. Stat. ch. 227, a court may only overturn an agency determination if:

• the agency's finding of fact “is not supported by substantial evidence in the record[,] Wis. Stat. § 227.57(6); or

“the agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action,” § 227.57(5).

A reviewing court, however, is enjoined:

• to “not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact[,] § 227.57(6); and

“due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency[,] § 227.57(10).

¶ 5 Although Wis. Stat. § 227.57(10) seems to indicate that “due weight” deference is appropriate in connection with judicial review of administrative decisions, courts have recognized that there are circumstanceswhere a greater level of deference to an agency's legal analysis is appropriate. See Andersen v. Department of Natural Resources, 2011 WI 19, ¶ 26, 332 Wis.2d 41, 55, 796 N.W.2d 1, 8 (“While we are not bound by an agency's conclusions of law, this court has articulated three levels of deference that we may accord an agency's statutory interpretation and application: great weight deference, due weight deference, and no deference.”).

We accord great weight deference to an agency's interpretation and application of a statute when the following four elements are met: (1) the legislature charged the agency with the duty of administering the statute; (2) the agency's interpretation is one of long-standing; (3) the agency employed its expertise or specialized knowledge in forming its interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the statute. When applying great weight deference, we will sustain the agency's statutory interpretation as long as it is reasonable, even if we conclude that another interpretation is equally or more reasonable.

Id., 2011 WI 19, ¶ 27, 332 Wis.2d at 55, 796 N.W.2d at 8 (internal citation omitted). The Record here is less-than-clear in connection with the second and third factors; all we have is the Claims Board's assertions on this appeal—but unsupported by reference to Claims Board decisions or anything in the Record—that it “has a long-standing and developed expertise and knowledge in the area of claims under Wis. Stat. § 775.05.” In his reply brief, Turnpaugh points us to the Claims Board's website that tells us the following:

“The Claims Board considers a wide variety of claims such as automobile damage, contract disputes, property loss, personal injury and taxes. The Board also accepts requests for the replacement of stale-dated state checks (see Stale Check Claims section).” http:// claims board. wi. gov/ section. asp? linkid= 105& locid= 28 (last visited May 10, 2012).

• Since 2001, the Claims Board decided nine innocent-convict claims, including Turnpaugh's:

Frederick Saecker http:// claims board. wi. gov/ docview. asp? docid= 21025& locid= 28

Anthony T. Hicks http:// claims board. wi. gov/ docview. asp? docid= 10151& locid= 28

Richard A. Moeck http:// claims board. wi. gov/ docview. asp? docid= 10152& locid= 28

Robert Lee Stinson http:// claims board. wi. gov/ docview. asp? docid= 20954& locid= 28

David Turnpaugh http:// claims board. wi. gov/ docview. asp? docid= 20954& locid= 28

Evelio Duarte Vestar http:// claims board. wi. gov/ docview. asp? docid = 19569&locid=28

Chaunte Ott http:// claims board. wi. gov/ docview. asp? docid= 19569& locid= 28

Jarrett Adams http:// claims board. wi. gov/ docview. asp? docid= 18646& locid= 28

John A. Rupp http:// claims board. wi. gov/ docview. asp? docid= 15361& locid= 28

(All sites last visited May 10, 2012.) 2 This certainly does not appear to be “long-standing and developed expertise and knowledge in the area of claims under Wis. Stat. § 775.05,” as the Claims Board represents. Moreover, as we see below, the Claims Board's two decisions in this case are bereft of analysis. Thus, “deference may be inappropriate.” Aurora Consolidated Health Care v. Labor and Industry Review Commission, 2012 WI 49, ¶ 52, 340 Wis.2d 367, 814 N.W.2d 824, 833 ([D]eference may be inappropriate given that LIRC's apparent interpretation was implicit and unsupported by analysis.”). Nevertheless, we assume without deciding that the Claims Board's decision here and its legal analyses are entitled to the highest degree of deference because we prefer to decide the appropriate level of deference in an appeal where: (1) it would make a difference, and (2) the Record and briefing are adequate to that task. See ibid. ([I]t is unnecessary to determine what level of deference to give [an agency]'s implicit interpretation because we reach the same result regardless of the level of deference applied.”); State v. Blalock, 150 Wis.2d 688, 703, 442 N.W.2d 514, 520 (Ct.App.1989) (cases should be decided on the “narrowest possible ground”).

When a reviewing court applies great weight deference, it sustains an agency's reasonable statutory interpretation, even if the court concludes that another interpretation is equally reasonable, or even more reasonable, than that of the agency. An agency's conclusion of law is unreasonable and may be reversed by a reviewing court if it directly contravenes the statute or the federal or state constitution, if it is clearly contrary to the legislative intent, history, or purpose of the statute, or if it is without a rational basis.

Racine Harley–Davidson, Inc. v. State of Wis. Division of Hearings & Appeals, 2006 WI 86, ¶ 17, 292 Wis.2d 549, 564, 717 N.W.2d 184, 191 (footnotes omitted) (...

To continue reading

Request your trial
1 cases
  • Coppins v. Allstate Indem. Co.
    • United States
    • Wisconsin Court of Appeals
    • 12 November 2014
    ...6 Moreover, the Allstate website—which we take judicial notice of pursuant to Wis. Stat. § 902.01 (2011–12),3 see also Turnpaugh v. State Claims Bd., 2012 WI App 72, ¶ 5 n. 2, 342 Wis.2d 182, 816 N.W.2d 920 —defines “actual cash value” as follows:In many states, [actual cash value] means th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT