S473   The claimant's original innocent convict claim was filed on November 26, 1997. At that time, the claim was placed in abeyance pending the resolution of a lawsuit against the claimant's trial attorney, which was settled in December 2004. Additional documentation was requested from the claimant and that information was submitted in November 2005. The claim was scheduled for hearing before the Board on December 13, 2006. At that meeting the Board voted unanimously to pay the claimant $25,000 compensation for his wrongful imprisonment, plus attorney's' fees in the reduced amount of $53,030.86. (Reduced from the requested amount of $106,061.71.) Payment was made in the form of one check in the amount of $78,060.36 to the trust account of the claimant's attorney.

  On January 17, 2007, the clamant filed a Petition for Rehearing of the Claims Board Decision specifically relating to the matter of attorney's fees.

  On January 19, 2007, the claimant's attorney requested that the Board issue a separate payment check of $25,000 to Mr. Hicks, so that his compensation would not be delayed pending resolution of the attorney's fees question. The Board Secretary requested return of the original check and then issued a new check in the amount of $25,000. On January 25, 2007, the claimant's attorney requested that the Board issue another check in the amount of the original award for attorney's fees, since the Petition for Rehearing only addressed the question of whether any additional attorney's fees should be awarded. The Board Chair denied that request.

  On February 2, 2007, the Board considered whether to grant the Petition for Rehearing and also considered the request for partial payment of attorney's fees. The Board unanimously voted to vacate the portion of its December 13, 2006, decision relating to attorney's fees. The Board referred the issue to the Division of Hearings and Appeals for consideration before a Hearing Examiner. The Board specifically requested that the Hearing Examiner address six questions relating to the authority of the Board to issue awards for attorney's fees under § 775.05, Stats. The Board denied the request from the claimant's attorney for partial payment of the attorney's fees pending resolution of the Petition for Rehearing.

  The Hearing Examiner has submitted his Proposed Decision to the Board on the Petition for Rehearing and the questions submitted by the Board for his consideration. The matter at issue before the Board today is whether or not to adopt the Proposed Decision submitted by the Hearing Examiner as the Claims Board's Decision on this matter.

  The Board concludes that the Proposed Decision of the Hearing Examiner should be adopted in part and rejected in part.

  The Board disagrees with the Hearing Examiner's conclusion that the Board may not award attorney's fees and costs in addition to statutorily capped compensation awards pursuant to § 775.05, Stats. and rejects that portion of the Proposed Decision. The legislative history presented by the Hearing Examiner is not conclusive and not enough to depart from Board determinations in previous § 775.05 claims, including the December 19, 2002, Frederic Saecker decision, the December 2, 2004, Steven Avery decision and the December 13, 2006, Anthony Hicks decision. See Claim of Saecker , Claim No. 1999-040-CONV (2002); Claim of Avery, Claim No. 2004-066-CONV (2004); Claim of Hicks, Claim No. 1997-135-CONV (2006). Accordingly, the Board concludes it has the authority to award attorney's fees and costs in addition to statutorily capped compensation awards made pursuant to § 775.05, Stats.

  However, the Board does adopt the recommendation of the Hearing Examiner to utilize the Wisconsin Equal Access to Justice Act, § 814.245 (5)(a)2, Stats., (“EAJA") as a method to determine the appropriate amount of attorney's fees to award in § 775.05 claims before the Board. The Board will utilize the EAJA to determine the hourly rate and multiply that by the number of attorney hours expended unless the hours claimed appear unreasonable. See Hearing Examiner's Proposed Decision, page, 4, paragraph 12, attached.

  To apply this determination to the claim at hand, the Board first looks to Mr. Hicks' fees for his criminal defense attorney, Mr. Hurley. Mr. Hurley's firm was able to document spending 690.15 hours between 1992 and 1997 on Mr. Hicks' case. The EAJA rate for that time period was $75.00 per hour as determined by the legislature in 1985. Since the EAJA rate was determined long before the work was performed, the Board concludes that a cost of living adjustment is reasonable and will utilize the cost of living calculator provided by the Bureau of Labor Statistics on their website. A small portion of Mr. Hurley's fees could not be documented or recovered. The Board will not pay the undocumented fees. Accordingly, the Board concludes that Mr. Hurley's fees will be paid in the reduced amount of $78,591.94 broken down as follows:

  The Board now looks to Mr. Hicks' fees for his civil attorney, Mr. Olson. Mr. Olson spent a total of 94.2 hours and over $33,000 preparing Mr. Hicks Claims Board claim. The Hearing Examiner noted that “…at $5,000 per year, an inmate receives roughly 57 cents per hour of confinement; if Mr. Olson's fee award were approved, Hicks' attorney would receive payment equal to more than 600 times his own rate of compensation." See Hearing Examiner's Proposed Decision, paragraph 30, page 11, attached. The Hearing Examiner also noted that “with all due respect to Attorneys Olson and Dixon, where an inmate's conviction has already been reversed based on new evidence of the inmate's innocence, the task of obtaining the full recovery available from the Claims Board should not typically require extraordinary skill or expertise. This is all the more likely, where, as here, the prosecutor does not oppose payment of the claim." See Hearing Examiner's Proposed Decision, paragraph 52, page 16, attached. The Board concludes that the number of hours submitted by Attorney Olson was excessive.

S474   A similar Claims Board claim presented at this same meeting by Ms. Georgia Thompson, required only 16 hours of preparation by a qualified attorney, in contrast to the 94.2 hours spent by Attorney Olson and his firm. Sixteen hours appears to have been adequate. The Board recognizes that Mr. Hicks' claim involved the additional step of submitting briefs to the Hearing Examiner regarding the Board's authority to award attorney's fees in addition to statutorily capped compensation, and therefore concludes that additional time to prepare the claim was necessary. The Board concludes that doubling the time it took a qualified attorney to prepare a similar claim for the Board could reasonably account for the extra effort necessary to prepare briefs for the Hearing Examiner. Accordingly, the Board concludes that 32 hours is a reasonable number of hours for which to compensate Mr. Olson. The Board allocates these 32 hours proportionally across the years in which the work was performed, based on the original annual hours reported by Mr. Olson. The Board again applies the hourly rate provided in the EAJA and adjusts it for inflation.

  Therefore, the Board concludes that Mr. Olson will be paid in the reduced amount of $6,175.70, calculated as follows:

  The Board further concludes, under authority of § 16.007(6m), Stats., that payments for Mr. Hurley and Mr. Olson should be made from the Claims Board appropriation § 20.505 (4)(d), Stats.

Stephen Hurley   $78,591.94   § 20.505(4)(d), Stats.

Jeff Scott Olson   $6,175.70   § 20.505(4)(d), Stats.

Chair, Representative of the Attorney General

Secretary, Representative of the Secretary of Administration

Representative of the Governor

Senate Finance Committee