Mario Victoria Vasquez v. State of Wisconsin Claims Board

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 5, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1764 Cir. Ct. No. 2023CV35

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

MARIO VICTORIA VASQUEZ,

PETITIONER-APPELLANT,

V.

STATE OF WISCONSIN CLAIMS BOARD,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 GILL, J. Mario Vasquez was convicted of first-degree sexual
assault of a child and sentenced to 20 years in prison. After serving 16 years of his
sentence, he was released from prison following the circuit court granting his
motion for postconviction relief. Vasquez then petitioned the State of Wisconsin
No. 2023AP1764

Claims Board (the Board) pursuant to WIS. STAT. § 775.05 (2023-24)1 for
compensation, claiming that he was innocent of the charge and wrongfully
convicted. The Board unanimously denied Vasquez’s petition following a hearing
attended by both Vasquez and the prosecutor’s office involved in the original
action.

¶2 On appeal, Vasquez argues that the Board erred in three respects by
denying him compensation. He first argues that the Board violated his procedural
due process rights by advising the prosecutor’s office that it could present
evidence at the hearing held to consider his petition while, conversely, informing
Vasquez that he could not present evidence. Second, Vasquez asserts that the
Board impermissibly required him to prove his innocence beyond a reasonable
doubt. Lastly, Vasquez contends that the Board’s finding that the victim
continued to assert that Vasquez was her abuser is not supported by substantial
evidence and that, absent this finding, he proved his innocence by clear and
convincing evidence.

¶3 We reject each of Vasquez’s arguments. First, the Board did not
violate Vasquez’s due process rights because he was provided an opportunity to
present an abundance of evidence prior to the hearing and respond to the
prosecutor’s office’s arguments both before and at the hearing, and neither he nor
the prosecutor’s office presented evidence at the hearing. Second, Vasquez’s
argument that the Board applied the reasonable doubt standard to his petition is
not supported by the record. To the contrary, the Board explicitly referenced the

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

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clear and convincing evidence standard in its decision. Lastly, the Board’s finding
regarding the victim’s assertion is supported by substantial evidence, and, based
on this finding and the record as a whole, the Board reasonably determined that
Vasquez failed to prove his innocence by clear and convincing evidence. We
affirm.

BACKGROUND

¶4 Vasquez was convicted in the late 1990s,2 following a jury trial, of
sexually assaulting a four-year-old girl and was sentenced to 20 years’
imprisonment.3 An investigation into the sexual assault began when the victim
complained of pain while urinating and, according to her mother, stated that
“Mario” had abused her while at her babysitter’s residence, where Vasquez had
rented a room. The victim was taken to the hospital, and she informed a nurse that
“Mario” had abused her. The victim later informed law enforcement that her
uncle (whom she also called “Mario”), her father, and her babysitter’s husband
had all inappropriately touched her.4 Hospital staff concluded that the victim had
been sexually assaulted and had contracted herpes. Although Vasquez tested

2
The parties on appeal provide different dates for Vasquez’s conviction. The Board
states that Vasquez was convicted in 1999, while Vasquez asserts that he was convicted in 1998.
3
For the most part, Vasquez did not submit any records from either his trial or his
postconviction proceedings to the Board or the circuit court. Vasquez did submit an expert’s
report from his 2015 postconviction proceedings, a “Minute Sheet” from a 2015 motion hearing,
and a transcript of an interview between a social worker and the victim. Accordingly, we rely
largely on Vasquez’s and the Board’s recounting of the background facts that occurred before
Vasquez filed his petition for compensation under WIS. STAT. § 775.05.
4
Because the victim and her family spoke only Spanish, an interpreter was present for
the victim’s interviews.

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negative for herpes, a physician who examined Vasquez testified at trial that
certain lesions on Vasquez’s penis were consistent with a history of herpes.

¶5 In 2015, while still incarcerated for his conviction, Vasquez filed a
postconviction motion seeking a new trial based on newly discovered evidence
and ineffective assistance of trial counsel.5 The State did not oppose Vasquez’s
motion, and the circuit court granted Vasquez a new trial. However, the State did
not pursue a new trial.

¶6 Following his release from prison, Vasquez filed a petition for
compensation pursuant to WIS. STAT. § 775.05, seeking approximately $1.2
million. See § 775.05(4) (detailing the Board’s procedure for awarding more than
$25,000 in compensation). In his petition, Vasquez outlined what he claimed were
inconsistent statements by the victim during the initial sexual assault investigation,
incorrect Spanish-to-English translations during the victim’s interview with a
social worker, his defense counsel’s ineffective assistance, and newly discovered
evidence.

¶7 As to ineffective assistance of counsel, Vasquez asserted that his
defense counsel “failed to present to the jury an expert witness who would
question the reliability of [the victim’s] statements and testimony, despite
promising to do so in his opening statement to the jury.” Further, Vasquez
contended that the victim’s uncle Mario had lied under oath at the trial about not
having herpes and that the victim’s mother had informed law enforcement that the

5
Again, the record before us lacks relevant documentation regarding Vasquez’s 2015
postconviction proceedings, including the details of his claims for a new trial. Vasquez, however,
described his postconviction claims in his petition for compensation, which we discuss in detail
below.

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uncle had inappropriately touched the victim in the summer prior to the
investigation. Citing a police report, Vasquez asserted that shortly after his trial,
the uncle was accused of sexual assault in a case where the victim contracted a
sexually transmitted disease (STD), although the details of the STD are redacted
from the report.

¶8 Vasquez also argued in his petition that the day before the hearing
on his postconviction motion for a new trial, the victim revealed to the State that
“she had testified falsely that her uncle had not molested her. She said that despite
testifying that Mr. Vasquez had molested her, in fact her uncle had sexually
molested her in 1998 and her father had also sexually molested her throughout her
childhood.” According to Vasquez, the victim also informed the State that both
her father and her uncle had herpes. Vasquez also argued that his innocence was
buttressed by the fact that the victim “never explicitly identified” Vasquez “as her
abuser.” Additionally, Vasquez cited his expert witness’s report prepared for his
postconviction proceedings, in which the expert opined about the “suggestive and
improper interviewing techniques” used in the victim’s interview with the social
worker.

¶9 The Brown County District Attorney’s Office, the prosecutor’s
office involved in the original action, opposed Vasquez’s WIS. STAT. § 775.05
petition. It opined, through a written submission to the Board, that a “fair
assessment of the information [Vasquez] presents both in his claim for
compensation and his original request for a new trial reveals that new factors do
exist that would impact the jury’s decision if the matter were to be retried.”
However, the prosecutor’s office noted that the State “never reached the
conclusion that [Vasquez] was innocent” and had, instead, “remained satisfied that
[Vasquez] was not an innocent man.”

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¶10 Moreover, the prosecutor’s office argued that Vasquez had
mischaracterized the victim’s postconviction comments regarding Vasquez’s guilt.
According to the prosecutor’s office, the victim had “consistently maintained that
while she was assaulted by other men as well, she was in fact sexually assaulted
by” Vasquez. The prosecutor’s office cited its concerns with retrying Vasquez,
including the age of the case and the fact that Vasquez had “effectively served his
sentence,” as significant reasons why the State did not recharge Vasquez after his
motion for a new trial was granted.

¶11 Vasquez responded to the prosecutor’s office’s submission and
requested a hearing. The Board scheduled a hearing and provided Vasquez with a
copy of a document titled, “What You Should Know About Your Claims Board
Hearing.” The document informed Vasquez not to bring “new information or
documentation” to the “meeting” because the Board “members will not have time
to consider new information.” The document further provided that Board
“hearings are relatively brief and informal,” “[t]here is no need to restate your
claim in detail,” Board members “will have read all the written material for your
claim,” Vasquez would be “given an opportunity to briefly summarize why” he
felt he “should be paid,” and Board members “may then have questions.”

¶12 The hearing was held by audiovisual means, with the Board
members, Vasquez and his current counsel, and a prosecutor from the prosecutor’s
office all present.6 Following an introduction by the Board, Vasquez’s counsel
6
An audiovisual recording of the hearing is in the record. Large portions of the parties’
statements and arguments contained in the 23-minute recording are unreviewable as both the
video and audio stop, lag, and/or disappear at different points. Upon our review, it appears that
these issues were limited to the recording of the hearing and did not occur during the hearing
because, to our knowledge, none of the parties raised a concern during the proceedings. The
hearing was not transcribed.

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No. 2023AP1764

presented an overview of Vasquez’s argument, focusing on the victim’s abuse by
her father and uncle.

¶13 The prosecutor then presented his arguments to the Board,
highlighting that there remains evidence of Vasquez’s guilt despite the
postconviction proceedings. He also reiterated that the victim “has maintained”
“at several points during follow-up investigation[s] that [Vasquez] did sexually
assault her.” The prosecutor also repeated the point expressed in his written
submissions that the State’s decision not to prosecute Vasquez following the
postconviction proceedings was not made because the State believed that Vasquez
was innocent of sexually assaulting the victim. Rather, according to the
prosecutor, the decision was made based on several factors unrelated to the merits
of the case, including that Vasquez had already served 16 years in prison for the
crime, that the victim did not want to experience and participate in another jury
trial related to the sexual assault, and evidentiary challenges stemming from the
passage of time.

¶14 Vasquez’s counsel was provided with an opportunity to respond to
the prosecutor’s arguments. Counsel stated that Vasquez was not arguing against
the fact that Vasquez had herpes or that the victim “has continued to believe that
Mr. Vasquez assaulted her and that that is a truly and deeply held belief.” The
Board chair then opened the floor to questions, and one Board member asked the
prosecutor to discuss the process used to obtain an identification of Vasquez by
the victim.

¶15 Following the hearing, the Board unanimously denied Vasquez’s
petition for innocent conviction compensation in a written decision, finding that
Vasquez failed to demonstrate, by clear and convincing evidence, that he was

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No. 2023AP1764

innocent of the sexual assault charge for which he was convicted. After outlining
the facts and arguments presented by both Vasquez and the prosecutor, the Board
found that “[w]hile Vasquez presents alternative theories and evidence that may
demonstrate he received ineffective assistance of counsel, he does not present
affirmative evidence of innocence, particularly in light of the victim’s continued
insistence that he was her abuser.”

¶16 Vasquez appealed the Board’s decision to the circuit court, arguing
that the Board’s decision depended on a finding of fact not supported by
substantial evidence—specifically, that the victim continued to insist that Vasquez
was her abuser—that the Board erroneously interpreted WIS. STAT. § 775.05 by
imposing the beyond a reasonable doubt standard to his petition, and that he had
proved by clear and convincing evidence that he was innocent. Following briefing
by the parties, the court affirmed the Board’s denial of Vasquez’s petition.
Vasquez now appeals.

DISCUSSION

¶17 Vasquez raises three challenges to the Board’s finding that he failed
to demonstrate, by clear and convincing evidence, that he was innocent of
first-degree sexual assault of a child. He first argues that the Board violated his
procedural due process rights, under both the United States Constitution and the
Wisconsin Constitution, by advising the prosecutor that he could present evidence
at the hearing while, conversely, informing Vasquez that he could not present
evidence. See WIS. STAT. § 227.57(4). Second, Vasquez asserts that the Board
erroneously interpreted WIS. STAT. § 775.05 by requiring him to prove his
innocence beyond a reasonable doubt. See § 227.57(5). Lastly, Vasquez contends
that the Board’s decision depended on a finding of fact not supported by

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substantial evidence, requiring this court to set aside the Board’s finding pursuant
to § 227.57(6); and he contends that absent this erroneous finding, he proved his
innocence by clear and convincing evidence.

¶18 Since 1913, Wisconsin has provided a mechanism to compensate
innocent persons convicted of crimes in Wisconsin. Turnpaugh v. State Claims
Bd., 2012 WI App 72, ¶3, 342 Wis. 2d 182, 816 N.W.2d 920; 1913 Wis. Laws, ch.
139, § 3203a. The current version of that law is provided in WIS. STAT. ch. 775.

Any person who is imprisoned as 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.

WIS. STAT. § 775.05(2). The Board, “[a]fter hearing the evidence on the petition,”
shall determine whether the petitioner proved his innocence by clear and
convincing evidence. Sec. 775.05(3). The 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.” Id. If the Board “finds that the petitioner
was innocent and that he or she did not by his or her act or failure to act contribute
to bring about the conviction and imprisonment for which he or she seeks
compensation,” the Board “shall find the amount which will equitably compensate
the petitioner,” subject to certain statutory restrictions not relevant here.
See § 775.05(4).

¶19 Judicial review of the Board’s decisions is limited. WISCONSIN
STAT. § 227.03(5) provides that WIS. STAT. ch. 227 “does not apply to
proceedings of the claims board, except as provided in [WIS. STAT. §§] 775.05(5),

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775.06(7) and 775.11(2).” Relevant to the Board’s decision on Vasquez’s
petition, § 775.05(5) states that “[t]he findings and the award of the claims board
shall be subject to review as provided in ch. 227.”7 We apply our review under
ch. 227 to the Board’s decision, not that of the circuit court. See DOR v.
Microsoft Corp., 2019 WI App 62, ¶13, 389 Wis. 2d 350, 936 N.W.2d 160.

I. Due Process

¶20 As noted above, Vasquez’s first argument is that the Board violated
his procedural due process rights, under both the United States Constitution and
the Wisconsin Constitution. Vasquez argues that the Board violated his
procedural due process rights when it informed him that the hearing would be
“brief and informal” and that he should “not bring new information or
documentation to the Claims Board meeting. Board members will not have time
to consider new information.”

¶21 Vasquez contrasts the Board’s directive to him with what the Board
told the prosecutor. The Board wrote to the prosecutor that the prosecutor could
“present sworn testimony and whatever other evidence is essential to permit the
Board to decide the merits of the claim” and that the prosecutor was “in the best

7
WISCONSIN STAT. §§ 775.06 and 775.11 concern state employee petitions for
compensation, including those petitions filed by “law enforcement officers employed by the
state.” Sec. 775.06(1); see also § 775.11.

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position to recommend the correct resolution.”8 According to Vasquez, the
Board’s actions in this regard evidenced an appearance of bias and violated the
presumption of impartiality.

¶22 WISCONSIN STAT. § 227.57(4) states that we shall remand a case to
an agency for further action if we determine that “either the fairness of the
proceedings or the correctness of the action has been impaired by a material error
in procedure or a failure to follow prescribed procedure.” “The requirement of
fairness imposed by sec. 227.57(4) merely insures that the procedure before the
administrative agency will meet the requirements of due process.” Bracegirdle v.
DRL, 159 Wis. 2d 402, 416, 464 N.W.2d 111 (Ct. App. 1990).

¶23 Procedural due process under the Fourteenth Amendment to the
United States Constitution and article I, section 1 of the Wisconsin Constitution

8
The Board argues that Vasquez forfeited his procedural due process claims by failing to
raise them in the circuit court. Forfeiture “is a rule of judicial administration,” and, as such, we
can disregard a party’s failure to raise a claim in the circuit court “in an appropriate case.”
See State ex rel. Davis v. Circuit Ct. for Dane Cnty., 2024 WI 14, ¶22, 411 Wis. 2d 123, 4
N.W.3d 273 (citation omitted). Because Vasquez’s due process claims concern issues of law, do
not raise issues of fact, and concern serious constitutional issues, we will disregard any potential
forfeiture and address the merits of his claims. See State v. Bodoh, 226 Wis. 2d 718, 737, 595
N.W.2d 330 (1999) (stating that forfeiture is “usually” not applied “when the new issue raised is a
question of law, the parties have thoroughly briefed the issue, and there are no disputed issues of
fact regarding the new issue”).

We note that Vasquez also states that the Board violated his “[s]tatutory and
Constitutional Due Process rights when it precluded him from presenting evidence of his
innocence.” To the extent that Vasquez means to assert that he was entitled to a more substantive
evidentiary hearing, such as a contested case hearing, see WIS. STAT. § 227.42, or that the Board
generally failed to comply with WIS. STAT. § 775.05(3), we deem that argument undeveloped and
thus will not address it further. Vasquez does not explain why he was entitled to a
more-substantive evidentiary hearing, nor does he explain what additional evidence he would
have presented had he been given the opportunity to do so at the hearing. See State v. Pettit, 171
Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (stating that we may decline to address
undeveloped arguments).

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“protect against government actions that deprive an individual of life, liberty, or
property without due process of the law.”9 Adams v. Northland Equip. Co., 2014
WI 79, ¶64, 356 Wis. 2d 529, 850 N.W.2d 272. “The fundamental requirement of
procedural due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.” Bunker v. LIRC, 2002 WI App 216, ¶19, 257 Wis. 2d 255,
650 N.W.2d 864. Additionally, “a fair trial in a fair tribunal is a basic requirement
of due process.” Miller v. Zoning Bd. of Appeals, 2023 WI 46, ¶13, 407 Wis. 2d
678, 991 N.W.2d 380 (citation omitted). “[I]n order to establish a violation of
procedural due process, a plaintiff must demonstrate both: (1) the deprivation of a
protected liberty interest—‘life, liberty, or property’—by state action and (2) that
the process he [or she] received before that deprivation fell short of the minimum
the Constitution requires.” Id., ¶11 (citation omitted); see also Reed v. Goertz,
598 U.S. 230, 236 (2023) (same).

¶24 Vasquez submitted his petition using the Board’s “Claim Form.”
The form included instructions to submit the form, “along with supporting
evidence that you were innocent of the crime for which you were convicted,” to
the Board. The form also included a “Statement” section, instructing the petitioner
to “describe evidence that you were innocent of the crime for which you were
convicted.”

¶25 Vasquez attached a 91-page document describing, in his words, the
sexual assault charges against him, the trial and his conviction, the postconviction

9
We treat the due process provisions of the United States Constitution and the
Wisconsin Constitution as coextensive for purposes of this opinion because Vasquez does not
argue that the Wisconsin Constitution provides additional protections beyond those provided by
the Fourteenth Amendment. See Miller v. Zoning Bd. of Appeals, 2023 WI 46, ¶11 n.9, 407
Wis. 2d 678, 991 N.W.2d 380.

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proceedings, and why he believed that clear and convincing evidence showed that
he was innocent. Attached to the document were several exhibits, including:
police records; the order vacating his conviction; an expert witness’s report
regarding the “suggestive and improper interviewing techniques” used in the
victim’s interview; a translator’s report critiquing the original translation of the
victim’s interview; a parole commission release review documenting Vasquez’s
continuous proclamation of innocence; and news articles related to Vasquez’s
postconviction proceedings.

¶26 Upon receiving Vasquez’s petition, the Board responded by stating
that it had forwarded copies of the petition to the prosecutor’s office and the
circuit court judge who presided over the original action. The Board further
provided that it sought a recommendation on Vasquez’s petition from the
prosecutor’s office and that it would offer Vasquez “time to respond in writing to
the prosecutor’s recommendation if” he “wish[ed] to do so.”

¶27 In the Board’s correspondence to the prosecutor, it requested that the
prosecutor review Vasquez’s claim, recommend an appropriate response to the
claim, and include additional relevant information in his response. The Board also
asked the prosecutor to attend the hearing “to present the evidence that [he] relied
upon in making [his] recommendation.” The Board stated that “[a]lthough the
hearing does not constitute a trial,” the prosecutor would will “be entitled to
present sworn testimony and whatever other evidence is essential to permit the
Board to decide the merits of the claim.”

¶28 The Board then forwarded a copy of the prosecutor’s written
submission to Vasquez. Again, the Board informed Vasquez that he could file a
written reply, if he wished. The Board further stated that Vasquez could request a

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hearing before the Board, noting that “[h]earings are relatively brief” but that
“[b]oth parties are given the opportunity to speak.” Vasquez both responded in
writing to the prosecutor’s office’s recommendation and requested a hearing. The
Board then informed Vasquez through email that his petition “is now ready to
schedule for decision and there will be no further submissions accepted … from
either party.” At the hearing, both parties presented their arguments to the Board,
and the Board members were provided with a chance to ask questions of the
parties.

¶29 We conclude that Vasquez was not denied procedural due process.
We assume without deciding that Vasquez had a liberty interest in petitioning for
compensation under WIS. STAT. § 775.05. See Miller, 407 Wis. 2d 678, ¶11.
However, the Board permitted Vasquez to submit evidence supporting his petition,
and it permitted him to respond to the prosecutor’s written submission opposing
his petition. Vasquez accepted both of those opportunities and provided the Board
with extensive information supporting his petition, which included a 91-page
document with exhibits. Vasquez and the prosecutor were then able to present
their arguments for and against compensation to the Board at the hearing, and the
Board had an opportunity to question Vasquez and the prosecutor regarding the
evidence.

¶30 Contrary to Vasquez’s argument, the Board’s statements to the
prosecutor at issue do not demonstrate that the Board gave preferential treatment
to the prosecution by providing the prosecutor with an enhanced opportunity to
present evidence. While the Board informed the prosecutor that he was “in the
best position to recommend the correct resolution of this claim,” in context, the
Board was merely stating that the prosecutor was in a better position than the
Attorney General’s office to provide a recommendation on Vasquez’s petition

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because the prosecutor was “the prosecutor who prosecuted the petitioner.”
See WIS. STAT. § 775.05(2). This conclusion is supported by the sentence
following the Board’s above-statement, which reads: “However, the Attorney
General has stated that his office will work to assist you if you have questions
about the procedures in these matters or if your appearance at a hearing poses a
hardship for your office.”

¶31 In addition, although the Board informed the prosecutor that he
could present evidence at the hearing, it later informed both parties that no new
evidence would be admitted at the hearing. Vasquez and the prosecutor
summarized their respective positions at the hearing, and the Board asked one
question. Therefore, we reject Vasquez’s assertion that he was denied due process
merely because the Board informed the prosecutor, at one point, that he could
present evidence at the hearing.

II. Burden of proof

¶32 Next, Vasquez argues that the Board erroneously interpreted WIS.
STAT. § 775.05 by requiring him to prove his innocence beyond a reasonable
doubt.10 He asks this court to set aside the Board’s decision on this basis pursuant
to WIS. STAT. § 227.57(5).

¶33 The Board’s decision demonstrates that it applied the correct legal
standard to Vasquez’s petition. Contrary to Vasquez’s assertions on appeal, there

10
Prior to 1980, the statute for compensating innocent convicts required a petitioner to
prove his or her innocence “beyond a reasonable doubt.” See WIS. STAT. § 285.05(3) (1977-78).
The legislature amended and renumbered the statute in 1980, replacing the beyond a reasonable
doubt standard with the clear and convincing evidence standard. See 1979 Wis. Laws, ch. 126,
§ 2; WIS. STAT. § 775.05(3) (1979-80).

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No. 2023AP1764

is no evidence in the Board’s decision suggesting that the Board applied the
higher, beyond a reasonable doubt standard. In fact, the Board explicitly stated in
its decision that Vasquez had the burden of proving his innocence by clear and
convincing evidence. Vasquez fails to explain how the Board, despite citing the
correct burden of proof, actually applied the beyond a reasonable doubt standard
to his petition. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct.
App. 1992). Given the Board’s explicit reliance on the correct standard, and
Vasquez’s failure to explain how, precisely, the Board applied an incorrect
standard, we reject Vasquez’s assertion that this court should set aside the Board’s
decision pursuant to WIS. STAT. § 227.57(5).

III. Substantial evidence

¶34 Lastly, Vasquez argues that the Board’s decision depended on a
finding of fact not supported by substantial evidence, requiring this court to set
aside the Board’s decision pursuant to WIS. STAT. § 227.57(6). In making this
argument, Vasquez asserts that the Board could not have relied on the victim’s
continued assertion that Vasquez sexually assaulted her because her position was
merely communicated to the Board by the prosecutor. In other words, Vasquez
contends that the victim’s postconviction declaration that Vasquez sexually
assaulted her was not a proposition properly before the Board. Relatedly, Vasquez
asserts that he proved his innocence by clear and convincing evidence.

¶35 To begin, the parties dispute whether our review of the Board’s
finding regarding Vasquez’s innocence is subject to WIS. STAT. § 227.57(6) or,
rather, § 227.57(7). The Board argues that WIS. STAT. § 775.05 does not entitle a
petitioner to a contested case hearing, and, therefore, the substantial evidence test
does not apply. Conversely, Vasquez contends that the decisions in Sanders v.

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State of Wisconsin Claims Board, 2023 WI 60, ¶29, 408 Wis. 2d 370, 992
N.W.2d 126 (lead opinion), and Turnpaugh require application of the substantial
evidence test to the Board’s findings.

¶36 Where there is no hearing, “the question on review is not whether
the agency can produce ‘substantial evidence’ to support its decision, but rather
whether the facts compel a particular result as a matter of law.” R.W. Docks &
Slips v. DNR, 145 Wis. 2d 854, 860-61 & n.1, 429 N.W.2d 86 (Ct. App. 1988)
(citing WIS. STAT. § 227.57(7)); Koll v. DOJ, 2009 WI App 74, ¶6, 317 Wis. 2d
753, 769 N.W.2d 69 (same). Our review under § 227.57(6) is more limited than
under § 227.57(7), which grants courts “broad discretion to remand” “so that the
facts may be ascertained and developed.”11 R.W. Docks, 145 Wis. 2d at 861.

¶37 WISCONSIN STAT. § 775.05(7) subjects the Board’s “findings” to
judicial review. In Sanders, the lead opinion concluded that the term “findings” in
§ 775.05 is a legal term of art, synonymous with “finding[s] of fact.” Sanders,
408 Wis. 2d 370, ¶29 (lead opinion; alteration in original; citation omitted).
According to the lead opinion, the term “findings” in § 775.05 is not used “in an
informal manner to refer to non-factual determinations.” Sanders, 408 Wis. 2d
370, ¶30 (lead opinion). The lead opinion stated that a “finding of fact” means
“[a] determination by a judge, jury, or administrative agency of a fact supported
by the evidence in the record” that “is capable of being reviewed on appeal to
11
WISCONSIN STAT. § 227.57(7) provides,

If the agency’s action depends on facts determined without a
hearing, the court shall set aside, modify or order agency action
if the facts compel a particular action as a matter of law, or it
may remand the case to the agency for further examination and
action within the agency’s responsibility.

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determine whether ‘substantial evidence in the record’ supports its validity.” Id.,
¶29 (alteration in original; citations omitted).

¶38 In Turnpaugh, this court outlined the judicial review provisions in
WIS. STAT. ch. 227 that are applicable to the Board’s findings under WIS. STAT.
§ 775.05. We stated that § 775.05 permits judicial review of the Board’s findings
and cited the substantial evidence test in WIS. STAT. § 227.57(6). Turnpaugh,
342 Wis. 2d 182, ¶¶3-4. Given the lead opinion’s statements in Sanders and this
court’s application of the substantial evidence test to the Board’s findings in
Turnpaugh, we will assume without deciding that the substantial evidence test
applies to the Board’s findings in this case.

¶39 Under WIS. STAT. § 227.57(6), a reviewing court shall “set aside
agency action or remand the case to the agency if it finds that the agency’s action
depends on any finding of fact that is not supported by substantial evidence in the
record.” The substantial evidence test asks whether, after considering all the
evidence of record, reasonable minds could arrive at the same conclusion as the
agency. Oconomowoc Area Sch. Dist. v. Cota, 2025 WI 11, ¶28, 416 Wis. 2d 1,
20 N.W.3d 182. If substantial evidence supports an agency’s determination, we
must affirm that decision “even though the evidence may support a contrary
determination.” Von Arx v. Schwarz, 185 Wis. 2d 645, 656, 517 N.W.2d 540 (Ct.
App. 1994).

¶40 Here, the Board found that the victim continued to “insist[] that
[Vasquez] was her abuser.” Vasquez argues that the Board “presumably” relied
on the prosecutor’s written submission stating that the victim had “consistently
maintained that while she was assaulted by other men as well, she was in fact
sexually assaulted by” Vasquez. According to Vasquez, the prosecutor “did not

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No. 2023AP1764

provide any evidence to corroborate this claim, despite repeated opportunities to
do so.” He further argues that the Board “fail[ed] to appreciate or accept that,
throughout the investigation, the trial, or the subsequent litigation, [the victim]
never consistently identified” Vasquez as her abuser.

¶41 On appeal, Vasquez concedes that the Board is not “bound by
common law or statutory rules of evidence.” See WIS. STAT. § 16.007(2); see also
WIS. STAT. § 227.45. However, citing Gehin v. Wisconsin Group Insurance
Board, 2005 WI 16, 278 Wis. 2d 111, 692 N.W.2d 572, Vasquez asserts that the
Board could not rely solely on uncorroborated hearsay evidence to reach its
decision denying his petition. In Gehin, our state supreme court concluded that
written medical reports, although hearsay, could properly be admitted into
evidence at a contested case proceeding because an “agency or hearing examiner
shall not be bound by common law or statutory rules of evidence.” Gehin, 278
Wis. 2d 111, ¶49 (quoting § 227.45). The court further stated, however, that
“uncorroborated hearsay alone does not constitute substantial evidence” in the
context of a contested case hearing and that an agency cannot “rely[] solely on
uncorroborated hearsay in reaching its decision.” Id., ¶¶56, 81.

¶42 Assuming Gehin applies to the Board’s decision in this case, the
Board did not “rely[] solely on uncorroborated hearsay in reaching its decision.”
See id., ¶56. Rather, the Board determined that Vasquez failed to provide
“affirmative evidence of innocence, particularly in light of the victim’s continued
insistence that he was her abuser.” (Emphasis added.) Thus, the Board’s decision
that Vasquez failed to meet his burden of proof relied on all of the evidence before
the Board, not solely the victim’s declaration of Vasquez’s guilt. In addition, it
was Vasquez’s burden to establish, by clear and convincing evidence, that he was
innocent, and he did not provide any evidence showing that the victim ever denied

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No. 2023AP1764

being sexually assaulted by him. In fact, the evidence in the record demonstrates
that the victim never wavered in her accusation against Vasquez. Rather, the
victim identified other individuals who also sexually assaulted her.

¶43 Furthermore, Vasquez overlooks the fact that he explicitly informed
the Board at the hearing that he was not contesting the victim’s continued
declaration regarding Vasquez’s guilt. Instead, Vasquez argued that the Board
should consider the “years of psychological research that say that it is common for
victims of traumatic abuse to still believe that a person was a perpetrator, even
after evidence has established [that person’s] innocence.” Thus, the Board could
rely on Vasquez’s concession to find that the victim continued to “insist[] that
[Vasquez] was her abuser.” Given the foregoing, the Board’s finding regarding
the victim’s declaration of Vasquez’s guilt is supported by substantial evidence in
the record.

¶44 Finally, we reject Vasquez’s contention that he proved his innocence
by clear and convincing evidence. Our review is limited to searching for evidence
to support the Board’s finding, and we conclude that the evidence in the record,
including Vasquez’s concession that the victim continued to assert that she was
sexually assaulted by Vasquez, is sufficient to support the Board’s determination
that Vasquez failed to prove his innocence by clear and convincing evidence.
See Radtke v. LIRC, 2025 WI App 14, ¶37, 415 Wis. 2d 347, 18 N.W.3d 187.

¶45 To obtain a monetary award under WIS. STAT. § 775.05, Vasquez
was required to prove his innocence by clear and convincing evidence.
See § 775.05(3). The clear and convincing evidence standard is the “so-called
middle burden of proof” in civil actions, Michels v. Lyons, 2019 WI 57, ¶34, 387
Wis. 2d 1, 927 N.W.2d 486, and requires proof “to a reasonable certainty by

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No. 2023AP1764

evidence that is clear, satisfactory, and convincing,” Marquez v. Mercedes-Benz
USA, LLC, 2012 WI 57, ¶36, 341 Wis. 2d 119, 815 N.W.2d 314, decision
clarified on denial of reconsideration, 2012 WI 74, 342 Wis. 2d 254, 823 N.W.2d
266.

¶46 At most, Vasquez proved that he received ineffective assistance of
counsel and that there were potential weaknesses in the State’s case that were not
properly explored at trial. These facts resulted in the circuit court granting a new
trial. However, entitlement to a new trial and proving one’s innocence by clear
and convincing evidence are not one and the same, particularly in this case
because the victim continues to declare that Vasquez sexually assaulted her.
Cf. Turnpaugh, 342 Wis. 2d 182, ¶7 (holding that a petitioner proved his
innocence by clear and convincing evidence because an appellate court had
previously determined that the petitioner “was innocent as a matter of law” due to
insufficient evidence).12 Moreover, the State’s decision not to retry Vasquez more

12
Specifically, in Turnpaugh v. State Claims Board, 2012 WI App 72, ¶2, 342 Wis. 2d
182, 816 N.W.2d 920, a petitioner under WIS. STAT. § 775.05 had previously had his conviction
overturned in a previous appeal because there was no reasonable view of the evidence presented
at his criminal trial showing that the State proved an element of the crime charged. Thus, we
concluded that there was no “quibble on whether the evidence was sufficient to convict
[the petitioner]” of the crime for which he was convicted. Id., ¶8. We stated, “[A]s we have set
out at length, there was no evidence in support of his conviction, and he was innocent as a matter
of law. The Claims Board’s finding to the contrary is inexplicable.” Id.

(continued)

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No. 2023AP1764

than a decade after the assault—and after Vasquez had already served 16 years of
his 20-year sentence—says little about Vasquez’s innocence. Based on the
evidence before it, the Board reasonably found that Vasquez failed to prove his
innocence to a reasonable certainty by evidence that was clear, satisfactory, and
convincing.

CONCLUSION

¶47 The Board provided Vasquez the rights afforded to him under the
United States and Wisconsin Constitutions by providing him the opportunity to
present evidence, argue his position, respond to the prosecutor’s information and
argument, and answer any questions posed by the Board’s members. The Board
applied the correct burden under WIS. STAT. § 775.05, and, using that standard, the
Board reached a reasonable decision based on the facts presented. Vasquez has
provided us no basis to overturn the Board’s decision pursuant to the judicial
review standards set forth in WIS. STAT. ch. 227.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

Vasquez argues that he was innocent at the time he petitioned the Board due to the fact
that the circuit court granted him a new trial. Thus, because the prosecutor’s office failed to
present evidence of his guilt before the Board, Vasquez argues that the prosecutor’s office
conceded his innocence. This argument fails to appreciate WIS. STAT. § 775.05, which dictates
that it is the petitioner’s burden to prove his or her innocence by clear and convincing evidence.
Vasquez’s ability to obtain a new trial does not shift the burden to the prosecutor’s office that
obtained the conviction. Additionally, barring circumstances similar to those in Turnpaugh,
which are not present in this case, an overturned conviction does not automatically equate to
innocence under § 775.05. See Le Fevre v. Goodland, 247 Wis. 512, 19 N.W.2d 884 (1945) (“At
most the reversal and acquittal pursuant to the appeal was based upon the determination by this
court, by a 4 to 3 decision, that, ‘Upon the whole record we cannot say that the proof is sufficient
to enable the jury to find that defendant was guilty beyond a reasonable doubt.’” (citation
omitted)).

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