sovereign immunity in Wisconsin

2008The doctrine of sovereign immunity is distinct from public employee immunity, Lister, 72 Wis. 2d at 298-99 .

1999See generally Estate of Cavanaugh v. Andrade, 202 Wis. 2d 290 , 550 N.W.2d 103 (1996) (drawing distinction between political subdivision's conduct and public official's conduct). [7] As we said years ago in Lister v. Board of Regents, 72 Wis. 2d Wis. 2d 282, 298-99, 240 N.W.2d 610 (1976): The doctrine of sovereign immunity and the principle which extends an immunity to public officers from civil liability for damages are two separate and distinct concepts... [T]he state's sovereign immunity from suit is procedural in nature and arises from the state constitution.

2021See Fiala, 93 Wis. 2d at 348 (“local governmental units not protected by the doctrine of sovereign immunity are susceptible to joinder as indemnitors”).

1986The courts must apply the sovereign immunity doctrine, itself a constitutional rule, where appropriate. "[A]ny change or elimination of the sovereign immunity doctrine must come from the legislature," Fiala, 93 Wis.2d at 341 , 286 N.W.2d at 827 , rather than the courts.

2022For this reason, sovereign immunity is a defense to personal jurisdiction which can be waived." City of Kenosha v. State, 35 Wis. 2d 317, 328 , 151 N.W.2d 36 (1967) (emphasis added); Cords v. State, 62 Wis. 2d 42, 46 , 214 Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived.

2022For this reason, sovereign immunity is a defense to personal jurisdiction which can be waived." City of Kenosha v. State, 35 Wis. 2d 317, 328 , 151 N.W.2d 36 (1967) (emphasis added); Cords v. State, 62 Wis. 2d 42, 46 , 214 Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived.

1993The supreme court affirmed the trial court's dismissal of the district's complaint as to the commission, noting that the commission is "an agency of the state" and concluding that "the actions of the Planning Commission [] are covered by the principle — well-established in Wisconsin — that in the absence of express legislative authorization the state may not be *536 subjected to suit." Kegonsa, 87 Wis. 2d at 144, 153 , 274 N.W.2d at 604, 608 . 2 River Ridge argues, however, that whether the planning commission is an "agency of the state" is not dispositive of the sovereign immunity issue becau

1993The supreme court affirmed the trial court's dismissal of the district's complaint as to the commission, noting that the commission is "an agency of the state" and concluding that "the actions of the Planning Commission [] are covered by the principle — well-established in Wisconsin — that in the absence of express legislative authorization the state may not be *536 subjected to suit." Kegonsa, 87 Wis. 2d at 144, 153 , 274 N.W.2d at 604, 608 . 2 River Ridge argues, however, that whether the planning commission is an "agency of the state" is not dispositive of the sovereign immunity issue becau

2013Therefore, although Holytz and subsequent discussions have referred to "municipal immunity," the phrase "governmental immunity" has been used interchangeably to apply to state officers, non-state governmental entities, and officers or employees of those entities. 27 In Holytz, we also recognized that the State's sovereign immunity has its foundation in the Wisconsin Constitution, Article IV, Section 27, which provides that "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." Accordingly, the effect of Holytz has been more relevant to s

1980This court in Holytz v. Milwaukee, 17 Wis.2d 26 , 115 N.W.2d 618 (1962) expressed its disapproval of the sovereign immunity doctrine when eliminating governmental immunity for tort suits, 3 but held that this action: “. . . has no effect upon the state’s sovereign right under the constitution to be sued only upon its consent.” Id. at 41 .

2026Nonetheless, the Court held the tribe was immune from Oklahoma’s suit to enforce the sales tax, rejecting the state’s contention that this result gave it “a right without any remedy.” Id. at 512, 514. ¶25 The Association in effect argues that Congress, by preserving the valid existing rights of third parties in reservation land, must have intended also to authorize third parties to sue the Tribe in state or federal court to enforce those rights, abrogating the Tribe’s sovereign immunity.

2026Nonetheless, the Court held the tribe was immune from Oklahoma’s suit to enforce the sales tax, rejecting the state’s contention that this result gave it “a right without any remedy.” Id. at 512, 514 . ¶25 The Association in effect argues that Congress, by preserving the valid existing rights of third parties in reservation land, must have intended also to authorize third parties to sue the Tribe in state or federal court to enforce those rights, abrogating the Tribe’s sovereign immunity.

2026We agree with the Tribe and Keshena, and we reject the Association’s invitation to disregard established legal principles relating to abrogation. ¶20 “To abrogate sovereign immunity, Congress must make its intent unmistakably clear in the language of the statute.” Lac du Flambeau, 599 U.S. at 387 (citation modified).

2026We agree with the Tribe and Keshena, and we reject the Association’s invitation to disregard established legal principles relating to abrogation. ¶20 “To abrogate sovereign immunity, Congress must make its intent unmistakably clear in the language of the statute.” Lac du Flambeau, 599 U.S. at 387 (citation modified).

2026In other words, it asks this court to conclude body, not from unapproved acts of tribal officials.”); Chance v. Coquille Indian Tribe, 963 P.2d 638, 641 (Or. 1998) (acknowledging that a designation under a tribal resolution did not provide authority to unilaterally waive a tribe’s sovereign immunity).

2026In other words, it asks this court to conclude body, not from unapproved acts of tribal officials.”); Chance v. Coquille Indian Tribe, 963 P.2d 638, 641 (Or. 1998) (acknowledging that a designation under a tribal resolution did not provide authority to unilaterally waive a tribe’s sovereign immunity).

2026See Permanent Mission of India to the United Nations, 551 U.S. at 200 (“[T]he [Foreign Sovereign Immunities Act] was also meant ‘to codify . . . the pre-existing real property exception to sovereign immunity recognized by international practice.’” (quoting Asociacion de Reclamantes, 735 F.2d at 1521 (Scalia, J.))).

2026See Permanent Mission of India to the United Nations, 551 U.S. at 200 (“[T]he [Foreign Sovereign Immunities Act] was also meant ‘to codify . . . the pre-existing real property exception to sovereign immunity recognized by international practice.’” (quoting Asociacion de Reclamantes, 735 F.2d at 1521 (Scalia, J.))).

2026See, e.g., Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, 520 (Okla. 2011) (“[T]ribal law controls the way sovereign immunity can be waived by the Tribe.”); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 113 (S.D. 1998) (“A waiver . . . must issue from a tribe’s governing 14 statements of the Tribe manifesting an intent to authorize Keshena to waive the Tribe’s sovereign immunity in connection with his purchases of land. ¶34 Keshena also did not have apparent authority to waive the Tribe’s sovereign immunity.

2026See, e.g., Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, 520 (Okla. 2011) (“[T]ribal law controls the way sovereign immunity can be waived by the Tribe.”); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 113 (S.D. 1998) (“A waiver . . . must issue from a tribe’s governing 14 statements of the Tribe manifesting an intent to authorize Keshena to waive the Tribe’s sovereign immunity in connection with his purchases of land. ¶34 Keshena also did not have apparent authority to waive the Tribe’s sovereign immunity.

2026See, e.g., Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, 520 (Okla. 2011) (“[T]ribal law controls the way sovereign immunity can be waived by the Tribe.”); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 113 (S.D. 1998) (“A waiver . . . must issue from a tribe’s governing 14 statements of the Tribe manifesting an intent to authorize Keshena to waive the Tribe’s sovereign immunity in connection with his purchases of land. ¶34 Keshena also did not have apparent authority to waive the Tribe’s sovereign immunity.

2026See, e.g., Dilliner v. Seneca-Cayuga Tribe, 258 P.3d 516, 520 (Okla. 2011) (“[T]ribal law controls the way sovereign immunity can be waived by the Tribe.”); Calvello v. Yankton Sioux Tribe, 584 N.W.2d 108, 113 (S.D. 1998) (“A waiver . . . must issue from a tribe’s governing 14 statements of the Tribe manifesting an intent to authorize Keshena to waive the Tribe’s sovereign immunity in connection with his purchases of land. ¶34 Keshena also did not have apparent authority to waive the Tribe’s sovereign immunity.

2026To determine if a sovereign is the real party in interest, courts “must determine in the first instance whether the remedy sought is truly against the sovereign.” Lewis v. Clarke, 581 U.S. 155, 162 (2017).

2026To determine if a sovereign is the real party in interest, courts “must determine in the first instance whether the remedy sought is truly against the sovereign.” Lewis v. Clarke, 581 U.S. 155, 162 (2017).

2026Rather, “[t]he clear-statement question is simply whether, upon applying ‘traditional’ tools of statutory interpretation, Congress’s abrogation of tribal sovereign immunity is ‘clearly discernable’ from the statute itself.” Id. (quoting FAA v. Cooper, 566 U.S. 284, 291 (2012)). 9 In its briefs, the Association also cites Restoration Act § 3(d), which provides “[e]xcept as specifically provided in this Act, nothing contained in this Act shall alter any property rights or obligations, any contractual rights or obligations, including existing fishing rights, or any obligations for taxes already l

2026Rather, “[t]he clear-statement question is simply whether, upon applying ‘traditional’ tools of statutory interpretation, Congress’s abrogation of tribal sovereign immunity is ‘clearly discernable’ from the statute itself.” Id. (quoting FAA v. Cooper, 566 U.S. 284, 291 (2012)). 9 In its briefs, the Association also cites Restoration Act § 3(d), which provides “[e]xcept as specifically provided in this Act, nothing contained in this Act shall alter any property rights or obligations, any contractual rights or obligations, including existing fishing rights, or any obligations for taxes already l

2026Bay Mills Indian Cmty., 572 U.S. at 788-89. ¶18 In this case, the Association argues that Congress abrogated the Tribe’s sovereign immunity by passing the Restoration Act and that the Tribe waived its immunity in a number of different ways.

2026Bay Mills Indian Cmty., 572 U.S. at 788-89. ¶18 In this case, the Association argues that Congress abrogated the Tribe’s sovereign immunity by passing the Restoration Act and that the Tribe waived its immunity in a number of different ways.

2026See Permanent Mission of India to the United Nations, 551 U.S. at 200 (“[T]he [Foreign Sovereign Immunities Act] was also meant ‘to codify . . . the pre-existing real property exception to sovereign immunity recognized by international practice.’” (quoting Asociacion de Reclamantes, 735 F.2d at 1521 (Scalia, J.))).

2026See Permanent Mission of India to the United Nations, 551 U.S. at 200 (“[T]he [Foreign Sovereign Immunities Act] was also meant ‘to codify . . . the pre-existing real property exception to sovereign immunity recognized by international practice.’” (quoting Asociacion de Reclamantes, 735 F.2d at 1521 (Scalia, J.))).

2020Id. at 432 . ¶26 After concluding that the plaintiff had no remedy under state statutes, our supreme court nonetheless determined that “the doctrine of sovereign immunity has only limited applicability to actions against the state which allege a constitutional taking of private property without just compensation.” Id. at 435 .

2020Id. at 432 . ¶26 After concluding that the plaintiff had no remedy under state statutes, our supreme court nonetheless determined that “the doctrine of sovereign immunity has only limited applicability to actions against the state which allege a constitutional taking of private property without just compensation.” Id. at 435 .

2022For this reason, sovereign immunity is a defense to personal jurisdiction which can be waived." City of Kenosha v. State, 35 Wis. 2d 317, 328 , 151 N.W.2d 36 (1967) (emphasis added); Cords v. State, 62 Wis. 2d 42, 46 , 214 Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived.

2022For this reason, sovereign immunity is a defense to personal jurisdiction which can be waived." City of Kenosha v. State, 35 Wis. 2d 317, 328 , 151 N.W.2d 36 (1967) (emphasis added); Cords v. State, 62 Wis. 2d 42, 46 , 214 Wis. 2d 405 (1974) ("The general rule in Wisconsin . . . is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived.

1987In Rice v. Rehner , 463 U.S. 713 , 719 (1983), the Court further clarified the relationship between the infringement and preemption inquiries where state regulatory jurisdiction within an Indian reservation is at issue, stating: The role of tribal sovereignty in preemption analysis varies in accordance with the particular "notions of sovereignty that have developed from historical traditions of tribal independence . . . ." When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has author

1986The Court in Rice found that Indian tribes have no tradition of self-government in regard to regulating liquor transactions. 463 U.S. at 722 -24 . "[T]radition simply has not recognized a sovereign immunity or inherent authority in favor of liquor regulation by Indians." Id . at 722.

2026Rather, “the United States Supreme Court has described tribes as be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which . . . rights in immovable property situated in the United States are in issue.” 28 U.S.C. § 1605(a)(4). 15 Likewise, Justice Bradley’s dissent, although long on invective, identifies no case in which a court has held that the common law immovable property exception applies to limit the sovereign immunity of tribes, relying instead on case law discussing the exception as it applies to states and foreign nations. 20 ‘domestic

2026Rather, “the United States Supreme Court has described tribes as be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which . . . rights in immovable property situated in the United States are in issue.” 28 U.S.C. § 1605 (a)(4). 15 Likewise, Justice Bradley’s dissent, although long on invective, identifies no case in which a court has held that the common law immovable property exception applies to limit the sovereign immunity of tribes, relying instead on case law discussing the exception as it applies to states and foreign nations. 20 ‘domestic

2026Memphis Biofuels, 585 F.3d at 920.

2026Memphis Biofuels, 585 F.3d at 920 .

2026“The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it.” Koble Investments v. Marquardt, 2026 WI 19, ¶37, ___ Wis. 2d ___, ___ N.W.2d ___ (Bradley, J., concurring) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 93 (2012)). ¶67 The immovable property exception applies to the States not because of the constitutional compact but because acquiring property in the territory of another sovereign “is a private undertaking[,]” and a 4 State’s sovereignty does not extend into the territory of another sovereign.

2026“The principle that a matter not covered is not covered is so obvious that it seems absurd to recite it.” Koble Investments v. Marquardt, 2026 WI 19, ¶37 , ___ Wis. 2d ___, ___ N.W.2d ___ (Bradley, J., concurring) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 93 (2012)). ¶67 The immovable property exception applies to the States not because of the constitutional compact but because acquiring property in the territory of another sovereign “is a private undertaking[,]” and a 4 State’s sovereignty does not extend into the territory of another sovereign.

2024On review, we must accept as true all facts alleged in Loki’s complaint, and we may also consider any documents “attached to the complaint and made part thereof.” See Peterson, 281 Wis. 2d 39, ¶15 (citation omitted). ¶18 Sovereign immunity derives from article IV, § 27 of the Wisconsin Constitution, which states that “[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Klein v. DOR, 2020 WI App 56, ¶18 , 394 Wis. 2d 66 , 949 N.W.2d 608 (quoting WIS.

2024On review, we must accept as true all facts alleged in Riley’s complaint, and we may also consider the MOU, which is “attached to the complaint and made part thereof.” See Peterson, 281 Wis. 2d 39, ¶15 . 4 ¶11 Sovereign immunity derives from article IV, § 27 of the Wisconsin Constitution, which states that “[t]he legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Klein v. DOR, 2020 WI App 56, ¶18 , 394 Wis. 2d 66 , 949 N.W.2d 608 (quoting WIS.

2023The Flottmeyer court viewed the sovereign immunity issue as being entirely subsumed by the rule of Martineau v. State Conservation Comm’n, 54 Wis. 2d 76 , 194 N.W.2d 664 (1972), which held that costs (in Flottmeyer, a jury fee) may not be taxed against the state or an administrative agency unless expressly authorized by statute.

2023The Flottmeyer court viewed the sovereign immunity issue as being entirely subsumed by the rule of Martineau v. State Conservation Comm’n, 54 Wis. 2d 76 , 194 N.W.2d 664 (1972), which held that costs (in Flottmeyer, a jury fee) may not be taxed against the state or an administrative agency unless expressly authorized by statute.