sovereign immunity in Wisconsin

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

1999As 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.

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 .

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.

2015Martin v. Reis, 230 Wis. 683, 685 , 284 N.W. 580 (1939) ("it is an established principle of law that no action will lie against a sovereign state in the absence of express legislative permission."). ¶36 We can find no express waiver of the DOC's sovereign immunity.

2015Martin v. Reis, 230 Wis. 683, 685 , 284 N.W. 580 (1939) ("it is an established principle of law that no action will lie against a sovereign state in the absence of express legislative permission."). ¶36 We can find no express waiver of the DOC's sovereign immunity.

2013See Anderson v. City of Milwaukee, 208 Wis. 2d 18 , 28 n.11, 559 N.W.2d 563 (1997).

2013See Anderson v. City of Milwaukee, 208 Wis. 2d 18 , 28 n.11, 559 N.W.2d 563 (1997).

2006In addition, it should be noted that the United States Supreme Court handed down an important sovereign immunity decision in Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996).

1999See Seminole Tribe v. Florida, 517 U.S. 44 (1996).

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.

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 No. 2022AP1771 ¶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.

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.

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.

1979Independent Going Concern The doctrine of sovereign immunity does not apply when an agency has “independent proprietary functions and powers” or is an “independent going concern,” Sullivan v. Board of Regents of Normal Schools, 209 Wis. at 244 ; Lister v. Board of Regents, 72 Wis.2d at 292-93 ; Majerus v. Milwaukee County, 39 Wis.2d 311 , 159 N.W.2d 86 (1968).

1979Independent Going Concern The doctrine of sovereign immunity does not apply when an agency has “independent proprietary functions and powers” or is an “independent going concern,” Sullivan v. Board of Regents of Normal Schools, 209 Wis. at 244 ; Lister v. Board of Regents, 72 Wis.2d at 292-93 ; Majerus v. Milwaukee County, 39 Wis.2d 311 , 159 N.W.2d 86 (1968).

1999IV, sec. 27 of the Wisconsin Constitution.... [8] The fourth exception, and the one that Kierstyn does not suggest Farrell's conduct constitutes, removes immunity when a public officer engages in negligent conduct that is "malicious, willful and intentional." C.L. v. Olson, 143 Wis. 2d 701, 710-11 , 422 N.W.2d 614 (1988); Ibrahim v. Samore, 118 Wis. 2d 720, 728 , 348 N.W.2d 554 (1984). [9] That posting read in relevant part: POSITION PURPOSE: Plan, organize and supervise employee benefit programs in the district both directly and in cooperation with other administrators.

1999IV, sec. 27 of the Wisconsin Constitution.... [8] The fourth exception, and the one that Kierstyn does not suggest Farrell's conduct constitutes, removes immunity when a public officer engages in negligent conduct that is "malicious, willful and intentional." C.L. v. Olson, 143 Wis. 2d 701, 710-11 , 422 N.W.2d 614 (1988); Ibrahim v. Samore, 118 Wis. 2d 720, 728 , 348 N.W.2d 554 (1984). [9] That posting read in relevant part: POSITION PURPOSE: Plan, organize and supervise employee benefit programs in the district both directly and in cooperation with other administrators.

1994Miron Const. Co., Inc., 181 Wis. 2d 1045 , 512 N.W.2d 499 (1994), wherein we defined "suit" as `any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or equity.' Miron, 118 Wis. 2d at 1053 (quoting Black's Law Dictionary 1434 (6th ed. 1990)) (emphasis added in Miron) *775 (the use of arbitration under a contract between a private party and the state does not violate the doctrine of sovereign immunity because

1994Miron Const. Co., Inc., 181 Wis. 2d 1045 , 512 N.W.2d 499 (1994), wherein we defined "suit" as `any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or equity.' Miron, 118 Wis. 2d at 1053 (quoting Black's Law Dictionary 1434 (6th ed. 1990)) (emphasis added in Miron) *775 (the use of arbitration under a contract between a private party and the state does not violate the doctrine of sovereign immunity because

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 LEGEND LAKE PROPERTY OWNERS ASS’N v. KESHENA Opinion of the Court 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.

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).

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).