Cords v. Ehly
| Decision Date | 05 February 1974 |
| Docket Number | No. 186,186 |
| Citation | 214 N.W.2d 432,62 Wis.2d 31 |
| Parties | Jane CORDS et al., Respondents, v. Alta E. EHLY et al., Appellants. |
| Court | Wisconsin Supreme Court |
Robert W. Warren, Atty. Gen., Benjamin Southwich, Asst. Atty. Gen., Madison, for appellants.
Wickhem, Consigny, Sedor, Andrews & Hemming, Janesville, for respondents.
Four issues are raised by this appeal from the lower court's order refusing to sustain defendants' demurrer:
1. Did the trial court err in holding that sec. 29.68, Stats., was not a bar to this suit?
2. Did the trial court err in concluding that the suit was not an action against the state?
3. Should the demurrer have been granted because the duty which was owed to the plaintiffs, if any, lies not with the defendants but with the Wisconsin Department of Natural Resources and the Scientific Areas Preservation Council?
4. Did the trial court err in concluding that the defendants could be liable to the plaintiffs under the allegations of the complaint?
1. Applicability of sec. 29.68, Stats. For the reasons recently discussed in Goodson v. Racine, 1 sec. 29.68, Stats., is completely inapplicable here and does not bar the plaintiffs' action.
2. Is this suit against the state? The defendants further contend that this suit is in actuality a suit against the state, barred by the state's sovereign immunity. The defendants quote from Corpus Juris Secundum:
'The question whether a particular suit is one against a state is not to be determined solely by reference to the nominal parties to the record, but rather is dependent on the essential nature and effect of the proceeding.' 2
'Where a suit is brought against an officer or agency with relation to some matter in which defendant represents the state in action and liability and the state is the real party against which relief is sought so that a judgment for plaintiff will operate to control the action of the state or subject it to liability, the suit is in effect one against the state and cannot be maintained without its consent.' 3
This is undoubtedly a correct statement of the law. The circumstances in which a suit against individual state employees will be considered a suit against the state are exemplified in Appeal v. Halverson. 4 In that case the plaintiff was proceeding to compel the commissioner of revenue in his official capacity to account for $300 held as a deposit by the department of revenue. The commissioner as an individual had no power to do so.
In the present suit, however, the defendant employees are sued as private individuals for damages alleged to have resulted from their negligent conduct. The alleged conduct occurred within the scope of their employment by the state, but the judgment sought would require no affirmative state action, no performance of an obligation of the state. They would not be required to effect the release of state funds or property.
Defendants rely here on sec. 270.58, Stats., to support their assertion that this suit is a suit against the state.
Under sec. 270.58, Stats., the state and political subdivisions thereof will pay judgments in actions in which a defendant was proceeded against because of acts committed while carrying out his duties as a public officer or employee if the court or jury finds that he was acting in good faith.
This statute was discussed in Forseth v. Sweet. 5 In that case the plaintiff contended that sec. 270.58, Stats., was a consent by the state to direct suit. This court disagreed with that conclusion as to the effect and intent of the statute. The court agreed that the statute placed the state in a somewhat anomalous position for it accepts responsibility for the results of a lawsuit without the right to direct the strategy of defense. This court, however, did not conclude that the awkward hiatus thus created authorized the conclusion that the state had consented to be sued directly. This court found it doubtful that the legislature would reverse seventy years of consistent statutory interpretation disallowing suits against the state by so obscure and devious a method. However, this case did label the state as a real party in interest.
The individual state employee defendants in this case contend that sec. 270.58, Stats., automatically transforms any suit against a state employee into a suit against the state because the state is potentially liable on the judgment. However, if sec. 270.58 is read to provide that suits in tort against state employees are to be treated as suits in tort against the state, and if the legislature has not by that statute consented to suits in tort against the state, then no damage judgments could be obtained in suits against state employees, and the provision in sec. 270.58 for the payment of such damages out of state funds would be meaningless.
Quite the contrary, it is clear that in enacting sec. 270.58, Stats., the legislature contemplated that state employees were subject to suit in tort under the law of Wisconsin and wished gratuitously to shield them from monetary loss in such suits.
However, the defendants are not alone in their misinterpretatipon of the effect of sec. 270.58, Stats. The plaintiffs apparently contend that they are bringing this suit pursuant to sec. 270.58. In other words they feel that sec. 270.58 is a substantive statute creating a cause of action against employees for any action or inaction within the scope of their employment. At page 10 of their brief plaintiffs-respondents state that the Forseth case 'acknowledges that the statute permits direct suit against state employees acting in good faith.' And again at page 12 of their brief respondents state 'We contend simply that the statute permits suit against Ehly.' The trial court apparently agreed with the plaintiffs' interpretation of the statute. The trial court in its decision overruling the defendants' demurrer said:
In Forseth v. Sweet 6 this court said that '(n)o new exposure to substantive liability was contemplated by this statute.' The most recent case to discuss sec. 270.58, Stats., was Chart v. Dvorak. 7 The original decision contained language which led the plaintiffs to conclude that the statute did create a course of action against employees. The offending sentence was clarified on rehearing. The case had referred to sec. 270.58 as embodying the 'long settled law . . . that public officers or employees may be proceeded against in their official capacities.' It was called to the court's attention that this could be construed as a rule of liability. On rehearing 8 the court indicated that that was not intended. The court said:
This adequately shows the error of the plaintiffs and the trial court. Any liability of state employees is governed by the common law as adopted in this state by the supreme court. If the defendants are liable under the applicable doctrines, then sec 270.58 provides that the state will pay the judgment if the action or inaction giving rise to the liability was done in good faith within the scope of state employment. Sec. 270.58 does not become applicable until after a judgment of liability is entered.
3. Does the management of Parfrey's Glen lie with the Wisconsin Department of Natural Resources and the Scientific Areas Preservation Council and not with the defendants? The defendants also contend that any duty which may have been breached was not owed by them to the plaintiffs, but rather any duty owed lay with the Department of Natural Resources and the Scientific Areas Preservation Council. This is a way of arguing that they are the wrong defendants. This argument was raised by the defendants in Chart v. Dvorak. The defendants in that case argued that they were the agents of the state highway commission and their acts were the acts of such commission and that therefore they were entitled to partake of the governmental immunity enjoyed by the commission. This court rejected that contention in these words:
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Engelhardt v. City of New Berlin, 2016AP801
...this court soon revived the pre- Holytz distinction between "ministerial duties" and "discretionary acts." See Cords v. Ehly, 62 Wis. 2d 31, 39-41, 214 N.W.2d 432 (1974). The exercise of a "discretionary act," subject to immunity, is now synonymous with the exercise of a legislative, quasi-......
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...the rationale of Meyer v. Carman. Id. at 105, 203 N.W.2d 673 (emphasis added). ¶ 73 The court turned to Meyer again in Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974). In this case, three young women fell into a gorge at a state park in Sauk County. Id. at 33, 214 N.W.2d 432. The plainti......
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...shield state employees from monetary loss in tort suits they had become subject to because of their employment. Cords v. Ehly, 62 Wis.2d 31, 36-38, 214 N.W.2d 432, 435 (1974). In the 1962 case of Holytz v. Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962), the Wisconsin Supreme Court abolished......