Cords v. State
| Decision Date | 05 February 1974 |
| Docket Number | No. 187,187 |
| Citation | 62 Wis.2d 42,214 N.W.2d 405 |
| Parties | Jane CORDS et al., Appellants, v. STATE of Wisconsin et al., Respondents. |
| Court | Wisconsin Supreme Court |
Wickhem, Consigny, Sedor, Andrews & Hemming, Janesville, for appellants; Ray J. Aiken, Delafield, of counsel.
Robert W. Warren, Atty. Gen., Benjamin Southwick, Asst. Atty. Gen., Madison, for respondents.
Four issues are raised in this appeal:
1. Have the defendants waived their right to assert sovereign immunity as a bar to this suit?
2. Can the State of Wisconsin or the Wisconsin Department of Natural Resources be sued directly for injuries allegedly caused by the negligence of state employees?
3. Does the existing Wisconsin statutory pattern deny to the plaintiffs rights secured to them by the Wisconsin Constitution and the Fourteenth amendment to the United States Constitution?
4. Does, sec. 270.58, Stats., create a cause of action against the state in contract?
1. Waiver of objection to personal jurisdiction. Although the question of waiver was not listed as one of the questions raised on the appeal, the issue is presented in the discussion of point four of the plaintiff's argument in their initial brief at page 37. The plaintiffs state:
'By demurring generally, the defendants raise no procedural objection to the complaint herein, and would therefore appear to waive the possible procedural question arising out of plaintiffs' failure to seek judgment against the state's officers and employees in this action.'
The plaintiffs again raised this issue on oral argument. It appears that the defendant first filed a demurrer on June 13, 1972, which listed as the sole ground of objection that the complaint did not state facts sufficient to constitute a cause of action. On July 21, 1972, the defendants filed an amended demurrer which listed as a second ground of objection that the court lacked personal jurisdiction over the defendants.
The general rule in Wisconsin since the Holytz 1 case removed the substantive defense of governmental tort immunity, is that sovereign immunity is a defense to the personal jurisdiction of the court which can be waived. 2 Objection to personal jurisdiction must be raised specifically or be deemed waived. It is not sufficient to make a general demurrer that the complaint does not state facts sufficient to constitute a cause of action. 3 Therefore, the first demurrer filed by the defendants would not have been sufficient to raise the defense of sovereign immunity and the defendants would have subjected themselves to direct suit. The plaintiffs content that the filing of an amended demurrer was ineffectual to withdraw the waiver contained in the initial demurrer.
The plaintiffs are contending that a demurrer cannot be amended. In Wisconsin a demurrer is considered a pleading. 4 Corpus Juris Secundum states:
'a. In General
'A demurrer may be amended like any other pleading, and the allowance of an amended is ordinarily regarded as resting within the sound discretion of the trial court.
'A demurrer is regarded as a pleading within the purview of a statute providing for the amendment of any pleading, and may be amended like any other pleading. . . .
'b. Time for Amendment
'. . . Such an amendment may be allowed at any time before final judgment on demurrer. . . .' 5
In Wisconsin a party can amend any pleading once as of right if done within twenty days of filing. 6 The amended demurrer in this case was filed more than twenty days after the initial demurrer was filed. Under sec. 269.44, Stats., 7 the court may amend pleadings in furtherance of justice and upon such terms as may be just.
The record does not reveal that the defendants made any formal motion for leave of the court to amend. However, the amended demurrer was accepted for filing and is part of the record. The order entered by the court stated that the 'general demurrer' of the defendants to the plaintiffs' complaint is sustained. However, the memorandum decision reveals that the basis of sustaining the demurrer was that the state had not consented to be sued. Thus, as in Kenosha v. State, the issue of personal jurisdiction was presented to the court even though the order of the court does not refer specifically to lack of personal jurisdiction as a ground for sustaining the demurrer.
The plaintiffs have not contended that the trial court abused its discretion in allowing an amendment to the demurrer. That issue is therefore not before the court.
2. Can the state be sued directly in tort? The plaintiffs urge that this court reconsider its position on sovereign immunity and intervene judicially to correct 'an intolerable confusion and anomaly in the law.'
In Holytz v. Milwaukee 8 this court expressed its disapproval of sovereign immunity by abrogating governmental immunity for tort suits. However, the court made clear that the imposition of substantive immunity did not affect the state's sovereign right under art. IV, sec. 27, of the Wisconsin Constitution, to be sued only upon its consent. The doctrine of procedural immunity as to the state itself should be removed, but this change is directed to the legislature. The judiciary cannot step in where the legislature has failed to act to commence a change in the state's constitution.
In Forseth v. Sweet 9 this court said:
And again in Townsend v. Wisconsin Desert Horse Asso. 10 the court stated:
The plaintiffs contend that this is a misinterpretation of the nature of a sovereign immunity. They call the court's attention to two recent cases in which the Supreme Courts of Indiana and New Jersey have declared by judicial fiat that the states of Indiana and New Jersey are subject to fendants are correct in distinguishing these suit with certain exceptions. The defendants are correct in distinguishing these cases. In Perkins v. State, 11 the Indiana Supreme Court interpreted a provision of the Indiana Constitution not as a prohibition against suit. Therefore the court felt free to judicially change the common law doctrine of sovereign immunity. The provision of the Indiana Constitution read:
'Provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.'
Thus the pertinent Indiana provision was permissive and did not vest sole control in the legislature to direct how and in what courts suit could be brought against the state.
In Willis v. Department of Conservation & Economic Development, 12 there was no mention of any applicable state constitutional provision. It would appear that sovereign immunity was purely a common law doctrine in New Jersey and subject to court modification or abolition when it saw fit.
However, in Wisconsin the wording of art. IV, sec. 27, of the Wisconsin Constitution which says that 'The legislature shall direct . . .' has always been interpreted as vesting exclusive control over immunity from suit in the legislature. In Chicago M. & St. P. Ry. v. State 13 the Wisconsin Supreme Court said of art. IV, sec. 27:
As for statutory consent by the state to suit in tort, this court has found none. Sec. 285.01, Stats., has been interpreted as limited to claims which if valid would render the state a debtor to the claimant. 14 Sec. 270.58 has also been interpreted not to be a consent by the state to be sued in tort. 15
The plaintiffs thus have raised no new arguments which have not been resolved before, and find themselves, as did the plaintiffs in Chart v. Gutmann, 'in the unfortunate position of having suffered a wrong for which there is no judicial remedy.' 16
Since Holytz ended the doctrine of governmental immunity for local governments, fairness requires a change in the constitutional restriction against tort suits against the state. The constitution should be changed to correct this wrong, but that is a task for the legislature to commence, not the courts.
3. Constitutionality of Wisconsin statutory scheme. The plaintiffs argue that the failure of the state to provide statutory authorization for their suit denies them due process and the equal protection of the laws as guaranteed by the Fourteenth amendment to the United States Constitution and violates art. 1, sec. 9, of the Wisconsin Constitution. All of these constitutional challenges have been made before and rejected by this court.
Art. 1, sec. 9, of the Wisconsin Constitution which reads:
'Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.'
does not give the plaintiffs a constitutional right to...
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