Fiala v. Voight

• Decision Date: 08 January 1980
• Docket Number: No. 77-266,77-266
• Citation: 286 N.W.2d 824,93 Wis.2d 337
• Parties: Loddie G. FIALA, Plaintiff-Respondent, v. Lester VOIGHT, Individually and as Secretary of the Department of Natural Resources, an agency of the state of Wisconsin; Joel C. McOlash, Individually and as an employee of the Department of Natural Resources, an agent of the state of Wisconsin; Charles Olson, Individually and as an employee of the Department of Natural Resources, an agency of the State of Wisconsin; and the state of Wisconsin, as indemnitor of its officers and employees, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 824

286 N.W.2d 824

93 Wis.2d 337

Loddie G. FIALA, Plaintiff-Respondent, v. Lester VOIGHT, Individually and as Secretary of the Department of Natural Resources, an agency of the state of Wisconsin; Joel C. McOlash, Individually and as an employee of the Department of Natural Resources, an agent of the state of Wisconsin; Charles Olson, Individually and as an employee of the Department of Natural Resources, an agency of the State of Wisconsin; and the state of Wisconsin, as indemnitor of its officers and employees, Defendants-Appellants.

No. 77-266.

Supreme Court of Wisconsin.

Argued Dec. 3, 1979.

Decided Jan. 8, 1980.

Charles R. Larsen, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for defendants-appellants.

Kaftan, Kaftan, Kaftan, Kuehne, Van Egeren & Ostrow, S. C., Green Bay, on brief; Winston A. Ostrow, Green Bay (argued), for plaintiff-respondent.

COFFEY, Justice.

This is an appeal from an order of the Circuit Court for Kewaunee County overruling the state's demurrer to the plaintiff-respondent (hereinafter respondent), Loddie Fiala's, complaint alleging that wardens of the Department of Natural Resources unlawfully seized 24 boxes of trout and whitefish on June 14, 1975 from his truck in the City of Kewaunee. Fiala alleged that the taking of the fish constituted:

1. a wrongful conversion of the respondent's property; and

2. an unlawful and unconstitutional seizure of respondent's property in violation of his civil rights.

The respondent further alleged that the defendant, Lester Voight, the Secretary of the Wisconsin Department of Natural Resources, (hereinafter referred to as the Department), was negligent in this supervision and control of the defendants McOlash and Olson, wardens of the Department. The respondent joined the state as a party defendant contending that the state ". . . has agreed to act as indemnitor for officers and employees of the State of Wisconsin who are proceeded against at law because of acts committed while carrying out their official duties and while acting within the scope of their employment . . ." Further, the respondent contended ". . . that the State of Wisconsin has consented to be sued as indemnitor for such employees in such actions, and that the State of Wisconsin as indemnitor for defendant Voight, McOlash and Olson is a proper party to this action under sec. 270.58 (now renumbered 895.46(1) ¹) of the Wisconsin Statutes."

The defendants-appellants demurred to the complaint alleging that the court lacked jurisdiction over the state based on the doctrine of sovereign immunity and ". . . because the statutes contain no express consent by the state to be sued on any of the causes of action asserted in the complaint." The defendant-wardens, Olson and McOlash, answered the complaint and affirmatively alleged that the fish were seized because they were ". . . transported in violation of sec. 29.135 ², Wis. Stats." Specifically, they contend that the boxes of fish in transit from Big Bay DeNoc Fisheries, Garden, Michigan to Fiala's Fish Market in Kewaunee, Wisconsin for sale ". . . appeared to lack identification as to the type of fish, the number of pounds of fish, the consignor, and/or the destination." In addition, upon inspection it was discovered that the invoice for the fish did not conform to the quantity and type of fish contained in the truck.

On August 10, 1977 the trial court ruled that the state ". . . can be sued as indemnitor of its officers and employees, under sec. 270.58 of the Wisconsin Statutes, and that the demurrer should be overruled." In its written decision the court adopted and incorporated the respondent's brief, opposing the state's demurrer, for the rationale of its ruling. The state appeals from the court's order overruling its demurrer to the complaint.

Issues

1. Whether the State of Wisconsin may be joined as a party defendant as indemnitor for state employees named as defendants, pursuant to sec. 895.46(1) (formerly sec. 270.58), Stats.?

2. Should the doctrine of sovereign immunity be overruled?

On appeal the state contends that it enjoys the benefits of the doctrine of sovereign immunity and therefore cannot be sued without its consent. Furthermore, the state claims the trial court erred in overruling the demurrer, and finding that sec. 270.58, Stats., implies consent on the part of the state to being sued as an indemnitor for its employees. The respondent, on the other hand, alleges that sec. 895.46(1) and 895.45, Stats., clearly establishes that the legislature intended to permit suits against the state when and if such employees are acting within the scope of their employment. In the alternative, the respondent further contends that Wisconsin's sovereign immunity doctrine is antiquated and disfavored and should thus be eliminated or at least restricted.

This court in Lister v. Board of Regents, 72 Wis.2d 282, 240 N.W.2d 610 (1976) held that the doctrine of sovereign immunity is ". . . procedural in nature and, if properly raised, deprives the court of personal jurisdiction over the state." and therefore the state cannot be sued without its consent. Id. at 291, 240 N.W.2d at 617.

This 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, 115 N.W.2d at 626.

In addition, case law establishes that any change or elimination of the sovereign immunity doctrine must come from the legislature:

"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." Cords v. State, 62 Wis.2d 42, 48, 214 N.W.2d 405, 409 (1974).

Thus, if we were to agree with the respondent's contention that the doctrine of sovereign immunity is antiquated and disfavored, and deserves further consideration, we suggest that any change in this doctrine should be only initiated by and emanate from the legislative branch as the foundation of this doctrine is found in the following language of the Wisconsin Constitution, art. IV, sec. 27.

"The legislature shall direct by law in what manner and in what courts suits may be brought against the state."

In Cords v. State, supra, this court held ". . . 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." Id. at 49-50, 214 N.W.2d at 409. See also: Forseth v. Sweet, 38 Wis.2d 676, 689, 158 N.W.2d 370 (1968); Townsend v. Wisconsin Desert Horse Assoc., 42 Wis.2d 414, 421, 167 N.W.2d 425 (1969).

Therefore, since the legislature and this court have not overturned or restricted the doctrine of sovereign immunity, we hold the state cannot be sued without its consent.

In overruling the state's demurrer to the complaint based on the sovereign immunity doctrine, the court decided that sec. 270.58, Stats., constituted consent by the state to being sued as indemnitor for state employees. On appeal the appellant has challenged the trial court's finding.

In Kegonsa Jt. Sanit. Dist. v. City of Stoughton, 87 Wis.2d 131, 274 N.W.2d 598 (1979) this court held that there must exist Express legislative authorization in order for the state to be sued:

" 'It is not disputed that it is an established principle of law that no action will lie against a sovereign state in the absence of Express legislative permission. It is further established that when a sovereign permits itself to be sued upon certain conditions, compliance therewith is a jurisdictional matter, and a suit against the sovereign may not be maintained unless such conditions are complied with.' (emphasis supplied) State ex rel. Martin v. Reis, 230 Wis. 683, 685, 284 N.W. 580 (1939)." Id. at 144-45, 274 N.W.2d at 604.

In Cords v. State, supra, this court clearly stated that sec. 270.58, Stats., has ". . . been interpreted Not to be a consent by the state to be sued in tort." (emphasis supplied) Id., 62 Wis.2d at 50, 214 N.W.2d at 410. Furthermore, in the companion case of Cords v. Ehly, 62 Wis.2d 31, 214 N.W.2d 432 (1974) the court discussed the effect of sec. 270.58, Stats., and held as follows:

"This statute was discussed in Forseth v. Sweet. 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 its 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...