LRB-3891/3
RPN/RAC/JTK:kaf:hh
1997 - 1998 LEGISLATURE
February 10, 1998 - Introduced by Representatives Hanson, Ladwig, F. Lasee and
Johnsrud, cosponsored by Senators Rosenzweig and Farrow, by request of
Department of Administration, Department of Employe Trust Funds and
Department of Justice. Referred to Committee on Judiciary.
AB778,1,11
1An Act to repeal 45.72 (4), 46.017, 101.02 (2) and 301.04;
to renumber 40.07
2(1) (a) to (d) and 893.82 (2) (d);
to renumber and amend 40.07 (1) (intro.) and
340.07 (2);
to amend 25.15 (1), 25.17 (intro.), 25.18 (1) (e), 36.07 (1), 44.01 (1),
445.356 (4), 195.03 (28), 196.02 (12), 775.01, 893.82 (6) and 893.82 (7); and
to
5create 16.865 (9), 40.07 (1m) (intro.), 40.07 (2) (c), 40.07 (2) (d), 893.82 (2) (d)
62., 895.45 and 895.46 (1) (at) of the statutes;
relating to: a restatement of the
7doctrine of sovereign immunity, suits against the state and state agencies and
8powers and attributes of certain state agencies; limits on damages for wrongful
9death in actions against state officials, employes or agents; travel within the
10scope of employment or agency of a public official, employe or agent; and release
11of individual personal information by the department of employe trust funds.
Analysis by the Legislative Reference Bureau
Under a portion of the common law, which pursuant to the state constitution
is in effect in this state unless modified by the constitution or by act of the legislature,
the state has "sovereign immunity". In other words, it is generally not possible to sue
the state in state court unless a statute or constitutional provision authorizes the suit
to be brought. The state constitution (article IV, section 27) directs the legislature
to provide by law the manner in which suits may be brought against the state. There
are a number of judicial interpretations which define the boundaries of the sovereign
immunity doctrine.
In Bahr v. Investment Board, 186 Wis. 2d 379 (Ct. App. 1994), the state court
of appeals held that the state investment board could be sued, notwithstanding
sovereign immunity, in part because the statutes provide that it is a "body corporate
with power to sue and be sued" and because it is an "independent agency of the state"
and its operations are not funded with general purpose revenue.
This bill creates a statute which reasserts the state's right not to be sued unless
suit is expressly authorized to be brought by law or by the constitution. The bill
further provides that no powers, functions or source of funding provided by law to any
instrumentality of this state which is engaged in a governmental function constitute
a waiver of the state's sovereign immunity to suit. The bill also deletes statutory
provisions which provide that certain state agencies may "sue and be sued" and that
certain state agencies are a "body corporate" or a "body corporate and politic". Under
judicial interpretations, when suits are otherwise permitted to be brought, an agency
may be sued notwithstanding the absence of this language. The bill further deletes
a provision that the investment board is an "independent agency of the state". (The
statutes contain numerous references to independent agencies, including the
investment board, in an apparent attempt to distinguish these agencies from the
state departments and the agencies that are attached to the departments, but the
bill does not affect these references.)
The bill clarifies, in accordance with judicial interpretations, that if the
legislature refuses to allow a claim against the state, suit may be brought only if suit
is authorized to be brought (i.e., sovereign immunity does not apply).
In addition, the bill provides that the reassertion of sovereign immunity by the
state is intended as a restatement of existing law.
Under current law, individual personal information in the records of the
department of employe trust funds (DETF) may not be disclosed except under one
of the following conditions:
1. The information is requested by the person whose record contains the
information or by the duly authorized representative of the person.
2. The information is requested by a public employe for use in the discharge of
his or her official duties.
3. The information is required to be disclosed under a court order duly obtained
upon a showing to the court that the information is relevant to a pending court action.
4. The information is required to be disclosed for the proper administration of
DETF or to assist in locating participants or beneficiaries DETF is otherwise unable
to contact.
In addition, with respect to individual medical information in the records of
DETF, current law provides that DETF may disclose this information only when a
disability application denial is appealed or under a court order duly obtained upon
a showing to the court that the information is relevant to a pending court action or
when the medical information is gathered for any of the benefit plans administered
by DETF and may be used by another such benefit plan.
This bill provides that the current conditions under which individual personal
information in the records of DETF may be disclosed do not apply to individual
medical records in the records of DETF. Instead, the bill specifies that individual
medical records in the records of DETF may only be disclosed under one of the
following conditions:
1. When a disability application or health insurance claim denial is appealed.
2. Under a court order or an order of a hearing examiner duly obtained after
notice to the department and upon a showing to the court or the hearing examiner
that the information is relevant to a pending court or administrative action.
3. Upon written request, to the employer of a person who applies for a disability
annuity or duty disability benefit or who files a claim for income continuation
insurance or, if the person is a state employe, to the department of administration
for the purpose of managing the state employes' worker's compensation program.
Any documentation submitted to DETF pursuant to certain applications for
disability benefits may also be disclosed to the employer.
4. Upon written request, to a participant in the Wisconsin retirement system
or his or her duly authorized representative, but only if the individual medical
records are those of the participant and if the participant's or his or her duly
recognized representative's access to the individual medical records is not otherwise
restricted by law. The only individual medical records that may be disclosed by
DETF are those specifically identified in the written request.
Currently, if a public officer, employe or agent is proceeded against for acts
committed while carrying out his or her duties or within his or her agency, any
judgment as to damages and costs entered against the officer, employe or agent are
paid by the state or political subdivision of which the defendant is an officer, employe
or agent. The state or political subdivision is also required by current law to provide
legal counsel or pay the reasonable attorney fees and costs of defending the action,
unless the officer, employe or agent was not acting within the scope of his or her
employment or agency.
This bill provides that a public officer, employe or agent who is required to
travel as part of his or her duties or agency shall be considered to be carrying out his
or her official duties and within the scope of his or her employment or agency while
traveling on official duties, except when he or she deviates for a private or personal
purpose. The bill also provides that travel to pick up or return a motor vehicle used
in the official travel is part of the person's official duties and within the scope of his
or her employment or agency.
Under current law, the amount that a person may recover in a civil action
against a state officer, employe or agent, or against a museum under a lease
agreement with the state historical society, is limited to $250,000. State law also
limits the amount that may be recovered for the loss of society and companionship
in a wrongful death action to $150,000. This bill clarifies that the $150,000 limit for
the loss of society and companionship applies to wrongful death actions against a
state officer, employe or agent, and against a museum under a lease agreement with
the state historical society.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB778, s. 1
1Section
1. 16.865 (9) of the statutes is created to read:
AB778,4,42
16.865
(9) Have the authority to disclose individual medical records obtained
3under s. 40.07 (2) to the department of workforce development for any worker's
4compensation proceeding under ch. 102.
AB778, s. 2
5Section
2. 25.15 (1) of the statutes is amended to read:
AB778,4,116
25.15
(1) Purpose. The purpose of the board is to provide professional
7investment management of trusts, operating funds and capital funds established by
8law.
It is the intent of the legislature that the
The board
be an independent agency
9of the state which is to shall manage money and property for the state, its agencies
10and trust funds. The goal of board management shall be towards accomplishing the
11purpose of each trust or fund.
AB778, s. 3
12Section
3. 25.17 (intro.) of the statutes is amended to read:
AB778,4,16
1325.17 Powers and duties of board. (intro.)
The "State of Wisconsin
14Investment Board" shall be a body corporate with power to sue and be sued in said
15name. The
investment board shall have a seal with the words, "State of Wisconsin
16Investment Board". Subject to s. 25.183, the board shall:
AB778, s. 4
17Section
4. 25.18 (1) (e) of the statutes is amended to read:
AB778,5,218
25.18
(1) (e) Take such action as may be necessary to make investments in
19mortgage loans or in the purchase of interests in real estate in any other state or in
20Canada, including but not excluding because of enumeration, qualifying to do
1business, filing reports, paying franchise, license or other fees and taxes, designating
2agents
, and designating an office
and subjecting itself to suit.
AB778, s. 5
3Section
5. 36.07 (1) of the statutes is amended to read:
AB778,5,64
36.07
(1) (title)
Corporate status and title Title. The board
and their
5successors in office shall constitute a body corporate by shall bear the name
of "Board
6of Regents of the University of Wisconsin System".
AB778, s. 6
7Section
6. 40.07 (1) (intro.) of the statutes is renumbered 40.07 (1) and
8amended to read:
AB778,5,119
40.07
(1) Notwithstanding any other statutory provision, individual personal
10information in the records of the department is not a public record and shall not be
11disclosed
, unless: except as provided in this section.
AB778, s. 7
12Section
7. 40.07 (1) (a) to (d) of the statutes are renumbered 40.07 (1m) (a) to
13(d).
AB778, s. 8
14Section
8. 40.07 (1m) (intro.) of the statutes is created to read:
AB778,5,1715
40.07
(1m) (intro.) Individual personal information in the records of the
16department, other than individual medical records identified in sub. (2), may be
17disclosed by the department only under one of the following conditions:
AB778, s. 9
18Section
9. 40.07 (2) of the statutes is renumbered 40.07 (2) (intro.) and
19amended to read:
AB778,5,2220
40.07
(2) (intro.)
Notwithstanding sub. (1) medical Individual medical records
,
21as defined by rule, may be disclosed
by the department only
when under one of the
22following conditions:
AB778,5,24
23(a) When a disability application
or health insurance claim denial is appealed
24or under
s. 40.03 (1) (j), (6) (i), (7) (f) or (8) (f) or 40.65 (2) (b) 3.
AB778,6,4
1(b) Under a court order
or an order of a hearing examiner duly obtained
after
2notice to the department and upon a showing to the court
or the hearing examiner 3that the information is relevant to a pending court
or administrative action
but
4medical information.
AB778,6,7
5(2m) Individual medical records, as defined by rule, gathered for any one of the
6benefit plans established under this chapter may be used by any other benefit plan
7established under this chapter.
AB778, s. 10
8Section
10. 40.07 (2) (c) of the statutes is created to read:
AB778,6,169
40.07
(2) (c) Upon written request, to the employer of a person who applies for
10a disability annuity or duty disability benefit or who files a claim for income
11continuation insurance under subch. V or, if the person is a state employe, to the
12department of administration for the purpose of managing the state employes'
13worker's compensation program under s. 16.865 (4). Any attached documentation
14submitted to the department pursuant to a specific application for benefits related
15to a disability for which the employer is requested by the department to make a
16certification may also be disclosed to the employer under this paragraph.
AB778, s. 11
17Section
11. 40.07 (2) (d) of the statutes is created to read:
AB778,6,2318
40.07
(2) (d) Upon written request, to a participant or his or her duly authorized
19representative, but only if the individual medical records are those of the participant
20and if the participant's or his or her duly authorized representative's access to the
21individual medical records is not otherwise restricted by law. The department may
22only disclose individual medical records under this paragraph that are specifically
23identified in the written request.
AB778, s. 12
24Section
12. 44.01 (1) of the statutes is amended to read:
AB778,7,4
144.01
(1) The historical society shall
constitute a body politic and corporate by 2bear the name
of "The State Historical Society of Wisconsin
," and shall possess all
3the powers necessary to accomplish the objects and perform the duties prescribed by
4law. The historical society shall be an official agency and the trustee of the state.
AB778,7,137
45.356
(4) The department may execute necessary instruments, collect interest
8and principal, compromise indebtedness,
sue and be sued, post bonds and write off
9indebtedness that it considers uncollectible. If a loan under this section is secured
10by a real estate mortgage, the department may exercise the rights of owners and
11mortgagees generally and the rights and powers set forth in s. 45.72. The
12department shall pay all interest and principal repaid on the loan into the veterans
13trust fund.
AB778, s. 14
14Section
14. 45.72 (4) of the statutes is repealed.
AB778, s. 15
15Section
15. 46.017 of the statutes is repealed.
AB778, s. 16
16Section
16. 101.02 (2) of the statutes is repealed.
AB778, s. 17
17Section
17. 195.03 (28) of the statutes is amended to read:
AB778,7,2018
195.03
(28) Title. The office may
sue and be sued in that name, and may confer
19with or participate in any proceedings before any regulatory agency of any other
20state or of the federal government.
AB778, s. 18
21Section
18. 196.02 (12) of the statutes is amended to read:
AB778,7,2522
196.02
(12) (title)
Sue; be sued Participation in proceedings. The commission
23may
sue and be sued in its own name, and may confer with or participate in any
24proceedings before any regulatory agency of any other state or of the federal
25government.
AB778, s. 19
1Section
19. 301.04 of the statutes is repealed.
AB778, s. 20
2Section
20. 775.01 of the statutes is amended to read:
AB778,8,10
3775.01 Actions against state; bond. Upon the refusal of the legislature to
4allow a claim against the state
, if suit is authorized to be brought against the state, 5the claimant may commence an action against the state
. The action may be
6commenced by service as provided in s. 801.11 (3) and by filing with the clerk of court
7a bond, not exceeding $1,000, with 2 or more sureties, to be approved by the attorney
8general, to the effect that the claimant will indemnify the state against all costs that
9may accrue in such action and pay to the clerk of court all costs, in case the claimant
10fails to obtain judgment against the state.
AB778, s. 21
11Section
21. 893.82 (2) (d) of the statutes is renumbered 893.82 (2) (d) 1.
AB778, s. 22
12Section
22. 893.82 (2) (d) 2. of the statutes is created to read:
AB778,8,1513
893.82
(2) (d) 2. "State agent" does not include an independent contractor, even
14if the independent contractor is entitled to the common law defense of official or
15discretionary immunity.
AB778, s. 23
16Section
23. 893.82 (6) of the statutes is amended to read:
AB778,9,217
893.82
(6) The
total amount recoverable by any person or entity for any
18damages, injuries or death in any civil action or civil proceeding against a state
19officer, employe or agent, or against a nonprofit corporation operating a museum
20under a lease agreement with the state historical society, including any such action
21or proceeding based on contribution or indemnification, shall not exceed $250,000.
22The amount recoverable by any person for loss of society and companionship in any
23civil action or civil proceeding for wrongful death brought against a state officer,
24employe or agent, or against a nonprofit corporation operating a museum under a
25lease agreement with the state historical society, shall not exceed the amount
1specified under s. 895.04 (4). No punitive damages may be allowed or recoverable
2in any such action.
AB778, s. 24
3Section
24. 893.82 (7) of the statutes is amended to read:
AB778,9,74
893.82
(7) With respect to a state officer, employe or agent described in sub. (2)
5(d)
3 1. c., this section applies to an event causing the injury, damage or death giving
6rise to an action against the state officer, employe or agent, which occurs before, on
7or after April 25, 1990.
AB778, s. 25
8Section
25. 895.45 of the statutes is created to read:
AB778,9,14
9895.45 Sovereign immunity waived only by express provision. The
10sovereign immunity of this state from suit is waived and consent to suit is given only
11in those cases where suit is expressly authorized by law or is authorized by the
12constitution to be brought against the state. No powers, functions or source of
13funding provided by law to any instrumentality of this state which is engaged in a
14governmental function constitute such a waiver.