AB778: Bill Text

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 Section 1. 16.865 (9) of the statutes is created to read:

AB778,4,4 16.865 (9) Have the authority to disclose individual medical records obtained under s. 40.07 (2) to the department of workforce development for any worker's compensation proceeding under ch. 102.

AB778, s. 2 Section 2. 25.15 (1) of the statutes is amended to read:

AB778,4,11 25.15 (1) Purpose. The purpose of the board is to provide professional investment management of trusts, operating funds and capital funds established by law. It is the intent of the legislature that the The board be an independent agency of the state which is to shall manage money and property for the state, its agencies and trust funds. The goal of board management shall be towards accomplishing the purpose of each trust or fund.

AB778, s. 3 Section 3. 25.17 (intro.) of the statutes is amended to read:

AB778,4,16 25.17 Powers and duties of board. (intro.) The "State of Wisconsin Investment Board" shall be a body corporate with power to sue and be sued in said name. The investment board shall have a seal with the words, "State of Wisconsin Investment Board". Subject to s. 25.183, the board shall:

AB778, s. 4 Section 4. 25.18 (1) (e) of the statutes is amended to read:

AB778,5,2 25.18 (1) (e) Take such action as may be necessary to make investments in mortgage loans or in the purchase of interests in real estate in any other state or in Canada, including but not excluding because of enumeration, qualifying to do business, filing reports, paying franchise, license or other fees and taxes, designating agents, and designating an office and subjecting itself to suit.

AB778, s. 5 Section 5. 36.07 (1) of the statutes is amended to read:

AB778,5,6 36.07 (1) (title) Corporate status and title Title. The board and their successors in office shall constitute a body corporate by shall bear the name of "Board of Regents of the University of Wisconsin System".

AB778, s. 6 Section 6. 40.07 (1) (intro.) of the statutes is renumbered 40.07 (1) and amended to read:

AB778,5,11 40.07 (1) Notwithstanding any other statutory provision, individual personal information in the records of the department is not a public record and shall not be disclosed, unless: except as provided in this section.

AB778, s. 7 Section 7. 40.07 (1) (a) to (d) of the statutes are renumbered 40.07 (1m) (a) to (d).

AB778, s. 8 Section 8. 40.07 (1m) (intro.) of the statutes is created to read:

AB778,5,17 40.07 (1m) (intro.) Individual personal information in the records of the department, other than individual medical records identified in sub. (2), may be disclosed by the department only under one of the following conditions:

AB778, s. 9 Section 9. 40.07 (2) of the statutes is renumbered 40.07 (2) (intro.) and amended to read:

AB778,5,22 40.07 (2) (intro.) Notwithstanding sub. (1) medical Individual medical records, as defined by rule, may be disclosed by the department only when under one of the following conditions:

AB778,5,24 (a) When a disability application or health insurance claim denial is appealed or under s. 40.03 (1) (j), (6) (i), (7) (f) or (8) (f) or 40.65 (2) (b) 3.

AB778,6,4 (b) 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 but medical information.

AB778,6,7 (2m) Individual medical records, as defined by rule, gathered for any one of the benefit plans established under this chapter may be used by any other benefit plan established under this chapter.

AB778, s. 10 Section 10. 40.07 (2) (c) of the statutes is created to read:

AB778,6,16 40.07 (2) (c) 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 under subch. V 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 under s. 16.865 (4). Any attached documentation submitted to the department pursuant to a specific application for benefits related to a disability for which the employer is requested by the department to make a certification may also be disclosed to the employer under this paragraph.

AB778, s. 11 Section 11. 40.07 (2) (d) of the statutes is created to read:

AB778,6,23 40.07 (2) (d) Upon written request, to a participant 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 authorized representative's access to the individual medical records is not otherwise restricted by law. The department may only disclose individual medical records under this paragraph that are specifically identified in the written request.

AB778, s. 12 Section 12. 44.01 (1) of the statutes is amended to read:

AB778,7,4 44.01 (1) The historical society shall constitute a body politic and corporate by bear the name of "The State Historical Society of Wisconsin," and shall possess all the powers necessary to accomplish the objects and perform the duties prescribed by law. The historical society shall be an official agency and the trustee of the state.

AB778, s. 13 Section 13. 45.356 (4) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

AB778,7,13 45.356 (4) The department may execute necessary instruments, collect interest and principal, compromise indebtedness, sue and be sued, post bonds and write off indebtedness that it considers uncollectible. If a loan under this section is secured by a real estate mortgage, the department may exercise the rights of owners and mortgagees generally and the rights and powers set forth in s. 45.72. The department shall pay all interest and principal repaid on the loan into the veterans trust fund.

AB778, s. 14 Section 14. 45.72 (4) of the statutes is repealed.

AB778, s. 15 Section 15. 46.017 of the statutes is repealed.

AB778, s. 16 Section 16. 101.02 (2) of the statutes is repealed.

AB778, s. 17 Section 17. 195.03 (28) of the statutes is amended to read:

AB778,7,20 195.03 (28) Title. The office may sue and be sued in that name, and may confer with or participate in any proceedings before any regulatory agency of any other state or of the federal government.

AB778, s. 18 Section 18. 196.02 (12) of the statutes is amended to read:

AB778,7,25 196.02 (12) (title) Sue; be sued Participation in proceedings. The commission may sue and be sued in its own name, and may confer with or participate in any proceedings before any regulatory agency of any other state or of the federal government.

AB778, s. 19 Section 19. 301.04 of the statutes is repealed.

AB778, s. 20 Section 20. 775.01 of the statutes is amended to read:

AB778,8,10 775.01 Actions against state; bond. Upon the refusal of the legislature to allow a claim against the state, if suit is authorized to be brought against the state, the claimant may commence an action against the state. The action may be commenced by service as provided in s. 801.11 (3) and by filing with the clerk of court a bond, not exceeding $1,000, with 2 or more sureties, to be approved by the attorney general, to the effect that the claimant will indemnify the state against all costs that may accrue in such action and pay to the clerk of court all costs, in case the claimant fails to obtain judgment against the state.

AB778, s. 21 Section 21. 893.82 (2) (d) of the statutes is renumbered 893.82 (2) (d) 1.

AB778, s. 22 Section 22. 893.82 (2) (d) 2. of the statutes is created to read:

AB778,8,15 893.82 (2) (d) 2. "State agent" does not include an independent contractor, even if the independent contractor is entitled to the common law defense of official or discretionary immunity.

AB778, s. 23 Section 23. 893.82 (6) of the statutes is amended to read:

AB778,9,2 893.82 (6) The total amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer, employe or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, including any such action or proceeding based on contribution or indemnification, shall not exceed $250,000. The amount recoverable by any person for loss of society and companionship in any civil action or civil proceeding for wrongful death brought against a state officer, employe or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, shall not exceed the amount specified under s. 895.04 (4). No punitive damages may be allowed or recoverable in any such action.

AB778, s. 24 Section 24. 893.82 (7) of the statutes is amended to read:

AB778,9,7 893.82 (7) With respect to a state officer, employe or agent described in sub. (2) (d) 3 1. c., this section applies to an event causing the injury, damage or death giving rise to an action against the state officer, employe or agent, which occurs before, on or after April 25, 1990.

AB778, s. 25 Section 25. 895.45 of the statutes is created to read:

AB778,9,14 895.45 Sovereign immunity waived only by express provision. The sovereign immunity of this state from suit is waived and consent to suit is given only in those cases where suit is expressly authorized by law or is authorized by the constitution to be brought against the state. No powers, functions or source of funding provided by law to any instrumentality of this state which is engaged in a governmental function constitute such a waiver.

AB778, s. 26 Section 26. 895.46 (1) (at) of the statutes is created to read:

AB778,9,25 895.46 (1) (at) Any public officer, employe or agent who is required to travel as part of his or her official duties or within the scope of his or her agency, shall be considered, for purposes of this section, to be carrying out his or her official duties and within the scope of his or her agency or employment while traveling on official business, except when he or she deviates from the trip for a private or personal purpose. Any act reasonably necessary for or incidental to living shall not be regarded as a deviation for a private or personal purpose. A person's travel to pick up or return an employer-owned motor vehicle used in official travel shall be considered, for purposes of this section, to be carrying out the person's official duties and within the scope of his or agency or employment.

AB778, s. 27 Section 27. Nonstatutory provisions.

AB778,10,5 (1) Legislative intent; sovereign immunity. Section 895.45 of the statutes, as created by this act, is enacted pursuant to the authority of the legislature under article IV, section 27, of the constitution and is intended as a restatement of existing law.

AB778, s. 28 Section 28. Initial applicability.

AB778,10,9 (1) Actions against state officials, employes or agents. The treatment of section 895.46 (1) (at) of the statutes first applies to actions commenced on the effective date of this subsection.

AB778,10,10 (End)