The members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included article IV, section 15 in the Wisconsin Constitution. The phrase “treason, felony and breach of the peace" in that section was intended to mean all crimes. State v. Burke,
2002 WI App 291,
258 Wis. 2d 832,
653 N.W.2d 922,
02-2161.
IV,16
Privilege in debate.
Section 16
. No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate.
The sphere of legislative action protected under this section is broader than floor deliberations. A legislator may invoke the privilege under this section to immunize an aide from a subpoena to testify as to an investigation conducted by the aide at the legislator's request. State v. Beno,
116 Wis. 2d 122,
341 N.W.2d 668 (1984).
Not all activities of a legislator are protected by this section insofar as that activity is not an integral part of the deliberative and communicative processes. While legislative acts are protected by the speech and debate clause, political acts are not. Hiring, directing, and managing legislative caucus staff to oversee political campaigns is not protected. By its very nature, engaging in campaign activity is political. State v. Chvala,
2004 WI App 53,
271 Wis. 2d 115,
678 N.W.2d 880,
03-0442.
This section provides only immunity from prosecution based on use of communications, and not secrecy for communications of government officials and employees. Legislative Technical Services Bureau Custodian of Records v. State,
2004 WI 65,
272 Wis. 2d 208,
680 N.W.2d 792,
02-3063.
In a federal criminal prosecution against a state legislator there is no legislative privilege barring introduction of evidence of the legislator's legislative acts. United States v. Gillock,
445 U.S. 360 (1980).
IV,17
Enactment of laws.
Section 17
. [
As amended April 1977]
IV,17(1)(1) The style of all laws of the state shall be “The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:".
IV,17(2)
(2) No law shall be enacted except by bill. No law shall be in force until published.
IV,17(3)
(3) The legislature shall provide by law for the speedy publication of all laws. [
1975 J.R. 13, 1977 J.R. 7, vote April 1977]
The enacting clause is not required for each particular statute. According to legislative rule, when an act, or part of an act, creates a statute section number, that action indicates a legislative intent to make the section a part of the Wisconsin Statutes. Hence, because the legislature can intend that only a part of an act creates a statute, it does not follow that each statute must contain all the constituent parts of an act, namely, the enabling clause. State v. Weidman,
2007 WI App 258,
306 Wis. 2d 723,
743 N.W.2d 854,
06-2168.
In order for the legislature to create a law, the proposed law must be enacted by bill. Mere enactment of a bill to ratify a collective bargaining agreement and publication of it as an act was not sufficient to cause a provision of the collective bargaining agreement to become a law enacted under this section to create an exception to the public records law, s. 19.35. The act did not reference s. 19.35 or the contract provision that purportedly modified that law, did not purport to amend any published statutes, and did not contain any language that might give notice that the statute was being amended. As a result, the contract provision was not enacted by bill and remained a contractual provision and was not a “law" that is an exception to s. 19.35. Milwaukee Journal Sentinel v. DOA,
2009 WI 79,
319 Wis. 2d 439,
768 N.W.2d 700,
07-1160.
Under certain circumstances, incorporation by reference in a bill may be effective to work a change in the law. Cases recognizing incorporation by reference have generally dealt with incorporating the provisions of other published statutes and with the establishment of standards by reference, not incorporation of sources being given the force of law. The source being incorporated cannot be a law itself without having been enacted in a manner sufficient to satisfy this section. Milwaukee Journal Sentinel v. DOA,
2009 WI 79,
319 Wis. 2d 439,
768 N.W.2d 700,
07-1160.
In order for the legislature to create a law, the proposed law must be enacted by bill and be published. For some action to be sufficient to constitute publication, that action must be evaluated in light of the purpose publication seeks to achieve, i.e., was the public provided with sufficient notice of the law that is being enacted or amended. The publication requirement is meant to avoid the situation where the people have their rights sacrificed by the operation of laws that they are bound to know, but have no means of knowing. Milwaukee Journal Sentinel v. DOA,
2009 WI 79,
319 Wis. 2d 439,
768 N.W.2d 700,
07-1160.
This section vests the legislature with the constitutional power to “provide by law" for publication. The legislature has set the requirements for publication. If a court can intervene and prohibit the publication of an act, the court determines what shall be law and not the legislature. If the court does that, it does not in terms legislate but it invades the constitutional power of the legislature to declare what shall become law. This a court may not do. Ozanne v. Fitzgerald,
2011 WI 43,
334 Wis. 2d 70,
798 N.W.2d 436,
11-0613.
The state legislature cannot constitutionally adopt prospective federal legislation by reference. 63 Atty. Gen. 229.
Article VII, sec. 21 [17] requires full text publication of all general laws, and publication of an abstract or synopsis of such laws would not be sufficient. Methods other than newspaper publication, under 985.04, may be utilized to give public notice of general laws. 63 Atty. Gen. 346. See also s. 14.38 (10).
IV,18
Title of private bills. Section 18
. No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.
Chapter 418, laws of 1977, s. 923 (48) (a) is a private or local bill enacted unconstitutionally. Soo Line R. Co. v. Transportation Dept.,
101 Wis. 2d 64,
303 N.W.2d 626 (1981).
A specific prison siting provision in a budget act did not violate this section. The test for distinguishing a private or local law is established. Milwaukee Brewers v. DHSS,
130 Wis. 2d 79,
387 N.W.2d 254 (1986).
Challenged legislation, although general on its face, violated this section because the classification employed was not based on any substantial distinction between classes employed nor was it germane to purposes of the legislation. Brookfield v. Milwaukee Sewerage District,
144 Wis. 2d 896,
426 N.W.2d 591 (1988).
A bill has a single subject if all of its provisions are related to the same general purpose and are incident to that purpose. A title is insufficient only if it fails to reasonably suggest the purpose of the act or if a reading of the act with the full scope of the title in mind discloses a provision clearly outside the title. Brookfield v. Milwaukee Sewerage District,
171 Wis. 2d 400,
491 N.W.2d 484 (1992).
A 2-prong analysis for determining violations of this section is discussed. City of Oak Creek v. DNR,
185 Wis. 2d 424,
518 N.W.2d 276 (Ct. App. 1994).
Courts will not afford legislation challenged under this section a presumption of constitutionality unless the record shows that the legislature adequately considered the legislation in question. When a majority of the members of the Assembly co-sponsored a single-subject bill exempting YMCAs from property taxation before the measure was added to the budget bill and a majority of senators either co-sponsored the stand-alone bill or considered and voted for the proposal as members of the Joint Finance Committee, there was a presumption that the legislators who sponsored the bill or voted for it in committee adequately considered the proposal. Lake Country Racquet and Athletic Club, Inc. v. Morgan,
2006 WI App 25,
289 Wis. 2d 498,
710 N.W.2d 701,
04-3061.
IV,19
Origin of bills.
Section 19
. Any bill may originate in either house of the legislature, and a bill passed by one house may be amended by the other.
IV,20
Yeas and nays.
Section 20
. The yeas and nays of the members of either house on any question shall, at the request of one-sixth of those present, be entered on the journal.
The taking of yea and nay votes and the entry on the journals of the senate and assembly can be complied with by recording the total aye vote together with a listing of the names of those legislators who voted no, were absent or not voting, or were paired on the question. Discussing article V, section 10; article VIII, section 8; and article XII, section 1. 63 Atty. Gen. 346.
IV,21
Compensation of members. Section 21
. [
Amended Nov. 1867 and Nov. 1881; repealed April 1929; see 1865 J.R. 9, 1866 J.R. 3, 1867 c. 25, vote Nov. 1867; 1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1927 J.R. 57, 1929 J.R. 6, vote April 1929.]
IV,22
Powers of county boards. Section 22
. The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.
Milwaukee County may, by ordinance, provide credit in a retirement system for service of an employee with another municipality. 61 Atty. Gen. 177.
IV,23
Town and county government. Section 23
. [
As amended Nov. 1962, April 1969, and April 1972] The legislature shall establish but one system of town government, which shall be as nearly uniform as practicable; but the legislature may provide for the election at large once in every 4 years of a chief executive officer in any county with such powers of an administrative character as they may from time to time prescribe in accordance with this section and shall establish one or more systems of county government. [
1959 J.R. 68, 1961 J.R. 64, vote Nov. 1962; 1967 J.R. 49, 1969 J.R. 2, vote April 1969; 1969 J.R. 32, 1971 J.R. 13, vote April 1972]
Abolishing the office of town assessor in those counties adopting a countywide assessor system does not amount to the creation of a different system of town government. Thompson v. Kenosha County,
64 Wis. 2d 673,
221 N.W.2d 845 (1974).
Only enactments that unnecessarily interfere with the system's uniformity in a material respect are invalidated by this section. Classifications based upon population have generally been upheld. State ex rel. Wolf v. Town of Lisbon,
75 Wis. 2d 152,
248 N.W.2d 450 (1977).
IV,23a
Chief executive officer to approve or veto resolutions or ordinances; proceedings on veto. Section 23a
. [
As created Nov. 1962 and amended April 1969] Every resolution or ordinance passed by the county board in any county shall, before it becomes effective, be presented to the chief executive officer. If he approves, he shall sign it; if not, he shall return it with his objections, which objections shall be entered at large upon the journal and the board shall proceed to reconsider the matter. Appropriations may be approved in whole or in part by the chief executive officer and the part approved shall become law, and the part objected to shall be returned in the same manner as provided for in other resolutions or ordinances. If, after such reconsideration, two-thirds of the members-elect of the county board agree to pass the resolution or ordinance or the part of the resolution or ordinance objected to, it shall become effective on the date prescribed but not earlier than the date of passage following reconsideration. In all such cases, the votes of the members of the county board shall be determined by ayes and noes and the names of the members voting for or against the resolution or ordinance or the part thereof objected to shall be entered on the journal. If any resolution or ordinance is not returned by the chief executive officer to the county board at its first meeting occurring not less than 6 days, Sundays excepted, after it has been presented to him, it shall become effective unless the county board has recessed or adjourned for a period in excess of 60 days, in which case it shall not be effective without his approval. [
1959 J.R. 68, 1961 J.R. 64, vote Nov. 1962; 1967 J.R. 49, 1969 J.R. 2, vote April 1969]
A county executive's power to veto ordinances and resolutions extends to rezoning petitions that are in essence proposed amendments to the county zoning ordinance. The veto is subject to limited judicial review. Schmeling v. Phelps,
212 Wis. 2d 898,
569 N.W.2d 784 (Ct. App. 1997),
96-2661.
A county executive's partial-veto power is similar to the governor's power. 73 Atty. Gen. 92.
A county board may not amend a resolution, ordinance, or part thereof vetoed by the county executive, but can pass a separate substitute for submission to the executive. The board has a duty to promptly reconsider vetoed resolutions, ordinances, or parts thereof. 74 Atty. Gen. 73.
A county executive has the authority to reduce a line item budget appropriation from one specific dollar figure to another through the use of his or her partial veto. Constitutional amendments limiting the governor's veto authority in article V, section 10 (1) (c) impose no corresponding limit upon the veto authority of the county executive. OAG 6-14.
IV,24
Gambling. Section 24
. [
As amended April 1965, April 1973, April 1977, April 1987, April 1993, and April 1999]
IV,24(1)(1)
Except as provided in this section, the legislature may not authorize gambling in any form.
IV,24(2)
(2) Except as otherwise provided by law, the following activities do not constitute consideration as an element of gambling:
IV,24(2)(a)
(a) To listen to or watch a television or radio program.
IV,24(2)(b)
(b) To fill out a coupon or entry blank, whether or not proof of purchase is required.
IV,24(2)(c)
(c) To visit a mercantile establishment or other place without being required to make a purchase or pay an admittance fee.
IV,24(3)
(3)
The legislature may authorize the following bingo games licensed by the state, but all profits shall accrue to the licensed organization and no salaries, fees or profits may be paid to any other organization or person: bingo games operated by religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes.
All moneys received by the state that are attributable to bingo games shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to bingo games may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to bingo games shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to bingo games shall include any earnings on the moneys received by the state that are attributable to bingo games, but shall not include any moneys used for the regulation of, and enforcement of law relating to, bingo games.
IV,24(4)
(4) The legislature may authorize the following raffle games licensed by the state, but all profits shall accrue to the licensed local organization and no salaries, fees or profits may be paid to any other organization or person: raffle games operated by local religious, charitable, service, fraternal or veterans' organizations or those to which contributions are deductible for federal or state income tax purposes. The legislature shall limit the number of raffles conducted by any such organization.
IV,24(5)
(5) This section shall not prohibit pari-mutuel on-track betting as provided by law. The state may not own or operate any facility or enterprise for pari-mutuel betting, or lease any state-owned land to any other owner or operator for such purposes. All moneys received by the state that are attributable to pari-mutuel on-track betting shall be used for property tax relief for residents of this state as provided by law. The distribution of moneys that are attributable to pari-mutuel on-track betting may not vary based on the income or age of the person provided the property tax relief. The distribution of moneys that are attributable to pari-mutuel on-track betting shall not be subject to the uniformity requirement of section 1 of article VIII. In this subsection, the distribution of all moneys attributable to pari-mutuel on-track betting shall include any earnings on the moneys received by the state that are attributable to pari-mutuel on-track betting, but shall not include any moneys used for the regulation of, and enforcement of law relating to, pari-mutuel on-track betting.
IV,24(6)(a)(a) The legislature may authorize the creation of a lottery to be operated by the state as provided by law. The expenditure of public funds or of revenues derived from lottery operations to engage in promotional advertising of the Wisconsin state lottery is prohibited. Any advertising of the state lottery shall indicate the odds of a specific lottery ticket to be selected as the winning ticket for each prize amount offered. The net proceeds of the state lottery shall be deposited in the treasury of the state, to be used for property tax relief for residents of this state
as provided by law. The distribution of the net proceeds of the state lottery may not vary based on the income or age of the person provided the property tax relief. The distribution of the net proceeds of the state lottery shall not be subject to the uniformity requirement of section 1 of article VIII. In this paragraph, the distribution of the net proceeds of the state lottery shall include any earnings on the net proceeds of the state lottery.
IV,24(6)(b)
(b) The lottery authorized under par. (a) shall be an enterprise that entitles the player, by purchasing a ticket, to participate in a game of chance if: 1) the winning tickets are randomly predetermined and the player reveals preprinted numbers or symbols from which it can be immediately determined whether the ticket is a winning ticket entitling the player to win a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game; or 2) the ticket is evidence of the numbers or symbols selected by the player or, at the player's option, selected by a computer, and the player becomes entitled to a prize as prescribed in the features and procedures for the game, including an opportunity to win a prize in a secondary or subsequent chance drawing or game if some or all of the player's symbols or numbers are selected in a chance drawing or game, if the player's ticket is randomly selected by the computer at the time of purchase or if the ticket is selected in a chance drawing.
IV,24(6)(c)
(c) Notwithstanding the authorization of a state lottery under par. (a), the following games, or games simulating any of the following games, may not be conducted by the state as a lottery: 1) any game in which winners are selected based on the results of a race or sporting event; 2) any banking card game, including blackjack, baccarat or chemin de fer; 3) poker; 4) roulette; 5) craps or any other game that involves rolling dice; 6) keno; 7) bingo 21, bingo jack, bingolet or bingo craps; 8) any game of chance that is placed on a slot machine or any mechanical, electromechanical or electronic device that is generally available to be played at a gambling casino; 9) any game or device that is commonly known as a video game of chance or a video gaming machine or that is commonly considered to be a video gambling machine, unless such machine is a video device operated by the state in a game authorized under par. (a) to permit the sale of tickets through retail outlets under contract with the state and the device does not determine or indicate whether the player has won a prize, other than by verifying that the player's ticket or some or all of the player's symbols or numbers on the player's ticket have been selected in a chance drawing, or by verifying that the player's ticket has been randomly selected by a central system computer at the time of purchase; 10) any game that is similar to a game listed in this paragraph; or 11) any other game that is commonly considered to be a form of gambling and is not, or is not substantially similar to, a game conducted by the state under par. (a). No game conducted by the state under par. (a) may permit a player of the game to purchase a ticket, or to otherwise participate in the game, from a residence by using a computer, telephone or other form of electronic, telecommunication, video or technological aid. [
1963 J.R. 35, 1965 J.R. 2, vote April 1965; 1971 J.R. 31, 1973 J.R. 3, vote April 1973; 1975 J.R. 19, 1977 J.R. 6, vote April 1977; 1985 J.R. 36, 1987 J.R. 3, vote April 1987; 1985 J.R. 35, 1987 J.R. 4, vote April 1987; 1991 J.R. 27, 1993 J.R. 3, vote April 1993; 1997 J.R. 19, 1999 J.R. 2, vote April 1999]
The governor acted contrary to the public policy embodied in state law and therefore acted without authority by agreeing to an Indian gaming compact allowing the conduct of games prohibited by Art. IV, s. 24 and criminal statutes. Panzer v. Doyle,
2004 WI 52,
271 Wis. 2d 295,
680 N.W.2d 666,
03-0910.
The 1993 amendment to this section did not invalidate the original compacts between the state and Indian tribes. Because the original compacts contemplated extending and amending the scope of Indian gaming, the parties' right of renewal is constitutionally protected by the contract clauses of the United States and Wisconsin constitutions; and amendments to the original compacts that expand the scope of gaming are likewise constitutionally protected by the contract clauses of the Wisconsin and United States constitutions. Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107,
295 Wis. 2d 1,
719 N.W.2d 408,
03-0421.
The state lottery board may conduct any lottery game that complies with the ticket language in constitution and ch. 565. The term “lottery" in the constitution and statutes does not include any other forms of betting, playing or operation of gambling machines and devices and other forms of gambling defined in ch. 945. The legislature can statutorily authorize other non-lottery gambling including casino-type games. 79 Atty. Gen. 14.
Under the Indian Gaming Regulatory Act, 25 U.S.C.A. ss. 2701-2721, gambling activities as defined and prohibited in ch. 945, other than lotteries and pari-mutuel on-track wagering, are not permitted by any person within or without Indian country in State of Wisconsin. The prohibition includes all non-lottery gambling such as casino-type games, gambling machines and other devices. The legislature can statutorily authorize non-lottery gambling within Indian country. 79 Atty. Gen. 14.
Enactment of legislation that would propose to license and regulate certain “amusement devices" that are gambling machines would authorize “gambling" in violation of Art. IV, section 24. OAG 2-96.
The state's interest in preventing organized crime infiltration of a tribal bingo enterprise does not justify state regulation in light of compelling federal and tribal interest supporting it. California v. Cabazon Band of Indians,
480 U.S. 202 (1987).
Wisconsin cannot have it both ways. The state must entirely prohibit poker within its borders if it wants to prevent any Indian tribe from offering poker on the tribe's sovereign lands. When the state decriminalized hosting poker for taverns, it could no longer deny that game to tribes as a matter of federal law. Wisconsin v. Ho-Chunk Nation,
784 F.3d 1076 (2015).
When voters authorized a state-operated “lottery" they removed any remaining prohibition against state-operated games, schemes, or plans involving prize, chance and consideration. Lac du Flambeau Indians v. State of Wisconsin,
770 F. Supp. 480 (1991).
Panzer v. Doyle: Wisconsin Constitutional Law Deals the Governor a New Hand. Wawrzyn. 89 MLR. 221 (2005).
Gambling and the law: The Wisconsin experience, 1848-1980. Farnsley. 1980 WLR 811.
IV,25
Stationery and printing. Section 25
. The legislature shall provide by law that all stationery required for the use of the state, and all printing authorized and required by them to be done for their use, or for the state, shall be let by contract to the lowest bidder, but the legislature may establish a maximum price; no member of the legislature or other state officer shall be interested, either directly or indirectly, in any such contract.
The legality of appointing a nominee to the board of regents when that person is a major stockholder in a printing company that is under contract to the state is discussed. 60 Atty. Gen. 172.
IV,26
Extra compensation; salary change. Section 26
. [
As amended April 1956, April 1967, April 1974, April 1977, and April 1992]
IV,26(1)(1)
The legislature may not grant any extra compensation to a public officer, agent, servant or contractor after the services have been rendered or the contract has been entered into.
IV,26(2)
(2) Except as provided in this subsection, the compensation of a public officer may not be increased or diminished during the term of office:
IV,26(2)(a)
(a) When any increase or decrease in the compensation of justices of the supreme court or judges of any court of record becomes effective as to any such justice or judge, it shall be effective from such date as to every such justice or judge.
IV,26(2)(b)
(b) Any increase in the compensation of members of the legislature shall take effect, for all senators and representatives to the assembly, after the next general election beginning with the new assembly term.
IV,26(3)
(3) Subsection (1) shall not apply to increased benefits for persons who have been or shall be granted benefits of any kind under a retirement system when such increased benefits are provided by a legislative act passed on a call of ayes and noes by a
three-fourths vote of all the members elected to both houses of the legislature and such act provides for sufficient state funds to cover the costs of the increased benefits. [
1953 J.R. 41, 1955 J.R. 17, vote April 1956; 1965 J.R. 96, 1967 J.R. 17, vote April 1967; 1971 J.R. 12, 1973 J.R. 15, vote April 1974; 1975 J.R. 13, 1977 J.R. 7, vote April 1977; 1989 J.R. 55, 1991 J.R. 13, vote April 1992]
This section does not prohibit a retroactive wage adjustment negotiated by collective bargaining and applied only to a period when employees were working without a contract. DOA v. WERC,
90 Wis. 2d 426,
280 N.W.2d 150 (1979).
The sub. (3) requirement of a three-fourths vote of all members elected to the legislature permits passage of a bill increasing benefits under a retirement system when the bill has received the votes of three-fourths of the entire elected membership of the legislature. Wisconsin Professional Police Ass'n, Inc. v. Lightbourn,
2001 WI 59,
243 Wis. 2d 512,
627 N.W.2d 807,
99-3297.
An amendment authorizing increased benefits to all retired employees would constitute a legislative declaration that such expenditures would be for a public purpose. 58 Atty. Gen. 101.
University salaries may be increased only from the date the regents adopt the budget and are subject to subsequent funding by the legislature. 60 Atty. Gen. 487.
IV,27
Suits against state.
Section 27
. The legislature shall direct by law in what manner and in what courts suits may be brought against the state.
An action will not lie against the secretary of revenue for a refund of a sales tax deposit as that is an action against the state and it was not alleged that the secretary acted outside his authority. Appel v. Halverson,
50 Wis. 2d 230,
184 N.W.2d 99.
Since the mandate of this section is to the legislature, the supreme court cannot judicially intervene to change the doctrine of procedural immunity and thereby correct the anomaly that arises as a result of the constitutional restriction, absent legislative implementation, of tort suits against the state. Cords v. State,
62 Wis. 2d 42,
214 N.W.2d 405.
A state agency or officer may not waive the state's sovereign immunity without specific authorization, nor will principles of estoppel be applied to deprive the state of its sovereign rights. Lister v. Bd. of Regents,
72 Wis. 2d 282,
240 N.W.2d 610.
Although courts have common law jurisdiction to enforce arbitration awards generally, they cannot enforce awards against the state absent express legislative authorization. Teaching Assistants Assoc. v. UW-Madison,
96 Wis. 2d 492,
292 N.W.2d 657 (Ct. App. 1980).
The doctrine of sovereign immunity cannot bar an action for just compensation based on a taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation. Zinn v. State,
112 Wis. 2d 417,
334 N.W.2d 67 (1983).
A waiver of sovereign immunity in the creation of a state agency is discussed. Busse v. Dane County Regional Planning Comm.,
181 Wis. 2d 527,
510 N.W.2d 136 (Ct. App. 1993).
A specific performance action is a suit under this section. The legislature has not consented to be sued for specific performance, and such an action is not permitted against the state. Erickson Oil Products, Inc. v. DOT,
184 Wis. 2d 36,
516 N.W.2d 755 (Ct. App. 1994).
The state waives its sovereign immunity when it creates an agency as an independent going concern. Bahr v. State Investment Bd.,
186 Wis. 2d 379,
521 N.W.2d 152 (Ct. App. 1994).
A county's appeal of an ex parte order that it was responsible for court costs incurred by the state public defender for an indigent defendant was not an action “brought" against the state. The public defender could not assert that the appeal was barred by sovereign immunity. Polk County v. State Public Defender,
188 Wis. 2d 665,
524 N.W.2d 389 (1994).
Although the general rule is that waivers of sovereign immunity must be read narrowly, when a statute provides a clear, express, and broadly worded consent to sue, the rule of narrow construction will not be applied anew to every type of claim brought under the statute. German v. DOT,
223 Wis. 2d 525,
589 N.W.2d 651 (Ct. App. 1998),
98-0250.
When the state creates an entity independent from the state, which acts as neither its arm nor its agent, such entity falls outside the protection of sovereign immunity. The determination that a state entity is an independent going concern is a narrow exception to sovereign immunity. In determining whether a state entity is an independent going concern, courts should consider both the character and breadth of the statutory powers granted to the entity. Mayhugh v. State,
2015 WI 77,
364 Wis. 2d 208,
867 N.W.2d 754,
13-1023.
Section 301.04, which permits the Department of Corrections (DOC) to sue and be sued, is not an express waiver of the DOC's tort immunity but rather addresses the DOC's capacity to be sued. Mayhugh v. State,
2015 WI 77,
364 Wis. 2d 208,
867 N.W.2d 754,
13-1023.
