819 N.W.2d 360
Wis. Ct. App.2012Background
- Scocos returned to state service in 2009 as Secretary of the Wisconsin Department of Veterans Affairs after military service in Iraq.
- Shortly after his return, he was removed by a vote of the Department of Veterans Affairs Board on November 24, 2009.
- Scocos sued the Department and board members alleging violations of Wis. Stat. § 321.64(2) and USERRA rights.
- The State moved to dismiss these claims based on sovereign immunity; the circuit court denied dismissal as to § 321.64(2) and USERRA claims.
- The issue on appeal is whether the legislature clearly and expressly waived sovereign immunity for § 321.64(2) and for USERRA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver for § 321.64(2) discharge rights | Statute's subsections (1), (2), and (6) show clear waiver for restoration rights including (2). | Sovereign immunity not waived for (2) discharge rights unless explicitly stated. | Waiver exists; § 321.64(1)-(2)-(6) express consent to suit against the State for discharge rights under (2). |
| Waiver for USERRA claims under § 321.64(2) | “all federal laws” in subsection (2) includes USERRA. | Absence of explicit USERRA mention renders waiver unclear. | Waiver for USERRA claims via broad “all federal laws” language; Congress need not be named expressly. |
| Statutory construction of ‘restoration’ and linkage to (2) | Subsection (6) unifies restoration rights with (1) and (2). | Restoration under (6) is limited to classified employees via different provisions; (2) rights do not apply to unclassified. | Unclassified employees are protected by subsection (2); restoration language is read to reflect broader scope. |
Key Cases Cited
- State v. P.G. Miron Construction Co., 181 Wis. 2d 1045 (1994) (legislative consent to suit must be clear and express)
- Lister v. Board of Regents, 72 Wis. 2d 282 (1976) (state sovereign immunity requires clear consent to suit)
- Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (2004) (statutory interpretation principles and Kalal framework)
- German v. DOT, 235 Wis.2d 576 (2000) (sovereign immunity and waiver considerations in Wisconsin)
- Kurtz v. City of Waukesha, 91 Wis.2d 103 (1979) (sovereign immunity and waiver analysis)
- State ex rel. DPI v. DILHR, 68 Wis.2d 677 (1975) (waiver and scope of statutory permissions)
- Butzlaff v. DHFS, 223 Wis.2d 673 (1998) (appellate consideration of sovereign immunity and waivers)