Grall v. Bugher

Kimberly John Steven Cridelich and Cridelich, Grall, situated, on similarly behalf of themselves and all others ntiffs-Appellants,† Plai Department Mark Director of the Wisconsin Bugher, of Revenue, on behalf of themselves and all others

similarly Defendants-Respondents. situated, Appeals

Court of No. 92-2855. Submitted on September briefs 16, 1993. 1993. Decided December

(Also 336.) reported in 511 N.W.2d †Petition review filed.

For the the cause was sub- plaintiffs-appellants mitted on the briefs of Charles Barnhill and Sarah E. Davis, Miner, Siskind Barnhill & Galland Madison.

For the defendants-respondents the cause was submitted on the brief of James E. Doyle, attorney Wilcox, Gerald S. general, assistant attorney general. Eich,

Before C.J., Dykman JJ. Sundby, EICH, C.J. John Grail and several other pur- chasers new automobiles from Wisconsin dealers sued the Wisconsin Department of Revenue, claiming the "manufacturers' rebates" received in con- nection with their purchases should not have been subject the five percent state sales tax. They argued taxing rebated amount violated their rights under the state and federal constitutions, and they sought of an recovery amount to five equal percent the rebates, together with declaratory and injunctive relief under 42 U.S.C. 1983. §

The department moved to dismiss on grounds that the plaintiffs had failed to exhaust their administra- tive remedies and that any sec. 1983 claims were barred principles of sovereign immunity.1 The trial court granted motion, and Grail and the others appeal the order their dismissing complaint. The dispositive issue is whether the department immune from suit, and we conclude that it is.2 We therefore affirm the judgment.

1 department that, also any contended to the extent the state claims were asserted against the department director personally, they were barred for comply failure to with the requirements notice-of-claim 893.82, of sec. Stats. Because plaintiffs conceded that their action was depart only, ment that issue is not before appeal. us on this sought Plaintiffs monetary both damages depart from the ment in the form of a refund of the additional paid sales taxes and a department's declaration that taxing scheme, as it applies to automobile rebates, manufacturers' was unconstitu tional and void.

Sovereign immunity, course, apply does not to actions for injunctive relief, Harkness v. Palmyra-Eagle Dist., School (Ct. Wis. 2d App. 1990), and to the extent plaintiffs that relief, seek such traditional exhaus- tion-of-remedies principles However, would apply. plain it is plaintiffs' from arguments on the exhaustion issue that heart of their action obtaining monetary is They relief. claim any remedy administrative wholly would be inadequate In recent auto- dispute. years,

The facts are not of sales variety have developed mobile manufacturers consum- reducing price paid by incentive programs automobile models: "manufacturers' ers for certain reductions," the manufacturers sell models to whereby so can the sav- pass dealers at lower the dealers prices customers; "holdbacks," where ings along of the paid by manufacturers return a portion price sold; "dealer incen- dealers when the automobile the manufacturers remit a certain tives," simply whére sold; to the dealer for each car money amount of rebates," where the manufacturer "manufacturers' remits the the sales to the price purchaser reduces Each results in the same program rebate to the dealer.3 automobile, for the as the consumer purchase price the reduction is the reduced no matter how pays price between the manufacturer and dealer. implemented money pro- they cannot recover the in administrative because state, ceedings. They example: dispute "There is no that the incomplete current administrative scheme is now in the most profound provide [because] sense it cannot the . . . refunds (first added). appellants emphasis original; second Con- seek" position, they argue they sistent with that are entitled to day monetary their in court on their claim.

We thus see no need to address the exhaustion issue. Our immunity sovereign dispositive decision on the defense is appeal precludes recovering because it — money damages overriding concede claim which is their — from the as an arm of the state. — Unfortunately, par the nature of the various schemes — ticularly here, the one at issue the manufacturers' rebate by parties. appeal not described further the The record on con only plaintiffs' complaint, tains the from which the above taken, descriptions are and the trial court's memorandum decision.

166 Department pro- of Revenue the taxes various grams differently, example, however. For if a customer purchases price only a car a retail $15,000 with purchase pursuant $14,000, and the is made to a "man- reduction," ufacturer's a or a "holdback" "dealer applied price. incentive," the tax is sales reduced purchase Where, however, the is made under a manu- program, applied facturer's rebate the tax is to the full price, though $15,000 outlay even the customer's actual cash purchased is the if same as the car were under price one the other reduction schemes. plaintiffs purchased

Grail and other their program, automobiles rebate under manufacturer's applied full, tax sales was to the undiscounted price undisputed of the vehicles. Because the are facts application case turns on the law to those Riley facts, Doe, our review is de novo. v. Wis. 2d (Ct. 1989). 83, App. immunity Sovereign in Wisconsin derives from pro- IV, constitution, article section 27 which legislature that: "The vides shall direct law in what brought and in manner what courts suits be against Thus, the state."

it is an principle established of law no action against will lie sovereign state in the absence of express legislative permission. It is further estab lished that when a sovereign permits itself to be sued upon conditions, certain [with compliance those jurisdictional conditions] is a matter, and a suit sovereign may not be maintained unless such conditions are complied with. State ex rel. Martin Reis, 683, 685, 284 Wis. N.W. (1939). prop- immunity procedural and, if in nature

The jurisdiction personal erly "deprives the court of raised, Voight, 337, 341,286 93 Wis. 2d state." Fiala v. over the (1980). the relief The test is whether 824, 827 N.W.2d require payment sought funds; so, if from state would Regents Univ. Lister v. Board is barred. the action Sys., Wis. 72 Wis. (1976). question plaintiffs are seek- no here that There is argue They ing that the state. recover funds from asserting immunity apply, that a however, not should Supreme case, McKesson Court recent United States Beverages Corp. Tobacco, & v. Division Alcoholic (1990), compels of the trial court's reversal U.S. They action is barred. assert that the determination that a state states a "rule of federal law" that McKesson unconstitutionally taxes, collected refund must sovereign immu- rule "overrides the State's that that nity supremacy defense" under the mandate Constitution. of the United States clause products preference for certain McKesson, a tax commonly grown in Florida and used in alcoholic bev- liquor erages challenged a distributor of was grown crops The other states. manufactured Supreme scheme, Court invalidated the tax Florida unconstitutionally holding it discriminated preference because of its interstate commerce Although products. the Florida for distributors of local enjoined giving pref- the state from effect to such court to the future, erences in the it declined to order refunds Supreme plaintiff. reversed, Court United States holding prospective providing alone, relief without taxpayer meaningful opportunity to "a secure postpayment paid pursuant relief for taxes ... to a tax ultimately unconstitutional," scheme found violated taxpayer's process rights. McKesson, due 496 U.S. at 22.

As Grail and the other note, the "control- ling principle" federal of McKesson is that, because the deprivation prop- "exaction of a tax constitutes a of erty," requires provide due that "the State . . . taxpayers only opportunity challenge not with, fair to obligation, . . . their tax also a but 'clear certain remedy,' any for tax collection." Id. at 36, erroneous... (citation omitted). The trial court ruled that McKes- inapplicable son was because Grail and the other — — purchasers unlike the distributor in McKesson parties paid not the were who the sales taxes to the "taxpayers." agree. are state; thus, not We 77.51(21), "taxpayer" Section Stats., defines a as person required pay, collect, "the to for or account who directly imposed by is otherwise interested the taxes 77.52(1), subchapter." Stats., this Under the sec. sales upon imposed privilege "is tax all retailers" for "the of selling... personal property... at retail in this state." gross receipts a tax on It is "the sale ...." Id. added). (emphasis 77.52(3), point Stats., does,

While sec. as "collect[]" out, authorize the retailer the sales tax brings consumer, from the we do not believe that fact statutory "taxpayer." within them of definition language imposing addition to the noted above the tax on "the other of retailer," sections tax sales statute speak 77.52(lm), example, in similar terms. Section for applies receipts states that the sales tax also "to the operators vending [military] machines located on 77.52(6) (emphasis added); provides installations" sec. "[a] liability retailer relieved from sales tax" added); (emphasis for certain worthless accounts 77.52(18) any [i]f any sec. states that" retailer liable for the busi- this subchapter" tax under quits

amount of to withhold are required her successors his or ness, business price the purchase funds from sufficient due (emphasis be taxes as such sales to pay added).4 Harvestore, Inc. v. Dairyland note

We also (Ct. 56, 59 805-06, 447 N.W.2d DOR, 151 Wis. paid that had two 1989), companies held that we App. of equipment on the purchase to a retailer taxes sales from the or offset a refund seek standing lacked retailer, not Revenue because Department for paying was responsible companies, plaintiff 77.52(1), Stats.5 under sec. taxes to the directly persons "otherwise they are argue that Plaintiffs 77.52, Stats., and as imposed by sec. in the taxes interested" quoted "taxpayer" above. the definition of come within such throughout the section language disagree. Given the Again, we selling . . . privilege of retailers "for the imposing the tax on sellers making them —the property" in Wisconsin personal thereof, agree with the payment we for the —liable in the tax must be directly interested" person that a "otherwise tax of the actual standing in the shoes limited to one read as — — receiver, executor, trustee, such as payer the retailer is consistent assignee. interpretation Such an administrator 77.59(6), Stats., providing appli for provisions in sec. with the deficiency or department's for redetermination cations person by taxpayer, "the or other refund determinations directly interested...." provision in authority position their cite as for Plaintiffs "using or other 77.53(2), Stats., persons that which states sec. purchased tangible personal property . . . consuming . . . wise imposed by this section." for the tax [are] from a retailer liable tax, however, the use not the sales section, has to do with That appeal. subject of this tax that is the agree therefore with We the trial court that compel McKesson does not of trial reversal court's plaintiffs' holding by that the refund claim is barred principles sovereign immunity. inappli- of case plaintiffs, cable because these unlike in the distributor "taxpayers" meaning McKesson, are not the within the of the state sales tax law.

Finally, plaintiffs argue that the Wisconsin immunity by consenting Constitution itself "waives" to They point suits such as this. VIII, to article section provides [t]he which that" rule of taxation uni- shall be argue language form,"6 and this must be considered to consent be sued for refund of taxes that uniformly imposed. are not arguing, plaintiffs place principal

In so reliance on (1983), State, Zinn v. 112 Wis. 2d 417, 334 N.W.2d 67 Supreme where the Wisconsin con- Court held that the provision "just providing compensation" stitutional for taking property self-executing pro- for the was — plaintiff vided for an avenue that case who by claimed that her real been estate had taken — compensation state without sue the state. The recognized light just compen- Zinn court sation I, clause in article 13 of constitution, section legislature separately there was no need for the con- improper taking sent statute to a suit an property. Zinn, 435-36, Wis. at at 75-76. purchasers that, Grail and other assert because some

purchasers only are automobiles at discount taxed on the price, they paid discounted while the price, tax on undiscounted being uniformly are not taxed. sovereign's immu the established that

It is well language: only by express nity can be waived from suit may implied: not be it must to suit state's consent "the express.'" Co., Constr. G. Miron State v. P. be 'clear and (Ct. App. 175 Wis. 1993). "uniformity the clause" not consider And we do immunity department's from this to have waived remotely nothing clause even in that lawsuit. There is authorizing the circum the state under suits presented aid the Nor does Zinn here. stances express provision plaintiffs' terms of the cause, for the compensation: provided "The case in that involved public property person use be taken for of no shall just compensation therefor." WISCONSIN without that the conclude, therefore, I, art. sec. 13. We Const., plaintiffs properly 42 U.S.C. court dismissed trial grounds. sovereign immunity § 1983 claims on By Court.—Order affirmed. (dissenting). By interposing

SUNDBY, J. immunity, secretary sovereign defense of analysis, purposes concedes that for complain plaintiffs is unconstitu- tax of which sales sovereign immunity fundamental tional. It is alleged defense to a claim based on an violation not a rights by agency a state constitutional Against officer. 1 Shepards, Actions State Civil (2d 1992). § 1.20, at 70 ed. "Consti- Local GOVERNMENT by sovereign claims that are not barred tutional immunity include those based on both the federal constitutions, as of the consti- and state such violations rights equal protection tutional to . . . due State, Burdette v. of the laws." Id. at 70-71. See also (Mich. 1988) App. (governmental 421 185 Ct. immunity alleging not available in state court action rights); process state violated due Tucker v. (Miss. 1990) County, (sovereign Hinds 558 So. 2d 869 immunity county utility not available to and its electric alleging process rights in action violation of due in dis- connecting power); electrical and Grinnell v. 435 State, (N.H. 1981) (state A.2d 523 not immune from suit asserting provision requiring that constitutional com- pulsory equal retirement violated due and amendment). protection clauses of fourteenth difficulty secretary's position with the is that plaintiffs' against he assumes that because action is capacity, against him in his official the action is state. That is not the law. Berlowitz v. 252 Roach, (1947) (quoting 256, Wis. 30 N.W.2d 258 Cen- tury Distilling (1940)), Co. v. Defenbach, 56, P.2d the court said:

"It generally by courts, is held both state federal, and that where the action taken or officer, any alleged threatened is to be in viola- complainant's rights, tion of the either because of a misapplication by misconstruction the officer of a statute, or alleged on account of the unconstitution- ality statute, the action is not in fact one state, against but is rather the individ- power authority ual because his lack of to do things complained [Citations omitted.] of." following The Berlowitz court also cited the with approval: can

"There be no doubt the circuit court jurisdiction has in the power sense it has enjoin enforcing state officials from a statute which because in invalid contravention of the constitu- tion. An legislature unconstitutional act of the is not imposes penalty, no rights, It confers no

a law. legal operative, is not protection, no affords existence." contemplation has no (quoting Co. John F. Jelke at 257 64, at 30 N.W.2d Id. (citations (1932) N.W. Beck, Wis. omitted)). plaintiffs secretary argues, are however, that

The including injunctive any relief, relief, to not entitled reme their administrative exhausted until have Hogan 27, 1, 471 N.W.2d Musolf, Wis. dies. (1992), (1991), denied, 112 S. Ct. 867 cert. 216, 225-26 plaintiffs "[W]e chal who held: conclude the court taxing lenge the state's statutes the administration remedies before their administrative must exhaust commencing in the courts this their sec. 1983 claims emphasized, the state however, that court state." The adequate, complete," "plain, id. and must be remedies to "it would not be futile 223; at at 471 N.W.2d 224. 22, 471 Id. at N.W.2d at these remedies." exhaust 77.59(4), does not Stats., It is obvious that sec. adequate taxpayer "plain, provide and com- with a remedy. procedure plete" not That administrative similarly plaintiffs others to these even available permit not due clause does The situated. taxpayer paid an unconsti- make the who has state to person, dependent in this tax on some other tutional dealer, to raise the constitutional case a motor vehicle for refund. and file a claim issue 227.41(1), secretary argues Stats.,1 that sec. adequate, plaintiffs plain, provides a and com- with 227.41(1), Stats., provides: Section petition by any person, Any agency may, issue a on interested any person, declaratory ruling respect applicability with to the to property, any Full or state of facts of rule or statute enforced it. hearing parties. A opportunity for shall afforded to interested be remedy, píete which it would not be futile for them to 227.41(1) empowers agency exhaust. Section a state to declaratory ruling upon petition. issue a Section 227.41(1) provide does not these with a rem- edy "plain, adequate, complete" that is for several department capacity First, reasons. lacks the to determine whether a statute is unconstitutional procedure whether the lack of an administrative denies taxpayer procedural process.2 due Second, power grant plaintiffs prospec- has no power, tive relief and no at least that statute, under remedy" recovery fashion a "clear and certain upon taxpayers. unconstitutional tax these Third, the secretary already signalled has that he will raise the sovereign immunity defense of even if the tax is uncon- 227.41(1) stitutional. Resort to sec. would therefore be Finally, discretionary; depart- futile. sec. 227.41 is grant petition declaratory ruling. ment need not for a Supreme recently The United States Court has thoroughly explored the doctrine of exhaustion of McCarthy Madigan, administrative remedies. v. 503 (1992). McCarthy —, U.S. 112 S. 1081 Ct. The Court identified three broad sets of circumstances in which weigh heavily against the interests of the individual declaratory ruling agency parties shall bind the and all to the proceedings alleged, on the statement facts is unless it altered or ruling subject aside set court. A shall be to the review circuit provided court in the manner the review administrative decisions. 2 Hogan The court department held that the and the Tax Appeals Commission could unconstitutional, declare statute only Supreme provided but where the United States Court bind ing precedent in setting. Hogan a similar factual Musolf, v. 163 216, (1991), denied, Wis. 471 N.W.2d cert. 112 S. (1992). Ct. 867 McCarthy, requiring exhaustion. administrative may cause undue First, exhaustion Ct. at 1087-88. S. subsequent prejudice of a court assertion delay by agency. I not believe an do because of action weight Second, is of much here. that circumstance remedy may inadequate be administrative an " agency as to the was of some doubt whether 'because (quot- grant empowered effective relief.'" Id. at 1088 to (1973)). Berryhill, ing 575 n.14 U.S. Gibson competence "lack[] agency to institutional An particular type presented, such as the of issue resolve constitutionality of a statute." Id. Section 227.41(1), empower not, not, Stats., does could department unconstitutional, to declare a statute except limited circumstances referred to in the remedy may Hogan. be inad- Third, "an administrative body equate is shown to be where the administrative predetermined the before or has otherwise issue biased it." Id. apposite inadequacy particularly here,

The last is secretary already has asserted the defense where the immunity. sovereign reason to believe that There no secretary would waive grant plaintiffs and exercise its discretion to defense 227.41(1), declaratory relief under sec. Stats. Corp. rely McKesson v. Division Plaintiffs on (1990). Beverages Tobacco, & Alcoholic U.S. requires that McKesson Plaintiffs claim state comply with the due clause fourteenth meaningful postpayment to afford them amendment secretary responses. First, he relief. makes two plain- McKesson, unlike the wholesaler in claims that parties actually paid who tiffs were not taxes duress; under have not filed provides pro- Second, 77.59, sec. Stats., for refunds. safeguards cedural unlawful exactions required by McKesson. they may

Plaintiffs concede that not file a refund unlawfully claim for the collected taxes under sec. 77.59(4), They agree prohibits Stats. that that statute any person applying for a refund other than the retailer who transmitted the tax to the state after charging argue, the customer for it. however, Plaintiffs that the due clause of the fourteenth amend- applied requires ment, McKesson, as construed and in provide remedy the state to them a to recover the paid. unlawful taxes which have undisputed paid taxpayers It is these they purchased sales tax on the automobiles and the merely agent. reviewing dealer acted as the state's 77.52(l)-(4), sec. Stats., we said that under this statu- tory practical scheme "the retailer or seller is in effect agent imposed an state the collection of a tax upon tangible goods consumer and the user Broadcasting certain services." Midcontinent Co. v. (Ct. DOR, 91 Wis. 2d 112, 284 N.W.2d 1979), App. grounds, rev'd on other 98 Wis. 379, (1980). 77.52(3) provides: N.W.2d 191 Section "The imposed taxes this section be collected from the opinion my separate consumer user." I in said in Dairyland Harvestore, Inc. v. DOR, 799, Wis. 2d (Ct. 1989) App. (Sundby, 56, 447 N.W.2d J., concurring part, dissenting part): "A literal con- 77.59(4), (1977), struction sec. Stats. leads to the purchaser overpaid result that a who has tax sales dependent upon overpayment." the seller to recover the 77.59(4) suggested I that sec. should not be read liter- ally, actually but should allow the consumer who overpaid the sales tax to file a claim for refund. After Dairyland legislature our decision in Harvestore, 77.59(4) clear that a it is now so that sec. amended by person may only who actu- be filed claim refund department. ally paid taxes to the statutory engaged Dairyland we Harvestore In conclusion leads to the construction; that exercise now may plaintiffs claim for refund not file a these 77.59(4), tax is if the sales Stats., at least sec. under by department paid to the from them and collected construe sec. not ask that we Plaintiffs do retailer. 77.59(4). They statute is unconsti- claim that the now provide them with it does not tutional because postpayment "meaningful the tax scheme relief' where is unconstitutional. where an deal with the situation

McKesson did not paid intermediary them to the taxes and collected taxpayers required the to Florida McKesson, In state. pay the tax's review of first and obtain their taxes validity circumstance, refund action. In that later in a process of the four- clause held that the due the Court requires "to afford the state amendment teenth taxpayers postpay- meaningful opportunity to secure pursuant already paid to a tax relief for taxes ment ultimately McKesson, found unconstitutional." scheme at 22. 496 U.S. they plaintiffs' arguments, claim that

As I read meaningful opportu- provide them with "a must state postpayment nity relief' for taxes . . . to secure paid pursuant tax scheme. unconstitutional an have pay or user could clear whether the consumer It is not person directly department qualify so as to as the to the taxes 77.52(3), Stats., that the of sec. paid has the taxes. view who user, tax the consumer or department collect the sales similarly or others situated why no reason these I see then file directly to the pay could not the taxes 77.59(4), refund under sec. Stats. a claim for postpayment The issue boils down to whether a relief taxpayers dependent scheme which makes the on the filing require- of a claim the retailer satisfies the of due ments announced McKesson. I meaningful conclude that such scheme is not "a opportunity postpayment . . secure . relief." There procedure provided by no under the statutes which the taxpayer compel actual can the retailer to a file claim fact, for refund. In I doubt whether a consumer or user paid who has to the sales tax the retailer has a cause action the if retailer the retailer does not for- department. any ward the tax to the In I event, do not statutory believe that a scheme under which the tax- payers meaningful opportunity have no to secure postpayment relief from an unconstitutional tax satis- process fies the due clause. pre-

The McKesson Court on relied a number of its requiring vious decisions that a state which has levied provide taxpayer an unconstitutional tax must who paid remedy." has the tax a "clear and certain Id. at 33. County In Ward. v. Board Comm'rs, 253 U.S. 17 (1920), Supreme the Court reversed the Oklahoma Court's refusal to award refund for an unlawful tax levied on Native American tribes in contravention of treaty. explained duty The Court the state's to remit the tax to the tribes: say county

To that the could collect these unlawful by taxes coercive any means and not incur obliga- tion to pay them back is nothing short of saying that it could take or appropriate the property these arbitrarily Indian allottees and without due of law. Of course this would be in contravention of Amendment, the Fourteenth which binds county agency as an of the State. U.S. at 24.

Ward, County, Yellowstone Montana Nat'l Bank v. the same due pro- the Court (1928), applied U.S. 499 on shares of banks incorporated a tax analysis cess but on shares of state-incorpo- under federal law not Court Supreme The Montana granted rated banks. Court Supreme relief. The United States prospective alone not "d[id] relief noted, however, prospective ear- mischief which had been done under the cure the Bank, 276 at Montana Nat'l U.S. lier construction." Court noted: 504. The McKesson of Bill- held that the Montana National Bank We right legal not] be of its ings deprived "c[ould unlawfully the amount of the tax exacted recover Supreme Court] decision [Montana it later which, repudiating while construction under made, le[ft] was which unlawful exaction treasury...." public thus exacted monies at Nat'l McKesson, 496 U.S. Montana (quoting 504-05). Bank, 276 U.S. at to a

The Court this discrim again applied analysis Bennett, in Des Nat'l Bank v. tax Iowa- Moines inatory (1931). The McKesson Court concluded: U.S. legal These the traditional cases demonstrate Florida's analysis appropriate determining con- duty provide petitioner stitutional relief to of an payment McKesson for its unlawful tax. a deprivation Because exaction of tax constitutes procedural the State property, provide must safe- guards against unlawful exactions order to commands satisfy the of Due Process Clause. McKesson, U.S. at 36. The court further said: satisfy requirements To of the Due Process Clause ... this refund action the State must provide taxpayers only opportunity with, not a fair challenge accuracy legal validity to tax oftheir

obligation, but also a "clear and certain rem- edy," any ... for or erroneous unlawfultax collection opportunity to ensure that the to contestthe tax is.a meaningful one. (footnote omitted). at

Id. and citation remedy" A "clear and certain not, does however, necessarily require that the state refund taxes unlaw fully collected. The McKesson Court held that Florida [ed] flexibility" provide "retain as to how it would taxpayers meaningful with relief. Id. at 39. See also — Harper Virginia Dept. Taxation, , 509 U.S. (1993). may provide S. Ct. 2519-20 The state meaningful by equalizing relief the tax burden between similarly taxpayers. situated That form of relief be impracticable However, here. the state cannot avoid by simply denying taxpayer the due clause process necessary to recover an unlawful tax. I do concluding 77.59(4), not hesitate in unconstitutionally that sec. Stats., plaintiffs,

denies the and those sim ilarly process. situated, due

Finally, secretary's argument I address the plaintiffs' state-law claims are barred because did required by 893.82(3), not file the notice of claim sec. agree precludes plaintiffs Stats. I that this failure from recovering monetary damages in this action. However, repeatedly Supreme it has been held the Wisconsin pursuant Court that failure to file a notice of claim 893.82(3) plaintiff maintaining sec. does not bar a declaratory prospective an action for relief. Casteel McCaughtry, v. 176 Wis. 571, 584-85, 2d 500 N.W.2d (1993). (1993), 277, 283-84 cert. denied, 114 S. Ct. 327 respectfully I stated, reasons I have For the dissent.4 1983. The secre allege claim under U.S. §

4Plaintiffs may not be used to attack argue that sec. 1983 tary does not secretary may have tax. imposition of an unconstitutional 1, by Hogan, 163 Wis. settled considered this issue Hogan However, plain that the the court stated 216. injunctive relief declaratory and sought retirees tiff capacities. Id. 8, at 471 N.W.2d in their individual defendants added). is that these My tentative conclusion (emphasis at 218 two under sec. 1983 on one of may maintain an action secretary pursuant to an uncon First, acted theories. when as statute, agent of the state but he did not act as an stitutional Second, secretary is considered to be if the an individual. Police, State Michigan Dept. 491 U.S. 58 under Will state alleged "motivating (1989), force" behind the state is rights. Id. at 68. For constitutional deprivation plaintiffs' 1983 LITIGA issue, this see S. STEINGLASS, discussion of Section (1993). Fair Assessment In See also 18.3 § IN STATE Courts TION Ass'n, McNary, 454 U.S. Inc. v. 116 and n.8 Real Estate Ass'n, Renting Leasing & So. 2d 1333 v. Truck Marx (1981); 1987). (Miss.

Case Details

Case Name: Grall v. Bugher

Court Name: Court of Appeals of Wisconsin

Date Published: Dec 16, 1993

Citation: 511 N.W.2d 336

Docket Number: 92-2855

Court Abbreviation: Wis. Ct. App.