Constitutional Law — sovereign immunity — waiver

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Wisconsin Court of Appeals

Civil

Constitutional Law — sovereign immunity — waiver

The legislature did not clearly and expressly waive the State’s sovereign immunity with respect to sec. 321.64(2).

“First, we agree with Scocos that the word ‘restoration’ in subsection (6) clearly refers to restoration throughout WIS. STAT. § 321.64. That is, the term refers not only to who must be restored to state service under subsection (1), but also to restoration rights, including those specified in subsection (2).”

“Second, the structure of the statute shows that restoration rights under subsection (2) go hand in hand with being restored to state service under subsection (1). Subsection (2) unambiguously provides that persons who have been restored under subsection (1) have the restoration rights described in subsection (2). The first sentence of subsection (2) begins: ‘The service of any person who is or was restored to a position in accordance with sub. (1) shall ….’ (Emphasis added.) The second sentence of subsection (2) begins: ‘The person whose position was restored may not be ….’ Under this plain language, ‘any person’ restored under subsection (1) has the rights described in subsection (2). Because the State concedes that Scocos is a person who was restored to his position under subsection (1), it follows from the statutory language that Scocos has the restoration rights contained in subsection (2).”

Affirmed.

Recommended for publication in the official reports.

2011AP1178 Scocos v. State of Wisconsin Department of Veteran Affairs

Dist. IV, Dane County, Albert, J., Lundsten, J.

Attorneys: For Appellant: Sweeney, John R., Madison; Kilpatrick, Steven C., Madison; For Respondent: Troupis, James R., Middleton; Troupis, Sarah E., Middleton