Under Wisconsin law, liability against government entities is largely governed by the State’s immunity statute. 1
It immunizes government entities from lawsuits based on, among other things, its officers’ intentional torts and discretionary acts. 2
The immunity statute does not provide causes of action; it only limits them. This statute, along with courts’ adoption of an immunity doctrine, leaves public employees liable only for (1) the negligent performance of a ministerial duty and (2) conduct that is malicious, willful, and intentional. 4
Don’t Count on Claims Directly Under the Constitution
The Wisconsin Supreme Court has not said whether provisions of the State constitution are self-executing. So, whether the constitution, alone, provides a private cause of action for damages is not settled. But the Court of Appeals has recognized a due-process claim directly under the state constitution, and that decision remains undisturbed. 5
Because the availability of claims directly under the constitution is unclear, litigants bring common-law tort claims: negligence in cases against the government (when performing a purely ministerial duty), and malicious, willful, and intentional torts in cases against a government employee.
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