Ten years ago, I wrote an article about municipal immunity in Wisconsin. It was published in the Wisconsin Lawyer magazine under the title “Fighting City Hall.” I concluded that judicial interpretations of the Wisconsin municipal claims statute were wrong, that the policy of municipal immunity did not work, and that there were better ways to protect public treasuries.
Now, at least one member of the Wisconsin Supreme Court appears to agree with me. In Pries v. McMillon, Justice Gableman, in dissent, stated “I am not satisfied that our cases faithfully interpret” the Wisconsin municipal immunity statute. He calls on the court to reexamine its jurisprudence in this area. Amen! It is about time. Are the other six justices listening?
If there is one thing people hate about government, it is laws that apply to everyone except government employees. Civil law is supposed to promote the exercise of due care for the safety of people who can foreseeably be injured by careless conduct. When legislators and judges act in their official capacities, people’s rights are affected. If we don’t like their decisions, we can vote against them in the next election. But if other unelected government officials cause damage to citizens, we should be able to hold them accountable like anyone else — in a civil lawsuit. Of course, police and other law enforcement officials should still be privileged to use reasonable force to enforce the law and protect citizens from danger. But immunity can foster irresponsibility. That should be the exception, not the rule.