Wisconsin Constitution
Article I - Declaration Of Rights
Section 9 - Remedy for wrongs.
The constitutional guaranty of a remedy for injuries to person and property does not give a constitutional right to sue the state in tort. There is no right of a citizen to hold the sovereign substantively liable for torts, and the state, being immune from suit without its consent, may define the conditions under which it will permit actions against itself. Cords v. State, 62 Wis. 2d 42, 214 N.W.2d 405.
The action for common-law seduction is extended to allow recovery against the seducer by the woman herself. Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9.
The constitution does not entitle state litigants to the exact remedy they desire, but merely to their day in court. Wiener v. J.C. Penney Co. 65 Wis. 2d 139, 222 N.W.2d 149.
Illegal aliens have the right to sue in Wisconsin for injuries negligently inflicted upon them. Arteaga v. Literski, 83 Wis. 2d 128, 265 N.W.2d 148 (1978).
No legal rights are conferred by this section. Mulder v. Acme-Cleveland Corp. 95 Wis. 2d 173, 290 N.W.2d 176 (1980).
Pre-1981 statutory paternity proceedings, which vested exclusive authority in district attorney to commence paternity action, unconstitutionally denied the child a “day in court." Accordingly, the child's action was not barred by any statute of limitations. In re Paternity of R.W.L. 116 Wis. 2d 150, 341 N.W.2d 682 (1984).
When an adequate remedy or forum does not exist to resolve disputes or provide due process, the courts can fashion an adequate remedy. Collins v. Eli Lilly Co. 116 Wis. 2d 166, 342 N.W.2d 37 (1984).
The state is not entitled to protection under this section. State v. Halverson, 130 Wis. 2d 300, 387 N.W.2d 124 (Ct. App. 1986).
A register in probate's fee based on the value of the estate does not violate this section. Treiber v. Knoll, 135 Wis. 2d 58, 398 N.W.2d 756 (1987).
A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on the litigant's access to the court. Village of Tigerton v. Minniecheske, 211 Wis. 2d 777, 565 N.W.2d 586 (Ct. App. 1997), 96-1933.
This section applies only when a prospective litigant seeks a remedy for an already existing right. It preserves the right to obtain justice on the basis of law as it in fact exists. Legislative actions define how the law does exist. Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, 237 Wis. 2d 99, 613 N.W.2d 849, 99-2955.
Although Article I, s. 9, itself may not create new rights, it does allow for a remedy through the existing common law. The goal of providing certainty is not necessarily achievable, and that is not necessarily a bad thing. The common law develops to adapt to the changing needs of society. Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523, 03-1528.
A referee's fees increase the costs of litigation and may have a chilling effect on litigants. If the expenses are not circumscribed, people with meritorious claims will be discouraged from pursuing them in court because they cannot afford to go to court. A reference to a referee in effect requires litigants to pay for the court system twice — once through the tax system and a second time by paying fees to a referee for resolution of their suit. Referee fees may offend constitutional mandates “if they chill advocacy severely enough to `effectively end the litigation' or impose `an intolerable burden on a losing litigant.'” Appointment of a referee is for the exceptional case; it is not the general rule. Universal Processing Services v. Circuit Court of Milwaukee County, 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267, 16-0923.
