Background
Colin Dowling, an Illinois resident, was convicted in Wisconsin of failing to stop his vehicle as soon as safety reasonably permitted. The Wisconsin DMV initially treated the conviction as attempting to elude an officer, revoked his Wisconsin driving privileges, and sent a withdrawal report to Illinois reflecting that more serious offense. Illinois then suspended Dowling’s driving privileges, although the DMV later withdrew its revocation and Illinois rescinded the suspension.
The DMV also reported Dowling’s conviction to the National Driver Register under a code for fleeing or evading police. Illinois treated that coding as a suspendable fleeing-or-eluding offense and imposed a second suspension, which it later rescinded after Dowling persuaded Illinois that a different code should have been used. Dowling sued the Wisconsin transportation secretary and DMV administrator for negligence, alleging violations of federal reporting regulations and Wis. Stat. § 343.36(3).
The Court’s Holding
The court reversed the judgment dismissing the action. It held that the defendants waived public official immunity by not raising that affirmative defense in their original motion to dismiss or a responsive pleading. Raising sovereign immunity in a reply brief did not preserve the distinct defense of public official immunity, and Dowling sufficiently argued waiver in the circuit court.
The court also held that Dowling’s notice of claim satisfied Wis. Stat. § 893.82(3) for his claim under § 343.36(3). The notice identified the pertinent circumstances: the DMV’s erroneous withdrawal report to Illinois and the resulting suspension. The statute required notice of the event’s circumstances, not a specific citation to § 343.36(3) or a complete statement of every legal theory.
Key Takeaways
- Public official immunity is an affirmative defense that is waived unless timely raised in a responsive pleading or pre-answer motion.
- Sovereign immunity and public official immunity are distinct defenses.
- A Wisconsin notice of claim need state the circumstances giving rise to the claim; it need not identify every statute or cause of action.
Why It Matters
The decision reinforces that state officials must timely plead public official immunity and cannot rely on later briefing to introduce it. It also applies the notice-of-claim statute according to its text: strict compliance requires sufficient factual notice of the event, not a detailed legal pleading.