The Right You Can’t Afford

In Wisconsin, the government rarely forbids you from suing it. It just prices the courthouse so high that almost no one can walk through the door.

By Wayne Clingman

I was raised on a simple idea — the one that separates a “free people” from subjects. Is that he government works for you. It is your creation, funded by your labor, answerable to your consent. When it wrongs you, I was told, you can haul it in front of a judge and make it answer like anybody else. That is the promise stamped on every schoolbook and every Fourth of July speech.

Here is the part they leave out. The promise is technically true and practically worthless, because the courthouse has a price of admission, and the price is set high enough that the ordinary man can’t pay it. Nobody stands at the door and says you’re forbidden. They don’t have to. They just hand you the bill.

That is the whole game, and everything else is decoration on it. Strip away the legal Latin and the doctrines and the immunities, and what is left is a single brutal fact: it costs money to sue, and the government has more money than you will ever have. It has, for all practical purposes, infinite money — yours. It defends itself out of a bottomless account funded by the very taxes you pay, with salaried lawyers who never send a bill, never run out of hours, and never feel a dollar of personal cost when they lose. You are betting your savings. They are betting nothing. The house always wins that wager, because the house isn’t really wagering at all.

And money buys the other thing that breaks an ordinary man: time. The government can file motion after motion, demand hearing after hearing, appeal a loss and appeal it again, and stretch a case across years. It can afford to. Every month that passes is another month of legal fees you are paying and they are not. They are not trying to win the argument so much as outlast you — to make the fight cost more than you have, until you settle for pennies or simply walk away exhausted and broke. Time is a weapon, and only one side in this fight owns an unlimited supply of it.

So picture yourself wronged — a county truck wrecks your car, a city crew’s negligence floods your home, a public employee does you a real and provable harm. You want your day in court. You have exactly two ways to pay for it.

The first is to hire a lawyer by the hour. Against a government, that means wagering your house and your retirement on a case that will take years and might still lose on a technicality that has nothing to do with whether you were wronged. Almost nobody can do that, and the ones who can are not the people I’m writing about.

The second is to find a lawyer who’ll take the case on contingency — for a slice of the winnings, with nothing owed up front. This is supposed to be the workingman’s key to the courthouse, and it would be, except that contingency is a business, not a charity. The lawyer is doing cold arithmetic before he ever shakes your hand: is the likely payout big enough, and probable enough, to justify years of his labor and tens of thousands of his own dollars against an opponent who never tires? For most honest grievances — the modest ones, the ones that quietly ruin a single ordinary life without producing a headline verdict — the answer is no. Not because the claim is weak. Because the claim isn’t lucrative. The injustice is real, but it doesn’t pencil out, and a claim that doesn’t pencil out never gets filed.

Now here is where Wisconsin twists the knife, because Wisconsin’s own statutes are built to make that arithmetic come out against you on purpose.

Start with the damage caps. Under Wisconsin law, your damages against most local governments cannot exceed fifty thousand dollars — a quarter of that if a volunteer fire department is involved — and against the State, the ceiling is two hundred fifty thousand, with no punitive damages at all, no matter how reckless the conduct. If a private trucking company cripples you, a jury can make it pay what your life is actually worth. If a government truck does the identical thing, the law decided years in advance that your shattered back is worth fifty grand and not a dollar more. The government didn’t just limit what it owes you. It set the number low enough that chasing it costs more than collecting it — it wrote the price of its own wrongdoing and wrote it where you can’t afford to come and get it.

Then there’s the clock. To sue a Wisconsin local government, you must serve a formal written notice of claim within one hundred and twenty days of the event, under Statute 893.80 — and if your fight is with the State, that notice goes to the Attorney General himself. Miss it by a day and your claim is dead, regardless of merit. That gives you four months to find a competent lawyer and get him moving, often before you even grasp how badly you were wronged. The man with money on hand can manage it. The man scraping to make rent can’t, and the gate locks before he’s caught his breath. One plaintiff’s attorney — a man who sues governments for a living — put it plainly: the quick deadlines exist to kill claims before the government can be forced to pay. The clock isn’t there to find the truth. It’s there to make the truth too expensive to chase.

Every other defense the government can raise — sovereign immunity, discretionary immunity, the whole armory — works the same way. None of them has to win. They only have to drag the fight out long enough, and make the odds ugly enough, that no one in his right mind would keep paying to see it through. The doctrines are real, but their working purpose is economic: run the price of justice up past what a working family can pay, and the verdict never matters because the trial never comes.

Qualified immunity is the sharpest of them. It shields a government official — a police officer among them — from a suit over violating your rights unless you can produce an earlier case with nearly identical facts already on the books. The more novel the abuse, the easier the escape. If no one has ever been mistreated in quite the way you were, the right wasn’t “clearly established,” and the case is thrown out before a jury hears a word. The originality of the cruelty becomes the defense.

Understand what all of it adds up to — the caps, the clock, the immunities, every last brick in the wall. None of it is an accident, and none of it is an oversight waiting to be patched. It was set up to do exactly what it does. The people who govern wrote the rules for suing the people who they govern, and they wrote them to stop the public from acting — to make certain that when the government wrongs you, you cannot make it answer for it. The citizens weren’t priced out of the courthouse by chance or by some drift of bad luck. He was shut out on purpose, by the very men he is supposed to be able to hold to account, and that is the whole point of the design.

And make no mistake about who that design protects. It isn’t some faceless “government” in the abstract. It’s the good old boys — the connected, the courthouse regulars, the men who know which doors to knock on and whose brother-in-law sits on which board. Whether it’s Racine County, Dane County, or any other county in this state, the same crowd runs the same play. They take care of their own. They pass the contracts and the favors and the soft landings back and forth among themselves, and when one of them does an ordinary citizen wrong, the whole wall of caps and clocks and immunities is standing right there to make sure he never has to answer for it. The good old boys look out for the good old boys, and the public is left holding the bill — for the wrong, and for the lawyers the government hires to make sure the wrong is never heard. The machine was not built to protect the public from the powerful. It was built to protect the powerful from the public.

Now turn the whole thing on its head. Suppose you don’t want a dime. Suppose the government isn’t costing you money but doing something crooked — a corrupt practice, an ongoing abuse, a rule it’s breaking in plain sight — and all you want is to make it stop. You’d think that, in all cases, that would be the one the system welcomes: a citizen asking for nothing for himself, only that his government obey its own laws. It is, in fact, the case where the system fights hardest.

The money problem is worse here, not better. A suit to stop misconduct — to get a court order for the government to knock it off, or to compel it to do what the law already requires — ends in no pot of damages. And no damages mean no contingency lawyer, because there is no slice of a verdict to pay him with. The workingman’s one key to the courthouse doesn’t fit this lock at all. Every hour comes straight out of your own pocket, for years, against a government spending the public’s money to outlast you, with nothing waiting at the finish line but the satisfaction of having been right. Doing the public’s work — checking a corrupt official, stopping an unlawful practice — turns out to be the single most expensive thing a private citizen can attempt, and the one thing he is guaranteed not to be paid for.

There are narrow exceptions. Win certain civil-rights or constitutional cases and a judge can order the government to cover your legal fees. But those statutes are narrow, fiercely contested, pay out only if you win after years of fighting, and cover a thin slice of the wrongs a citizen might want stopped. Most plain old corruption and petty official misconduct don’t fit the box. And then the doctrine of standing adds its own insult: to get through the door at all, you generally have to show the wrong injured you in particular — not the ordinary outrage of a citizen watching his government misbehave. Which means the man who wants to stop a corrupt practice precisely because it harms the public, and not because it singled him out, is the man most likely to be told he has no business being there. The cleaner your motive, the weaker your ticket. So, the watchdog suit — the one a free “people” needs most, some private citizen to be willing to bring — is the one the system has made nearly impossible to finance and easy to throw out, until it too belongs only to those who can pay without a payday.

So, count who is left standing in front of that courthouse after all of it. The corporation with a litigation budget. The wealthy man who can treat a lawsuit as an expense rather than a gamble. The well-connected and the well-lawyered. They get their day in court. Everyone else — the working family, the small businessman, the taxpayer who funds the entire apparatus — gets a polite letter explaining that while their claim may have merit, it cannot be pursued. They are turned away not by a judge, but by an accountant. Justice against the government has quietly become a luxury good, sold by the pound to those who can afford it.

This ought to land hardest on the right, because conservatives are the ones who claim to believe the very thing being violated — that government answers to the citizen and never the reverse, that no public servant sits above the people who pay him. A government that uses the people’s own money to make itself too expensive to sue has inverted that order completely. It has made itself the sovereign and the citizen the subject, and it has done it not with a decree but with a price tag.

Wayne Clingman writes from Racine County. He can be reached at wclingman@wi.rr.com

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