Margaret Elizabeth Doyle Siebers v. Peter W. Barca

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 31, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP2199 Cir. Ct. No. 2022CV2318

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MARGARET ELIZABETH DOYLE SIEBERS,

PLAINTIFF-APPELLANT,

V.

PETER W. BARCA, RICHARD G. CHANDLER AND
STATE OF WISCONSIN DEPARTMENT OF REVENUE,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Dane County:
RHONDA L. LANFORD, Judge. Affirmed.

Before White, C.J., Donald, and Geenen, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP2199

¶1 PER CURIAM. Margaret Elizabeth Doyle Siebers appeals from the
order dismissing her complaint and class action alleging that Wisconsin’s
unclaimed property laws violate the prohibition on government taking without just
compensation under the Fifth Amendment or the Wisconsin constitution. We
conclude that Siebers’ claims fail because sovereign immunity deprives the circuit
court of personal jurisdiction, and she otherwise failed to state a claim upon which
relief may be granted. We affirm.

BACKGROUND

¶2 Siebers filed a claim for unclaimed property with the Department of
Revenue, and her property in the amount of $264.74 was returned to her in
April 2021 without any earnings, interest or compensation. Siebers believed that
Wisconsin’s unclaimed property act violated the Fifth Amendment, which
prohibits the taking of “private property … for public use, without just
compensation.” U.S. CONST. amend. V. Relevant to this belief was a Seventh
Circuit holding, under a challenge to Illinois’ similar unclaimed property act
statutes, that owners reclaiming property “are entitled to receive the time value of
their property (that is, interest or other earnings), less reasonable custodial fees.”
Goldberg v. Frerichs, 912 F.3d 1009, 1010 (7th Cir. 2019).

¶3 Siebers first pursued an action in federal court, arguing that the State
violated the Fifth Amendment takings clause. See Siebers v. Barca, No. 20-CV-
1109-JDP, 2022 WL 2438605 (W.D. Wis. July 5, 2022). That action was
dismissed.

¶4 Siebers then filed this action against Peter Barca, Secretary of
Revenue, Richard G. Chandler, Barca’s predecessor as the Secretary of Revenue,
both individually and in their official capacities, and the Department (collectively,

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the DOR). In Siebers’ complaint, she alleged a violation of the prohibition on
government takings without just compensation in the Fifth Amendment and the
similar right in the State constitution, WIS. CONST. art. I, § 13 (“The property of no
person shall be taken for public use without just compensation therefor.”). Siebers
alleged that DOR took her property into their custody, used it for public purposes,
including investing the property and earning income or interest and using it to
fund the State’s operations and programs, and then did not give her those earnings
when they returned her original principal.

¶5 She asserted that her claim was brought on behalf of herself and as a
class action under WIS. STAT. § 803.08 (2023-24).1 The class represented those
who had property taken into the custody of the State as abandoned, and upon a
claim to the State had the principal returned, but were either not paid the interest
the State earned or not paid all of the interest the State earned while the property
was in State custody.2 As relief, she requested class action status, just
compensation, and attorney fees and costs pursuant to 42 U.S.C. § 1983.

¶6 The recovery of unclaimed property in Wisconsin is governed by
WIS. STAT. ch. 177. At the time Siebers filed her claim and received her payment,
the Uniform Unclaimed Property Act (the Act) was in effect. In November 2021,
the legislature significantly revised WIS. STAT. ch. 177, via the Revised Uniform
Unclaimed Property Act (the Revised Act), 2021 WIS. ACT 87.

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.
2
The class excluded other government authorities, persons whose property was interest-
bearing to the property owner on the date of surrender by the holder and who were paid interest
equal to or greater than Defendants’ earnings or interest, and persons whose only property at issue
was non-monetary and returned before liquidation.

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¶7 Under the Act, a person files a claim for property with the
administrator, who has 90 days to consider the claim and then grant it in full or in
part, or deny the claim with written notice. WIS. STAT. § 177.24(1)(a), (2) (2019-
20). If the claim is allowed, the administrator pays the claimant “the amount the
administrator actually received or the net proceeds of the sale of the property,
together with any additional amount required” by law. 3 Sec 177.24(3)(a) (2019-
20). If the claimant was aggrieved by the administrator’s decision, the claimant
“may bring an action to establish the claim in the circuit court, naming the
administrator as a defendant.” WIS. STAT. § 177.26 (2019-20).4 The action must
be brought within 90 days after the decision of the administrator. Id.

¶8 The Revised Act provided similar procedures for the return of
unclaimed property, with a major difference that judicial review was now
available under WIS. STAT. ch. 227 procedures. A person files a claim with the
administrator, and not later than 90 days after the claim is filed, if sufficient
evidence is received, the administrator shall pay or deliver the property to the
owner, or provide written notice of denial. WIS. STAT. §§ 177.0903, 177.0904.
The Revised Act also provides for the payment of interest, stating that “the owner
is entitled to receive income or gain realized or accrued on the property on or

3
Provisions of the Act required a property owner be paid interest or earnings under
certain circumstances when the property was interest-earning or bearing at the time it was
delivered to DOR’s custody. WIS. STAT. §§ 177.21, 177.24 (2019-20). We note that Siebers
excluded from her proposed class persons who held property that was interest-bearing at the time
of transfer.
4
The Act had different timelines when the administrator did not act on a claim for
unclaimed property within 90 days of filing. WIS. STAT. § 177.26 (2019-20).

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No. 2023AP2199

before the date the property is sold.” WIS. STAT. § 177.0607(1).5 “A person
aggrieved by a claim denial of the administrator … may petition for judicial
review of the decision or of the claim under [WIS. STAT. §] 227.52[].” WIS. STAT.
§ 177.0906(1). The petition for judicial review must be served and filed within 90
days after the claim denial. Id.

¶9 DOR moved to dismiss, arguing that her action was barred by
sovereign immunity. The circuit court agreed and dismissed Siebers’ action.
Siebers now appeals.

DISCUSSION

¶10 Siebers argues that she stated a claim that the State’s unclaimed
property act violates the Fifth Amendment because the statutes did not require the
State to convey any interest or earnings the State earned on the property it held
when it returned that property. Siebers argues that the circuit court erred when it
dismissed her action on the basis of sovereign immunity because the court
incorrectly relied upon the Revised Act’s judicial review provision, WIS. STAT.
§ 177.0906, and its requirements that she follow administrative review procedures
under WIS. STAT. ch. 227. Further, she contends that the court erred when it
dismissed her action for failing to state a claim upon which relief may be granted
under 42 U.S.C. § 1983 or as a direct action under the Fifth Amendment.

¶11 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” PRN Assocs. LLC v. DOA, 2009 WI 53, ¶26, 317

5
The Revised Act also contains provisions affecting the payment of interest under
certain circumstances, particularly for amounts under $100 or property that was interest-bearing
at the time it was delivered to the DOR’s custody. WIS. STAT. §§ 177.0607(3), 177.0607(4).

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No. 2023AP2199

Wis. 2d 656, 766 N.W.2d 559. “Whether a complaint states a claim upon which
relief can be granted is a question of law for our independent review[.]” Data Key
Partners v. Permira Advisers LLC, 2014 WI 86, ¶17, 356 Wis. 2d 665, 849
N.W.2d 693. “A motion to dismiss based on sovereign immunity challenges a
court’s personal jurisdiction.” DNR v. Timber & Wood Prods. Located in Sawyer
Cnty., 2018 WI App 6, ¶17, 379 Wis. 2d 690, 906 N.W.2d 707. Whether a claim
is barred by sovereign immunity is a question of law that we independently
review. Canadian Nat. R.R. v. Noel, 2007 WI App 179, ¶5, 304 Wis. 2d 218, 736
N.W.2d 900.

I. Sovereign immunity

¶12 Sovereign immunity is the doctrine that “the State cannot be sued
without its consent, and the legislature directs the manner in which suits may be
brought against the State.” PRN Assocs. LLC, 317 Wis. 2d 656, ¶51; WIS.
CONST. art. IV, § 27 (“The legislature shall direct by law in what manner and in
what courts suits may be brought against the [S]tate.”). “A suit against a state
agency constitutes a suit against the State for purposes of sovereign immunity.”
PRN Assocs. LLC, 317 Wis. 2d 656, ¶51. “If the legislature has not specifically
consented to the suit, then sovereign immunity deprives the court of personal
jurisdiction over the State, assuming that the defense has been properly raised.”
Id.

¶13 A defense of sovereign immunity alleges that a litigant failed to
comply with the legislature’s instructions on how actions may be brought against
the State. See PRN Assocs. LLC, 317 Wis. 2d 656, ¶51. Judicial review of a
decision made by the State or its administrative agencies is only allowed if the
statutes expressly permit it. See Pasch v. DOR, 58 Wis. 2d 346, 352, 206 N.W.2d

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No. 2023AP2199

157 (1973). Here, both the Act and the Revised Act provide a statutory right of
judicial review of the administrator’s decision on a property claim. WIS. STAT.
§ 177.26 (2019-20), WIS. STAT. § 177.0906. Although the Revised Act
incorporates additional administrative procedures under chapter 227, both the
Revised Act and the Act set a threshold requirement that an action for judicial
review must be brought within 90 days of the decision. “Strict compliance with
the statutes is required.” Currier v. DOR, 2006 WI App 12, ¶23, 288 Wis. 2d 693,
709 N.W.2d 520. The record reflects that the DOR paid Siebers $264.74 on her
filed claim in April 2021. Even with the most generous presumption that her
claim was settled on the last day of April 2021, her filing date in September 2022
for her action in circuit court means that her complaint was not timely.

¶14 The circuit court concluded that Siebers’ action for judicial review
was governed by the Revised Act, which meant she had to follow the
administrative review procedures in WIS. STAT. § 177.0906 to be able to bring an
action against DOR. See PRN Assocs. LLC, 317 Wis. 2d 656, ¶51. “[I]f a statute
is procedural or remedial, rather than substantive, the statute is generally given
retroactive application.” Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 2007 WI
88, ¶40, 302 Wis. 2d 299, 735 N.W.2d 1. Because Siebers failed to comply with
administrative procedures in the Revised Act, the court concluded that sovereign
immunity barred her action and it dismissed her action.

¶15 Although Siebers offers a multitude of reasons why applying the
Revised Act and chapter 227 administrative procedures to her claim would be
improper or lead to absurd results, ultimately, we agree with the DOR that Siebers
did not comply with administrative procedure under either the Act or the Revised
Act. In this case, we are not faced with Siebers’ action surviving under one
version and being dismissed under the other. Because we should decide cases on

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No. 2023AP2199

the narrowest possible ground, we decline to determine whether the presumption
of retroactive application of statutory enactment applies, in other words, whether
Siebers’ action should be governed by the Act or the Revised Act.6 See State v.
Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).

¶16 We conclude that Siebers’ untimely complaint violated the statutory
procedure for judicial review under the Act or the Revised Act. Therefore,
sovereign immunity, which DOR properly raised as a defense in the motion to
dismiss, deprived the circuit court of personal jurisdiction over the State. See
PRN Assocs. LLC, 317 Wis. 2d 656, ¶51.

¶17 Siebers argues that sovereign immunity should not bar her action
because it is an action for just compensation. Our supreme court concluded that
the “doctrine of sovereign immunity has only limited applicability to actions
against the state which allege a constitutional taking of private property without
just compensation.” Zinn v. State, 112 Wis. 2d 417, 435, 334 N.W.2d 67 (1983).

6
Generally, a decision which overrules precedent or a statutory enactment is accorded
retroactive effect. See Trinity Petroleum, Inc. v. Scott Oil Co., Inc., 2007 WI 88, ¶40, 302
Wis. 2d 299, 735 N.W.2d 1; Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 623, 563
N.W.2d 154 (1997). Under certain circumstances, “inequities will occur when a court departs
from precedent and announces a new rule of law.” Id. at 624. Our supreme court has recognized
exceptions to the retroactive effect using “the device of prospective overruling, known as
‘sunbursting,’ to limit the effect of a newly announced rule when retroactive application would be
inequitable.” Id. “Sometimes the court will hold that a new rule applies only to future events,”
or to future events and the case before it, or only “to cases in which the trial has not yet begun or
in which the time for appeal has not yet expired.” Harmann by Bertz v. Hadley, 128 Wis. 2d
371, 378, 382 N.W.2d 673 (1986). Whether to “apply a judicial holding prospectively is a
question of policy and involves balancing the equities peculiar to a particular case or rule so as to
mitigate hardships that may occur in the retroactive application of new rules.” Colby v.
Columbia Cnty., 202 Wis. 2d 342, 363-64, 550 N.W.2d 124 (1996). Here, because Siebers’
action was untimely under either version, we need not determine whether to sunburst the Act.
We may affirm the circuit court’s result even if this court relies on different reasoning. See State
v. King, 120 Wis. 2d 285, 292, 354 N.W.2d 742 (Ct. App. 1984).

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No. 2023AP2199

The Zinn court held that “[u]nder the just compensation clause a property owner
has a constitutionally mandated right to be compensated for property taken by the
state and the absence of any statute providing for such a remedy does not bar the
action.” Id. at 437. However, under the sovereign immunity clause, “the
legislature can provide specific procedures governing the recovery of such
compensation as long as the procedure provides ‘just compensation.’” Id. at 437-
38.

¶18 With Zinn’s holdings in mind, Siebers argues that WIS. STAT.
§ 177.26 (2019-20) did not provide a procedure for administrative review or a
mechanism by which she could challenge that her principal was returned without
earnings, in other words, without just compensation. We disagree. Section
177.126 (2019-20) provided a process for an aggrieved person to challenge a DOR
decision. It is reasonable to infer from Siebers’ current action that she considered
herself aggrieved by DOR. There is no bar in the statutory process to challenge
that her property was returned without just compensation.

¶19 Siebers’ failure under the statutory procedure was waiting more than
a year to file. Siebers may not now make an end-run around statutory procedure
for judicial review to evade the untimely nature of her complaint. See State ex rel.
First Nat. Bank of Wis. Rapids v. M & I Peoples Bank of Coloma, 82 Wis. 2d
529, 542, 263 N.W.2d 196 (1978) (discussing a general principle in Wisconsin law
that “where a method of review is prescribed by statute, the prescribed method is
exclusive”). Ultimately, we conclude that because Siebers failed to satisfy the
statutory procedure to bring an action to review DOR’s decision, sovereign
immunity applies to bar her action. See Timber & Wood Prods., 379 Wis. 2d 690,
¶17.

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No. 2023AP2199

II. 42 U.S.C. § 1983

¶20 Siebers argues that her allegations state a claim under 42 U.S.C.
§ 1983 that the Department, Barca, and Chandler, both in their official and
individual capacities, violated her constitutional rights. The DOR argues that
Siebers’ allegations are insufficient. “[T]he substantive law … drives what facts
must be pled” to state a claim. Data Key Partners, 356 Wis. 2d 665, ¶31.

¶21 “Section 1983 provides a cause of action against ‘[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any
State’ deprives someone of a federal constitutional or statutory right.” Lindke v.
Freed, 601 U.S. 187, 194 (2024) (emphasis omitted). However, “neither a State
nor its officials acting in their official capacities are ‘persons’ under [42 USC]
§ 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Section
1983 does not allow a State to be “sued without its consent,” in other words, a
§ 1983 claim does not avoid the effect of sovereign immunity. Will, 491 U.S. at
67. Therefore, Siebers cannot make a claim against the Department or either
Secretary in their official capacities.7

¶22 In contrast, an action against a state official acting in an individual or
personal capacity “impose[s] individual liability upon a government officer for
actions taken under color of state law.” Hafer v. Melo, 502 U.S. 21, 25 (1991).
“To establish personal liability, the plaintiff must show that the relevant official

7
A suit against a state official acting in official capacity may exist when the plaintiff’s
action asserts “prospective, equitable relief” as a remedy and not damages. Soderlund v.
Zibolski, 2016 WI App 6, ¶24, 366 Wis. 2d 579, 874 N.W.2d 561 (citation omitted); Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). We do not address this issue any further
because Siebers’ complaint does not request prospective, injunctive relief as a remedy.

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No. 2023AP2199

‘caused the constitutional deprivation at issue’ or ‘acquiesced in some
demonstrable way in the alleged constitutional violation.’” Gonzalez v. McHenry
Cnty., Ill., 40 F.4th 824, 828 (7th Cir. 2022) (citation omitted).

¶23 Therefore, we consider whether Siebers has alleged sufficient facts
to make a claim for relief against Secretaries Barca and Chandler in their
individual or personal capacities under § 1983. Siebers’ allegations are that the
secretaries were in charge of supervising or administering the Act and that it was
reasonable to infer that they were personally involved and knew about, facilitated,
or expressly approved of the Act’s failure to pay interest. She also argued that
Chandler, who served as secretary until January 2019, and Barca, who began
serving as secretary in January 2019, should have been aware of the Seventh
Circuit holdings, culminating in the 2019 Goldberg decision, that the temporary
takings of unclaimed property required the payment of interest or just
compensation, and yet failed to take any action to change the Act.8

¶24 Based on our examination of the pleadings, we conclude that Siebers
has not alleged sufficient facts to show that either secretary personally was
involved in depriving her of just compensation. A § 1983 claim based on personal
capacity is premised on “an officer act[ing] independently when enforcing an

8
Siebers’ pleadings referenced three cases: Goldberg v. Frerichs, 912 F.3d 1009, 1012
(7th Cir. 2019) (holding that Illinois could not refuse to pay interest on property returned through
its unclaimed property act solely because the property was not earning net interest before it was
transferred to the state); Kolton v. Frerichs, 869 F.3d 532, 535 (7th Cir. 2017) (holding that
Illinois’ failure to pay interest on presumed abandoned property in its unclaimed property fund
violated the takings clause and concluding a claim under 42 U.S.C. § 1983 survived); Cerajeski v.
Zoeller, 735 F.3d 577, 579 (7th Cir. 2013) (holding that under its unclaimed property act, Indiana
could not take custody of property and retain income that the property earned, and while an
administration fee may be charged, the owner must be allowed the benefit of the property's
earnings, however large or small they turn out to be).

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No. 2023AP2199

unconstitutional law.” Kolton v. Frerichs, 869 F.3d 532, 536 (7th Cir. 2017).
“Liability depends on each defendant’s knowledge and actions, not on the
knowledge or actions of persons they supervise.” Burks v. Raemisch, 555 F.3d
592, 594 (7th Cir. 2009). Personal involvement cannot arise from a theory of
respondeat superior. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

¶25 Siebers has not alleged that the secretaries had knowledge that
Department employees were depriving Siebers of her constitutional right to just
compensation or that the secretaries were purposefully, knowingly, or recklessly
ignoring the violation. See Gonzalez, 40 F.4th at 828. Her assertions that the
secretaries should have known about the Seventh Circuit decisions and then
worked to change how the Act operates is not alleging a personal misdeed or
misuse of power by either secretary. See Burks, 555 F.3d at 595 (rejecting a
prisoner’s claim that a prison grievance handler “should be held liable because she
carried out her job exactly as she was supposed to”).9 We therefore conclude that
Siebers has failed to state a claim upon which relief may be granted under Section
1983 against the secretaries in their personal capacity, in their official capacity,
and the Department.

9
We observe that the Seventh Circuit has expressly rejected § 1983 liability in a
personal capacity for officials administering similar programs in Illinois and Indiana. See Kolton,
869 F.3d at 536 (rejecting § 1983 claims against the treasurer of Illinois in his personal capacity,
because although he administered the unclaimed property recovery program, he “did not pocket
any earnings on Kolton’s money. Illinois did”); Gerlach v. Rokita, 95 F.4th 493, 500 (7th Cir.
2024), cert. denied, 145 S. Ct. 1044 (2025) (rejecting § 1983 claims for Indiana officials in their
personal capacity because the “interest her property earned while in state custody … flowed to
the state, not individual state employees” and her action was only against the state officials in
name, while the actual claim was against the state).

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No. 2023AP2199

III. Direct action under the Fifth Amendment

¶26 Siebers’ final argument is that the circuit court improperly dismissed
her claims because there is a direct action for just compensation under the Fifth
Amendment. The United States Supreme Court has recognized that “[a] property
owner has an actionable Fifth Amendment takings claim when the government
takes his property without paying for it” and the property owner may bring an
action under § 1983 at that time without first exhausting state law remedies.
Knick v. Township of Scott, 588 U.S. 180, 185 (2019). However, Knick only
provides a direct action in federal court, something Siebers has already tried and
that has been dismissed. “Even though the Fifth Amendment alone may support a
cause of action for damages against the United States, the Eleventh Amendment
stands as an express bar to federal power when a similar action is brought against
one of the states.” Garrett v. State of Ill., 612 F.2d 1038, 1040 (7th Cir. 1980).

¶27 Recently, the Supreme Court considered “whether a property owner
may sue for just compensation directly under the Takings Clause” in state court;
however, it ultimately left the question unresolved. DeVillier v. Texas, 601 U.S.
285, 290, 292 (2024). The Supreme Court concluded that because a “Texas state
law provides a cause of action by which property owners may seek just
compensation against the State” under both the Fifth Amendment and the Texas
Constitution, the property owner was not without a remedy. Id. at 293. It further
concluded that “constitutional concerns do not arise when property owners have
other ways to seek just compensation.” Id. at 292.

¶28 The DOR argues that Wisconsin satisfies the procedural standard in
DeVillier because, just as in Texas, Wisconsin “state law provides a cause of
action by which property owners may seek just compensation against the State.”

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No. 2023AP2199

Id. at 293. Here, the Act and the Revised Act provide for judicial review of DOR
decisions arising from abandoned or unclaimed property claims, which we have
construed to include claims of takings from that abandoned property without just
compensation. Devillier did not remove a property owner’s requirement to follow
administrative review procedure under state law. Therefore, we discern that
because Siebers had access to judicial review, Devillier does not establish that she
can bring her action directly in state court without complying with statutory
procedures for review of administrative decisions. Therefore, we conclude that
Siebers has failed to state a claim upon which relief may be granted as a direct
action under the Fifth Amendment.

CONCLUSION

¶29 For the reasons stated above, we conclude that Siebers’ claims are
barred by statutory immunity and she has not stated a claim upon which relief may
be granted under 42 U.S.C. § 1983 or directly under the Fifth Amendment.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

14