Section 775.01. Actions against state; bond.

  Upon the refusal of the legislature to allow a claim against the state the claimant may commence an action against the state by service as provided in s. 801.11 (3) and by filing with the clerk of court a bond, not exceeding $1,000, with 2 or more sureties, to be approved by the attorney general, to the effect that the claimant will indemnify the state against all costs that may accrue in such action and pay to the clerk of court all costs, in case the claimant fails to obtain judgment against the state.

The bond requirement of s. 775.01 may be waived under s. 814.29 (1). Boldt v. State, 101 Wis. 2d 566 , 305 N.W.2d 133 (1981).

Legislative adjournment before action on a bill authorizing payment of a claim constitutes refusal of the claim and satisfies the condition precedent for commencing an action. Cross-claimants are also required to meet the statutory conditions precedent. This section allows actions on a debt but does not allow tort actions or actions based on equity, including actions for unjust enrichment. CleanSoils Wisconsin, Inc. v. DOT, 229 Wis. 2d 600 , 599 N.W.2d 903 (Ct. App. 1999), 98-3374 .

A claim subject to this section must be presented to the legislature, in the form of a bill, and rejected before suit may be filed on the claim. The procedure is not optional. Brown v. State, 230 Wis. 2d 355 , 602 N.W.2d 79 (Ct. App. 1999), 98-2662 .

A breach of contract claim seeking damages for lost profits and expenses incurred is not a claim within the meaning of this section. The relevant inquiry here is whether the breach of contract claim is an action of debt or indebitatus assumpsit . “Debt," for which an action of debt will lie, is a specific sum of money that is due or owing from one to another. Koshick v. State, 2005 WI App 232 , 287 Wis. 2d 608 , 706 N.W.2d 174 , 05-0539 .