Tony Evers v. Howard Marklein
2024 WI 31 (2024)
Rule of Law:
The Wisconsin Constitution's separation of powers doctrine prohibits the legislative branch from retaining a post-appropriation veto over the executive branch's exercise of discretion in spending funds that have already been lawfully appropriated, as this constitutes an unconstitutional intrusion upon the executive's core power to execute the law.
Facts:
- In 1989, the Wisconsin Legislature created the Knowles-Nelson Stewardship Program to acquire land for nature-based outdoor recreational opportunities and to protect environmentally sensitive areas.
- The Department of Natural Resources (DNR), an executive branch agency, reviews applications and purchases land to administer the Program, guided by statutory purposes and administrative rules.
- The legislature has authorized the DNR to obligate up to $33,250,000 in each fiscal year through 2025-26 for land acquisition projects under the Program.
- Wisconsin Statutes §§ 23.0917(6m) and 23.0917(8)(g)3. require the DNR to notify members of the Joint Committee on Finance (JFC) of certain Program expenditures (e.g., those exceeding $250,000 or outside a project boundary).
- These statutes allow JFC members to request a meeting to review an expenditure, which temporarily blocks the funds; the DNR cannot obligate the funds until the JFC approves the expenditure, with no statutory deadline for the meeting.
- The JFC's decision on an expenditure is final and not subject to a vote of the full legislature.
- The JFC has allegedly prohibited or delayed a number of the DNR's proposed Program expenditures.
Procedural Posture:
- In October 2023, Governor Tony Evers filed an original action petition with the Wisconsin Supreme Court.
- The Wisconsin Supreme Court granted review solely with respect to the legislative review provisions governing the Knowles-Nelson Stewardship Program, holding two other issues in abeyance.
- Gathering Waters, Inc. moved to intervene as a petitioner, and this motion was granted by the Wisconsin Supreme Court.
- The Wisconsin Legislature moved to intervene as a respondent, and this motion was granted by the Wisconsin Supreme Court.
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Issue:
Do Wisconsin Statutes §§ 23.0917(6m) and 23.0917(8)(g)3., which authorize the Joint Committee on Finance to review, delay, or block executive branch expenditures under the Knowles-Nelson Stewardship Program, facially violate the separation of powers enshrined in the Wisconsin Constitution?
Opinions:
Majority - Rebecca Grassl Bradley, J.
Yes, Wisconsin Statutes §§ 23.0917(6m) and 23.0917(8)(g)3. unconstitutionally authorize the legislative branch to arrogate and impede the executive's core power to execute the law. The Wisconsin Constitution vests separate and distinct powers in the three branches of government, with 'core powers' being non-negotiable. While the legislature holds the power to make laws, including appropriating funds through bicameralism and presentment, the executive branch is entrusted to 'take care that the laws be faithfully executed.' Once the legislature appropriates funds for a specific purpose, the power to spend those funds in accordance with the law belongs to the executive branch. The challenged statutes create an unlawful 'legislative veto' by empowering the JFC to make spending decisions for which funds have already been appropriated and parameters defined, thereby seizing a quintessential executive function. This process circumvents the full legislative process, including bicameralism and presentment, and poses a threat to liberty by concentrating power. The court explicitly overrules J.F. Ahern Co. v. Wisconsin State Building Commission (1983) to the extent it endorsed a 'pragmatic approach' allowing for a blending or sharing of core powers, finding it inconsistent with the structural separation of powers. The legislature retains ample constitutional tools for oversight, such as modifying or repealing laws, changing appropriations, or auditing agencies, but cannot itself execute the law.
Concurring - Ann Walsh Bradley, J.
I join the majority opinion but write to clarify its scope and address the standard of review. This case focuses exclusively on core executive powers and does not define the contours of core legislative or shared powers, nor does it address the non-delegation doctrine. I agree with the outcome. Regarding the standard of review for constitutional cases, I argue that the traditional 'beyond a reasonable doubt' standard, which presumes a statute's constitutionality, should not apply in separation-of-powers disputes. In such cases where the powers of co-equal branches are at issue, applying this presumption improperly 'places a thumb on the legislative branch's side of the scale.' The playing field between the branches must be level, reflecting their 'perfectly co-ordinate' status, as articulated by Justice Scalia.
Concurring - Rebecca Grassl Bradley, J.
I join the majority opinion in upholding the structural separation of powers, a principle essential for the preservation of liberty by preventing the aggregation of power within one branch. This court has a duty to defend the constitutional boundaries of governmental authority. This decision restores the executive branch's core powers, following recent cases that protected the judicial and legislative branches from encroachment. The constitution prevents branches from reallocating powers without the people's consent, and also bars them from delegating their vested powers. The historical erosion of the non-delegation doctrine, often justified by 'necessity' of modern governance, is concerning, and this decision's first principles should revitalize that doctrine. I emphasize that constitutional principles must be applied consistently to all branches, and express apprehension that some members of the court might selectively apply these principles, thus empowering the executive at the expense of the legislative branch.
Concurring - Dallet, J.
I join the majority opinion and Justice Ann Walsh Bradley's concurrence, and write to emphasize that this case involves only the governor's core power to faithfully execute the laws, not 'shared powers' or the 'non-delegation doctrine.' 'Core powers' have clear boundaries, and the legislature cannot exercise the executive power to execute laws, just as it cannot exercise judicial power. Shared powers, in contrast, apply to 'borderlands' where functions overlap, allowing flexible exercise without undue burden, but that is not the case here. Arguments that legislative creation of an agency (DNR) or the power of appropriation makes an executive's spending decisions a 'shared power' are unpersuasive and would radically alter the separation of powers. Furthermore, this case does not implicate the 'non-delegation doctrine' because sections 23.0917(6m) and 23.0917(8)(g)3. purport to claim a power (executing the law) that was never the legislature's to begin with, and the legislature 'cannot delegate a power it does not have.' Finally, I express dismay at accusations of bad faith and political bias leveled against justices in other separate writings, stating that judges are committed to neutral, impartial decisions that follow the law.
Dissenting - Ziegler, C.J.
I respectfully dissent, criticizing the majority's decision to handpick and fast-track only one of three related issues in this case. This approach raises concerns about political favoritism and the potential for inconsistent application of constitutional principles, especially when the issue limits the power of the Republican-controlled legislature. I argue that the court should have allowed all issues to be fully vetted together to ensure consistency. The challenged statutes, which authorize the JFC's oversight of the Knowles-Nelson Stewardship Program, have been in place for over 15 years and for decades in similar forms for other programs, implicitly and explicitly approved by all three branches, including prior judicial decisions like J.F. Ahern Co. (1983) and Martinez v. DILHR (1992). The JFC's authority, passed by the full legislature and signed by the governor, complies with bicameralism and presentment requirements. Overturning this long-standing practice without full consideration or clear application of stare decisis principles is problematic. I warn of unintended consequences, such as the legislature potentially reducing or eliminating funding for programs if it cannot ensure appropriate expenditure through oversight, and the risk of selective application of separation of powers that aggregates power in the executive branch.
Analysis:
This case significantly clarifies and reinforces Wisconsin's strict adherence to the separation of powers doctrine, particularly between the legislative and executive branches regarding the expenditure of appropriated funds. By ruling that a legislative committee cannot retain a veto power over executive branch actions after funds have been appropriated by law, the Supreme Court curtails the legislature's ability to exert post-enactment control over the implementation of statutes. This decision pushes the legislature to utilize its primary lawmaking authority—such as enacting more specific appropriations or amending statutes through the full bicameral and presentment process—if it wishes to constrain executive discretion. The explicit overruling of J.F. Ahern Co., which advocated a 'pragmatic' or 'blended powers' approach, signals a return to a more textual and structural interpretation of the state constitution, potentially impacting future cases involving inter-branch disputes and legislative oversight of administrative agencies.
