July 16, 2024 – A statute authorizing the legislature’s Joint Finance Committee to temporarily block the Department of Natural Resources’ spending of legislatively appropriated funds violates the Wisconsin Constitution’s separation of powers provision, the Wisconsin Supreme Court has ruled (6-1) in Evers v. Marklein, 2024 WI 31 (July 5, 2024).

Justice Rebecca Grassl Bradley wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, Justice Brian Hagedorn, Justice Jill Karofsky, and Justice Janet Protasiewicz.

Justice A. Bradley filed a concurrence, joined by Justice Dallet and Justice Protasiewicz. Justice R. Bradley filed a concurrence. Justice Dallet filed a concurrence, joined by Justice A. Bradley, Justice Karofsky, and Justice Protasiewicz. Chief Justice Annette Ziegler dissented.

Legislative Review

Acting under the legislatively created Knowles-Nelson Stewardship Program (the Program), the state Department of Natural Resources (DNR) buys land and sends money to local governments and nonprofits to buy land.

Since the Program’s creation in 1989, the legislature has appropriated money to DNR for the purchase of lands.

The DNR has promulgated administrative rules to determine whether applications for funding from local governments and nonprofits meet the Program’s purposes listed in Wis. Stat. section 23.09(2)(d).

In 1999, the legislature enacted sections 23.0917(6m) and 23.0917(8)(g)3., which allow the Joint Finance Committee (JFC) to review certain Program expenditures made by the DNR.

Under section 23.0917(6m), the DNR must notify the JFC of any program expenditure greater than $250,000.

The JFC then has 14 days to review the expenditure, and the JFC can temporarily block the expenditure until the JFC holds a meeting on the proposed expenditure.

After the meeting, the JFC votes on whether to allow the proposed expenditure; the decision is not subject to a vote of the entire legislature.

Petition for Original Action

In October 2023, Governor Tony Evers filed a petition for an original action with the Wisconsin Supreme Court, challenging the legislature’s review of three different actions by the executive branch, including the JFC’s review of Program expenditures under sections 23.0917(6m) and 23.0917(8)(g)3.

The Supreme Court granted the petition, but only with respect to the JFC’s review of Program expenditures.

Core Executive Power

Justice R. Bradley began her opinion for the majority by explaining that the power to appropriate money falls squarely within the legislature’s power under Article IV, Section 1 of the Wisconsin Constitution.

The legislature argued that sections 23.0917(6m) and 23.0917(8)(g)3. fell within the realm of powers shared by the legislature and the governor, because the DNR, while an executive agency, was created by the legislature.

But R. Bradley concluded that while the state constitution granted the legislature the power to appropriate funds, it granted the executive the power to spend the funds, even though the legislature had created the DNR.

The legislature retained the authority to investigate and audit administrative agencies, R. Bradley wrote, but “Once the legislature appropriates funds for a particular purpose, the executive branch possesses the power to dole out those funds in accordance with the purpose outlined by the legislature.”

Sections 23.0917(6m) and 23.019(8)(g)3. in effect granted the legislature a veto over DNR spending of program funds, Justice R. Bradley wrote, and “the veto provisions undermine democratic governance by circumventing the lawmaking process … and punting to a committee the controversial and therefore politically costly positions that legislators would otherwise need to take.”

Ziegler Dissent

Chief Justice Ziegler argued in her dissent that the majority was wrong to grant the governor’s petition for an original action and to do so for only one of the issues presented in the petition.

“Despite the strong dissent of three of their colleagues, four members of this court handpicked but one issue to fast-track and decide,” Ziegler wrote.

“Consistency has not always been the new majority’s strong suit, but when it comes to picking political favorites, they have been unwaveringly faithful to the cause.”

Chief Justice Ziegler also argued that the majority failed to address the consequences of its decision.

As a result of the majority opinion, Ziegler reasoned, the legislature might decide not to allocate any money to the Program.

A. Bradley Concurrence

In a brief concurrence, Justice A. Bradley wrote to emphasize that the majority opinion focused on the issue of the executive branch’s core powers.

Justice A. Bradley also wrote that the Supreme Court’s constitutional standard of review, which requires a party challenging a statute to show that the statute is unconstitutional beyond a reasonable doubt, was “a poor fit in the separation of powers context.”

“Abandoning the standard in the context of separation of powers evens the playing field between the branches, while leaving the standard of review for other types of constitutional challenges intact,” A. Bradley wrote.

R. Bradley Concurrence

While Justice R. Bradley agreed with the majority’s separation-of-powers analysis, she wrote a concurrence to review caselaw holding that the state constitution prohibits one branch from sub-delegating powers delegate by the sovereign people to that branch.

She also wrote in her concurrence that Justice A. Bradley, Justice Dallet, and Justice Karofsky “have invariably ruled against the legislature in favor of the executive branch.”

“They have been the only justices during the past five years to demonstrate uniform allegiance to one branch and unvarying hostility to another,” Justice R. Bradley wrote.

R. Bradley also noted that in Justice Dallet’s concurrence, Dallet wrote that it was unclear whether executive branch agencies exercise legislative power when promulgating administrative rules to execute statutes.

“The separation of powers must be maintained across the board, for both political branches irrespective of which party controls them,” R. Bradley wrote.

Dallet Concurrence

Justice Dallet wrote that to accept the legislature’s argument that the power to approve spending appropriated money with the executive would “radically alter the separation of powers in Wisconsin.”

“Even a $5 expenditure under an already enacted appropriation could be conditioned on the approval of a single member of the legislature,” Justice Dallet wrote.

Dallet also wrote to address what she called “bad faith and bias against my colleagues and me.”

“In her dissent, Chief Justice Ziegler stoops to accusations of bad faith and political bias rather than engage in a reasoned debate about the law,” Justice Dallet wrote.

“And Justice Rebecca Grassl Bradley can’t pass up an opportunity to join in,” Dallet wrote. “In a bizarre twist, she writes separately to accuse the very justices who join her majority opinion of doing so only for political reasons.”