Evers v. Marklein (Separation of Powers)

In Evers v. Marklein (2024 WI 31), the court held that oversight power exercised by a legislative committee over decisions made by a state agency to use already-appropriated funds violated the separation of powers established by the Wisconsin Constitution.

This decision may have significant implications for Wisconsin politics and policy. While the immediate effect of this decision is limited to the Joint Committee on Finance’s ability to manage the Knowles-Nelson Stewardship Program, the precedent established by the court may lead to more successful lawsuits against other committee oversight powers.

Facts

The Wisconsin Legislature, under Republican control, has enacted various statutes giving its joint standing committees the power to review and change or exercise a “legislative veto” over certain decisions made by state agencies. Gov. Tony Evers, a Democrat, filed this lawsuit alleging that these “legislative vetoes” were an unconstitutional violation of the separation of powers. The governor filed an original action asking the supreme court to bypass the lower courts and hear the case directly.

The governor’s lawsuit identified actions by the Joint Committee on Employment Relations (withholding UW System pay raises budgeted for 2023-25), Joint Committee on Finance (objecting to several Stewardship Program projects), and Joint Committee for Review of Administrative Rules (blocking rules on the commercial building code and ethics standards for several licensed professions).

The supreme court accepted the lawsuit, but only on the claim related to the Joint Committee on Finance (commonly, Joint Finance Committee or JFC) and the Knowles-Nelson Stewardship Program. The court asked the parties to the case to address this question: Wisconsin Stat. § 23.0917 charges DNR with administering the Knowles-Nelson Stewardship Program, through which DNR awards already-appropriated funds to expand public access to the State’s natural resources. Wisconsin Stat. § 23.0917(6m) and (8)(g)3. authorize the Joint Committee on Finance, a 16-member legislative committee, to veto DNR’s choices. Do those veto provisions facially violate the separation of powers?

Decision

In a 6-1 decision (Justice R. Bradley, joined by Justices Walsh Bradley, Dallet, Hagedorn, Karofsky, and Protasiewicz), the court held that the veto power exercised by the Joint Committee on Finance was a violation of the separation of powers established by the Wisconsin Constitution. The alignment of the court in this case was notable in that the majority opinion was authored by conservative Justice R. Bradley but joined by all four of the court’s liberal justices.

The decision began by analyzing the three-part structure of state government created by the Wisconsin Constitution, noting that each branch (executive, legislative, and judicial) has distinct “core powers” reserved to that branch only, while there are also “shared powers” at the intersection of each branch’s authority. The court pointed out that while the legislature has broad powers to propose and enact whatever legislation it sees fit, once a piece of legislation is enacted, it becomes the province of the executive branch to implement and enforce that policy or program.

The court noted that in this case, funding for the Stewardship Program had already been appropriated in the 2023-25 state budget, which passed both houses of the legislature and was signed into law by the governor. Meanwhile, already-established state law broadly instructs DNR on how to select funding recipients under the program. The court found that the legislature could no longer exercise control over the funds in question because they had already been appropriated, and a program or process for spending those funds was already in place.

The court concluded: “Wisconsin Stat. §§ 23.0197(6m) and 23.0197(8)(g)3. effectively create a legislative veto, allowing the JFC to interfere with and even override the executive branch’s core power of executing the law. … Maintaining the separation of powers between the branches is essential for the preservation of liberty and a government accountable to the people. By placing the power of the executive branch to carry out the law in a committee of the legislature, the legislative branch subsumed the executive power. Because §§ 23.0917(6m) and 23.0917(8)(g)3. give core executive power to the legislative branch, they are unconstitutional.”

Concurring Opinions

Several back-and-forth concurring opinions were also filed by Justice Walsh Bradley (joined by Justices Dallet and Protasiewicz), Justice R. Bradley, and Justice Dallet (joined by Justices Walsh Bradley, Karofsky, and Protasiewicz), elaborating their positions, sparring over the relevance and implications of the “nondelegation doctrine,” and levying allegations of bad faith and political bias against one another.

Dissent

In a dissent, Chief Justice Ziegler began by arguing that while this is an important case, it was not appropriate for original action because there was not an extraordinary circumstance or time-sensitive situation that warranted this. Instead, per the dissent, the court should have allowed the case to work through the circuit and appellate courts first.

The dissent went on to explain the reasoning for this: “Without considering all issues together and in due course, the doctrine may be applied inconsistently. Here, because one issue is being taken up in a vacuum, handpicked for quick ‘justice,’ we have no assurance that constitutional principles, whether separation of powers or nondelegation doctrine principles, will be equally applied, in the same manner, across the board, to the other branches in the future. For that, we wait. Those issues were not fast-tracked for decision this term.” The dissent expressed a concern that “handpicking this lone issue has the appearance of being just one more in a series of political ‘power grabs.’”

The dissent concluded by stating that the court should not have “rush[ed] to judgment” in the case and that “The decision of the court today, despite being limited to this particular program and based on separation of power principles, could be perceived as having broader impact on the way Wisconsin government has managed the power of the purse for over 100 years” because “All three branches of government have functioned with the understanding that the JFC operates with authority to review certain spending and in fact, that review has been deemed constitutional by our court. The other branches of government have implicitly and explicitly approved such JFC review.”