Court decision squashes legislative oversight of Stewardship purchases

A state Supreme Court decision earlier this month booted a key tool that the legislature’s Joint Finance Committee has used to oversee the state’s Stewardship land acquisition program, nullifying the committee’s power to block specific program projects.

There was an unusual degree of unanimity in the decision, with only chief justice Annette Ziegler dissenting in the 6-1 vote. 

At issue was a statute that allows the Joint Committee on Finance (JFC) to engage in a review process for certain expenditures under the program. Specifically, as the decision states, the challenged provision requires the DNR to notify the members of the JFC if an expenditure under the program exceeds $250,000.

Under the now-void statute, the provision allowed the committee to review and temporarily block the expenditure until a member requested and a meeting was held on the project. There was no statutory requirement as to when such a meeting had to be held, and, if a committee member did request a meeting, the DNR could not obligate money until the committee approved the expenditure.

Once a meeting was held, the committee could vote the project up or down; the full legislature had no say.

A second provision applied to land acquisition projects “outside of a project boundary” regardless of the amount of the expenditure. That provision prohibited the DNR from obligating money for a land acquisition “outside of a project boundary” unless 12 members of the JFC “approve the land acquisition.”

The Evers administration, as well as the Gathering Waters environmental organization, claimed that the statutes prohibited or delayed multiple DNR projects and affected the executive branch’s ability to implement the policy purposes of the program.

The majority opinion, written by justice Rebecca Grassl Bradley, agreed, but, in a carefully crafted dissent, Ziegler warned that the decision, a separation-of-powers ruling aimed at the legislature only, could tilt power toward the Democratic-controlled executive branch if not applied consistently to all three branches of government.

The analysis

Bradley began her majority opinion by observing that, like the U.S. constitution, the state constitution created three separate and coordinate branches of government, “with the understanding that no branch of government can subordinate, control, or exercise the power of another branch.”

That’s not to say, Bradley wrote, that there were no shared powers in addition to the “core” powers of the branches, the shared powers being described as “twilight zones” and “ambiguous territory in which the functions of two branches . . . overlap.”

And those areas require separation-of-powers analysis, Bradley wrote. She began that analysis by asserting that legislative power is vast but not unconstrained.

“The procedural requirements of bicameralism and presentment temper the expansive authority vested in the legislative branch to make policy decisions for the state,” she wrote. “For a bill to be enacted into law it must pass through both the assembly and the senate and then be presented to the governor for his approval or veto. Bicameralism and presentment thereby cabin the immense power vested in the legislature to enact laws.”

In contrast, Bradley wrote, the governor is entrusted to take care that the laws be faithfully executed.

“The executive branch’s role is to effectuate the policies passed by the legislature,” she wrote. “The ‘executive, however, is not a legislatively-controlled automaton. Before executing, he must of necessity determine for himself what the law requires him to do.’ The executive power vested in the governor comprises the ability to determine ‘what the law requires as well as applying it[.]’”

That discretion is in turn cabined by the text of the statutes enacted by the legislature, Bradley wrote.

As for the specific statutes at hand, Bradley continued, the legislature argued that the JFC’s ability to block Stewardship expenditures was a “shared power” because the DNR is an administrative agency created by the legislature and subject to legislative oversight and because the state constitution gives the legislature the power to appropriate funds.

But the constitution doesn’t support that contention, Bradley asserted.

“The constitutional text belies this argument,” she wrote, observing that the text states “No money shall be paid out of the treasury except in pursuance of an appropriation by law.” 

“While the constitution gives the legislature the power to appropriate funds, the power to spend the funds the legislature has appropriated for a specific project belongs to the executive branch,” she wrote. “This is true even though the legislature created the DNR. While the legislature has the power [to] create an agency, define its powers, and appropriate funds to fulfill the purpose for which the legislature established it, the power to spend appropriated funds in accordance with the law enacted by the legislature lies solely within the core power of the executive to ensure the laws are faithfully executed.”

The bottom line was, Bradley wrote and the majority concluded, the subject statutes interfered with the executive branch’s core function to carry out the law by permitting a legislative committee, rather than an executive branch agency, to make spending decisions for which the legislature had already appropriated funds and defined the parameters by which those funds could be spent. 

“A statute authorizing the legislative branch to exercise core powers of the executive branch violates the constitutional separation of powers and cannot be enforced under any circumstances,” she wrote.

Staying in the legislative lane

One of the major problems, Bradley wrote, is that the enabling Stewardship statutes had already defined the parameters of how the DNR could spend the money. Once it did that, the justice wrote, it was the executive branch’s jurisdiction to decide how to spend the money, so long as they remained within those parameters.

And the parameters were clear, Bradley wrote.

“For example, [the law] identifies a variety of purposes the DNR should prioritize in obligating funds for land acquisition,” she wrote. “The statutes authorizing the program also identify both prohibitions and limitations on the types of projects eligible for funding.”

Bradley cited one of those restrictions: The DNR may not obligate funds “for the acquisition of land for golf courses or for the development of golf courses.”

“The statutes also limit how much money the DNR can obligate for land acquisition each fiscal year,” she wrote. “This sort of statutory line drawing lies squarely within the legislature’s core powers to enact laws and make spending decisions for the state.”

But the challenged statutes did something more, Bradley wrote.

“However, [those provisions] give JFC members the power to decide how the funds should be used after the lawmaking process has been completed and the funds have been appropriated to the DNR  —  a quintessential executive function,” she wrote.

The provisions, Bradley explained, effectively create a legislative veto, allowing the JFC to interfere with and even override the executive branch’s core power of executing the law. 

“If the JFC does not object to a proposed project within the 14 day review window, the DNR may spend the money,” she wrote. “But if a single JFC member objects to the DNR’s project proposal, the JFC will hold a meeting and can either approve the proposed funding in full, modify the amount to be disbursed, or outright reject the project. The statutes omit a deadline for the JFC to hold a meeting if there is an objection to a proposed expenditure.”

That review process ultimately permits the members of the JFC to serve as gatekeeper to the exercise of a core executive function, Bradley opined. 

“Effectively, JFC members make the spending decision  —  not the executive branch,” she wrote. “This unfettered interference by the committee oversteps the boundaries of legislative authority by arrogating the executive branch’s core power to choose which conservation projects best carry out the statutory purposes of the Program.”

Not your job

Bradley also took issue with one of the legislature’s principal arguments, namely, that the DNR had mismanaged the Stewardship program, including a failure to control spending, and so pragmatic oversight for taxpayers was necessary.

That argument didn’t hunt in Bradley’s legal woods.

“We reject the respondents’ pragmatic arguments for sustaining the statutes because the legislature has no authority to control executive branch efforts to carry out the law,” Bradley wrote. “The constitution does not empower any branch to circumvent the constitutional confines of its authority even if it ‘believe[s] that more or different power is necessary.’ Upholding the statutes based on pragmatic considerations would reallocate the constitutionally prescribed core powers of the executive branch and the legislative branch in our state constitution.”

The power to do so belongs to the people alone, Bradley asserted, and, indeed, she wrote, legislative vetoes disrupt the governmental accountability that the separation of powers facilitates. 

“By appropriating a sum of money to the DNR for the Program with only broad direction, the legislature avoids the political judgments and votes necessary to appropriate funds with greater specificity,” she wrote. “The veto provisions undermine democratic governance by circumventing the lawmaking process  —  which requires the participation of the entire legislature  —  and punting to a committee the controversial and therefore politically costly positions legislators would otherwise need to take.”

Bradley observed that the legislature retains the authority to conduct oversight investigations and audits of administrative agencies, but empowering a legislative committee to block the expenditure of appropriated funds was a step too far for legislative power.

“Once the legislature appropriates funds for a particular purpose, the executive branch possesses the power to dole out those funds in accordance with the purposes outlined by the legislature,” she wrote. “While the legislature’s motivation for overseeing the public fisc may be well-intentioned, fundamentally, the legislature may not execute the law; the people gave the executive alone this power.”

Maintaining a strict separation between the branches is essential to the preservation of liberty, Bradley wrote, because “a government with shared legislative and executive power could first ‘enact tyrannical laws’ then ‘execute them in a tyrannical manner.’”

“To prevent this dangerous concentration of power, the constitution prohibits ‘the same persons who have the power of making laws to have also in their hands the power to execute them,’” she wrote.

Not powerless

Throughout the decision, Bradley and the majority point out that, despite not being able to execute or enforce the law it makes, the legislature retained multiple constitutional tools to check the power of the executive, in addition to the aforementioned ability to conduct oversight investigations and audits of administrative agencies.

“The legislature retains the authority to withdraw powers which have been granted, prescribe the procedure through which granted powers are to be exercised, and, if necessary, wipe out the agency entirely,” Bradley wrote. “The legislature could take away or limit the discretion of the executive branch to make spending decisions for the Program, but once it has conferred spending power on the executive, the legislative branch lacks any constitutional authority to reject an executive decision short of exercising its lawmaking power with the full participation of the legislature.”

And there’s more, Bradley wrote.

“The legislature’s concerns about the executive branch’s unwillingness to faithfully execute the program in accordance with legislative policy preferences may be addressed via numerous constitutional tools at the legislature’s disposal to rein in the executive branch,” she wrote. “The legislature could lawfully limit the Program using its appropriation power to decrease funding for the Program, by narrowing the scope of discretion afforded to the executive branch through legislation, by enacting sunset provisions requiring the Program to be reauthorized by a later legislative session, by auditing the executive agency administering the Program, or by eliminating the Program altogether.”

Additionally, Bradley wrote, the legislature could enact line-item appropriations for specific projects. In the end, Bradley wrote, the court’s decision does not expand executive power but rather preserves the constitutional roles the people assigned to the executive and legislative branches.

“We reiterate the constitutional boundaries of governmental powers to ensure the branches do not ‘abdicate or permit others to infringe upon such powers as are exclusively committed to them by the constitution,’” she wrote. “As part of our judicial duty, this court ‘must be assiduous in patrolling the borders between the branches’ because the separation of powers doctrine ‘provides structural protection against depredations on our liberties.’”

The decision neither enhances executive power nor curtails legislative power, Bradley asserted. 

“We simply confine the legislature to lawmaking and leave the execution of the laws to the executive as the Wisconsin Constitution commands,” she wrote. “In doing so, we expound the law, which in this case involves applying principles embodied in the state constitution since ratification.”

In dissent

The lone dissenter in the case was chief justice Annette Ziegler.

Among other reasons, Ziegler said she was dissenting because she did not think the court should have accepted the case for original action rather than let it play out through lower courts.

“There is no doubt that the legal questions presented in this case affect matters of statewide importance, but there is no emergency here, nor was there a need to fast-track just one issue in the case  —  a challenge to the Knowles-Nelson Stewardship Program, outlined in [state law] and administered through the Department of Natural Resources,” Ziegler wrote.

Ziegler pointed out that there were three issues presented to the court in the petition for original action. 

One of the other two involved a pay adjustment for University of Wisconsin and all other state employees and whether the Joint Committee on Employment Relations, an eight-member legislative committee, could veto UW’s pay adjustments.

The third issue was whether the Joint Committee for Review of Administrative Rules, a 10-member legislative committee, could veto DSPS’s and a licensing board’s rulemaking authority over commercial building standards and ethics standards for social workers, marriage and family therapists, and professional counselors.

Despite there being three issues, Ziegler wrote, four members of the court selected one issue to decide  —  the Stewardship issue  —  leaving the other two “held in abeyance pending further order of the court.”

Ziegler said the three issues should all be vetted together.

Interestingly, Ziegler observed, the same majority that plucked one issue of three related to the same judicial question recently allowed two separate cases, with separate issues, to be decided together even though she said normally one would have been held in abeyance. 

In that instance, Ziegler wrote, justice Jill Karofsky tried to justify the decision by writing that the resolution of one might depend on the resolution of the other and that the “court does not know how it should resolve a particular case until it reviews all of the arguments made by the parties. Consequently, it makes good sense to hear all of the relevant legal arguments before rendering a decision…”

“For the new majority, different principles apply depending on whether a ‘pet issue’ is at stake,” Ziegler wrote.

Nonetheless, Ziegler continued, despite the strong dissent of three of their colleagues, four members of the court handpicked but one issue to fast-track and decide.

“I dissented then, and I dissent now,” she 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. Instead of allowing this case to proceed through the process, sifting and winnowing the issues, and then taking all the issues at the same time, which would serve to produce consistency, they forge on.”

For sure, Ziegler argued, selecting an issue that only impacts the Republican-controlled legislature and the longstanding Knowles-Nelson Stewardship Program should raise eyebrows. 

“Determining all issues at the same time could serve to hold my colleagues to application of the same principles in the same way, even when it comes to a Democratic-controlled branch of government,” she wrote. “Unfortunately, we will wait to see if that consistency will be forthcoming, as the majority handpicked and now limits only the legislative branch’s longstanding, statutorily authorized practice.”

Ziegler addressed the merits of the case, too, in particular the consequences of limiting the separation-of-powers analysis to the Republican-controlled legislative branch.

“If this becomes a singular application of separation of power principles or the non-delegation doctrine, which restrains only the legislative branch, that amounts to aggregation of power which runs counter to fundamental constitutional principles,” she wrote. “The principles the majority applies today must have consistent application, which could have been more even-handedly accomplished by hearing all the issues in due course. Because this sole issue is being decided in a vacuum and on an expedited basis, we are at risk of seeing a selective application of separation of power and non-delegation principles and, ultimately, imbalance between the branches.”

The petitioners effectively ask this court to revitalize separation of powers and the non-delegation doctrine, but as applied to the Republican-controlled branch only, Ziegler asserted. 

“This limited application could ultimately serve to aggregate power in the Democratic-controlled executive branch,” she wrote. “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 non- delegation doctrine principles, will be equally applied, in the same manner, across the board, to the other branches in the future.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.