Citizens Utility Bd. v. Klauser

• Decision Date: 30 June 1995
• Docket Number: No. 94-1519-OA,94-1519-OA
• Citation: 194 Wis.2d 484,534 N.W.2d 608
• Parties: CITIZENS UTILITY BOARD, Senator Fred Risser and Representative David Travis, Petitioners, v. James R. KLAUSER, Secretary of the Department of Administration and Governor Tommy G. Thompson, Respondents.
• Court: Wisconsin Supreme Court

Page 608

534 N.W.2d 608

194 Wis.2d 484

CITIZENS UTILITY BOARD, Senator Fred Risser and Representative David Travis, Petitioners, v. James R. KLAUSER, Secretary of the Department of

Administration and Governor Tommy G. Thompson, Respondents.

No. 94-1519-OA.

Supreme Court of Wisconsin.

Argued April 26, 1995.

Decided June 30, 1995.

For the petitioners there were briefs by Lynn Adelman and Adelman, Adelman & Murray, S.C., Milwaukee and oral argument by Lynn Adelman.

For the respondents the cause was argued by Alan Lee, Asst. Atty. Gen., with whom on the brief was James E. Doyle, Atty. Gen.

WILCOX, Justice.

On June 13, 1994, the Citizens Utility Board, Senator Fred Risser and Representative David Travis (Petitioners) sought leave to commence an original action against James R. Klauser, Secretary of the Department of Administration, and Tommy G. Thompson, the Governor (Respondents) pursuant to Art. VII, sec. 3(2) of the Wisconsin Constitution and sec. 809.70, STATS. ¹ In this declaratory judgment action initiated pursuant to sec. 806.04, STATS., the issue presented for our consideration is whether the Wisconsin Constitution, empowering a governor to approve an appropriation bill "in part," permits the governor to strike a numerical sum appropriated in the bill and to insert a different, smaller number as the appropriated sum. We conclude that Art. V, sec. 10 of the Wisconsin Constitution permits the governor to act in such a fashion.

The facts in this action are not in dispute. The Wisconsin legislature passed the Executive Budget Bill, 1993 Senate Bill 44, on July 16, 1993. On August 10, 1993, Governor Tommy G. Thompson approved the bill in part and objected to it in part. In at least nine instances, Governor Thompson crossed out dollar figures written in Arabic numerals and wrote in different, smaller numbers. The legislature did not attempt to override these partial vetoes by the governor.

Petitioners ² subsequently brought this original action to specifically challenge only Governor Thompson's partial veto of the amount of appropriation in sec. 153 of the Executive Budget Bill. As presented to Governor Thompson, sec. 153 provided $350,000 for the Public Service Commission's intervention activities. ³ Governor Thompson drew lines through the "350,000" appropriation adopted by the legislature and wrote above the crossed out figures the number "250,000." The resulting veto appeared as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Governor Thompson, pursuant to the mandates of Art. V, sec. 10(2)(b) of the Wisconsin Constitution, ⁴ forwarded to the legislature the following reason for his action:

Section 153 [as it relates to s. 20.155(1)(j) ] provides $350,000 PR in fiscal year 1994-95 for intervenor financing. This is an increase of $150,000 PR over the current base.

I object to this increase in funding because an increase of more than $100,000 is too large. By lining out the Public Service Commission's s. 21.155(1)(j) appropriation and writing in the smaller amount of $250,000 PR in fiscal year 1994-95, I am vetoing the part of the bill which funds this provision. This will provide the Public Service Commission with adequate funding for intervention activities in that year. I am also requesting the Department of Administration Secretary not to allot these funds.

Article V, sec. 10(1) of the Wisconsin Constitution sets forth a governor's power to approve appropriation bills in whole or in part as follows:

Governor to approve or veto bills; proceedings on veto. Section 10. (1)(a) Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor.

(b) If the governor approves and signs the bill, the bill shall become law. Appropriation bills may be approved in whole or in part by the governor and the part approved shall become law.

(c) In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.

Petitioners contend that the above constitutional provision does not authorize the governor to write numerals or words into an appropriation bill. Rather, Petitioners maintain that the plain language of Art. V, sec. 10 of the constitution authorizes the governor either to approve an appropriation bill in whole, or to approve an appropriation bill in part, returning to the legislature the parts to which the governor objects. Approval, according to Petitioners, means to give one's consent; objection means disapproval or refusal to give consent.

The last sentence in subsection (1)(b), empowering a governor to "approve[ ] in whole or in part" an appropriation bill, was added to Art. V, sec. 10 of the constitution by a 1930 amendment. At the time Wisconsin approved the amendment, thirty-seven other states granted the governor the power to object to single items in appropriation bills, but no other state constitution utilized the word "part" instead of "item." The Partial Veto in Wisconsin--An Update, Informational Bulletin 87-IB-3 (August 1988). ⁵ Use of the partial veto ⁶ was minimal up until the early 1970's when it became a more popular tool to craft policy. For instance, in 1971, Governor Patrick J. Lucey was the first governor to use the partial veto to remove a single digit from an appropriation--thereby inventing the "digit veto." Id. at 4. And in 1983, Governor Anthony S. Earl invented another version of the partial veto--the "pick-a-letter veto" (the selective vetoing of letters to form a new word, or of digits to form a new number). Id. However, as the parties here readily admit, Governor Thompson has been the state's most prolific governor, in terms of both volume and creativity, in the exercise of his partial veto authority.

Since the time of the 1930 amendment to sec. 10, the supreme court has been called upon to consider the scope of the governor's partial veto power in six cases. ⁷ These cases, instructing that a governor wields a broad but not limitless power to object in part to an appropriation bill, necessarily form the basis for our resolution of this case. Thus, before examining the constitutionality of Governor Thompson's challenged partial veto in the present case, we must briefly review those six cases interpreting the governor's partial veto power.

In State ex rel. Wisconsin Tel. Co. v. Henry, 218 Wis. 302, 306-07, 260 N.W. 486, 489 (1935), the first case to construe the governor's power to object to part of an appropriation bill, the governor attempted to veto portions of an appropriation bill declaring legislative intent and creating an agency for administration of a fund. The plaintiff challenged the governor's veto on two grounds, claiming: (1) that the governor vetoed conditions the plaintiff asserted were inseparably connected with an appropriation; and (2) that the governor vetoed parts of the appropriation bill that had nothing to do with an appropriation. Id. at 309, 260 N.W. at 490.

The Henry court first concluded that the parts vetoed were not provisos or conditions inseparably connected to the appropriation bill. ⁸ Id. The court then concluded that the governor has the authority to object to any separable part of an appropriation bill, even if it is not an appropriation. Id. at 314-15, 260 N.W. at 491-92. The court used a dictionary's broadly stated definition of the word "part," reasoning that the governor's power to object to a part of an appropriation bill was "intended to be as coextensive as the legislature's power to join and enact separable pieces of legislation in an appropriation bill." Id. at 315, 260 N.W. at 492. Wisconsin, the court explained, has no constitutional provisions prohibiting the legislature from passing general legislation that unites a number of unrelated subjects in one bill to increase the likelihood of the bill's approval. Id. Thus, the court suggested that the veto power allows the governor to approve or object to every separable piece of legislation in an appropriation bill to "prevent the evil consequences of improper joinder." Id. The question left unanswered by Henry was whether the portions vetoed need constitute a separable portion of the entire bill.

This court rendered its second interpretation of the governor's partial veto power in State ex rel. Finnegan v. Dammann, 220 Wis. 143, 264 N.W. 622 (1936). In Finnegan, the issue was raised as to whether a bill that did not include an appropriation was nonetheless an "appropriation bill" because it amended an existing law that indirectly affected fund appropriations by raising the permit fees of various types of motor carriers. Id. at 147-48, 264 N.W. at 624. The court concluded that the legislation was not an appropriation bill because there was no appropriation within the four corners of the bill. Id. at 147-48, 264 N.W. at 624. In so concluding, the court adopted the following definitions as guideposts in determining whether a bill may be considered an appropriation:

"Appropriation bill. Govt. A measure before a legislative body authorizing the expenditure of public moneys and stipulating the amount, manner, and purpose of the various items of expenditure."

"An appropriation in the sense of the constitution means the setting apart a portion of the public funds for a public purpose."

"An appropriation is 'the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.' "

Id. (emphasis added).

In State ex rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940), the court addressed the question of the governor's use of the partial veto power following adjournment by the legislature, but within the time limits set by the constitution. More important than the holding that the governor's partial veto was timely and authorized was the court's...