Risser v. Klauser, No. 96-0042-OA (Wis. 1/31/1997), 96-0042-OA.
| Decision Date | 31 January 1997 |
| Docket Number | No. 96-0042-OA.,96-0042-OA. |
| Parties | Senator Fred Risser, Senator Brian Burke, Representative David Travis and Sheila R. Mooney, Petitioners, v. James R. Klauser and Governor Tommy G. Thompson, Respondents. |
| Court | Wisconsin Supreme Court |
For the petitioners there were briefs by Lynn Adelman, Jon Deitrich and Adelman, Adelman & Murray, S.C., Milwaukee and oral argument by Lynn Adelman.
For the respondents there was a brief by Bruce L. Harms, Michael J. Modl and Axley Brynelson, Madison and oral argument by Michael J. Modl.
¶ 1 This is an original action by several Wisconsin state legislators and a taxpayer (petitioners)1 seeking a declaration that the Governor's write-in veto of a monetary figure in the second sentence of section 57 of 1995 Assembly Bill 557 exceeded his authority under art. V, § 10 of the Wisconsin Constitution.
¶ 2 The "write-in" veto in issue in the present case was first recognized as within a governor's art. V, § 10 powers in Citizens Utility Board v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995), hereinafter C.U.B. The write-in veto is a lesser included subset of the partial veto made available to a governor by the 1930 amendment to Wis. Const. art. V, § 10.
¶ 3 The petitioners contend that the constitution limits the write-in veto to reductions of appropriation amounts and that the revenue bonding limit in the second sentence of section 57 is not an appropriation amount.
¶ 4 The Governor advances two arguments in support of his exercise of the write-in veto in this case. First, the Governor contends that the write-in veto is not limited to reducing appropriation amounts and that the write-in veto may be exercised on any monetary figure in an appropriation bill. Second, the Governor argues that even if a governor's write-in veto is limited to appropriation amounts, the monetary figure in issue in the present case is an appropriation amount subject to the write-in veto.
¶ 5 We conclude that the Governor's write-in veto may be exercised only on a monetary figure which is an appropriation amount and that the monetary figure in the second sentence of section 57 of 1995 A.B. 557 is not an appropriation amount. Accordingly, we hold that the Governor's write-in veto challenged in the present case is not authorized by the constitution and is therefore invalid.
¶ 6 This case comes to us on stipulated facts. As background for our legal analysis we shall summarize the facts, the constitutional law relating to the partial veto and the statutory context of the second sentence of section 57 of 1995 A.B. 557.
¶ 7 On November 16, 1995, the Wisconsin legislature enrolled 1995 A.B. 557, an omnibus bill setting forth the transportation budget. In addition to appropriating funds for transportation purposes, it creates, repeals and amends various transportation-related statutes. The bill, among other things, imposes taxes, authorizes highway construction, provides penalties, makes appropriations and grants bonding authority. This latter function is the subject of section 57 of the bill.
¶ 8 On December 6, 1995, the Governor vetoed numerous parts of 1995 A.B. 557 and approved the remainder. The part approved was enacted as 1995 Wis. Act 113.
¶ 9 This case is ruled by the 1930 amendment to the Wisconsin constitution authorizing a governor to approve appropriation bills "in whole or in part." Wis. Const. art. V, § 10(1)(b). The parties agree, and the court holds, that 1995 A.B. 557 is an appropriation bill within the meaning of art. V, § 10(1)(b). Article V, § 10(1), provides as follows:
(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.
¶ 10 Certain principles emerge from the court's interpretations of this language. First, a governor may exercise the partial veto only on parts of bills that contain appropriations within their four corners. State ex rel. Finnegan v. Dammann, 220 Wis. 143, 147-48, 264 N.W. 622 (1936). Second, the partial veto must be exercised in such a manner that the part of the bill remaining constitutes a "complete, entire, and workable law." State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 314, 260 N.W. 486 (1935); State ex rel. Martin v. Zimmerman, 233 Wis. 442, 450, 289 N.W.2d 662 (1940). Third, the disapproval of part of an appropriation bill may not result in a provision which is "totally new, unrelated or non-germane" to the original bill. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 451-53, 424 N.W.2d 385 (1988). Fourth, the partial veto authority extends to any part of an appropriation bill, not only to appropriations. State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 130, 237 N.W.2d 910 (1976). Fifth, a governor may strike words or digits from an appropriation bill. State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 685, 264 N.W.2d 539 (1978); Wisconsin Senate, 144 Wis. 2d at 457. However a governor "may not create a new word by rejecting individual letters in the words of the enrolled bill." Wis. Const. art. V, § 10(1)(c), (1990 amendment); C.U.B., 194 Wis. 2d at 501. Sixth, a governor may exercise the partial veto power by writing in a smaller number for a number expressing an appropriation amount. C.U.B., 194 Wis. 2d at 499-500 and n.10 ( Wisconsin Senate, 144 Wis. 2d at 461).
¶ 11 A governor's authority to alter legislation granted in Wis. Const. art. V, § 10 is part of the constitution's carefully balanced separation of powers between the executive and the legislative branches. It is the judiciary's role to declare the boundaries which the constitution sets between the other two branches. Our inquiry in this case is whether the Governor's actions comport with the constitutional grant of authority set out in art. V, § 10(1)(b).
¶ 12 The Governor's veto of part of the second sentence of section 57 of 1995 A.B. 557 is at issue in this case. Section 57 provides as follows:
Section 57. 84.59(6) of the statutes is amended to read:
84.59(6) Revenue obligations may be contracted by the building commission when it reasonably appears to the building commission that all obligations incurred under this section can be fully paid from moneys received or anticipated and pledged to be received on a timely basis. Revenue obligations issued under this section shall not exceed $950,834,0002 $1,123,638,1003 [$ 1,083,638,100]4 in principal amount, excluding obligations issued to refund outstanding revenue obligations. Not more than $841,634,000 $1,081,341,000 [$ 1,041,341,000] of the $950,834,000 $1,123,638,100 [$ 1,083,638,100] may be used for transportation facilities under s. 84.01(28) and major highway projects under ss. 84.06 and 84.09.
¶ 13 Section 57 amended Wis. Stat. § 84.59(6) (1993-1994).5 The first sentence of section 57 authorizes the building commission to contract for the sale of revenue obligations,6 the proceeds of which may under § 84.59(1) fund certain transportation facilities and projects.7 This sentence is not in dispute.
¶ 14 In the second sentence of section 57 the legislature raised the cumulative limit on revenue obligations that may be contracted under § 84.59. The Governor struck this increased limit on revenue bonds and wrote in a figure $ 40 million lower. It is this veto that the petitioners challenge.
¶ 15 The write-in vetoes in the third sentence, as well as numerous other write-in vetoes, were not challenged or discussed in the briefs by either party. At oral argument, in response to the court's questions, counsel for the Governor urged the court to consider the third sentence as part of the overall revenue/appropriation scheme informing the meaning of the second sentence and its monetary figure. At oral argument the petitioners described the third sentence and the figures therein as setting forth a use limitation, in contrast with appropriation amounts subject to the partial veto. We shall examine the third sentence in our discussion of the challenged write-in veto.
¶ 16 The Governor makes two alternative arguments to support his write-in veto of the monetary figure in the second sentence of section 57. The first argument is that a governor's write-in veto power is not limited to reducing appropriation amounts; rather it is limited to reducing any monetary figures in an appropriation bill. The second argument is that even if a governor's write-in veto is limited to appropriation amounts, the monetary figure in the second sentence is an appropriation amount subject to the write-in veto. Under either argument, the Governor contends that his write-in veto in the present case is constitutional. We shall discuss each of these positions in turn.
¶ 17 The Governor's contention that the write-in veto applies to any monetary figure in an appropriation bill and is not limited to appropriation amounts rests on the Governor's interpretation of C.U.B., 194 Wis. 2d 484. In C.U.B. the Governor had exercised his veto by striking the figure $350,000 and writing in $250,000 in an entry within § 20.005(3), the appropriations schedule. The Governor argues that C.U.B. should be limited to its facts — a veto of an appropriation amount — and that the court did not intend C.U.B. to address the issue of the constitutionality of a write-in veto of a monetary figure that is not an appropriation amount. According to the Governor, the C.U.B. court's limitation of the write-in veto to appropriation amounts merely reflected the fact that the veto at issue in that case involved an appropriation amount.
¶ 18 In this part of his...
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