Risser v. Thompson

• Decision Date: 17 May 1991
• Docket Number: No. 90-3119,90-3119
• Citation: 930 F.2d 549
• Parties: Fred A. RISSER and David M. Travis, Plaintiffs-Appellants, v. Tommy G. THOMPSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 549

930 F.2d 549

59 USLW 2659

Fred A. RISSER and David M. Travis, Plaintiffs-Appellants, v. Tommy G. THOMPSON, Defendant-Appellee.

No. 90-3119.

United States Court of Appeals Seventh Circuit.

Argued Feb. 14, 1991.

Decided April 16, 1991.

Rehearing and Rehearing En Banc

Denied May 17, 1991.

Frederick B. Wade, Madison, Wis., for plaintiffs-appellants.

Edward S. Marion, Wisconsin Dept. of Health & Social Services, Office of Legal Counsel, Madison, Wis., for defendant-appellee.

Before WOOD, Jr. and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

The constitution of the State of Wisconsin has since 1930 provided that "appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law," Art. V, Sec. 10(1)(b), unless the veto is overridden by a two-thirds vote in each house of the legislature; in that event the bill becomes law in the form in which the legislature had originally approved it. Sec. 10(2)(b). Many states have partial-veto provisions of this general type (Chester James Antieau, The Executive Veto 36 (1988)); and under the name "line-item veto" the policy of these provisions has repeatedly been urged upon the Congress of the United States. What is unique about Wisconsin, however, is that the courts of that state have read the words "in part" literally. By doing so they have empowered the governor not only to delete particular appropriations (line items), but also to delete phrases, words (such as "not")--even individual letters and digits--within an individual item or provision, and to do so even if the effect is to create a law remote from the legislators' intentions. State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935); State ex rel. Wisconsin Senate v. Thompson, 144 Wis.2d 429, 424 N.W.2d 385 (1988). Last year the Wisconsin constitution was amended to provide that "in approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters." Art. V, Sec. 10(1)(c). But he remains free to delete phrases, words, and digits. Governor Thompson, a Republican, has used this power to modify numerous provisions in appropriations bills enacted by the legislature, both houses of which are controlled by the Democrats. Many of these provisions have nothing to do with appropriations. For often the legislature will attach substantive amendments to the omnibus appropriations bill that is the principal legislative initiative in each session, and the governor will use his power of partial veto to change the meaning of those provisions.

Two Democratic legislators sue the governor for a declaration that the partial veto provision of the Wisconsin constitution, as interpreted by the Wisconsin courts, violates the clauses of the federal Constitution that guarantee free speech, due process of law, equal protection of the laws, and a republican form of (state) government. The plaintiffs also seek an injunction against the governor's using the provision in the future and an order nullifying past legislation created by the use of the provision. The district court dismissed the suit on the governor's motion for summary judgment.

We must first consider whether the plaintiffs have standing to maintain this suit. They argue that since the Democrats do not have two-thirds control of both houses of the Wisconsin legislature, the partial veto provision reduces the voting power of Democratic legislators such as themselves. Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 975, 83 L.Ed. 1385 (1939), holds that state legislators do indeed have standing to challenge measures that diminish the effectiveness of their votes, by analogy to the right of a private citizen to maintain a tort suit for deprivation of his right to vote. Ashby v. White, 2 Ld. Raym. 938, 92 Eng.Rep. 126 (K.B. 1703); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927). The applicability of Coleman to congressional standing was, it is true, questioned in Judge (now Justice) Scalia's concurring opinion in Moore v. U.S. House of Representatives, 733 F.2d 946, 957-61 (D.C.Cir.1984), and in Judge Bork's dissenting opinion in Barnes v. Kline, 759 F.2d 21, 50, 62-63 (D.C.Cir.1985), vacated as moot under the name Burke v. Barnes, 479 U.S. 361, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987), on the ground that judicial intervention in disputes between Congress and the President threatens to disrupt the separation of powers that the Constitution ordains. But neither judge questioned the continued vitality of the Coleman decision within its original domain, that of suits by state legislators. We shall see that the federal Constitution does not prescribe any particular separation of powers within state government, so that the concerns expressed by Judges Bork and Scalia cannot arise in a case in which a state legislator sues the state's executive or judiciary. Yet there is much in these opinions that strikes at the heart of Coleman--such as Judge Scalia's distinction between the rights of an individual (for example, his right to vote) and "the powers of an office," which "belong to the people and not" to the office holder. 733 F.2d at 959. See also Thornton v. Barnes, 890 F.2d 1380, 1392 (7th Cir.1989) (concurring opinion). Ordinarily, a person lacks standing to complain about the deprivation of something in which he has no legally protected interest.

However all this may be, no court has yet concluded that Coleman should be regarded as defunct, Chiles v. Thornburgh, 865 F.2d 1197, 1205 (11th Cir.1989), and we are naturally timid about overruling decisions of the Supreme Court. Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d 731 (7th Cir.1986); C. Steven Bradford, "Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling," 59 Fordham L. Rev. 39 (1990). It will not pay, though, to pursue the question further in this case, which was in any event rightly dismissed. To begin with, the suit is against the wrong defendant. Legislators' immunity is absolute, Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), and extends to injunctive as well as to damages suits. Supreme Court v. Consumers Union, 446 U.S. 719, 732-33, 100 S.Ct. 1967, 1974-75, 64 L.Ed.2d 641 (1980). When the governor of a state is exercising his veto power, he is acting in a legislative capacity, Edwards v. United States, 286 U.S. 482, 490-91, 52 S.Ct. 627, 630, 76 L.Ed. 1239 (1932); State ex rel. Wisconsin Senate v. Thompson, supra, 144 Wis.2d at 454-55, 424 N.W.2d at 395; Rateree v. Rockett, 852 F.2d 946, 951 (7th Cir.1988) (dictum), and he is therefore entitled to absolute immunity. Cf. Hernandez v. City of Lafayette, 643 F.2d 1188, 1193 (5th Cir.1981). The proper defendants in this suit would be officials or others enforcing or relying upon the laws created in the manner that the plaintiffs claim is unconstitutional. But it would be pointless for us to affirm the dismissal of the suit on the basis of the governor's immunity. That would just lead to the suit's being refiled against the proper defendants. We are persuaded that the suit has no possible merit, and we therefore do not wish to make the parties jump through another hoop. Since immunity even when absolute is a defense to a suit rather than a denial of the court's jurisdiction, we are not obliged to stop with a ruling that the defense is available in this suit.

A number of provisions of the federal Constitution assume that states have branches much like those of the federal government. Art. I, Sec. 2 (cls. 1, 4), Sec. 3 (cl. 1--since superseded by the Seventeenth Amendment), Sec. 4 (cl. 1); Art. II, Sec. 1 (cl. 2); Art. IV, Sec. 3 (cl. 1), Sec. 4; Arts. V and VI (cl. 3); Amend. XIV, Secs. 2, 3; Amend. XVII. Some provisions even assign specific duties to specific branches of state government. For example, Art. I, Sec. 4, cl. 1 provides that each state legislature shall prescribe the time, place, and manner of electing the state's U.S. Senators and Representatives. But in a series of decisions on which the plaintiffs do not deign to comment, we have held that the Constitution does not require a state to imitate the separation of powers prescribed for the federal government by the Constitution. It therefore does not require a state to allocate powers among the branches of state government in the same manner in which the Constitution prescribes that allocation among the branches of the federal government. Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 328-329 (7th Cir.1991); United Beverage Co. v. Indiana Alcoholic Beverage Comm'n, 760 F.2d 155, 158 (7th Cir.1985); Alleghany Corp. v. Haase, 896 F.2d 1046, 1053 (7th Cir.1990), vacated as moot under the name Dillon v. Alleghany Corp., --- U.S. ----, 111 S.Ct. 1383, 113 L.Ed.2d 441 (1991); Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 469 (7th Cir.1988); Ware v. Gagnon, 659 F.2d 809, 812 (7th Cir.1981).

These decisions, well grounded as they are in decisions by the Supreme Court, Dreyer v. Illinois, 187 U.S. 71, 83-84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Mayor v. Educational Equality League, 415 U.S. 605, 615 and n. 13, 94 S.Ct. 1323, 1330 and n. 13, 39 L.Ed.2d 630 (1974); Whalen v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 1436 n. 4, 63 L.Ed.2d 715 (1980), put these plaintiffs out of court. The effect of the partial veto provision in the Wisconsin constitution, as the provision has been interpreted, is to give the governor greater power over the appropriations process than he would have if he had a simple veto power or even a line-item veto power, that is, a power to veto particular appropriations without having to veto the entire omnibus appropriations bill and thereby bring state government...