State ex rel. Kleczka v. Conta, 77-463-OA
| Decision Date | 05 April 1978 |
| Docket Number | No. 77-463-OA,77-463-OA |
| Citation | 82 Wis.2d 679,264 N.W.2d 539 |
| Parties | STATE ex rel. Gerald D. KLECZKA and John C. Shabaz, on Behalf of themselves and all persons similarly situated, Petitioners, v. Dennis J. CONTA, Secretary, Department of Revenue of the State of Wisconsin, Election Board of the State of Wisconsin, Douglas LaFollette, Secretary of State of the State of Wisconsin, Martin J. Schreiber, Acting Governor of the State of Wisconsin, and Bronson La Follette, Attorney General of the State of Wisconsin, Respondents. |
| Court | Wisconsin Supreme Court |
Trayton L. Lathrop (argued), Donald L. Heaney and Isaksen, Lathrop, Heaney & Long, Madison, on brief, for petitioners.
Irvin B. Charne (argued), Howard B. Tolkan, Arthur J. Harrington, and Charne, Glassner, Tehan, Clancy & Taitelman, S. C., Milwaukee, on brief, for respondents Dennis J. Conta, Douglas LaFollette, and Martin J. Schreiber.
Bronson C. La Follette, Atty. Gen., and John E. Armstrong, Asst. Atty. Gen., on Attorney General's brief in response to order to show cause.
The petitioners in this original action are Gerald D. Kleczka, a member of the Wisconsin Senate, and John C. Shabaz, a member of the Assembly. On December 2, 1977, they filed a petition for leave to commence an original action in this court for the purpose of securing this court's declaration in respect to the validity of a purported partial veto of an enrolled bill which originated as Assembly Bill 664. The petitioners contend that the partial veto was legally defective and, accordingly, the entire bill as enacted by the legislature was required to be published as law.
The principal respondent named in the petition is Martin J. Schreiber, Acting Governor (hereafter Governor) of the State of Wisconsin. Pursuant to an order to show cause, the petition for leave to commence an original action was heard before the court on December 23, 1977. Following the filing of a stipulation of facts by the petitioners and by the respondents, this court, on January 5, 1978, granted leave to the petitioners to commence an original action. The original action was argued before the court on January 23, 1978, and briefs were filed on the merits.
As is evidenced by our order of January 5, 1978, we have concluded that the matter is an appropriate one for declaratory judgment. There is clearly a justiciable controversy between persons whose interests are adverse and persons who have a legally protectible interest. The issue is ripe for judicial determination.
The legislation which was vetoed in part deals with financing of election campaigns by a legislatively created campaign fund. It is legislation the validity of which is of concern to the state as a whole, and the issue posed here involves the constitutional prerogatives of both the Governor and the Legislature.
The material facts are agreed to by the parties, and no fact-finding procedure is necessary. The action is appropriate for disposition as a matter of law in an original action.
Assembly Bill 664, as subsequently amended, was concurred in by the Senate on September 28, 1977. The enrolled bill was presented to the Governor on October 11, 1977. On that same day the Governor purported to exercise the partial-veto authority conferred upon him by art. V, sec. 10, of the Wisconsin Constitution. A message and a letter from the Governor was sent to the Assembly Chief Clerk on that same date. He stated that he had exercised his partial veto "to restore the check-off provision that existed in the original bill" (sec. 51) and exercised his partial veto "in Section 53 of the bill because the September 30, 1977, effective date is unnecessary to implement the law for the 1978 elections."
After the veto no part of the enrolled bill was physically delivered to the Assembly.
In the Governor's message to the Assembly, he stated that the bill as partially vetoed and partially approved was deposited in the Secretary of State's office.
The Assembly Journal dated October 12, 1977, referred to the Governor's message and letter. The receipt of the signed, enrolled bill showing the partial vetoes was formally acknowledged by the Secretary of State on October 17, 1977.
Sometime between October 17, the date of the Secretary of State's formal acknowledgment of the receipt of the bill from the Governor, and October 20, the date the bill was published, the signed, enrolled bill was exhibited to the Legislative Reference Bureau, and copies of that bill were printed by the Bureau showing the partial vetoes.
On October 20, conformed copies of the bill as partially approved and partially vetoed were submitted to the Chief Clerks of the Senate and Assembly and copies of the bill were placed in the bill jacket. Sometime after October 17, a copy of the enrolled bill as partially approved and partially vetoed was delivered to the Wisconsin State Journal, the state newspaper. The bill was published by the Wisconsin State Journal on October 20, 1977.
Subsequent to the commencement of this action and following the date of oral arguments in this court, the legislature on January 24, 1978, acted on the Governor's partial veto, but failed to secure the necessary two-thirds vote to override the veto.
The petitioners' contentions are directed principally to the partial vetoes of the Governor of secs. 51 and 53 of the enrolled bill. Sec. 51 of the enrolled bill created sec. 71.095 of the Wisconsin Statutes to provide in part as follows:
"(1) Every individual filing an income tax statement may designate that their income tax liability be increased by $1 for deposit into the Wisconsin Election Campaign Fund for the use of eligible candidates under s. 11.50."
Acting Governor Schreiber exercised his partial veto by lining out the words, "that their income tax liability be increased by," and the words, "deposit into." The section as changed by the partial veto reads:
"(1) Every individual filing an income tax statement may designate $1 for the Wisconsin Election Campaign Fund for the use of eligible candidates under s. 11.50."
It is conceded that the bill as enrolled would require taxpayers to "add on" to their tax liabilities the sum of $1 if they wished that sum to go to the campaign fund. As changed by the Governor's partial veto, a taxpayer instead elects to designate that the sum of $1 be "checked off" or expended from the state general funds for the purposes of the Election Campaign Fund.
The parties have stipulated that the change made in sec. 51 will result in approximately $600,000 in tax funds being expended directly for political purposes per annum. Under the bill as passed by the Legislature, only the sum which taxpayers agreed to have added to their tax liability would have been used for political purposes. Under the provisions of sec. 51 as partially vetoed, the sums used for political purposes will come out of general tax revenues.
The change in sec. 53 was made by the veto of the portion which provided:
"(1) Section 71.095 of the statutes, as created by this act, shall apply to all individual income tax returns for any calendar year or corresponding fiscal year which commences not more than 6 months preceding the effective date of this act, and to each calendar year or corresponding fiscal year thereafter."
It is alleged by the Attorney General 1 that the partial veto of sec. 53 accelerated the effective date of the bill by one year.
The attack on the partial veto is threefold. The petitioners, Senator Kleczka and Representative Shabaz, contend that the partial vetoes were totally ineffective, because neither the enrolled bill nor the part partially vetoed was returned to the Assembly within the time limited by the Constitution. They are joined in this contention by the Attorney General.
The petitioners also contend that Bill 664 was not an appropriation bill and, therefore, not subject to the partial-veto provisions of art. V, sec. 10. The Attorney General, although he contends that the partial veto was unauthorized, acknowledges that Bill 664 was an appropriation bill within the meaning of the Constitution.
The petitioners also contend that, even were the bill held to be "returned" in accordance with the Constitution and even were it an appropriation bill, the vetoes attempted here were unauthorized by the Constitution, because the Governor may not, in the exercise of a partial veto, strike language from a bill unless it is severable and cannot strike from the bill provisos or conditions on an appropriation that were placed thereon by the Legislature. The Attorney General joins in this contention.
It is our conclusion that Enrolled Bill 664 was an appropriation bill and that a proper return was made to the originating house of the Legislature within the six days allowed by the Constitution. We conclude that the portions stricken were severable from the enrolled bill; and corollary to the latter conclusion, we conclude that the bill as partially vetoed by the Governor and published by the Secretary of State was a complete, workable bill, which meets the requirements heretofore stated by this court to be mandated by the Constitution. The portion approved by the Governor became effective upon publication by the Secretary of State.
We give attention to each contention in turn, considering first whether the bill was an appropriation bill in the terms of the Constitution.
The constitutional provision applicable is art. V, sec. 10. The Constitution as amended by the referendum of November 30, 1930, provides:
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