State ex rel. Sundby v. Adamany
| Citation | 237 N.W.2d 910,71 Wis.2d 118 |
| Decision Date | 03 February 1976 |
| Docket Number | No. 75--416,75--416 |
| Parties | STATE ex rel. Robert D. SUNDBY, on behalf of himself and all persons similarly situated, Petitioner, v. David W. ADAMANY, Secretary, Department of Revenue of the State of Wisconsin and Douglas LaFollette, Secretary of State of the State of Wisconsin, Respondents, and Patrick J. Lucey, Governor of the State of Wisconsin, Intervening-Respondent. |
| Court | United States State Supreme Court of Wisconsin |
Bronson C. La Follette, Atty. Gen., John C. Murphy, Asst. Atty. Gen., David J. Hase Deputy Atty. Gen., Madison, for respondents; Brief by: Irvin B. Charne, Howard B. Tolkan, Arthur J. Harrington, and Charne, Glassner, Tehan, Clancy & Taitelman, S.C., Milwaukee, for intervening-respondent, argued by: John C. Murphy, Asst. Atty. Gen., for respondent any by Irvin B. Charne, Milwaukee, for intervening-respondent.
We reach the merits. This is an original action for declaratory judgment on whether the governor, in violation of art. IV, sec. 1, Wisconsin Constitution, exceeded the authority granted to him by art. V, sec. 10, when he vetoed certain provisions of an appropriations bill, ch. 39, Laws of 1975, amended, repealed, repealed and recreated in part by ch. 80, Laws of 1975.
We conclude that the governor acted within his authority and, therefore, we deny the affirmative relief sought by petitioner.
The pertinent facts forming the basis of this litigation are undisputed. The governor vetoed certain portions of the appropriations bill, ch. 39, Laws of 1975, amended, repealed, repealed and recreated in part by ch. 80, Laws of 1975. The relevant portions of the law as enacted incorporated amendments made by the Assembly-Senate Conference Committee to the executive budget bill submitted by the governor, and introduced by the Joint Committee on Finance as Assembly Bill 222.
In his complaint the petitioner challenges those partial vetoes relating to sec. 435 (sec. 60.175, Stats.), sec. 439 (sec. 61.46(3)), sec. 441 (sec. 62.12(4m)), sec. 442 (sec. 65.07(2)), and sec. 457 (sec. 70.62(4)). The subject matter of the portion of the appropriations bill to which these partial vetoes apply involves tax levy limits imposed on towns, villages, cities and counties.
Sections 60.175(7), 61.46(3)(g), 62.12(4m)(g), 65.07(2)(g), and 70.62(4)(g), Stats., contain the provisions specifically challenged by the petitioner. As originally passed by the legislature and sent to the governor, sec. 60.175(7) read as follows:
'(7) If the town board desires to increase its tax levy above the limitations specified in this section, it shall publish such intent in a class 1 notice under ch. 985 in the official town newspaper. The notice shall include a statement of the purpose and the amount of the proposed levy and the amount by which it wishes to exceed the limits imposed by this section. If, within 20 days after publication of the notice, a petition is filed with the town clerk signed by a number of electors equal to, or in excess of, 5% of the number of electors casting ballots in the town in the last gubernatorial election, the question of the proposed amount of increase in levy above the limitations specified in this section shall be submitted to a referendum at a spring election, general election or special election. If the increase is approved at the referendum, or if no petition is timely filed, the town may increase its levy in such amount and shall notify the secretary of revenue of such increase, on a form provided by the secretary, on or before March 1 following the levy.
'(a) The question presented to the electors shall be in substantially the following form:
'Should the town board be authorized to adopt a property tax levy for town purposes for this year which is in excess of the maximum levy certified by the state?
'(b) The authorization by referendum shall pertain only to the levy next following the referendum.
'(c) The clerk of the town shall notify the department of revenue of the result of any such referendum no later than 10 days thereafter.'
The remaining challenged sections are identical, with the exception of different entity designations, depending on the type of governmental entity being affected, e.g substitution of 'village' for 'town' in sec. 61.46(3)(g), Stats.
The governor disapproved certain portions of sec. 60.175(7), Stats., as follows:
Ch. 39, Laws of 1975, was published by the respondent-secretary of state in the Wisconsin State Journal on July 30, 1975.
Subsequently, certain portions of ch. 39, Laws of 1975, were amended, repealed, and repealed and recreated in part by ch. 80, Laws of 1975. These changes did not involve sec. 60.175(7), Stats., and the identical sections relating to other governmental entities. Changes were effectuated, however, in the section immediately preceding sec. 60.175(7), as well as in the corresponding sections relating to other governmental entities. As originally enacted, sec. 60.175(6) read as follows:
Following amendment, repeal, repeal and recreation in part, sec. 60.175(6), as published, read as follows:
'Section 4. 60.175(6), (8) and (9) of the statutes, as created by chapter 39, laws of 1975, are amended to read:
Chapter 80, Laws of 1975, incorporating the noted changes, was published by the secretary of state in the Wisconsin State Journal on October 1, 1975.
In substance, the governor's veto made mandatory the local referendums which the bill, as passed by the legislature, made optional. There are three threshold issues for this court to consider before we reach the merits.
Standing.
The petitioner has standing to bring this suit seeking declaratory judgment. Liberally construed, the plaintiff's petition, which stands as a complaint herein, constitutes a taxpayer's suit to adjudicate conduct of the governor alleged to be in violation of his constitutional authority. Petitioner asserts that he is a taxpayer and that he will suffer pecuniary disadvantage because the governor's actions herein are in violation of his constitutional authority. 1
Proper Parties Respondents.
There is no question that the respondent secretary of the department of revenue is administering the challenged sections of the appropriation bill as if the partial vetoes of the governor are valid and effective. This makes him a proper party, particularly since the petitioner seeks to enjoin the secretary, compelling him to administer the levy limit laws in accordance with this court's determination regarding the validity or invalidity of the votoes. The secretary of state is also a proper party respondent since he has the legal duty to publish the laws as enacted by the legislature and governor, including the budget. If, in fact, the partial vetoes are invalid, the secretary of state has a mandatory duty to publish those sections of the enactment as if they had not been vetoed.
Existence of Justiciable Controversy.
This action is brought pursuant to the Declaratory judgments Act, sec. 269.56, Stats. One of the requirements of the Declaratory Judgments Act is that '(t) here must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it.' 2
In his petition (now the complaint), petitioner asserts that the partial vetoes exercised by the governor are contrary to the Wisconsin constitutional provisions under which the governor is allowed to make partial vetoes; that the action is publici juris because the exercise of the power is an unlawful attempt to legislate in violation of the separation of powers; and that all this creates uncertainty and doubt on the part of political subdivisions of the state in planning their budgets. The respondents are incorrect in asserting that these allegations do not present a controversy ripe for determination. Of course, this court, in a declaratory judgment action, will not declare future rights. 3 But here the controversy is ripe for determination because the vetoes have already occurred and the constitutional violation, if any, has already occurred. No future event is necessary to enlarge upon the circumstances which currently present a controversy. In State ex rel. Wisconsin Telephone Co. v. Henry, 4 the relator challenged the exercise of...
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