State ex rel. Wisconsin Senate v. Thompson

• Decision Date: 14 June 1988
• Docket Number: No. 87-1750-OA,87-1750-OA
• Citation: 424 N.W.2d 385,144 Wis.2d 429
• Parties: STATE ex rel. the WISCONSIN SENATE and its President, Senator Fred A. Risser; the Wisconsin Assembly and its Speaker, Representative Thomas A. Loftus and the Joint Committee on Legislative Organization, Petitioners, v. Tommy G. THOMPSON, Governor of the State of Wisconsin; and James R. Klauser, Secretary, Department of Administration, Respondents.
• Court: Wisconsin Supreme Court

Page 385

424 N.W.2d 385

144 Wis.2d 429

STATE ex rel. the WISCONSIN SENATE and its President Senator Fred A. Risser; the Wisconsin Assembly and its Speaker, Representative Thomas A. Loftus and the Joint Committee on Legislative Organization, Petitioners, v. Tommy G. THOMPSON, Governor of the State of Wisconsin; and James R. Klauser, Secretary, Department of Administration, Respondents.

No. 87-1750-OA.

Supreme Court of Wisconsin.

Argued Oct. 20, 1987.

Decided June 14, 1988.

Brady C. Williamson, argued, for petitioners; Eugenia G. Carter, Brady C. Williamson, Jeffrey J. Kassel and LaFollette & Sinykin, Madison, on brief.

Edward S. Marion, Asst. Atty. Gen., argued for the respondents; Donald J. Hanaway, Atty. Gen., on brief.

William J. Davis, Madison, amicus curiae for the Wisconsin's Environmental Decade.

Kenneth Doran, William M. Smoler and Smoler & Albert, S.C., Madison, amicus curiae for the League of Women Voters of Wisconsin, Inc.

David Prosser, Jr., Appleton, Bruce Meredith, William S. Sample, Senator Donald K. Stitt, Madison, amicus curiae for Wisconsin Educ. Ass'n Council.

HEFFERNAN, Chief Justice.

This is an original action for declaratory judgment and supplemental injunctive relief. We declare the rights of the parties and declare that the petitioners are not entitled to the prayed for relief.

The petitioners are the Wisconsin Senate and its president, Senator Frederick A. Risser, who is also a Wisconsin resident and taxpayer; the Wisconsin Assembly and its speaker, Representative Thomas A. Loftus, who is also a Wisconsin resident and taxpayer; and the Joint Committee on Legislative Organization, which is created by sec. 13.80, Stats. The petitioners seek a declaration from this court that Governor Tommy Thompson exceeded his constitutional partial veto authority when he vetoed phrases, digits, letters, and word fragments in the 1987-89 biennial budget bill. ¹

This declaratory judgment action challenges the validity of 37 ² of the 290 partial vetoes the governor exercised in acting on 1987 Wisconsin Act 27, the biennial omnibus budget bill. The petitioners' primary contention is that the governor's vetoes were invalid because the governor has no authority under art. V, sec. 10 of the Wisconsin Constitution to veto individual letters, digits or words, and has no authority to reduce appropriation amounts. The governor, on the other hand, maintains that under the constitution and the standards set forth in State ex rel. Kleczka v. Conta, 82 Wis.2d 679, 264 N.W.2d 539 (1978), and its progenitors, he can veto any part of an appropriation bill, including words, letters, or numbers, even if that veto results in a reduction in an appropriation, as long as what remains after the veto is a "complete, entire, and workable law."

This court granted the petitioners leave to commence this original action. ³ The court also permitted the governor to brief any affirmative defenses he wished to raise. The governor has interposed the following four affirmative defenses to this court exercising its original jurisdiction in this case: Petitioners' lack of capacity to sue; petitioners' lack of standing; the claim that constitutional principles of separation of powers would be violated by permitting the legislative branch of government to sue the executive branch before the judicial branch; and lack of a justiciable controversy.

If this court were to accept any or all of these affirmative defenses, the governor's challenged partial vetoes in this action would be insulated or immunized from this court's review and possible invalidation. ⁴ Although we recognize the seriousness and complexity of these affirmative defenses, we nevertheless decline, and find it unnecessary in this case, to resolve questions of the apparent authority of those purporting to represent the legislature--i.e., the Senate and Assembly and their respective leadership as well as the Joint Committee on Legislative Organization,--to bring and maintain this declaratory judgment action. This apparent authority springs from a resolution adopted by the Joint Committee on Legislative Organization on September 1, 1987, authorizing the Assembly Speaker and the Senate President to retain counsel to represent the legislature, the joint committee itself, and any other appropriate parties in this litigation. We have in the past refused to intermeddle in what we consider to be purely intra-legislative concerns. State ex rel. La Follette v. Stitt, 114 Wis.2d 358, 364, 338 N.W.2d 684 (1983). In this case, we will not go behind that committee action. We note in passing, however, that this action was brought by Frederick Risser and Thomas Loftus in their individual capacities as taxpayers as well as in their official capacities. Additionally, we conclude that those two individuals as residents and taxpayers have met the requirements for standing to bring this declaratory judgment action. See, Milwaukee Brewers Baseball Club v. DH & SS, 130 Wis.2d 56, 65, 387 N.W.2d 245 (1986). Furthermore, we need not consider the absence of any specific allegation in the petition that Risser or Loftus, either individually or as a class, have suffered pecuniary loss, to be fatal. Thompson v. Kenosha County, 64 Wis.2d 673, 679, 221 N.W.2d 845 (1974); see also, S.D. Realty Co. v. Sewerage Commission, 15 Wis.2d 15, 22, 112 N.W.2d 177 (1961). Cf. City of Appleton v. Town of Menasha, 142 Wis.2d 870, 419 N.W.2d 249 (1988).

Moreover, it is this court's function to develop and clarify the law. See State v. Mosley, 102 Wis.2d 636, 665, 307 N.W.2d 200 (1981) and State v. McConnohie, 113 Wis.2d 362, 334 N.W.2d 903 (1983). Since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), it has been recognized that it is peculiarly the province of the judiciary to interpret the constitution and say what the law is. We deem it to be this court's duty to resolve disputes regarding the constitutional functions of different branches of state government; we may not avoid this duty simply because one or both parties are coordinate branches of government. See Barnes v. Kline, 759 F.2d 21 (D.C.Cir.1984). It is the responsibility of the judiciary to act, notwithstanding the fact that the case involves political considerations or that final judgment may have practical political consequences. See Dye v. State ex rel. Hale, 507 So.2d 332, 346 (Miss.1987). We conclude that this declaratory judgment action presents a justiciable controversy. Loy v. Bunderson, supra.

Accordingly, because the parties have stipulated to all the facts necessary to determine the issues raised in this petition and have agreed that none is in dispute, we reach the merits.

We conclude that the governor properly exercised his partial veto authority pursuant to art. V, sec. 10 of the Wisconsin Constitution with respect to the 37 specifically identified vetoes challenged in this case. We consider that this result has been presaged by our prior decisions regarding the scope of the governor's partial veto authority. Thus, in this opinion, we break no new ground except as we now, on the facts before us, have the obligation to clarify that the governor may, in the exercise of his partial veto authority over appropriation bills, veto individual words, letters and digits, and also may reduce appropriations by striking digits, as long as what remains after veto is a complete, entire, and workable law. State ex rel. Kleczka v. Conta, supra. We also accept, and for the first time in this case give explicit judicial recognition to, the long-standing practical and administrative interpretation or modus vivendi between governors and legislatures, that the consequences of any partial veto must be a law that is germane to the topic or subject matter of the vetoed provisions.

Because we conclude that the result in this case has been augured by our prior decisions, we begin our discussion with a brief review of those prior cases discussing the governor's partial veto authority in this state.

In the general election of 1930, the electorate of this state approved the adoption of an amendment to art. V, sec. 10 of the Wisconsin Constitution. That amendment added the following language to the Wisconsin Constitution:

"Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law, and the part objected to shall be returned in the same manner as provided for other bills."

Prior to this amendment, the governor had only the authority to reject an entire bill. By this amendment to art. V., sec. 10, Wisconsin joined 38 other states (now totalling 43), which provide their governors with what is generically, although sometimes inaccurately, known as an "item" veto authority over appropriation bills. See Committee Print, (1986) U.S. House of Representatives, 99th Congress, 2nd Session, "Item Veto: State Experience and Its Application to the Federal Situation." (Hereafter cited as Committee Print ). The partial veto authority was adopted in this state to provide the governor with some flexibility in dealing with the legislature's practice of including different subjects of legislation in one appropriation bill. As early as 1913, Governor Frances E. McGovern had complained of this practice and noted that the lack of a partial veto authority required him to approve such "omnibus" appropriation bills in toto even though he might have objected to certain subjects of the legislation contained therein. See A. Harrington, "The Propriety of the Negative-the Governor's Partial Veto Authority," 60 Marq.L.Rev. 865, 876 (1977). (Hereafter, Harrington).

The first case to consider this new constitutional provision was State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935). In that depression-era case, the telephone company brought an original action in this court challenging Governor Phillip LaFollette's vetoes of parts of an appropriation bill aimed at providing funds which...