State’s high court rules Legislature can’t block conservation funds after they’ve been budgeted

Pelican River area in Wisconsin (Jay Brittain | Courtesy of the photographer)

Wisconsin laws that give the Legislature’s powerful Joint Finance Committee the power to block state spending on land conservation projects after the money has been budgeted are unconstitutional, the Wisconsin Supreme Court ruled Friday.

The 6-1 ruling united two of the Court’s conservative justices with all four of the liberal majority and handed a significant policy victory to the administration of Gov. Tony Evers in the Democratic governor’s lawsuit against Republican lawmakers over so-called “legislative vetoes” by the Joint Finance Committee (JFC) as well as other legislative committees.

“In granting the JFC the ability to stymie the executive branch from carrying out the laws passed by the legislature, the statutes encroach upon the governor’s constitutional mandate to execute the law,” states the majority opinion, authored by Justice Rebecca Bradley, a member of the court’s conservative wing.

The ruling focuses on just one of several issues raised in the lawsuit that Evers filed this past October: the finance committee’s actions blocking specific projects that were funded under the state’s Knowles-Nelson Stewardship Program.

Under the program, created in 1989, the state budget sets aside land for public recreation and conservation. The Wisconsin Department of Natural Resources (DNR) is budgeted funds every two years to acquire and develop land and make grants to local governments and nonprofits as well.

Statutes enacted starting in 2007 have given the Joint Finance Committee the power to intervene in specific grants based on location or the amount of money involved. The committee has blocked 27 grants since 2019, Evers’ lawsuit said.

After the committee blocked the most recent high-profile project, setting aside $4 million for a 56,000-acre conservation easement along the Pelican River in Oneida, Forest and Langlade counties, Evers funded the project through a federal program instead.

The Court ruled Friday that the statutes empowering the committee to intervene are unconstitutional.

“While the legislature has the power create an agency, define its powers, and appropriate funds to fulfill the purpose for which the legislature established it, the power to spend appropriated funds in accordance with the law enacted by the legislature lies solely within the core power of the executive to ensure the laws are faithfully executed,” Rebecca Bradley wrote.

“We conclude these statutes interfere with the executive branch’s core function to carry out the law by permitting a legislative committee, rather than an executive branch agency, to make spending decisions for which the legislature has already appropriated funds and defined the parameters by which those funds may be spent. A statute authorizing the legislative branch to exercise core powers of the executive branch violates the constitutional separation of powers and cannot be enforced under any circumstances.”

Bradley was joined by Justice Brian Hagedorn, another conservative. Both Bradley and Hagedorn had opposed the original petition from Evers for the high court to bypass lower courts and take the case directly.

All four members of the court’s liberal wing joined the opinion. 

Chief Justice Annette Ziegler, who also opposed the Court’s decision to take the original petition, dissented from Friday’s opinion. “I disagree with rushing to judgment, on this limited issue, taking this case out of turn. There is simply no need,” Ziegler wrote.

The majority opinion rejected the lawmakers’ argument that giving them oversight on the individual grants was part of their responsibilities and constituted a “shared power” between the executive and legislative branches.

“In this case, the legislature has prescribed by law the parameters of how and where the DNR may expend state funds under the Program,” the opinion states.

The laws under which the committee has blocked stewardship grants gives the committee members “the power to decide how the funds should be used after the lawmaking process has been completed and the funds have been appropriated to the DNR — a quintessential executive function.”

Evers cheered Friday’s decision in a statement.

“I’ve spent years working against near-constant Republican obstruction, and this historic decision rightfully resets constitutional checks and balances and restores separation of powers,” he said. “This decision is a victory for the people of Wisconsin, who expect and deserve their government to work — and work for them, not against them.”

The Court’s statement when it took the case said the justices were considering only the issue surrounding the stewardship fund while holding other issues in the Evers lawsuit in abeyance.

One of those other issues is the power to block rules through the use of “indefinite objections.” Currently, if the Joint Committee for the Review of Administrative Rules votes to block a rule and then introduces legislation to do so, the rule is blocked until the Legislature votes against the bill. It has become common practice for the committee to block rules by introducing the blocking legislation but never taking a vote on it.

Evers’ lawsuit also named the refusal of the Joint Committee on Employment Relations (JCOER) to release budgeted raises for University of Wisconsin employees last year. Assembly Speaker Robin Vos held up the UW raises until the Wisconsin Board of Regents voted on a deal that changed the university system’s policies on diversity, equity and inclusion. 

The Court issued an order Friday for parties in the Evers lawsuit to file legal memoranda “discussing the impact of today’s decision, if any, on whether the court should grant review of the second and/or third issues set forth in the petition for leave to commence an original action.” Those filings are due July 26.

While Friday’s decision showed unusual alliance between the Court’s two ideological wings, their differences emerged in dueling concurrences among some of the justices, largely side arguments about the “non-delegation doctrine. ”

The term refers to arguments that have been raised, primarily by conservative legal analysts, to limit the ability of agencies that promulgate regulations outside of the legislative process.

Defenders of regulatory agencies say that giving subject matter experts at regulatory agencies the ability to write rules protecting the environment, public health and public safety makes it easier to address the complexity involved.

Proponents of the non-delegation doctrine argue that lawmakers have allowed those agencies too much power and are improperly giving away their role as the writers of legislation.

This story has been updated, including with information about the Court’s order for subsequent filings.

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