Gathering Waters, Inc. v. Marklein (In re Evers)

412 Wis. 2d 525

Tony Evers Governor of Wisconsin, Department of Natural Resources, Board of Regents of the University of Wisconsin System, Department of Safety and Professional Services and Marriage and Family Therapy Board Professional Counseling and Social Work Examining Board, Petitioners,

Gathering Waters, Inc., Intervenor-Petitioner,

v.Senator Howard Marklein, Representative Mark Born in their official capacities as chairs of the joint committee on finance, Senator Chris Kapenga, Representative Robin Vos in their official capacities as chairs of the joint committee on employment relations, Senator Steve Nass and Representative Adam Neylon in their official capacities as co-chairs of the joint committee for review of administrative rules, Respondents,Wisconsin Legislature, Intervenor-Respondent.

Supreme Court

No. 2023AP2020–OA. Oral argument April 17, 2024.—Decided July 5, 2024.

2024 WI 31

(Also reported in 8 N.W.3d 395.)

ORIGINAL ACTION. Rights declared.

For the petitioners, there were briefs filed by Charlotte Gibson, assistant attorney general, Colin T. Roth, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Colin T. Roth, assistant attorney general.

For the intervenor-petitioner, there were briefs filed by Erin K. Deeley, Jeffrey A. Mandell, Rachel E. Snyder, Carly Gerads, and Stafford Rosenbaum LLP, Madison. There was an oral argument by Erin K. Deeley.

For the respondents and intervenor-respondent, there was a brief filed by Misha Tseytlin, Sean T.H. Dutton, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago, IL. There was an oral argument by Misha Tseytlin.

An amicus curiae brief was filed by Evan Feinauer, Brett Korte, David Tipson, and Clean Wisconsin, Madison, on behalf of Clean Wisconsin.

An amicus curiae brief was filed by Chris Donahoe, Daniel S. Lenz, T.R. Edwards, and Law Forward, Inc., Madison, on behalf of Former Wisconsin Judges.

An amicus curiae brief was filed by Tony Wilkin Gibart, Robert D. Lee, and Midwest Environmental Advocates, Madison, on behalf of Save our Water and Wisconsin Conservation Voters.

An amicus curiae brief was filed by Bryna Godar, Miriam Seifter, and State Democracy Research Initiative, University of Wisconsin Law School, Madison, on behalf of Legal Scholars.

An amicus curiae brief was filed by Richard M. Esenberg, Lucas T. Vebber, Skylar Croy, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee, on behalf of Wisconsin Institute for Law & Liberty, Inc.

¶ 1. REBECCA GRASSL BRADLEY, J. The Wisconsin Constitution vests each of the three branches of government with separate and distinct powers. When one branch challenges the exercise of power by another, the judiciary must ensure constitutional boundaries have not been breached. Safeguarding the structural separation of powers prevents one branch from encroaching upon or seizing the powers of another, averting "'a gradual concentration of the several powers in the same department.'" Gabler v. Crime Victims Rts. Bd., 2017 WI 67, ¶ 7, 376 Wis. 2d 147, 897 N.W.2d 384 (quoting The Federalist No. 51, at 318-19 (James Madison) (Clinton Rossiter ed., 1961)). The "preservation of liberty requires that the three great departments of power should be separate and distinct." The Federalist No. 47, at 324 (James Madison) (J. Cooke ed., 1961).

¶ 2. In this case, the petitioners¹ claim the legislature has impermissibly intruded upon the executive branch's core power to execute the law by authorizing a legislative committee to halt expenditures for land conservation measures after the legislature already appropriated the money through the budget process. The legislative respondents² defend the statutes based on the legislature's interest in overseeing the executive branch's expenditure of state funds. We hold that Wis. Stat. §§ 23.0917(6m) and 23.0917(8)(g)3. (2021-22)³ unconstitutionally authorize the legislative branch to arrogate and impede the executive's core power to execute the law, violating the separation of powers structurally enshrined in our constitution.

I. BACKGROUND

¶ 3. In 1989, the legislature created the Knowles-Nelson Stewardship Program ("the Program") "to acquire land to expand nature-based outdoor recreational opportunities and protect environmentally sensitive areas." Eric Hepler, Warren Knowles-Gaylord Nelson Stewardship Program, Wis. Legis. Fiscal Bureau, Informational Paper #66, 1 (Jan. 2023); 1989 Wis. Act 31, § 650fq. The Program allows the Department of Natural Resources ("DNR") to purchase land or disburse state funds to local governments and nonprofit organizations to acquire land for nature-based outdoor recreation. Land acquired under the Program must remain accessible to the public unless public safety or environmental concerns counsel against public access. See generally Wis. Stat. § 23.0916. Since its creation, the legislature has reauthorized funding for the Program multiple times, primarily through the biennial budget process. 2021 Wis. Act 58, § 97m. Currently, the legislature has authorized the DNR to obligate up to $33,250,000 in each fiscal year through 2025-26 for land acquisition projects. Wis. Stat. § 20.866(2)(ta).

¶ 4. To carry out the Program, the DNR reviews applications submitted by local governments and conservation nonprofits to determine whether the requested expenditure fulfills the statutory purposes outlined in Wis. Stat. § 23.09(2)(d) for land acquisition. The DNR also may purchase land under the Program. Wis. Stat. § 23.0917(3)(a). The DNR has promulgated detailed administrative rules to implement and administer the Program, including rules establishing eligibility requirements for proposed projects. See generally Wis. Admin. Code NR § 51. Those rules provide additional guidance for land acquisition proposals. Wis. Admin. Code NR § 1.40.

¶ 5. In October 2023, the governor filed an original action petition with this court raising three separate but related issues regarding the exercise of legislative review procedures over executive branch actions.⁴ We granted review solely with respect to the legislative review provisions governing the Program and held the other two issues in abeyance pending the resolution of this issue.

¶ 6. The petitioners challenge the constitutionality of Wis. Stat. §§ 23.0917(6m) and (8)(g)3., which allow the Joint Committee on Finance ("JFC")⁵ to engage in a review process for certain expenditures under the Program. Specifically, subsection (6m) requires the DNR⁶ to notify the members of the JFC if an expenditure under the Program exceeds $250,000.⁷

§ 23.0917(6m)(c). The statute allows the members of the JFC to review the expenditure over a 14–day period and the JFC can temporarily block the expenditure of the funds by the executive branch until the committee holds a meeting on the proposed project. If a meeting is requested by a member of the JFC, the DNR cannot obligate the funds for the project until the committee approves the expenditure. Nothing within the statutory review provisions mandates when the committee must hold a meeting on the expenditure. After a meeting is held, the JFC votes on whether to allow the specific expenditure by the DNR. The JFC's decision is not subject to a vote of the full legislature.

¶ 7. Subsection (8)(g)3. operates in the same way as subsection (6m) but applies to land acquisition projects "outside of a project boundary" regardless of the amount of the expenditure. Under this subsection, the DNR cannot obligate money for a land acquisition "outside of a project boundary" unless 12 members of the JFC "approve the land acquisition." Wis. Stat. § 23.0917(8)(g)3. The full legislature does not review or vote on the JFC's decision. If the JFC rejects the expenditure, the money cannot be spent on the project. The petitioners allege the JFC has prohibited or delayed a number of the DNR's proposed Program expenditures, thereby affecting the executive branch's ability to effectuate the policy purposes of the Program.

II. STANDARD OF REVIEW

[1, 2]

¶ 8. The petitioners assert the statutes permitting the JFC to review certain expenditures under the Program are facially unconstitutional because they violate the separation of powers embedded in the Wisconsin Constitution's vesting clauses. In making a facial challenge, petitioners "face a tall task." Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶ 4, 393 Wis. 2d 38, 946 N.W.2d 35 ("SEIU"). "[T]he challenging party must show that the statute cannot be enforced 'under any circumstances.'" Id., ¶ 38 (quoted source omitted). The facial challenge to the statutes in this case presents issues of constitutional and statutory interpretation, which are questions of law this court reviews de novo. League of Women Voters of Wis. v. Evers, 2019 WI 75, ¶ 13, 387 Wis. 2d 511, 929 N.W.2d 209 (citing Milwaukee J. Sentinel v. DOA, 2009 WI 79, ¶ 14, 319 Wis. 2d 439, 768 N.W.2d 700).

III. ANALYSIS

[3]

¶ 9. Mirroring the United States Constitution,⁸ the Wisconsin Constitution "creates three separate coordinate branches of government," with the understanding that no branch of government can subordinate, control, or exercise the power of another branch. State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1981). Each branch is "'vested' with a specific core governmental power." SEIU, 393 Wis. 2d 38, ¶ 31 (citing Gabler, 376 Wis. 2d 147, ¶ 11). "The legislative power shall be vested in a senate and assembly"; "The executive power shall be vested in a governor"; and "The judicial power of this state shall be vested in a unified court system." Wis. Const. art. IV, § 1; id. art. V, § 1; id. art. VII, § 2. Under the dispersion of these powers between the branches, "[e]very positive delegation of power to one officer or department implies a negation of its exercise by any other officer, department or person. If it did not, the whole constitutional fabric might be undermined and destroyed." State v. Hastings, 10 Wis....