Risser v. Klauser

N. PATRICK CROOKS, J.

¶ 60. (dissenting). The majority holds that "the Wisconsin constitution does not authorize the Governor to disapprove parts of legislation by writing in new numbers except when the part disapproved is a monetary figure which expresses an appropriation amount in an appropriation bill and the inserted number is a lesser appropriation amount." Majority op. at 204. In determining the limitations to the governor's partial veto power, the majority distinguishes between monetary figures in appropriation bills that are appropriation amounts, which are subject to the partial veto power, and monetary figures in appropriation bills that "affect and are closely interre*204lated with an appropriation," which are not subject to such power. Id. I do not join the majority opinion because I do not agree that the court in Citizens Utility Board v. Klauser, 194 Wis. 2d 484, 510, 534 N.W.2d 608 (1995) (hereinafter "C.U.B."), recognized such a distinction.

¶ 61. I also do not join the majority opinion because I do not agree that in State ex rel. Finnegan v. Dammann, 220 Wis. 143, 264 N.W. 622 (1936), the court "construed the constitution as barring exercise of the partial veto power on parts of any bill which 'does not within its four comers contain an appropriation.'" Majority op. at 197 (emphasis added). The Finnegan court held that the exercise of the partial veto power does not extend to any Mil that does not contain an appropriation within its four comers, not that such power does not extend to any part of an appropriation bill that does not contain an appropriation within the four corners of that part. 220 Wis. at 147-49.

HH

¶ 62. The power of the governor to approve appropriation bills in part, as provided by the 1930 amendment to article V, section 10(1) of the Wisconsin Constitution, is a "uniquely broad and expansive power." State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 450, 424 N.W.2d 385 (1988). For example, in State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302, 315, 260 N.W. 486 (1935), this court stated: "[T]here is nothing in [art. V, sec. 10] which warrants the inference or conclusion that the governor's power of partial veto was not intended to be as coextensive as the legislature's power to join and enact separable pieces of legislation in an appropriation bill." The partial veto power provides the governor *205with a. "quasi-legislative" authority, State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 134, 237 N.W.2d 910 (1976), in that the governor can affirmatively legislate by exercising this power. Wisconsin Senate, 144 Wis. 2d at 453.

¶ 63. The grant of partial veto power was partially "aimed at achieving joint exercise of legislative authority by the governor and the legislature over appropriation bills. It gave the governor a constitutionally recognized role in the legislative budgetary function." Id. at 454. Accordingly, the underlying purpose of the 1930 constitutional amendment was to give the governor strong authority to control spending. As this court has stated: "[A]n important rationale of the partial veto is clearly linked to expenditure reduction and fiscal balance." C.U.B., 194 Wis. 2d at 509.

¶ 64. Along these lines, this court has held that the governor has the power to veto any part of an appropriation bill, regardless of whether such part is an appropriation amount. Sundby, 71 Wis. 2d at 130; Henry, 218 Wis. at 314-15. We have also held that the governor can strike words, phrases, and digits from an appropriation bill. Wisconsin Senate, 144 Wis. 2d at 457. Furthermore, this court has determined that "the governor has the power to approve part of an appropriation bill by reducing the amount of money appropriated so long as the number is part of the original appropriation." C.U.B., 194 Wis. 2d at 510. Regardless of the manner in which the governor exercises the partial veto power, the result must be that the remaining part of the bill is a complete, workable law. State ex rel. Martin v. Zimmerman, 233 Wis. 442, 450, 289 N.W.2d 662 (1940).

¶ 65. In the present case, Petitioners concede that Section 57 was an appropriation bill, and that *206Governor Thompson had the power to strike the monetary figure at issue. Petitioners only question whether the Governor had the power to write in a different, smaller amount in the second sentence of section 57. Thus, the pertinent inquiry is: Under what circumstances did the C.U.B. court determine the governor can exercise his or her write-in veto power?

¶ 66. In C.U.B., this court considered whether the partial veto power authorizes the governor to strike an appropriated sum contained within an appropriation bill and insert a different, smaller number as the appropriated sum. 194 Wis. at 488. The court held that the governor "may strike a numerical sum set forth in an appropriation and insert a different, smaller number as the appropriated sum." Id. at 504. The C.U.B. court did not determine that this write-in veto power does not similarly extend to a monetary figure that is inseparably connected to an appropriation amount, or to such figures "which affect and are closely related with an appropriation." Majority op. at 204. The C.U.B. decision reflects the fact that the write-in veto at issue there involved only an appropriation amount.

¶ 67. Although the C.U.B. court did not determine that the write-in veto power does not extend to a monetary figure that is inseparably connected to an appropriation amount, the majority concludes that this is a proper reading of C.U.B. However, this interpretation, in its application here, is contrary to common sense. Consider the effect of the majority's conclusion that the write-in veto is not valid. The majority concludes that the Governor may strike the monetary sum in the second sentence of section 57, but may not write in a different, smaller amount. In the third sentence, the Governor struck the same figure and wrote in the same new figure as he did in the second sentence of *207section 57. He also struck and wrote in other figures in the third sentence as well.1 If the governor may use the write-in veto power in regard to monetary amounts in the third sentence, but not the second sentence, the following is the result:

Section 57. 84.59(6) of the statutes is amended to read:
84.59(6) Revenue obligations may be contracted by the building commission when it reasonably appears to the building commission that all obligations incurred under this section can be fully paid from moneys received or anticipated and pledged to be received on a timely bases. Revenue obligations issued under this section shall not exceed-in principal amount, excluding obligations issued to refund outstanding revenue obligations. Not more than $1,041,341,000 of the $1,083,638,100 may be used for transportation facilities under s. 84.01(28) and major highway projects under ss. 84.06 and 84.09.

¶ 68. Therefore, in accord with the reasoning of the majority, the building commission has no authority to raise the revenue through bonding, because the Governor has struck this amount. Yet, the provisions in the third sentence that allocate the money remain intact.2

*208¶ 69. The majority's interpretation of article V, section 10 of the Wisconsin Constitution is not consistent with the budgetary control rationale underlying the governor's power, contrary to its contention. See majority op. at 198. Instead, this interpretation leads to an absurd result in the budget, and a bill which is not a "complete, workable law." See Martin, 233 Wis. at 450.

¶ 70. In addition, I do not agree that, if the write-in veto power extends to sentence two, this will intrude too far into the constitutional grant of legislative power vested in the Senate and Assembly. See majority op. at 198. The Governor undisputedly can strike the entire figure of "$1,123,638,100" from sentence two, or can change it to a variety of smaller amounts, such as $123,638,100, $638,100, or $100. Since the Governor possesses such authority, then why does the majority find it to be an intrusion upon the legislative power when he reduces such an amount by writing in a smaller figure? As the C.U.B. court determined: "Simply put, to accept the conclusion that the governor has the authority to strike digits from an appropriation bill, but not the authority to write in smaller digits, elevates form over substance in contravention of common sense and case law." C.U.B., 194 Wis. 2d at 507. Likewise, as the petitioners in Wisconsin Senate recognized: "It is difficult to imagine what public purpose or policy might be served by permitting a governor to reduce appropriations but restricting the reductions to the limited subset of figures derivable from the digits in a particular appropriation." Petitioner's brief in Wisconsin Senate at 43, quoted in C.U.B., 194 Wis. 2d at 507 n.15.

*209¶ 71. Moreover, the majority approach results in the governor's power to disassemble legislation not being coextensive with the legislature's power to assemble it. This directly contradicts established precedent, in which this court has recognized that the partial veto power is a broad and expansive authority, a quasi-legislative power that gives the governor joint authority with the legislature to approve and veto appropriation bills. Wisconsin Senate, 144 Wis. 2d at 450, 453; Sundby, 71 Wis. 2d at 134; Henry, 218 Wis. at 315.

¶ 72. Accordingly, I am convinced that, after reading the C.U.B. decision, the C.U.B. court did not intend to draw a sharp distinction between "non-appropriation" and "appropriation" amounts in determining a limitation on the exercise of the partial veto power, especially when the amount at issue is inseparably connected to an appropriation amount. Instead, I am persuaded that, pursuant to C.U.B., the governor's write-in veto power extends to: (1) any monetary sum; (2) in an appropriation bill; (3) if the monetary sum is an appropriation or is inseparably connected to an appropriation.3 Support for this conclusion is found in the following language from C.U.B.: "We conclude that the governor, acting within the scope of his power *210derived from Art. V., sec. 10 of the Wisconsin Constitution, may strike a numerical sum set forth in an appropriation and insert a different, smaller number as the appropriated sum;" and, "Succinctly stated, the governor has the power to approve part of an appropriation bill by reducing the amount of money appropriated so long as the number is part of the original appropriation. This power stems from the right to reduce appropriations recognized in Wisconsin Senate and extends only to monetary figures and is not applicable in the context of any other aspect of an appropriation." C.U.B., 194 Wis. 2d at 504, 510 (emphasis added). Upholding the write-in veto power under the circumstances outlined herein is consistent with a rational, logical interpretation of C. U.B.

¶ 73. Furthermore, this interpretation is in accord with the concerns the C.U.B. court indicated it considered in recognizing a limitation to the write-in veto. Specifically, the C.U.B. court determined that the write-in veto power does not extend to parts of an appropriation bill that are conceptually different than monetary figures, such as dates, times, counties, cities, groups, and so forth. 194 Wis. at 509. This is demonstrated by the court's clear instruction that the governor cannot use such power to change "year" to "ten days," or "State of Wisconsin" to "City of Milwaukee." C.U.B., 194 Wis. 2d at 504, 508-09. This is further illustrated by the colloquy cited in the majority opinion. As counsel for the Governor explained, the write-in veto cannot be exercised to change "15 days" to "10 days." Yet, counsel also emphasized that "at the core of the partial veto power are dollars." Majority op. at 189 (emphasis added).

¶ 74. Under the three-part test set forth above, the write-in veto in the present case is valid. The *211vetoed portion of the bill, "$1,123,638,100," is a monetary figure. It is contained in section 57 of the transportation budget, which is concededly an appropriation bill. It also is inseparably connected to an appropriation. Specifically, an appropriation is defined as "the setting apart a portion of public funds for a public purpose." Finnegan, 220 Wis. at 148 (quoting State v. LaGrave, 41 P. 1075, 1076 (Nev. 1895)). In reading sentence two of section 57 in conjunction with sentence three, it becomes clear that the vetoed portion is inseparably connected with the setting aside of public funds for the public purpose of transportation projects and facilities. Sentence two must be read in conjunction with sentence three, not isolated and removed from the entire section. Furthermore, not only is the second sentence inseparably connected with the third sentence, but it is also inseparably connected with the entire transportation budget. The second sentence is inseparably connected to the entire budget because it authorizes funding for various specific transportation projects and facilities. .

I — I hH

¶ 75. Upholding the write-in veto power under the circumstances outlined herein is not beyond the limits recognized in Finnegan. See majority op. at 193-199, 202. First, the majority asserts that the Finnegan court rejected the argument that the veto power extends to parts of an appropriation bill that are inseparably connected to an appropriation. Majority op. at 196-197. It did not. In Finnegan, the court rejected the argument that a bill is an appropriation bill if it is inseparably connected to appropriations in other bills. Second, the majority contends that the Finnegan court "construed the constitution as barring *212exercise of the partial veto power on parts of any bill which 'does not within its four corners contain an appropriation.'" Majority op. at 197 (emphasis added). Again, this is not an accurate statement of the holding in Finnegan. The Finnegan court held that the governor's partial veto power does not extend to any bill that does not contain an appropriation within its four corners, not any part of a bill that does not contain an appropriation within its four comers.

¶ 76. Furthermore, Finnegan is distinguishable from the present case. In Finnegan, the court considered whether the bill at issue was an appropriation bill. In so doing, the court indicated that Henry was not determinative, because the bill at issue in Henry was concededly an appropriation bill. Like wise, because the bill at issue in the present case is concededly an appropriation bill, Finnegan is not determinative here.

¶ 77. Finally, contrary to the majority's assertions, recognizing that the governor's write-in veto power extends to circumstances set forth herein will not expand the definition of an appropriation bill. Majority op. at 202. In order for the write-in veto authority to apply, the bill at issue must be an appropriation bill. In other words, the bill must set aside public revenue for a public purpose or specified object, under Finnegan and its progeny. Therefore, the established definition of "appropriation bill" would not be at risk of being expanded.

¶ 78. Thus, for all of these reasons, I conclude that the write-in veto power properly extends to monetary amounts in an appropriation bill that are an appropriation, or are inseparably connected with an appropriation, as are the monetary figures in the second sentence of section 57. Such a conclusion is consistent with a logical, rational, and common sense *213reading of C.U.B., and is in accord with established precedent.

¶ 79. I am authorized to state that Justice DONALD W. STEINMETZ and Justice JON P. WILCOX join this dissent.

The majority indicates that the write-in vetoes in the third sentence "were not challenged or discussed in the briefs by either party." Majority op. at 186. Accordingly, the governor's striking of the original number in the third sentence, and his writing in of a different, smaller number, will be unaltered.

The majority contends that the third sentence places a limit on the purposes for which the revenue raised may be used. Majority op. at 194. However, the third sentence is not merely a use limitation. Rather, it is an appropriation, because it sets apart a portion of public funds for a public purpose or specified *208object. See State ex rel. Kleczka v. Conta, 82 Wis. 2d at 679, 689, 264 N.W.2d 539 (1978) (quoting Finnegan, 220 Wis. at 148).

The term "inseparably connected" was originally used by this court in Henry, 218 Wis. at 309, the first case challenging the governor's veto power. However, the Henry court found it unnecessary to consider whether the governor's partial veto power extends to provisos or conditions that are "inseparably connected" to an appropriation bill. Instead, the Henry court found that the governor's partial veto power extends to any part of an appropriation bill. Nonetheless, it is logical to consider this distinction, in order to achieve a rational, logical application of C.U.B. to the present case.