Wisconsin Supreme Court justices question power of legislative committees

MADISON – The liberal majority of the Wisconsin Supreme Court indicated it was skeptical of the power the Legislature's budget committee has to halt land purchases by the Department of Natural Resources.

The justices heard arguments Wednesday in the case filed against the Republican members of the Joint Finance Committee by Gov. Tony Evers last year, over anonymous legislative objections to land purchases that have never been made public.

At the core of the argument was which branch of government has the right to decide how money is spent.

Misha Tseytlin, an attorney representing lawmakers on the Joint Finance Committee argued that changing the committee's ability to veto projects would alter the way the government has run for a long time. He also said purchases of land are not a core power of the executive branch of government, because the Legislature can release funding.

Justice Rebecca Dallet cast doubt upon that argument.

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"If there's discretion to spend the money, how is it not the executive that has the power to execute the law that's been passed?" she said.

"You're saying that, therefore, the executive going out and purchasing the land is not executing their core power, because the Legislature passed that law. Aren't they still actually executing the law? The law didn't leave discretion, but they're executing it."

Justice Jill Karofsky, also a liberal member of the court, said the Legislature's ability to veto conservation projects without a hearing isn't a power other state legislatures have.

"No state court has upheld a scheme of committee-based governance like Wisconsin's. My question to you is do you know of... any court of a state court that has in fact upheld the scheme such as this?" she said. "I had a hard time finding a state court that did what you are asking us to do. It is true that legislatures across the country are giving themselves this type of power. But I don't know of a case that has come out the way that you are asking us to come out."

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Justice Brian Hagedorn, a conservative member of the court known to sometimes align with the liberal majority, also cast doubt on the Legislature's argument

"It seems to me that your argument if we accepted, would enshrine the idea that we really do not have much of a separation of powers, that we should look at this pragmatically and functionally, that we should accept the idea that drawing lines between the powers is not really something we're interested in doing, other than to ensure that the power isn't unchecked," he said.

"In other words, we don't care about separation of powers so much as is more balance of powers...am I right that's what you're asking us to sort of enshrine?"

Conservative Justice Rebecca Bradley pushed back on the attorney representing the governor, Colin Thomas Roth, who said during the arguments that the legislative veto power was overstepping its role. She asked if the governor would be OK with agencies no longer being allowed to create laws.

Agencies such as the Department of Natural Resources are able to create state laws through a lengthy administrative rule process. At the end of the 30-month process, the Legislature can allow the rule to become a law, or it could potentially block the rule.

"The Legislature could basically repeal every act that facilitates the administrative state," she said. "Would Governor Evers welcome a restoration of the original understanding of the separation of powers in the state of Wisconsin, and welcome the repeal of executive agencies making law?"

Evers sued the leaders of the Joint Committee on Finance after it blocked several conservation projects approved by his administration in the Department of Natural Resources through the Knowles-Nelson Stewardship program.

The projects have been blocked without holding public meetings to inform applicants why funding was denied. Members of the committee are permitted to anonymously object to a project, without any requirements for public disclosure.

If the governor succeeds in the case, the Legislature would be prevented from outright blocking projects proposed under the stewardship program.

A ruling in Evers' favor could have far-reaching impacts, upending rules that have governed legislative committees for decades in some cases.

On Tuesday Evers suggested he may file another lawsuit against the budget committee over their refusal to hold a meeting regarding the release of $125 million to address PFAS, in addition to another $15 million to address the lack of medical providers in northeastern Wisconsin.

"We may do something specific," he said during a press conference Tuesday to address the lack of Republican action on PFAS.

More:Evers considering lawsuit against Republicans for refusing to release PFAS funding

Laura Schulte can be reached at leschulte@jrn.com and on Twitter at @SchulteLaura.