LANCASTER — Wisconsin Supreme Court Justice Rebecca Bradley opened the majority opinion Evers v. Marklein — which refers to Wisconsin Governor Tony Evers and 17th State Senator Howard Marklein (who is co-chair of the Joint Finance Committee) — quoting two previous decisions. 

“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.” 

Bradley’s quote of both an earlier case and the Federalist Papers when the state’s high court reprimanded the legislature for trying to effectively stop the executive branch from doing its duty on conservation projects already approved in the state budget.

Released July 5, the court opinion may have huge consequences, not just on the governor’s ability to move forward with conservation projects, but also for the administration’s ability to move forward on projects Marklein and the Joint Finance Committee have been holding up on clean water projects, as well as getting funding to areas in the state which are reeling from medical center closures.

The decision was 6-1, with only Chief Justice Annette Ziegler being the lone dissent.

“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,” Evers said after the decision was released. “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 case stems from efforts by the legislature to stop Evers from moving forward with projects related to the Knowles-Nelson Stewardship program. Named after former governors Warren Knowles and Gaylord Nelson, both of whom spent part of their political life working on conservation, was set out to acquire land for ‘outdoor recreational opportunities and protect environmentally sensitive areas.’

The state government has set aside funding for the program in biennial budgets. Under state statutes, a provision in state statute allows for any expenditure exceeding $250,000 be given a 14-day window for review by the Joint Finance Committee. A statute is the code the state government runs on, and is approved by legislation, as opposed to the state constitution, which has amendments approved by the voters after two subsequent legislatures pass an item.

Evers challenged the review statute because it only called for a 14-day window for the committee to review the item, but never set any timeframe for them to decide, nor did it take any action they took to the full legislature to review, since it was altering already-approved budget funding.

Evers argued such a setup took powers away from the executive branch, and only gave a portion of the legislature control of the issue.

“Determinations of how to appropriate the state’s funds fall squarely within the legislative power,” Bradley stated in the decision, noting Article VIII of the state constitution gives them the power to appropriate the funding.

“While the constitution gives the legislature the power to appropriate funds, the power to spend the funds the legislature has appropriated for a specific project belongs to the executive branch,” she continued. “Once the legislature appropriates funds for a particular purpose, the executive branch possesses the power to dole out those funds in accordance with the purposes outlined by the legislature.”

Bradley noted how the statute “effectively create a legislative veto, allowing the JFC to interfere with and even override the executive branch’s core power of executing the law. If the JFC does not object to a proposed project within the 14-day review window, the DNR may spend the money. But if a single JFC member objects to the DNR’s project proposal, the JFC will hold a meeting and can either approve the proposed funding in full, modify the amount to be disbursed, or outright reject the project,” she stated, adding that the statute also does not have any timeline on how long the joint finance committee can spend on the review, only that they have 14 days for one member to raise an objection.

“The review process ultimately permits the members of the JFC to serve as gatekeeper to the exercise of a core executive function,” Bradley stated.

Wisconsin Justice Ann  Bradley quoted late U.S. Supreme Court Justice Antonin Scalia in her concurrence, wanting to shed light on why she joined the majority on giving Gov. Evers the win in the case.

“Where the very issue before the court is the contours of the branches’ powers vis-à-vis each other, it is not logical to begin the case with a slant in either direction,” Justice Ann Bradley said in her concurrence.

“There is no doubt that the legal questions presented in this case affect matters of statewide importance, but there is no emergency here, nor was there a need to fast-track just one issue in the case — a challenge to the Knowles-Nelson Stewardship Program, outlined in Wis. Stat. § 23.0917 and administered through the Department of Natural Resources,” Chief Justice Ziegler said in her dissent, continuing to raise her opinion that the case should not have jumped to the state supreme court, without first going to the circuit and appeals court.

Both sides — the governor and the leadership of the legislature — would have likely appealed the case ultimately to the Wisconsin Supreme Court if they had been on the losing side, which meant the case was ultimately going to end up there anyway.

Ziegler objected to this case being fast-tracked, as opposed to a similar issue where the governor objected to a blockage of wage increases for state employees that had been approved in the current state budget, but failed to be acted on by the legislature at this point.

Ziegler, who is considered in the conservative minority on the court, spends much of her dissent complaining about the liberal majority, stating that they are playing politics by hand-picking cases to fast track.

Ziegler worried that narrowed the scope of the decision. “I raise concern about deciding this one issue alone, applying these principles to the legislature only.” She said that two other justices — Rebecca Bradley and Brian Hagedorn — had objected to accepting the case immediately, implying they wanted the other cases with it. “If this becomes a singular application of separation of power principles or the non-delegation doctrine, which restrains only the legislative branch, that amounts to aggregation of power which runs counter to fundamental constitutional principles.”

The impact Ziegler was waiting to see are in two other issues where the legislature looked to block movement by Gov. Evers concerning the removal of ‘forever chemicals’ from the drinking water, as well as funding for medical facilities to bolster care in the wake of shutdowns by other facilities.

“By allowing the Knowles-Nelson program to do its job, we are preserving natural areas that protect water quality, provide habitat for plants and animals, contain valuable fisheries, and otherwise promote outdoor recreation,” said Clean Wisconsin attorney Evan Feinauer. “With few exceptions, these lands are open to the public. Preserving these lands is an investment that future generations will be grateful we had the foresight to make today.”

Clean Wisconsin filed an amicus brief in this case urging the court to find the JCF cannot constitutionally block the environmental program.

Funding to combat PFAs had already been approved, but when the Department of Natural Resources was coming up with the administrative rules to move forward, the legislature moved for new legislation to help potentially protect would-be polluters if any program continued. Gov. Evers vetoed the bill, and then requested that the legislature release the funding, which they objected to because their revised bill had been vetoed.

A similar tactic was deployed when it came to funding for funding for medical facilities in the  Chippewa Valley region, where closures to the facilities run by the Hospital Sisters Health System is resulting in a massive upheaval and loss of locations for residents who had been served by those facilities.

The legislature passed a bill to open up $15 million to help support facilities in the affected area, but had a provision that the funding could only be used to cover the emergency rooms of any facilities. Evers used the line-item veto to remove the emergency room language to expand the availability of the funding.

Back in April, the funds for both programs sat in the state coffers, not getting moved, Evers voiced his frustration on the delays by the legislature.

“It’s been 286 days since we approved $125 million in the budget to fight PFAS statewide, and it’s been 48 since we passed $15 million to support healthcare access in Western Wisconsin in the wake of significant hospital closures, but these resources are still sitting in Madison because Republicans won’t release them. That’s wrong, and this obstruction is beyond ridiculous,” said Gov. Evers. “Wisconsinites expect elected officials to show up and put politics aside to find common ground and do the right thing — they deserve a hell of a lot better than what they’re getting from Republicans.”

The Department of Instruction is also monitoring the fallout of Marklein v. Evers.

Months ago, the Wisconsin State Legislature passed, and Gov. Tony Evers signed a bill allocating $50 million to implement 2023 Wisconsin Act 20, the bipartisan legislation reforming and improving literacy education in Wisconsin. However, the Legislature’s Joint Committee on Finance has refused to release those funds, including failing to include consideration of the release of the funds in a Section 13.10 meeting scheduled for July 9.

“Today’s Supreme Court decision is a clear message to the Legislature that now is the time to refocus our energy on the needs of kids,” State Superintendent Dr. Jill Underly said. “The Joint Finance Committee should immediately release the $50 million we already agreed to spend — in a bipartisan fashion — to improve literacy education and help children learn to read, so they can read to learn. There can be no further delay, as local schools need to be ready to go on the first day of school. As I’ve said before, our kids are the ones who pay the price when adults hold students hostage and keep playing political games.”

Ballot drop boxes deemed legal

The State Supreme Court issued other rulings earlier this month, including deciding ballot drop boxes are legal, in a case brought to the court known as Priorities USA v. Wisconsin Elections Commission.

“At the very heart of our democracy is the fundamental freedom to vote, and drop box voting is a safe and secure way to help make sure every eligible Wisconsinite is able to cast their ballot. Across our country, election officials have chosen to use drop boxes to ensure that all eligible voters can freely cast their ballots, all while keeping ballots safe and secure,” Evers said.

The 4-3 decision on ballot drop boxes could impact the 2024 presidential election this November. The justices were split along idealogical lines, as the current liberal majority reversed a near-total ban that had been in place on ballot drop boxes by the court in 2022, when conservatives controlled the court. 

During the 2020 presidential election, ballot drop boxes were utilized by millions of voters across the country during the COVID-19 pandemic, and in part helped President Joe Biden defeat incumbent Donald Trump.

State Senator Mark Spreitzer (D-Beloit) praised the ballot drop box ruling.

“Today’s ruling is a restoration of voting rights that Republicans took away from the people of Wisconsin. Reviews, audits, court cases, and investigations have all confirmed that Wisconsin elections are safe, secure, and transparent. In spite of that, far-right conspiracy theorists and their Republican allies temporarily stopped the use of secure drop boxes for ballots with a court decision that read non-existent restrictions into the law and undercut the ability of local clerks to do their jobs. Today’s decision corrects that anti-voter reading of state statute,” Spreitzer said.

The Wisconsin Disability Vote Coalition also celebrated the decision.

“Today’s decision is a big win for people with disabilities who already face barriers to voting that other people don’t have,” said Beth Swedeen, Executive Director of the Wisconsin Board for People with Developmental Disabilities.  “A lot of people with disabilities choose to vote absentee because of the many barriers they face voting in person, like transportation and accessibility concerns at their polling place.  This is a step in the right direction to level the playing field for voters with disabilities.”

The Wisconsin Disability Vote Coalition advocates for voting rights for people with disabilities. 

“This victory, which directly impacts almost 1 in 4 people with disabilities, is a testament to our collective efforts to ensure voting accessibility for our state’s population.  Many people with disabilities do not drive and have limited access to other transportation options, making the use of drop boxes a vital voting method,” the coalition wrote in a statement to the press.

“The separation of powers and the freedom to vote are cornerstones of our system of government. The Wisconsin Supreme Court’s rulings today advance both. I’m proud that Wisconsin DOJ helped secure these victories,” Attorney General Josh Kaul said. “The drop box case restores a safe and secure method of voting. This is a win for common sense over conspiracy theories.”

Kaul played a key role in bringing the challenges to the court.

“In Evers v. Marklein, the court has put an end to the legislature’s unconstitutional usurpation of an executive branch function: the expenditure of appropriated funds,” Kaul said. “The contrast between these rulings and recent U.S. Supreme Court rulings is striking. At a time when the U.S. Supreme Court is retreating from longstanding tenets that preserve liberty — including even placing the President above the law for certain acts — Wisconsin is and must continue vindicating our fundamental principles.”

Dane Co. judge strikes down part of Act 10

In another legal decision, a Dane County judge last week struck down a piece of the controversial 2011 bill known as Act 10, which was passed by the super-majority Republican legislature and signed by then-governor Scott Walker.

Among the items in Act 10 was the curbing of much of public union’s influence. Several unions filed a lawsuit in November 2023. According to the Milwaukee Journal Sentinel, the lawsuit argues the law violates equal protection guarantees in the Wisconsin Constitution by dividing public employees into two classes: “general” and “public safety.”

In May, Dane County Judge Jacob Frost promised a ruling “in the near future.” Frost was appointed to his post in 2020 by Evers. 

“The right to organize one’s co-workers into a union, and then collectively bargain, is a fundamental American right. It is fitting that we will celebrate the restoration of those rights for many workers this Independence Day. Respecting the rights of Wisconsin’s educators will also have a profound impact in addressing the crisis many public schools face in recruiting and retaining teachers,” Underly said. 

Frost struck down elements of Act 10 because it violates the right to equal protection under the law concerning different law enforcement agencies access to collective bargaining.

“This ruling confirms that Act 10 created divisions among working people in Wisconsin, and reinforces the principle that workers must be treated equally under the law,” State Senator Melissa Agard (D-Madison) said. “When I, and countless others, protested at the Capitol in 2011 — we were standing up for these rights. While we celebrate this pro-labor ruling tonight, we must not stop until Act 10 is overturned and collective bargaining is restored for all public sector workers.”

Act 10 also massively affected school funding, taking out nearly a billion dollars from public education at the time, and effecting districts across the state even more today, 13 years later. The lack of state funding has led directly to districts asking taxpayers to approve operational referendums at a growing rate year after year.

“Act 10 was used to justify massive cuts in school funding that continue to cause challenges to this day. To protect the right of every child to a quality education, now is a perfect time to reinvest in local schools and reinvest in the future of Wisconsin,” Underly said.

— Adam Krebs, Monroe Times editor, contributed to this report. David Timmerman is the editor of the Grant County Herald Independent.