Tony Evers v. Howard Marklein, 412 Wis.2d 525

Background

The Knowles-Nelson Stewardship Program (created 1989) authorizes DNR to acquire land and disburse appropriated funds to local governments and nonprofits for conservation and public recreation under statutory criteria and administrative rules.
Wisconsin Stat. §§ 23.0917(6m) and 23.0917(8)(g)3. require DNR to notify the Joint Committee on Finance (JFC) of certain proposed expenditures and permit the JFC to delay or block obligating funds (including by calling a meeting at a member's request and requiring JFC approval before funds may be obligated).
Governor (and agencies) filed an original-action facial challenge arguing these provisions unconstitutionally transfer core executive spending/execution authority to a legislative committee (a legislative veto over post-appropriation expenditure decisions).
The Legislature defended the statutes as permissible oversight of appropriated funds and argued the committee's review falls within shared powers or the legislature's appropriation authority.
The Wisconsin Supreme Court held the statutes unconstitutional: they arrogate the executive core power to execute the law by letting a legislative committee block expenditures after appropriation; the court rejected Ahern to the extent it supported legislative assumption of executive powers.
The decision preserves the core/ shared-powers framework, notes alternatives available to the Legislature (change statutes, appropriate differently, audit, repeal), and produced concurring opinions about standard of review and non-delegation; Chief Justice Ziegler dissented, criticizing procedure and stare decisis.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §§ 23.0917(6m) and 23.0917(8)(g)3. violate separation of powers by letting JFC block post-appropriation expenditures	Statutes impermissibly empower a legislative committee to exercise core executive power to spend and execute appropriated funds	JFC review is lawful legislative oversight of appropriations and falls within shared powers or the legislature's appropriation authority	Held unconstitutional: provisions transfer core executive power to a legislative committee and cannot be enforced facially
Whether the statutes are a permissible form of legislative oversight (audit/oversight vs. veto)	Oversight cannot include a committee veto that prevents execution of duly appropriated funds	JFC review is a necessary practical check on agency spending and long-standing practice	Held that authorizing a committee to block expenditure is not mere oversight but a legislative veto that violates the separation of powers
Whether J.F. Ahern Co. and similar precedents control	Petitioners said Ahern is inconsistent with modern separation-of-powers principles and should not block relief	Respondents relied on Ahern and related cases endorsing committee involvement in executive functions	Court overruled Ahern to the extent it endorsed legislative assumption/sharing of executive core powers

Key Cases Cited

Gabler v. Crime Victims Rts. Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384 (discusses structural separation of powers and dangers of power concentration)
Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 (articulates core vs. shared powers framework)
League of Women Voters of Wis. v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209 (separation-of-powers principles and limits on branch encroachment)
Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21 (core powers not for sharing)
J.F. Ahern Co. v. Wisconsin State Building Comm'n, 114 Wis. 2d 69, 336 N.W.2d 679 (Ct. App. 1983) (court of appeals decision upholding committee authority; overruled to the extent inconsistent)
Martinez v. DILHR, 165 Wis. 2d 687, 478 N.W.2d 582 (1992) (upheld certain joint-committee actions; discussed in opinion)
Bowsher v. Synar, 478 U.S. 714 (1986) (federal precedent on Congress retaining control over execution of laws)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (federal framework for executive authority when acting under congressional grant)