A county’s appeal of an ex parte order that it was responsible for court costs incurred by the State Public Defender for an indigent defendant was not an action “brought” against the state. The public defender could not assert that the appeal was barred by sovereign immunity. Polk County v. SPD, 188 Wis. 2d 665, 524 N.W.2d 389 (1994). Although the general rule is that waivers of sovereign immunity must be read narrowly, when a statute provides a clear, express, and broadly worded consent to sue, the rule of narrow construction will not be applied anew to every type of claim brought under the statute. German v. DOT, 223 Wis. 2d 525, 589 N.W.2d 651 (Ct. App. 1998), 98-0250. When the state creates an entity independent from the state, which acts as neither its arm nor its agent, such entity falls outside the protection of sovereign immunity. The determination that a state entity is an independent going concern is a narrow exception to sovereign immunity. In determining whether a state entity is an independent going concern, courts should consider both the character and breadth of the statutory powers granted to the entity. Mayhugh v. State, 2015 WI 77, 364 Wis. 2d 208, 867 N.W.2d 754, 13-1023. Section 301.04, which permits the Department of Corrections (DOC) to sue and be sued, is not an express waiver of DOC’s tort immunity but rather addresses DOC’s capacity to be sued. Mayhugh v. State, 2015 WI 77, 364 Wis. 2d 208, 867 N.W.2d 754, 13-1023. The court in Zinn, 112 Wis. 2d 417 (1983), endorsed the view that the constitutional directive that persons receive just compensation for takings of their private property is “self-executing,” and no express statutory provision for its enforcement against the state is necessary. Conversely, no language in the uniformity clause is analogous to that constitutional command. Just compensation is a constitutional directive contained in the takings clause; nowhere does the uniformity clause authorize general damages for an alleged violation of the uniformity principle. Klein v. DOR, 2020 WI App 56, 394 Wis. 2d 66, 949 N.W.2d 608, 18-1133. The U.S. Constitution does not permit a state to be sued by a private party without the state’s consent in the courts of a different state. Franchise Tax Board v. Hyatt, 587 U.S. ___, 139 S. Ct. 1485, 203 L. Ed. 2d 768 (2019). The state has removed only the substantive defense of governmental tort immunity, and the state constitutional barrier providing that the state may be sued only upon its consent remains. Knox v. Regents of University of Wisconsin, 385 F. Supp. 886 (1975). State Immunity from Suit Without Consent—Scope and Implications. Harring & Harring. 1971 WLR 879.
IV,28Oath of office. Section 28. Members of the legislature, and all officers, executive and judicial, except such inferior officers as may be by law exempted, shall before they enter upon the duties of their respective offices, take and subscribe an oath or affirmation to support the constitution of the United States and the constitution of the state of Wisconsin, and faithfully to discharge the duties of their respective offices to the best of their ability. IV,29Militia. Section 29. The legislature shall determine what persons shall constitute the militia of the state, and may provide for organizing and disciplining the same in such manner as shall be prescribed by law. IV,30Elections by legislature. Section 30. [As amended Nov. 1982] All elections made by the legislature shall be by roll call vote entered in the journals. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] IV,31Special and private laws prohibited. Section 31. [As created Nov. 1871 and amended Nov. 1892 and April 1993] The legislature is prohibited from enacting any special or private laws in the following cases: IV,31(1)(1) For changing the names of persons, constituting one person the heir at law of another or granting any divorce. IV,31(2)(2) For laying out, opening or altering highways, except in cases of state roads extending into more than one county, and military roads to aid in the construction of which lands may be granted by congress. IV,31(3)(3) For authorizing persons to keep ferries across streams at points wholly within this state. IV,31(4)(4) For authorizing the sale or mortgage of real or personal property of minors or others under disability. IV,31(5)(5) For locating or changing any county seat. IV,31(6)(6) For assessment or collection of taxes or for extending the time for the collection thereof. IV,31(7)(7) For granting corporate powers or privileges, except to cities. IV,31(8)(8) For authorizing the apportionment of any part of the school fund. IV,31(9)(9) For incorporating any city, town or village, or to amend the charter thereof. [1870 J.R. 13, 1871 J.R. 1, 1871 c. 122, vote Nov. 1871; 1889 J.R. 4, 1891 J.R. 4, 1891 c. 362, vote Nov. 1892; 1991 J.R. 27, 1993 J.R. 3, vote April 1993] An act validating existing sewerage districts previously held to be unconstitutionally organized is within the power of the legislature. Madison Metropolitan Sewerage District v. Stein, 47 Wis. 2d 349, 177 N.W.2d 131 (1970). The Wisconsin Housing Finance Authority, designated as a corporation, does not violate the prohibition against granting of corporate powers by the legislature. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973). This section includes a public purpose doctrine allowing the granting of limited corporate powers to entities created to promote a public and state purpose. City of Brookfield v. Milwaukee Metropolitan Sewerage District, 171 Wis. 2d 400, 491 N.W.2d 484 (1992). The plain meaning of sub. (9) pertains not just to legislation directly incorporating a municipality, but also to legislation providing a process for incorporating. A provision in a budget bill that exempted a town from the normal statutory incorporation process violated sub. (9) and was unconstitutional. State ex rel. Kuehne v. Burdette, 2009 WI App 119, 320 Wis. 2d 784, 772 N.W.2d 225, 08-1342. Creation of citizens utility board is constitutional. 69 Atty. Gen. 153.
IV,32General laws on enumerated subjects. Section 32. [As created Nov. 1871 and amended April 1993] The legislature may provide by general law for the treatment of any subject for which lawmaking is prohibited by section 31 of this article. Subject to reasonable classifications, such laws shall be uniform in their operation throughout the state. [1870 J.R. 13, 1871 J.R. 1, 1871 c. 122, vote Nov. 1871; 1991 J.R. 27, 1993 J.R. 3, vote April 1993] Discussing the tests for violations of this section and section 31. City of Brookfield v. Milwaukee Metropolitan Sewerage District, 144 Wis. 2d 896, 426 N.W.2d 591 (1988). IV,33Auditing of state accounts. Section 33. [As created Nov. 1946] The legislature shall provide for the auditing of state accounts and may establish such offices and prescribe such duties for the same as it shall deem necessary. [1943 J.R. 60, 1945 J.R. 73, vote Nov. 1946] IV,34Continuity of civil government. Section 34. [As created April 1961] The legislature, in order to ensure continuity of state and local governmental operations in periods of emergency resulting from enemy action in the form of an attack, shall IV,34(1)(1) forthwith provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices, and (2) adopt such other measures as may be necessary and proper for attaining the objectives of this section. [1959 J.R. 50, 1961 J.R. 10, vote April 1961] EXECUTIVE
V,1Governor; lieutenant governor; term. Section 1. [As amended April 1979] The executive power shall be vested in a governor who shall hold office for 4 years; a lieutenant governor shall be elected at the same time and for the same term. [1977 J.R. 32, 1979 J.R. 3, vote April 1979] Executive Orders of the Wisconsin Governor. King. 1980 WLR 333.
V,1mGovernor; 4-year term. Section 1m. [Created April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] V,1nLieutenant governor; 4-year term. Section 1n. [Created April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] V,2Eligibility. Section 2. No person except a citizen of the United States and a qualified elector of the state shall be eligible to the office of governor or lieutenant governor. V,3Election. Section 3. [As amended April 1967] The governor and lieutenant governor shall be elected by the qualified electors of the state at the times and places of choosing members of the legislature. They shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices beginning with the general election in 1970. The persons respectively having the highest number of votes cast jointly for them for governor and lieutenant governor shall be elected; but in case two or more slates shall have an equal and the highest number of votes for governor and lieutenant governor, the two houses of the legislature, at its next annual session shall forthwith, by joint ballot, choose one of the slates so having an equal and the highest number of votes for governor and lieutenant governor. The returns of election for governor and lieutenant governor shall be made in such manner as shall be provided by law. [1965 J.R. 45, 1967 J.R. 11 and 14, vote April 1967] V,4Powers and duties. Section 4. The governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature on extraordinary occasions, and in case of invasion, or danger from the prevalence of contagious disease at the seat of government, he may convene them at any other suitable place within the state. He shall communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their consideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed. The legislature cannot require the governor to make specific recommendations to a future legislature or to include future appropriations in the executive budget bill. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780 (1973). Our constitutional structure does not contemplate unilateral rule by executive decree. It consists of policy choices enacted into law by the legislature and carried out by the executive branch. Therefore, if the governor has authority to exercise certain expanded powers not provided in our constitution, it must be because the legislature has enacted a law that passes constitutional muster and gives the governor that authority. Fabick v. Evers, 2021 WI 28, 396 Wis. 2d 231, 956 N.W.2d 856, 20-1718. V,5Compensation of governor. Section 5. [Amended Nov. 1869 and Nov. 1926; repealed Nov. 1932; see 1868 J.R. 9, 1869 J.R. 2, 1869 c. 186, vote Nov. 1869; 1923 J.R. 80, 1925 J.R. 52, 1925 c. 413, vote Nov. 1926; 1929 J.R. 69, 1931 J.R. 52, vote Nov. 1932.] V,6Pardoning power. Section 6. The governor shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. Upon conviction for treason he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall annually communicate to the legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve, with his reasons for granting the same. Executive Clemency in Wisconsin: Procedures and Policies. Bauer. 1973 WLR 1154.
To Forgive, Divine: The Governor’s Pardoning Power. Bach. Wis. Law. Feb. 2005.
V,7Lieutenant governor, when governor. Section 7. [As amended April 1979] V,7(1)(1) Upon the governor’s death, resignation or removal from office, the lieutenant governor shall become governor for the balance of the unexpired term. V,7(2)(2) If the governor is absent from this state, impeached, or from mental or physical disease, becomes incapable of performing the duties of the office, the lieutenant governor shall serve as acting governor for the balance of the unexpired term or until the governor returns, the disability ceases or the impeachment is vacated. But when the governor, with the consent of the legislature, shall be out of this state in time of war at the head of the state’s military force, the governor shall continue as commander in chief of the military force. [1977 J.R. 32, 1979 J.R. 3, vote April 1979] Discussing the meaning of “absence.” 68 Atty. Gen. 109.
V,8Secretary of state, when governor. Section 8. [As amended April 1979] V,8(1)(1) If there is a vacancy in the office of lieutenant governor and the governor dies, resigns or is removed from office, the secretary of state shall become governor for the balance of the unexpired term. V,8(2)(2) If there is a vacancy in the office of lieutenant governor and the governor is absent from this state, impeached, or from mental or physical disease becomes incapable of performing the duties of the office, the secretary of state shall serve as acting governor for the balance of the unexpired term or until the governor returns, the disability ceases or the impeachment is vacated. [1977 J.R. 32, 1979 J.R. 3, vote April 1979] V,9Compensation of lieutenant governor. Section 9. [Amended Nov. 1869; repealed Nov. 1932; see 1868 J.R. 9, 1869 J.R. 2, 1869 c. 186, vote Nov. 1869; 1929 J.R. 70, 1931 J.R. 53, vote Nov. 1932.] V,10Governor to approve or veto bills; proceedings on veto. Section 10. [As amended Nov. 1908, Nov. 1930, April 1990, and April 2008] V,10(1)(a)(a) Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor. V,10(1)(b)(b) If the governor approves and signs the bill, the bill shall become law. Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law. V,10(1)(c)(c) In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill, and may not create a new sentence by combining parts of 2 or more sentences of the enrolled bill. V,10(2)(a)(a) If the governor rejects the bill, the governor shall return the bill, together with the objections in writing, to the house in which the bill originated. The house of origin shall enter the objections at large upon the journal and proceed to reconsider the bill. If, after such reconsideration, two-thirds of the members present agree to pass the bill notwithstanding the objections of the governor, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present it shall become law. V,10(2)(b)(b) The rejected part of an appropriation bill, together with the governor’s objections in writing, shall be returned to the house in which the bill originated. The house of origin shall enter the objections at large upon the journal and proceed to reconsider the rejected part of the appropriation bill. If, after such reconsideration, two-thirds of the members present agree to approve the rejected part notwithstanding the objections of the governor, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and if approved by two-thirds of the members present the rejected part shall become law. V,10(2)(c)(c) In all such cases the votes of both houses shall be determined by ayes and noes, and the names of the members voting for or against passage of the bill or the rejected part of the bill notwithstanding the objections of the governor shall be entered on the journal of each house respectively. V,10(3)(3) Any bill not returned by the governor within 6 days (Sundays excepted) after it shall have been presented to the governor shall be law unless the legislature, by final adjournment, prevents the bill’s return, in which case it shall not be law. [1905 J.R. 14, 1907 J.R. 13, 1907 c. 661, vote Nov. 1908; 1927 J.R. 37, 1929 J.R. 43, vote Nov. 1930; 1987 J.R. 76, 1989 J.R. 39, vote April 1990; 2005 J.R. 46, 2007 J.R. 26, vote April 2008] In determining whether the governor has acted in six days, judicial notice may be taken of the chief clerk’s records to establish the date the bill was presented to the governor. State ex rel. General Motors Corp. v. City of Oak Creek, 49 Wis. 2d 299, 182 N.W.2d 481 (1971). The governor may veto individual words, letters, and digits, and may also reduce appropriations by striking digits, as long as what remains after the veto is a complete, entire, and workable law. State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 424 N.W.2d 385 (1988). The governor may approve part of an appropriation bill by reducing the amount of money appropriated by striking a number and writing in a smaller one. This power extends only to monetary figures and is not applicable outside the context of reducing appropriations. Citizens Utility Board v. Klauser, 194 Wis. 2d 485, 534 N.W.2d 608 (1995). The governor may not disapprove of parts of legislation by writing in new numbers except when the disapproved part is a monetary figure that expresses an appropriation amount in an appropriation bill. Figures that are not appropriation amounts but are closely related to appropriation amounts are not subject to such a “write-in” veto. Risser v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997), 96-0042. The taking of yea and nay votes and the entry on the journals of the senate and assembly can be complied with by recording the total aye vote together with a listing of the names of those legislators who voted no, were absent or not voting or were paired on the question. Discussing this section and article VIII, section 8, and article XII, section 1. 63 Atty. Gen. 346.
The governor may not alter partial vetoes once the approved portion of the act has been delivered to the secretary of state and the disapproved portion returned to the house of origin. 70 Atty. Gen. 154.
Failure of the governor to express objections to several possible partial vetoes of the 1981-82 budget bill made any such possible vetoes ineffective. 70 Atty. Gen. 189.
The governor’s partial veto of section 1117g of 1991 Wis. Act 269 did not result in a complete and workable law and was invalid. Because the governor’s approval was not necessary for the bill to become law, the invalidity of the partial veto resulted in s. 605.35 being enforced as passed by the legislature. 80 Atty. Gen. 327.
The partial veto power violates no federal constitutional provision. Risser v. Thompson, 930 F.2d 549 (1991). The Wisconsin Partial Veto: Past, Present and Future. Burke. 1989 WLR 1395.
The Cheese Stands Alone: Wisconsin’s “Quirky” Partial Veto In Its New Constitutional Era. LeRoy. 2020 WLR 833.
The Origin and Evolution of Partial Veto Power. Wade. Wis. Law. Mar. 2008.
ADMINISTRATIVE
VI,1Election of secretary of state, treasurer and attorney general; term. Section 1. [As amended April 1979] The qualified electors of this state, at the times and places of choosing the members of the legislature, shall in 1970 and every 4 years thereafter elect a secretary of state, treasurer and attorney general who shall hold their offices for 4 years. [1977 J.R. 32, 1979 J.R. 3, vote April 1979] VI,1mSecretary of state; 4-year term. Section 1m. [Created April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] VI,1nTreasurer; 4-year term. Section 1n. [Created April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] VI,1pAttorney general; 4-year term. Section 1p. [Created April 1967; repealed April 1979; see 1965 J.R. 80, 1967 J.R. 10 and 15, vote April 1967; 1977 J.R. 32, 1979 J.R. 3, vote April 1979.] VI,2Secretary of state; duties, compensation. Section 2. [As amended Nov. 1946] The secretary of state shall keep a fair record of the official acts of the legislature and executive department of the state, and shall, when required, lay the same and all matters relative thereto before either branch of the legislature. He shall perform such other duties as shall be assigned him by law. He shall receive as a compensation for his services yearly such sum as shall be provided by law, and shall keep his office at the seat of government. [1943 J.R. 60, 1945 J.R. 73, vote Nov. 1946] VI,3Treasurer and attorney general; duties, compensation. Section 3. The powers, duties and compensation of the treasurer and attorney general shall be prescribed by law. A state can speak in litigation only through its agents and may select its agents without the interference of the federal courts. Typically, a state chooses to designate a singular attorney general to defend its interests, but nothing in the U.S. Constitution mandates this procedure or even the existence of an attorney general position. Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (2019). The Powers of the Attorney General in Wisconsin. Van Alstyne & Roberts. 1974 WLR 721.
