76 Op. Att'y Gen. 224 (1987)

76 Op. Att'y Gen. 224, 228 (1987)
  Ascertaining the severability of an unconstitutional provision from the remainder of a statute requires a determination of legislative intent [case cite omitted], which is a question of law....

76 Op. Att'y Gen. 224, 228 (1987)
  In determining legislative intent with respect to severability, the first resort is to the language of the statute. [Case cite omitted.] This is particularly true when the statute at issue contains an express severability clause....

76 Op. Att'y Gen. 224, 228 (1987)
  The factors to consider in deciding whether a statute should be severed from an invalid provision are the intent of the legislature and the viability of the severed portion standing alone. [Case cite omitted.] Invalid provisions of a statute may not be severed when it appears from the act that the legislature intended the statute to be effective only as an entirety and would not have enacted the valid part by itself.

76 Op. Att'y Gen. 224, 228 (1987)
  The court tells us that the two factors to consider in deciding whether an invalid provision is severable from the remainder of a statute are "the intent of the legislature and the viability of the severed portion standing alone." Burlington Northern, 131 Wis. 2d at 580. I find nothing in 1987 A.B. 265 in its present form that would preclude severance of the payment of the "special investment performance dividend" from the prospective benefit improvements established for those employed on the effective date of the statute that would be created. It is therefore my opinion that the portion of 1987 A.B. 265 which would be rendered invalid by a less than three-fourths affirmative vote is severable from the remainder of the bill. The remaining and controlling factor to be considered is the intent of the Legislature.

76 Op. Att'y Gen. 224, 228-229 (1987)
  No express statement of the Legislature regarding severability is contained in 1987 A.B. 265. While the bill in its present form appears to address the needs of the majority of the participants in the WRS both working and retired, I note that other bills introduced in this session relate to specific portions of the membership separately. The 1987 A.B. 462 provides WRS benefit improvements mainly for active participants and does not include retired participants. 1987 Senate Bill 20, on the other hand, relates solely to annuitants. I find nothing in the report of the Joint Survey Committee on Retirement Systems in its statutorily required report (sec. 13.50(6), Stats.) indicating intent regarding severability. As the supreme court instructed in Burlington Northern, 131 Wis. 2d at 580, legislative intent is a question of law and deference need not be given by that court to lower courts' determinations of legislative intent.

76 Op. Att'y Gen. 224, 229 (1987)
  I therefore consider it inappropriate to speculate as to the intent of the Legislature since 1987 A.B. 265 is still in the legislative process and the intent thus has not been fully developed. The Legislature could insert an express statement of intent or enact the bill in an amended form that would provide further indication as to the intent regarding severability. It is my view that such a determination of intent must focus on the bill as enacted and not be based on its transitory status.

76 Op. Att'y Gen. 224, 229 (1987)
  Article IV, section 26 of the Wisconsin Constitution requires that an act, which increases benefits for a WRS participant, no longer working for a participating employer, must "provide for sufficient state funds to cover the costs of the increased benefits." The increased benefits we are concerned with is the "special investment performance dividend" which would be provided to annuitants by section 14 of 1987 A.B. 265. Other benefit improvements in the bill are for employes still working and are not within the article IV, section 26 exclusion and thus do not come within the exception from the exclusion that we are concerned with here.

76 Op. Att'y Gen. 224, 229 (1987)
  Section 14 of 1987 A.B. 265 states in part as follows:

76 Op. Att'y Gen. 224, 229 (1987)
  SECTION 14. 40.04(3)(e) of the statutes is created to read:

76 Op. Att'y Gen. 224, 229 (1987)
  40.04(3)(e)1. As of the last day of the first full month occurring after the effective date of this paragraph.... [revisor inserts date], $1,300,000,000 shall be distributed from the transaction amortization account of the fixed retirement investment trust to the fixed annuity reserve and the fixed employer accumulation reserve as follows:

76 Op. Att'y Gen. 224, 229 (1987)
  a.   To the fixed annuity reserve, an amount equal to a percentage of the total distribution determined by dividing the fixed annuity reserve balance on the prior January 1 by the total balance of the fixed annuity reserve plus the employe accumulation reserve and the employer accumulation reserve of the fixed retirement investment trust on the prior January 1.

76 Op. Att'y Gen. 224, 229 (1987)
  ....

76 Op. Att'y Gen. 224, 230 (1987)
  3.   The resulting increase in the fixed annuity reserve, after crediting the annuity reserves' actuarial contingency reserve under sub. (6)(b) with an amount determined to be sufficient to the purposes of that reserve, shall on recommendation of the actuary be distributed on or before January 1, 1988, as a special investment performance dividend in accordance with the procedures specified in s. 40.27(2)....

76 Op. Att'y Gen. 224, 230 (1987)
Section 14 of 1987 A.B. 265 clearly indicates that the monies to finance the "special investment performance dividend" would come from the "transaction amortization account," an account within the "fixed retirement trust" established under the "public employe trust fund" created by section 40.01(1). See sec. 40.04(3), Stats. The question thus presented is whether the "public employe trust fund" monies constitute "state funds" under the prohibitions of article IV, section 26.

76 Op. Att'y Gen. 224, 230 (1987)
  It is my opinion that the "public employe trust fund" constitutes "state funds" as that term is used in article IV, section 26 of the Wisconsin Constitution. "State funds" constitutes funds paid from the state treasury and includes the general fund, segregated funds, and funds in trust. See B.F. Sturtevant Co. v. Industrial Comm., 186 Wis. 10, 19-21, 202 N.W. 324 (1925).

76 Op. Att'y Gen. 224, 230 (1987)
  A previous attorney general was asked whether article IV, section 26 prohibited increases after retirement which were funded out of segregated funds. His reply states in part as follows (60 Op. Att'y Gen. 298, 304-5 (1971)):

76 Op. Att'y Gen. 224, 230 (1987)
I am not unmindful of the fact that the court in Singer v. Boos, [44 Wis. 2d 374, 171 N.W.2d 307 (1969)], used language which would indicate that Art. IV, sec. 26, Wis. Const., prohibitions apply only to public officers paid out of the general fund. Such language at page 380 reads:

76 Op. Att'y Gen. 224, 230 (1987)
  "This court has repeatedly held that the constitutional prohibition in art. IV, sec. 26, applies only to public officers who are paid out of the state general fund."

76 Op. Att'y Gen. 224, 230-231 (1987)
In reading the cases cited by the court for this proposition I find no showing that the court intended to change its previous holdings that the payment which is precluded by the constitution is from the State Treasury. I find no indication that the court intended, in Singer v. Boos, to construe Art. IV, sec. 26, Wis. Const., as allowing payment of extra compensation to employes paid from segregated funds rather than the State general fund.

76 Op. Att'y Gen. 224, 231 (1987)

  State ex rel. Holmes v. Krueger (1955), 271 Wis. 129, 72 N.W.2d 734, and Columbia County v. Wisconsin Retirement Fund (1962), 17 Wis. 2d 310, 116 N.W.2d 142 are cited by the court as authority for the above quoted statement in Singer v. Boos. The Holmes case refers to extra compensation payable out of the public treasury of the State. No mention is made of the term State general fund. See pages 133 to 136. In the Columbia County case, the material statement on page 326 reads:

76 Op. Att'y Gen. 224, 231 (1987)
  "The Wisconsin Constitution, sec. 26, art. IV, does not apply to counties. Sieb v. Racine (1922), 176 Wis. 617, 187 N.W. 989; Dandoy v. Milwaukee County (1934), 214 Wis. 586, 254 N.W. 98."

76 Op. Att'y Gen. 224, 231 (1987)

  Sieb v. Racine (1922), 176 Wis. 617, 187 N.W. 989, at page 625, also uses the language state treasury as follows:

76 Op. Att'y Gen. 224, 231 (1987)
  "* * * It has been held that the constitutional provision referred to applies only to public officers whose salaries are paid out of the state treasury."

76 Op. Att'y Gen. 224, 231 (1987)
I, therefore, see no indication that the court intended in Singer v. Boos, supra, to except segregated funds from the constitutional prohibition and I, therefore, consider State employes paid from segregated funds subject to Art. IV, sec. 26, Wis. Const.

76 Op. Att'y Gen. 224, 231 (1987)
(Emphasis supplied in original.)

76 Op. Att'y Gen. 224, 231 (1987)
  The public employe trust fund is included in the prohibited sources for the general prohibition of article IV, section 26. I find no basis for excluding that fund from the "state funds" requirement later inserted in that section.

76 Op. Att'y Gen. 224, 231-232 (1987)
  The requirement that there be sufficient "state funds" allocated in the bill to pay for the retirement benefit improvement is directed toward precluding prospective assessment of benefit improvement costs against non-state fund participating employers rather than toward what state treasury source is used. Section 14 of 1987 A.B. 265 allocates a portion of the public employe trust fund from the transaction amortization account to the fixed annuity reserve to fund payment of the "special investment performance dividend" to WRS annuitants. This use of "state funds" is consistent with article IV, section 26 of the Wisconsin Constitution.

76 Op. Att'y Gen. 224, 232 (1987)
DJH:WMS
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