Wisconsin Supreme Court – Evers v. Marklein Amicus Brief Filed

On March 27, the State Democracy Research Initiative’s faculty co-directors Miriam Seifter and Rob Yablon filed an amicus brief along with six other legal scholars in Evers v. Marklein, a state separation-of-powers case pending before the Wisconsin Supreme Court.

The case centers on Wisconsin’s Joint Committee on Finance (JCF), a sixteen-member legislative committee that has the power to veto a wide range of executive-branch actions. At issue in the case are two of JCF’s powers that allow it to stall or block projects under the Knowles-Nelson Stewardship Program, a conservation program run by the Department of Natural Resources (DNR). The legislature funds the program through the budgeting process, allocating millions in funding that the DNR then uses to acquire land, to improve public recreational property, and for grants to local governments and nonprofits to buy land or improve existing properties. Under the challenged powers, a five-member minority of the committee—representing as little as 5% of Wisconsinites—can permanently block certain land acquisitions, and individual committee members can anonymously halt funding of projects that exceed $250,000.

The amicus brief filed Wednesday argues that these powers violate the Wisconsin Constitution by making an unrepresentative legislative committee the final word on significant statewide decisions. The brief emphasizes that a central purpose of constitutionally separated powers is to ensure that government remains accountable to the entirety of the people of the state. Concentrating statewide policymaking power in the hands of a few legislators, the brief argues, runs directly counter to those foundational democratic principles. The brief also surveys other state court decisions, with courts consistently holding that legislative committees cannot make statewide law. It concludes that the outsized powers of JCF make Wisconsin a national outlier.

The group of legal scholars includes Richard Briffault (Columbia Law School), Steven Huefner (The Ohio State University Moritz College of Law), Ronald Levin (Washington University School of Law), Jonathan Marshfield (University of Florida Levin College of Law), Jim Rossi (Vanderbilt University Law School), and Robert F. Williams (Rutgers Law School).