Wisconsin Constitution

The meaning of "absence" is discussed. 68 Atty. Gen. 109.

V,8 Secretary 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,9 Compensation 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 [Amended Nov. 1869; repealed Nov. 1932; see 1868 J.R. 9, 1869 J.R. 2, 1869 c. 186, vote Nov. 1869; 1929 J.R. 70, 1931 J.R. 53, vote Nov. 1932.]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,10 Governor to approve or veto bills; proceedings on veto. Section 10. [As amended Nov. 1908, Nov. 1930, April 1990 and April 2008]

V,10(1) (1) 

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) (2) 

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 A.J.R. 71, 1989 S.J.R. 11, vote April 1990; 2005 J.R. 46, 2007 J.R. 26, vote April 2008]

In determining whether the governor has acted in 6 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. Oak Creek, 49 Wis. 2d 299, 182 N.W.2d 481.

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. Wis. 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. Art. V, sec. 10; Art. VIII, sec. 8; Art. XII, sec. 1 discussed. 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).

Wisconsin partial veto. 1989 WLR 1395 (1989).

The Origin and Evolution of the Partial Veto Power. Wade. Wis. Law. March 2008.

VI ARTICLE VI.

administrative

VI,1 Election 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,1m Secretary 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,1n Treasurer; 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,1p Attorney 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,2 Secretary 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,3 Treasurer and attorney general; duties, compensation. Section 3. The powers, duties and compensation of the treasurer and attorney general shall be prescribed by law.

The attorney general does not have authority to challenge the constitutionality of statutes. State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 1998), 97-2188.

The powers of the attorney general in Wisconsin. Van Alstyne, Roberts, 1974 WLR 721.

VI,4 County officers; election, terms, removal; vacancies. Section 4. [As amended Nov. 1882, April 1929, Nov. 1962, April 1965, April 1967, April 1972, April 1982, Nov. 1998, April 2005]

VI,4(1) (1) 

VI,4(1)(a) (a) Except as provided in pars. (b) and (c) and sub. (2), coroners, registers of deeds, district attorneys, and all other elected county officers, except judicial officers, sheriffs, and chief executive officers, shall be chosen by the electors of the respective counties once in every 2 years.

VI,4(1)(b) (b) Beginning with the first general election at which the governor is elected which occurs after the ratification of this paragraph, sheriffs shall be chosen by the electors of the respective counties, or by the electors of all of the respective counties comprising each combination of counties combined by the legislature for that purpose, for the term of 4 years and coroners in counties in which there is a coroner shall be chosen by the electors of the respective counties, or by the electors of all of the respective counties comprising each combination of counties combined by the legislature for that purpose, for the term of 4 years.

VI,4(1)(c) (c) Beginning with the first general election at which the president is elected which occurs after the ratification of this paragraph, district attorneys, registers of deeds, county clerks, and treasurers shall be chosen by the electors of the respective counties, or by the electors of all of the respective counties comprising each combination of counties combined by the legislature for that purpose, for the term of 4 years and surveyors in counties in which the office of surveyor is filled by election shall be chosen by the electors of the respective counties, or by the electors of all of the respective counties comprising each combination of counties combined by the legislature for that purpose, for the term of 4 years.

VI,4(2) (2) The offices of coroner and surveyor in counties having a population of 500,000 or more are abolished. Counties not having a population of 500,000 shall have the option of retaining the elective office of coroner or instituting a medical examiner system. Two or more counties may institute a joint medical examiner system.

VI,4(3) (3) 

VI,4(3)(a) (a) Sheriffs may not hold any other partisan office.

VI,4(3)(b) (b) Sheriffs may be required by law to renew their security from time to time, and in default of giving such new security their office shall be deemed vacant.

VI,4(4) (4) The governor may remove any elected county officer mentioned in this section except a county clerk, treasurer, or surveyor, giving to the officer a copy of the charges and an opportunity of being heard.

VI,4(5) (5) All vacancies in the offices of coroner, register of deeds or district attorney shall be filled by appointment. The person appointed to fill a vacancy shall hold office only for the unexpired portion of the term to which appointed and until a successor shall be elected and qualified.

VI,4(6) (6) When a vacancy occurs in the office of sheriff, the vacancy shall be filled by appointment of the governor, and the person appointed shall serve until his or her successor is elected and qualified. [1881 J.R. 16A, 1882 J.R. 3, 1882 c. 290, vote Nov. 1882; 1927 J.R. 24, 1929 J.R. 13, vote April 1929; 1959 J.R. 68, 1961 J.R. 64, vote Nov. 6, 1962; 1963 J.R. 30, 1965 J.R. 5, vote April 1965; 1965 J.R. 61, 1967 J.R. 12, vote April 1967; 1969 J.R. 33, 1971 J.R. 21, vote April 1972; 1979 J.R. 38, 1981 J.R. 15, vote April 1982; 1995 J.R. 23, 1997 J.R. 18, vote November 1998; 2003 J.R. 12, 2005 J.R. 2, vote April 2005]

This section does not bar a county from assisting in the defense of actions brought against the sheriff as a result of the sheriff's official acts. Bablitch and Bablitch v. Lincoln County, 82 Wis. 2d 574, 263 N.W.2d 218.

Sheriff's powers and duties are discussed. Professional Police Association. v. Dane County, 106 Wis. 2d 303, 316 N.W.2d 656 (1982).

A sheriff's assignment of a deputy to an undercover drug investigation falls within the constitutionally protected powers of the sheriff and could not be limited by a collective bargaining agreement. Manitowoc Co. v. Local 986B, 168 Wis. 2d 819, 484 N.W.2d 534 (1992). See also Washington County v. Deputy Sheriff's Association, 192 Wis. 2d 728, 531 N.W.2d 468 (Ct. App. 1995).

The sheriff's power to appoint, dismiss, or demote a deputy is not constitutionally protected and may be limited by a collective bargaining agreement not in conflict with the statutes. Heitkemper v. Wirsing, 194 Wis. 2d 182, 533 N.W.2d 770 (1995). See also Brown County Sheriff Dept. v. Employees Association, 194 Wis. 2d 266, 533 N.W.2d 766 (1995).

The power to hire does not give character and distinction to the office of sheriff; it is not a power peculiar to the office. Certain duties of the sheriff at common law that are peculiar to the office and that characterize and distinguish the office are constitutionally protected from legislative interference, but the constitution does not prohibit all legislative change in the powers and duties of a sheriff as they existed at common law. Internal management and administrative duties that neither give character nor distinction to the office fall within the mundane and common administrative duties that may be regulated by the legislature. Hiring and firing personnel to provide food to inmates is subject to legislative regulation, including collective bargaining under s. 111.70. Kocken v. Wisconsin Council 40 AFSCME, 2007 WI 72, 301 Wis. 2d 266, 732 N.W.2d 828, 05-2742.

The assignment of deputies to transport federal and state prisoners to and from a county jail pursuant to a contract for the rental of bed space was not a constitutionally protected duty of the sheriff's office and was thus subject to the restrictions of a collective bargaining agreement. Ozaukee County v. Labor Association of Wisconsin, 2008 WI App 174, 315 Wis. 2d 102, 763 N.W.2d 140, 07-1615.

A sheriff may not be restricted in whom he or she assigns to carry out his or her constitutional duties if he or she is performing immemorial, principal, and important duties characterized as belonging to the sheriff at common law. Attending on the courts is one of the duties preserved for the sheriff by the constitution. When a sheriff effects the delivery of prisoners pursuant to court-issued writs, the sheriff is attending on the court. The sheriff could contract with a private entity for the transportation of prisoners, rather than utilizing deputies employed by the sheriffs department. Brown County Sheriffs Dept. Non-Supervisory Labor Association v. Brown County, 2009 WI App 75, 318 Wis. 2d 774, 767 N.W.2d 600, 08-2069.

Staffing an x-ray and metal detector security screening station is not one of those "certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff" and is not part of the sheriff's constitutionally protected powers that cannot be limited by a collective bargaining agreement. Washington County v. Washington County Deputy Sheriff's Association, 2009 WI App 116, 320 Wis. 2d 570, 772 N.W.2d 697, 08-1210.

The transport of individuals in conjunction with the service or execution of all processes, writs, precepts, and orders constitute immemorial, principal and important duties that characterize and distinguish the office of sheriff and fall within the sheriff's constitutional powers, rights, and duties. As such, the sheriff has the constitutional authority to determine how to carry out those duties and can elect to privatize those duties. That s. 59.26 (4) specifically directs that the sheriff must act personally or by means of his undersheriff or deputies is not persuasive. The simple fact that the legislature codified a duty and responsibility of the sheriff, like providing food for jail inmates, does not strip sheriffs of any constitutional protections they may have regarding this duty. Milwaukee Deputy Sheriff's Association v. Clarke, 2009 WI App 123, 320 Wis. 2d 486, 772 N.W.2d 216, 08-2290.

An entity characterized as the "office of the district attorney" or "district attorney," separate from the elected official, does not have authority to sue or be sued. Buchanan v. City of Kenosha, 57 F. Supp. 2d 675 (1999).

Implementation legislation is necessary before counties under 500,000 may abolish the office of coroner. 61 Atty. Gen. 355.

A county board in a county under 500,000 can abolish the elective office of coroner and implement a medical examiner system to be effective at the end of incumbent coroner's term. Language in 61 Atty. Gen. 355 inconsistent herewith is withdrawn. 63 Atty. Gen. 361.

This section does not immunize counties from liability for their own acts. Soderbeck v. Burnett County, Wis. 752 F.2d 285 (1985).

A county sheriff is an officer of the state, not county, when fulfilling constitutional obligations. Soderbeck v. Burnett County, Wis. 821 F.2d 446 (7th Cir. 1987).

A sheriff represents the county when enforcing the law. Sovereign immunity for state officials under the 11th amendment to the U.S. constitution does not apply. Abraham v. Piechowski, 13 F Supp 2d 870 (1998).

VII ARTICLE VII.

judiciary

VII,1 Impeachment; trial. Section 1. [As amended Nov. 1932] The court for the trial of impeachments shall be composed of the senate. The assembly shall have the power of impeaching all civil officers of this state for corrupt conduct in office, or for crimes and misdemeanors; but a majority of all the members elected shall concur in an impeachment. On the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impartially to try the impeachment according to evidence; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold any office of honor, profit or trust under the state; but the party impeached shall be liable to indictment, trial and punishment according to law. [1929 J.R. 72, 1931 J.R. 58, vote Nov. 1932]

VII,2 Court system. Section 2. [As amended April 1966 and April 1977] The judicial power of this state shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature under section 14. [1963 J.R. 48, 1965 J.R. 50, vote April 1966; 1975 J.R. 13, 1977 J.R. 7, vote April 1977]

The Shawano-Menominee court was a constitutional district court since Menominee county was not organized for judicial purposes. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459.

If s. 425.113 were to be interpreted so as to remove a court's power to issue a body attachment for one who chooses to ignore its orders, that interpretation would cause the statute to be unconstitutional as a violation of the principle of separation of powers. Smith v. Burns, 65 Wis. 2d 638, 223 N.W.2d 562.

Courts have no inherent power to stay or suspend the execution of a sentence in the absence of statutory authority. A court's refusal to impose a legislatively mandated sentence constitutes an abuse of discretion and usurpation of the legislative field. State v. Sittig, 75 Wis. 2d 497, 249 N.W.2d 770.

WERC is authorized by s. 111.06 (1) (L) to determine whether conduct in violation of criminal law has occurred, which is not a delegation of judicial power in violation of Art. VII, sec. 2 nor does the administrative procedure violate Art. I, sec. 8. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218.

Courts have no inherent power to dismiss a criminal complaint with prejudice prior to attachment of jeopardy. State v. Braunsdorf, 92 Wis. 2d 849, 286 N.W.2d 14 (Ct. App. 1979).

The highest standard of proof of an articulated compelling need must be met before a court will order the expenditure of public funds for its own needs. Flynn v. Department of Administration, 216 Wis. 2d 521, 576 N.W.2d 245 (1998), 96-3266.

Judicial assistants are subject to the judiciary's exclusive authority once appointed. Any collective bargaining agreement between a county and employee's union that provides for possible "bumping" of the assistant by another employee and final and binding arbitration regarding disputes over bumping is an unconstitutional infringement on the court's inherent powers. Barland v. Eau Claire County, 216 Wis. 2d 560, 575 N.W.2d 691 (1998), 96-1607.

Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), 97-2751.

A court's inherent powers are those that must be used to enable the judiciary to accomplish its constitutional or statutory functions and include the power to maintain the dignity of the court, transact its business, or accomplish the purpose of its existence. Courts have inherent power to investigate claims that a party is engaging in fraudulent behavior or improperly influencing witnesses, and a court is within its authority to hold an evidentiary hearing on such matters. Schultz v. Sykes, 2001 WI App 255, 248 Wis. 2d 746, 638 N.W.2d 604, 00-0915.

The issuance of a search warrant is not an exercise of "[t]he judicial power," as that phrase in employed in Art. VII, s. 2. Instead, issuance of a valid search warrant requires that the individual be authorized by law to issue the warrant, that he or she be neutral and detached, and that the warrant be issued only upon a showing of probable cause. Section 757.69 (1) (b), which allocates the power to issue search warrants to circuit court commissioners, does not impermissibly intrude upon "[t]he judicial power" granted to the courts by Art. VII, s. 2. State v. Williams, 2012 WI 59, 341 Wis. 2d 191, 814 N.W.2d 460, 10-1551.

In mental hearings under 51.02, 1973 stats., or alcohol or drug abuse hearings under 51.09 (1), 1973 stats., the power to appoint an attorney at public expense, to determine indigency and to fix compensation are judicial and must be exercised by the court or under its direction and cannot be limited by the county board or delegated to a private nonprofit corporation. 63 Atty. Gen. 323.

Unless acting in a clear absence of all jurisdiction, judges are immune from liability for judicial acts, even when such acts are in excess of their jurisdiction and are alleged to have been done maliciously or corruptly. Stump v. Sparkman, 435 U.S. 349 (1978).

An integrated state bar's use of mandatory dues to fund political or ideological activities violates free speech provisions. Keller v. State Bar of California, 496 U.S. 226, 110 L. Ed. 2d 1 (1990).

Court reform of 1977: The Wisconsin supreme court ten years later. Bablitch. 72 MLR 1 (1988).

The separation of powers control of courts and lawyers. Currie, Resh, 1974 WBB No. 6.

VII,3 Supreme court: jurisdiction. Section 3. [As amended April 1977]

VII,3(1) (1) The supreme court shall have superintending and administrative authority over all courts.

VII,3(2) (2) The supreme court has appellate jurisdiction over all courts and may hear original actions and proceedings. The supreme court may issue all writs necessary in aid of its jurisdiction.

VII,3(3) (3) The supreme court may review judgments and orders of the court of appeals, may remove cases from the court of appeals and may accept cases on certification by the court of appeals. [1975 J.R. 13, 1977 J.R. 7, vote April 1977]

The authority of supreme court to review and modify criminal sentences is discussed. Riley v. State, 47 Wis. 2d 801, 177 N.W.2d 838.

The supreme court's authority to issue a writ of error is not dependent upon a specific legislative enactment, but the constitution and statutes relating to its appellate jurisdiction give it the authority to issue such writs as are necessary to exercise its appellate jurisdiction. Shave v. State, 49 Wis. 2d 379, 182 N.W.2d 505.

A writ of error coram nobis cannot be used for the purpose of producing newly discovered evidence affecting only the credibility of a confession. Mikulovsky v. State, 54 Wis. 2d 699, 196 N.W.2d 748.