Supreme Court will take case on limiting governor’s veto power

By: - October 17, 2019 7:33 am
Wisconsin Constitution

Constitution of Wisconsin state, by Basharat Alam Shah, is licensed under CC BY 2.0

On Wednesday the Wisconsin Supreme Court agreed to take a case brought by the right-leaning Wisconsin Institute for Law and Liberty (WILL) seeking to undo several of Gov. Tony Evers’ partial vetoes of the state budget.

“Gov. Evers used his partial veto to create new laws out of whole cloth,” said Rick Esenberg of WILL. “The people of Wisconsin never intended the check on legislative power the governors’ veto represents to permit the governor to legislate on his own. We are pleased the Court agreed that Gov. Evers’ recent use of the partial veto warrants judicial review.”

The move follows a hearing on Tuesday regarding a Republican-backed legislative joint resolution that would endorse a constitutional amendment to block the governor from using his line-item veto to increase state spending. 

By granting WILL’s request that it exercise original jurisdiction in the case, the Supreme Court is allowing the plaintiffs to skip the standard judicial process, which involves first bringing their case before a lower court.

“It’s disappointing that the Supreme Court has agreed to exercise original jurisdiction,”  said attorney Jeffrey Mandell, a Madison attorney who represented the plaintiffs in League of Women Voters of Wisconsin v. Evers, one of the lawsuits challenging the Legislature’s 2018 lame-duck session. “The governor’s actions are squarely within his constitutional authority.” 

“The lawsuit appears to be nothing more than a short-sighted and ahistorical effort to further consolidate power in the current legislative leadership,” Mandell added. “It should, like most lawsuits, work through the lower courts to develop the arguments and distill the issues for careful consideration by the Supreme Court. By short-circuiting that process, the Supreme Court decreases opportunities for judicious consideration and diminishes confidence in the final outcome.”

If the Court decides in the plaintiffs’ favor, it will be overturning decades of precedent. 

But the current 5-2 conservative majority, elected with strong Republican backing, might take a different view of the law than previous majorities which have consistently upheld Wisconsin governors’ veto powers.

The line-item veto gives Wisconsin’s governor significant powers the governors in other states do not have to make changes to legislation. 

The lawsuit asks the court to reverse four of Evers’ partial vetoes, not including a line-item veto that increased spending on public schools. The school-funding-related veto was the subject of debate in the hearing on the resolution supporting a constitutional amendment, where Sen. David Craig (R-West Bend) argued that by increasing school funding the governor was usurping the legislature’s “power of the purse.”

The WILL lawsuit does not seek to do away with the entire line-item veto, but argues, on behalf of three plaintiffs, that Evers overstepped by changing the legislature’s intent with some of his vetoes of budget items.

Two of the three plaintiffs, referred to as “taxpayers” in WILL’s petition to the Supreme Court, Nancy Barlett of Verona and Ted Keneklis of De Pere, are regular contributors to the Republican Party according to data that is publicly available through the Wisconsin Campaign Finance information system.

“Republicans and their allies are doing this stuff because they think the fix is in,” One Wisconsin Now’s Mike Browne said. “They’ve put their partisan justices on the Supreme Court, and they expect them to side with them.”

One Wisconsin Now has criticized Justice Daniel Kelly for taking campaign contributions from WILL board members before and after deciding a case before the court in WILL’s favor.

At a news conference announcing the lawsuit, Esenberg denied that partisanship had anything to do with the case limiting Evers’ veto power. 

“This case is not about politics. It’s not about personalities. It’s about an important principle . . . the principle of the separation of powers,” Esenberg said.

“Supreme court justices are obligated to avoid even the appearance of impropriety,” said Dane County Circuit Court Judge Jill Karofsky, who is a candidate for the Supreme Court.  “This is the second time in a few months the Wisconsin Supreme Court has failed to follow the usual process and plucked a case from lower courts. This doesn’t pass the smell test.”

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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.