Wisconsin Supreme Court overturns Gov. Evers’ partial vetoes

    Wisconsin Supreme Court Chamber, State Capitol Building, Madison
    Wisconsin Supreme Court Chamber, State Capitol Building, Madison "Capitol 02-15-2012 087" by Richard Hurd is licensed under CC BY 2.0

    The Wisconsin Supreme Court overturned three of Gov. Tony Evers’ budget vetoes on Friday, in another victory for Republicans who seek to limit the governor’s power.

    But the justices did not agree on the rationale behind the decision.

    “No rationale has the support of a majority,” the court stated in its unsigned per curiam decision. “However, a majority has reached a conclusion with respect to the constitutionality of each series of vetoes.”

    Justices Rebecca Dallet and Ann Walsh Bradley sided with upholding all of Evers’ partial vetoes, while justices Daniel Kelly and Rebecca Bradley favored overturning them all. The other conservatives on the court had divided views.

    Five justices agreed that Evers’ partial veto of the school bus modernization fund was unconstitutional. The same five also agreed to strike down vetoes of the local roads improvement fund. Four justices agreed that vetoes of taxes on vaping products were unconstitutional, and five found that vetoes to the vehicle fee schedule unconstitutional. 

    The Court left in place one challenged veto to a vehicle fee schedule that changes the amount truck owners must pay to register their vehicles.

    “Governor Evers used the partial veto power to create new laws never approved by the legislature,” Rick Esenberg of the Wisconsin Institute for Law & Liberty (WILL), which brought the case to the Supreme Court, said in a statement. “The Court’s decision recognizes limits to the partial veto power that will safeguard liberty and uphold the separation of powers. While there are multiple writings and their interaction is complex, today’s decision severely limits and perhaps even ends the Governor’s power to create new law through vetoes.”

    “The People’s Budget made historic investments in better roads, better schools, and better healthcare, but clearly Republicans will continue doing whatever they can to prevent us from doing good work for Wisconsinites,” Evers said in a statement responding to the ruling. “Today’s ruling departs from decades of precedent and only creates chaos and confusion. As I said yesterday, we’re not going to let folks who are bitter about an election that happened nearly two years ago stop us from getting things done for the people of our state.”

    Under the Wisconsin Constitution, the governor may veto appropriation bills “in whole or in part.” WILL’s lawsuit, which the Court agreed to take directly rather than send it to a lower court, argued that  Evers’ vetoes exceeded his constitutional authority and created new laws never voted on by the state Legislature.

    The partial veto has been used by Wisconsin governors going back to 1930. In a separate case, the Court declined to take up vetoes used by former Gov. Scott Walker, saying the challenge to those vetoes was filed too late. (In that case, the Wisconsin Small Businesses United, Inc. challenged Walker’s use of the so-called  thousand-year veto to change a legislative deadline from Dec. 31, 2018 to December 3018. Walker also changed an implementation date from “July 1, 2018” to “July 1, 2078.”)

    Chief Justice Patience Roggensack found that Evers could not use his partial veto power to change the school bus modernization fund into an alternative fuel fund — nor could he use his partial veto to change the local road improvement fund into a fund for local grants. By way of explanation, she noted that under the Wisconsin Constitution, “Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law.” 

    “I conclude that the part approved by the governor, i.e., the consequences of the partial veto, must not alter the topic or subject matter of the ‘whole’ bill before the veto,” Roggensack wrote. 

    Roggensack partially concurred with Court’s unsigned opinion overturning the school bus and local roads vetoes, but partially dissented on the vapor products tax.

    She agreed with the majority that Evers lawfully used his partial veto to change the amount truck owners must pay to register their vehicles. 

    Acknowledging that “the partial veto power grants the governor the authority to disapprove appropriations bills in part,” Justice Brian Hagedorn wrote that, nonetheless, “Faithfulness to the whole constitution and the structure it establishes means our partial veto jurisprudence needs a partial reset. 

    “We cannot myopically focus our attention on the words of the partial veto provisions in our constitution at the expense of the rest of the document’s text,” Hagedorn wrote.

    “In an important case like this, where the people of Wisconsin need clarity, we instead sow confusion,” Justice Ann Walsh Bradley wrote in a dissent joined by Justice Rebecca Dallet. “Evidence of the lack of clarity is highlighted by the very fact that this case has generated four separate writings with various rationales. And not one of them has garnered a majority vote of this court. Thus, we are left with no clear controlling rationale or test for the future.”

    Roggensack’s opinion that vetoes should not change the topic or subject matter of a piece of legislation  “seeks to create a subjective test that unnecessarily inserts the court into policy disputes between the other branches of government,” Walsh Bradley wrote, while other rationales “would overrule or modify a multitude of cases, spanning 85 years of precedent.”

    Commenting on the lawsuit in a piece for the Wisconsin Examiner, attorney Jeffrey Mandell described the effort to overturn the governor’s partial veto powers as “a cynical ploy that urges the Wisconsin Supreme Court to ignore clear constitutional text and to overturn settled constitutional precedent, all for the purpose of disempowering the Democratic governor and further empowering the Republican-controlled Legislature.”

    Instead of the Supreme Court deciding the matter, opponents of the governor’s partial veto power should take the matter to the public through the constitutional amendment process, which has been used in the past to impose limits on Wisconsin governors’ powerful line-item veto.

    The lawsuit, Mandell wrote, “aims to nullify a constitutional power that governors have consistently exercised and courts have consistently upheld for almost a century. In so doing, it seeks to amend the constitution without legislative deliberation or public participation, both of which the amendment process requires.”

    Mandell calls Friday’s decision “a mess that teaches us little more than that a majority of the Justices disapproves of most of the challenged partial vetoes.”

    “Why?” he continues, “It depends on which Justice you ask. That is not how the law is supposed to work. And, as Justice Walsh-Bradley’s opinion demonstrates, all of this handwringing and confusion are unnecessary, because application of binding precedent to the facts at hand—that is, the most elementary exercise of legal analysis—shows that all of the challenged partial vetoes fall within established understandings of the power of the Wisconsin governor.”

    “Today’s decision, which is too fractured and jumbled to have any precedential value,” Mandell says, “stands for no principle and teaches nothing except that our court is not meeting its obligations to the people of Wisconsin.”

    Ruth Conniff
    Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine, and opened the Progressive’s office in Washington, DC, during the Clinton Administration, where she made her debut as a political pundit on CNN’s Capital Gang Sunday and Fox News. She moved to Oaxaca, Mexico, for a year in 2017, where she covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Donald Trump. Conniff is a frequent guest on All in with Chris Hayes on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, and other radio and television programs. In 2011, she did award-winning coverage of the uprising against Governor Scott Walker in Wisconsin. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. Conniff graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal.