July 14, 2020 – In a per curiam opinion with four separate writings, a Wisconsin Supreme Court majority has ruled that Gov. Tony Evers violated his constitutional veto power when he partially vetoed provisions in the 2019-21 biennial budget bill.

In Bartlett v. Evers, 2020 WI 68 (July 10, 2020), a majority could not agree on a rationale but a majority struck down partial vetoes relating to a school bus modernization fund (5-2), a local roads improvement fund (5-2), and a vapor products tax (4-3).

Those vetoes are now invalid. On a fourth challenged veto, relating to a truck registration fee schedule, a majority (5-2) upheld the governor’s veto.

Vetoes at Issue

The Wisconsin Constitution (art. V, s. 10(1)(b)) says “appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law.”

The plaintiff-taxpayers argued that this provision, as originally enacted in 1848, “authorized the governor to approve or disapprove legislative proposals capable of separate enactment but appearing in a single bill, nothing more.”

In other words, the plaintiffs challenged the governor’s partial veto power, which allows the governor to nix or change certain provisions while leaving an omnibus bill intact.

The Wisconsin Legislature passed the 2019-21 biennial budget bill, an appropriations bill, but Gov. Evers imposed a series of vetoes related to funds, fees, and taxes.

One veto changed a school bus modernization fund into an alternative fuel fund. Wisconsin previously settled emissions litigation with Volkswagen by consent decree, creating a trust fund to help modernize school busses, among other types of vehicles.

The legislature’s 2019-21 budget appropriated funds for school boards to purchase energy efficient school busses (school bus modernization fund), using funds from the Volkswagen settlement fund. Gov. Evers vetoed this provision, instead authorizing the use of settlement funds for the installation of charging stations for electronic vehicles.

Another veto removed conditions attached to a road improvement fund. The plaintiffs argued the veto broadened the availability of the funds beyond local road improvement.

The legislature also imposed a tax on vapor products – electronic nicotine delivery systems that vaporize nicotine. Plaintiffs argued the veto expanded the definition of “vapor products” to include the “liquid” used to heat the device, creating vapor.

Plaintiffs said a fourth veto, relating the state’s vehicle registration fee schedule, unconstitutionally changed the amount truck drivers must pay to register vehicles by allowing an increase for lighter trucks but disallowing a decrease for heavier trucks.

Debate on Partial Veto Power, Veto Votes

In four separate writings, the justices debated the governor’s partial veto power, and based conclusions on differing rationales. That means the court reached no majority consensus on the boundaries of the governor’s partial veto power moving forward.

Chief Justice Patience Roggensack, concurring and dissenting in part through a 48-page opinion, noted that the Wisconsin Supreme Court has interpreted the governor’s partial veto power eight times since 1935, examining the history of partial veto power.

The plaintiff-taxpayers asked this Wisconsin Supreme Court to overrule two of those prior decisions and hold “that the governor may not exercise the partial veto in a way that transforms the meaning and purpose of a law into something entirely new.”

The chief justice said the issue, in this case, is “whether Governor Evers' partial vetoes went too far by altering the topic or subject matter of the enrolled bills,” that is, “whether parts approved alter the stated legislative idea for which the enrolled bill was passed.”

Based on her rationale, the chief justice struck vetoes on the school bus modernization fund and the local roads improvement fund. But she voted to uphold the governor’s veto to expand the vaping products tax, and change the truck registration fee schedule.

Justice Daniel Kelly concurred in part and dissented in part through a 46-page opinion joined by Justice Rebecca Bradley. Kelly looked to the Wisconsin Constitution’s actual text to determine what it means for a governor to approve an appropriations bill “in part.”

“The proper role of the partial veto is to separate the several proposed laws the legislature bundled into one appropriations bill,” Justice Kelly wrote.

“After exercising this veto power, the remaining document must comprise one or more ‘complete, entire, and workable laws,’ all of which must have passed the legislature.”

Justice Kelly and Justice R. Bradley voted to strike all four vetoes, based on the rationale outlined in Justice Kelly’s opinion.

Justice Brian Hagedorn wrote a 26-page concurrence, joined by Justice Annette Ziegler, acknowledging the partial veto power is “incredibly broad” but concluding it cannot be used to “unilaterally create new policies never passed by the legislature.”

“When presented with an appropriation bill containing various legislative proposals, the governor can – as a general matter – negate some proposals and accept others,” Justice Hagedorn wrote.

“This will necessarily effect a partial change in the policy soup reflected in the proposed bill. But what the governor may not do is selectively edit parts of a bill to create a new policy that was not proposed by the legislature.”

Justice Hagedorn and Justice Ziegler voted to strike vetoes relating to the school bus modernization fund, the local roads improvement fund, and the vapor products tax, but upheld the veto relating to the vehicle fee schedule for trucks.

Justice Hagedorn noted that Gov. Evers approved a registration fee increase for lighter truck weight classes, but disallowed fee reduction for heavier trucks over 8,000 pounds.

“In rejecting this proposal in part, the governor did not cobble together words or phrases to create a new policy or fee,” Justice Hagedorn wrote. “Rather, he declined to adopt part of a policy change advanced by the legislature.”

Justice Ann Walsh Bradley, joined by Justice Rebecca Dallet, dissented in part and concurred in part, voting to uphold all four vetoes. They argued the other justices put forth “untested theories” and relying on prior precedent would have provided clarity.

“I conclude that our precedent inexorably leads to the determination that all four vetoes at issue, including the Governor's vetoes related to the school bus modernization fund, local road improvement fund, and vapor products tax are constitutionally permissible exercises of the partial veto power,” Justice A.W. Bradley wrote. “In an important case like this, where the people of Wisconsin need clarity, we instead sow confusion.”