Released on the same day, WSBU v. Brennan (2020 WI 69) and Bartlett v. Evers (2020 WI 68) both involve challenges to gubernatorial vetoes. The court dismissed WSBU v. Brennan but declared 3 of the 4 challenged vetoes in Bartlett v. Evers unconstitutional.
Under the Wisconsin Constitution (Article V, Section 10), governors can partially veto provisions in appropriation bills, including biennial budget bills. Some limitations exist: a governor cannot partially veto individual letters to create a new word or create a new sentence by combining parts of two or more sentences. But otherwise, the Wisconsin Constitution gives the governor very broad veto authority.
WSBU v. Brennan
WSBU v. Brennan involved a challenge to two vetoes made by Governor Walker in the 2017-19 biennial budget. First, Governor Walker struck the “1, 2” from “December 31, 2018” (December 31, 2018), effectively delaying implementation of the provision to December 3018, or roughly a thousand years. In the second case, he struck a 1, 2, and 0, turning an implementation date of July 1, 2017 2018 to July 1, 2078, delaying it around 60 years.
Though it accepted it the Wisconsin Supreme Court declined to decide the case, choosing instead to dismiss it under “the equitable doctrine of laches”—which basically means WSBU waited too long to bring the case.
The court walked through a three-prong test where it considered the time it took to bring the case, the availability of notice that a lawsuit was coming, and potential reliance problems with overturning a completed budget. It concluded all these factors against WSBU.
Justice Rebecca Bradley, joined by Justice Kelly, dissented, arguing that the majority wrongly relied on the laches doctrine since the case involved a clear constitutional violation and that by taking the case, the court effectively agreed to decide it. No action previously implied budget veto challenges could only come while the budget was effective, and WSBU rightly expected the court to consider the merits of the case. Justice Bradley then went to analyze the merits in her dissent, where she concluded that the vetoes were unlawful.
Bartlett v. Evers
Bartlett v. Evers involved challenges to four groups of vetoes by Governor Evers in the 2019–21 biennial budget. No majority opinion arose, but a majority of the justices did find three of the four vetoes unconstitutional. (They just did not agree why.)
Veto 1: The School Bus Modernization Fund
A series of vetoes changed a school bus modernization fund into an alternative fuel fund. Chief Justice Roggensack and Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found the vetoes unconstitutional.
Veto 2: The Local Roads Improvement Fund
Another series of vetoes removed conditions from a local road improvement fund, effectively changing it into a fund for “local grants” or “local supplements.” Chief Justice Roggensack and Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found the vetoes unconstitutional.
Veto 3: The Vapor Products Tax
Yet another veto altered a section that imposed a tax on “vapor products” by expanding the definition of vapor product to include liquid heated by a vaping device. Justices Ziegler, Rebecca Bradley, Kelly and Hagedorn found it unconstitutional.
Veto 4: The Vehicle Fee Schedule
Finally, another series of vetoes altered a vehicle fee schedule by changing the amount truck owners must pay to register their vehicles. Chief Justice Roggensack and Justices Ann Walsh Bradley, Ziegler, Dallet and Hagedorn found it constitutional.
Chief Justice Roggensack wrote about the vetoes:
¶11 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. Stated otherwise, such a veto does not alter the stated legislative idea that initiated the enrolled bill. Therefore, Governor Evers could not use his partial veto power to change the school bus modernization fund into an alternative fuel fund.
Justice Ann Walsh Bradley dissented from this position, stating:
¶115 I would instead turn to and uphold our well-established precedent. It recognizes, time and again, that the Wisconsin governor’s veto power is incredibly broad… I conclude that our precedent inexorably leads to the determination that all four vetoes at issue…are constitutionally permissible exercises of the partial veto power.
Justice Kelly agreed with Chief Justice Roggensack’s premise but took it farther, arguing the legislative veto has been interpreted wrong almost from the start, and that the ¶180 “powers of amending and vetoing are different things.” Amending belongs only to the legislature. Any action to that effect using the veto was unconstitutional.
Justice Hagedorn echoed some of Justice Kelly’s arguments about legislative law making, but did not take it as far, stating:
¶234 While the governor’s partial veto power is incredibly broad, it should not be read to fundamentally upend the overall structure of our government embedded in our constitution. The constitution’s placement of law-creation in the hands of the legislature means we cannot permit a practice that turns the governor into a one-person legislature.