The SCOW docket: Veto creating school funding for 402 years stands

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.

Karofsky

The case: LeMieux v. Evers

Majority: Justice Jill Karofsky (12 pages), joined by Justice Ann Walsh Bradley, Rebecca Dallet (except for five paragraphs), and Janet Protasiewicz

Concurrence: Dallet (4 pages)
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Dissent: Justice Brian Hagedorn (20 pages), joined by Chief Justice Annete Ziegler and Justice Rebecca Grassl Bradley

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Upshot

We uphold the 2023 partial vetoes, and in doing so we are acutely aware that a 400-year modification is both significant and attention-grabbing. However, our constitution does not limit the governor's partial veto power based on how much or how little the partial vetoes change policy, even when that change is considerable. As our precedent recognizes, the governor's constitutionally-vested, quasi-legislative role defeats "any separation of powers-type argument thta the governor cannot affirmatively legislate by the use of the partial veto power." Indeed, the governor's reliance on his partial veto authority to potentially increase taxes without legislative approval is neither new nor unique in our partial veto jurisprudence.

Background

The Wisconsin Constitution provides that every two years the legislature is to pass a biennial budget. This budget establishes the level of revenue to be derived from taxes and other sources, as well as authorized expenditures. The process begins with the governor presenting the legislature with an executive budget bill. The executive budget bill then proceeds through the legislature’s multi-step review and report process involving the joint committee on finance and legislative fiscal bureau. The legislature then submits its bill to the governor. Before signing the bill into law, the governor may partially veto parts of the bill. Subsequently, the legislature may vote to override the governor’s partial vetoes by a supermajority.

This process was followed for the 2023–25 biennial budget. First, the governor presented his 2023–25 executive biennial budget bill, which included three educational revenue limit increases . . . .

Next the legislature reviewed the governor’s proposed budget bill and made modifications. Senate Bill 70 provided for a $325 per pupil revenue limit increase for both 2023–24 and 2024–25, without a subsequent inflationary index.
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Then the governor exercised his partial veto power, deleting portions of 2023 Senate Bill 70. As related to this matter, the governor deleted entire words and some numbers . . . The result . . . authorized a $325 per pupil revenue limit increase from 2023–2425, extending the provision by 400 additional years. . . .

The senate subsequently voted to override the partial vetoes, but the assembly declined to vote on the override. Consequently, the effort to override the governor’s vetoes failed. The law went into effect and this original action followed.

Per Hagedorn, the plaintiffs are two taxpayers.

Guts

In challenging the 2023 partial vetoes, petitioners do not ask us to overrule our precedent. Petitioners agree that the partial vetoes at issue satisfy the principles we have applied in our previous cases. Instead, petitioners bring two novel challenges. First, they contend that the 2023 partial vetoes violate the state constitution because the governor did not veto the bill “in part” when he extended a duration of time, as 402 years is not part of two years. Second, petitioners maintain that the 2023 partial vetoes violate the constitution because that provision prohibits the governor from striking digits to create new numbers.

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Over the past 90 years, our precedent has established four principles that we have applied to “deletion vetoes,” the traditional partial veto in which the governor strikes text:
Deletion veto principles
1. The governor’s deletion vetoes are constitutional as long as the remaining text of the bill constitutes a “complete, entire, and workable law.”
2. The governor may exercise deletion vetoes only on parts of bills containing appropriations within their four corners.
3. The governor’s deletion vetoes may not result in a law that is “totally new, unrelated or non-germane” to the original bill.
4. The governor may strike “words, letters, or numbers.” But “the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” Nor may the governor “create a new sentence by combining parts of 2 or more sentences of the enrolled bill.”

Separate from deletion vetoes, there is one scenario in which the governor may exercise “write-in” vetoes by striking certain text and then writing in different text:
Write-in veto principle 
​The governor may strike an appropriation amount and write in a smaller appropriation amount.
 
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Karofsky writes that Evers' partial veto at issue in this case complies with the four deletion veto principles. 

The following three paragraphs were not joined by Dallet.

Having addressed all four deletion veto principles, we turn to petitioners' request to apply the . . . write-in veto principle here. Petitioners ask that we invalidate the 2023 partial vetoes because under a prior case, the 402-duration created by these partial vetoes is not "less than" and thus not "part" of the legislatively-approved two-year duration. Even though 402 years are clearly more than two, the prior case does not apply here.

In a prior case we evaluated the unprecedented scenario in which the governor decreased an appropriation amount from $350,000 to $250,000 by deleting “350,000” and writing in “250,000.” We determined that this write-in partial veto was constitutional under the very narrow facts presented in that case. . . . We concluded that because the write-in veto was only to an appropriation amount, and $250,000 is less than $350,000, $250,000 was part of $350,000 for purposes of the constitution.

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Here, we are tasked with evaluating a change in years, not appropriation amounts, which plainly falls outside a prior case’s holding and analytical principles. Petitioners fail to reckon with that case’s explicit boundary and do not attempt to equate appropriations with durations. As significantly, petitioners do not ask that we overrule or revisit our precedent. Therefore, we do not extend the write-in veto principle to the 2023 partial vetoes. 

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Joined again by Dallet.

Turning to whether the governor impermissibly deleted digits, the plain meaning of “word” does not include numbers written out using digits, and the plain meaning of “letters” does not include digits. By way of example, all agree with petitioners that the number “ten” is a word written with letters. However, when we write the number “10” using digits, we have used no letters. Simply put, letters and digits are not interchangeable for purposes of the pertinent constitutional provision. This has not demonstrably changed since 1990 when this provision passed.
 
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The bottom line is that the partial vetoes were within the bounds of the constitution. But the legislature is not without recourse. It has multiple options at its disposal, including:
Future budget bills: Unlike an appropriation amount typically spent during the biennium in which the funds were appropriated, the 2023 partial vetoes affect revenue limits 400 years into the future. Accordingly, the legislature may address those partial vetoes during the 2025–27 biennial budget process, or in a subsequent biennial budget.
Constitutional amendment: The legislature has the power to introduce a constitutional amendment. In the past 35 years, the people of Wisconsin have twice amended the constitution to limit the governor’s partial veto power. . . .
Legislative drafting: Legislators may draft bills separate from appropriation bills to avoid the governor’s partial veto. And, legislators may anticipate the governor’s use of her or his power when crafting appropriation bills.

Dallet

Concurring

I agree with the majority/lead opinion’s conclusion that the partial vetoes at issue in this case do not violate . . . the Wisconsin Constitution. I write separately, however, because I have a different understanding of Petitioners’ argument that those partial vetoes are unconstitutional . . . and why that argument should be rejected. Accordingly, I join all but five paragraphs of the majority opinion.

The constitution authorizes the governor to approve appropriation bills “in whole or in part . . . .” Petitioners argue that the partial vetoes at issue here exceeded the governor’s authority . . . because he did not approve “part” of the original bill. They cite to two prior cases for the assertion that the ordinary meaning of “part,” at least when applied to numbers, is “something less than a whole.” They claim that applying that definition in this case requires us to determine whether, as a matter of “substance rather than form,” the governor’s partial vetoes approved “something less than [the] whole” of what the legislature passed. And because the substantive effect of those vetoes was to increase the two-year duration the legislature passed to a 402-year duration it never contemplated, the governor’s partial vetoes did not approve something less than the whole of what the legislature passed.

Petitioners’ argument has some support in the reasoning of a prior case. Indeed, one reason we cited for upholding the veto at issue in that case—crossing out a $350,000 appropriation and writing in $250,000—was that the result of the veto was substantively “part” of what the legislature originally passed. As we said then, $250,000 is “part” of $350,000 because it is “something less than” $350,000. That case’s use of this reasoning, Petitioners contend, demonstrates that there is a threshold requirement, imposed on all partial vetoes by the constitution, that the result of the veto must be substantively “part” of the original bill.

Petitioners’ substantive-part analysis should be rejected, however, because it cannot be squared with the rest of our cases interpreting the constitution, none of which Petitioners ask us to overturn. We have long held that the only test . . . for whether a veto approved “part” of a bill is simply whether the veto results in a complete and workable law. Thus while Petitioners argue that their substantive-part analysis is separate from, and in addition to, the “complete and workable law” requirement, our case law in fact holds that if the veto results in a “complete and workable law,” then the veto approved the original bill “in part.”

But even more importantly, our cases have repeatedly emphasized that a partial veto may affirmatively change the policy of the original bill. As we said in a 1976 case, “the constitutional requisites . . . fully anticipate that the governor’s action may alter the policy as written in the bill sent to the governor by the legislature.” In other words, the governor may, through a partial veto, change the bill’s substance. To date, the only limitation we have placed on the governor’s ability change the substance of a bill via partial veto is that a partial veto may not “result in the creation of totally new, unrelated or non-germane provisions.” While this limitation does require the substance of the post-veto text to be related in some way to the substance of the pre- veto text, it does not require the post-veto substance to be “part” of the pre-veto substance.
 
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​In sum, I reject Petitioners’ argument that the constitution requires the result of a partial veto to be substantively “part” of what the legislature originally passed because it is incompatible with our long- standing approach to the constitutionality of partial vetoes . . . . And perhaps for the same reasons, even the dissent does not adopt Petitioners’ position. Instead, the dissent argues that we should revisit all of our case law under these provisions of the constitution, at least since 1935.

Although I am open to revisiting our . . . jurisprudence, this case is not a “clear opportunity” to do so. Petitioners do not ask us to overturn any of our prior decisions, let alone reimagine completely our approach . . . . Accordingly, because upholding the partial vetoes in this case is consistent with our precedent, I respectfully concur.

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Hagedorn

Dissent

How does a bill become a law? According to the majority, one option looks like this: The legislature passes a bill in both houses and sends it to the governor. The governor then takes the collection of letters, numbers, and punctuation marks he receives from the legislature, crosses out whatever he pleases, and—presto!—out comes a new law never considered or passed by the legislature at all. And there you have it—a governor who can propose and enact law all on his own.

This fantastical state of affairs did not appear all at once. The people of Wisconsin gave the governor the power to partially veto appropriation bills 95 years ago. But as governors pushed the boundaries over the last half-century, this court largely responded by throwing up its hands. And now, what the constitution calls the power to “approve[] in whole or in part” has transformed into the monarchical authority of one person to create brand new laws from scratch. Instead of reading what the bills actually say, and construing the partial veto power accordingly, this court treats bills presented to the governor as simply a set of alphanumeric ingredients from which the governor can cook up whatever he pleases.

One might scoff at the silliness of it all, but this is no laughing matter. The decision today cannot be justified under any reasonable reading of the Wisconsin Constitution; the majority does not suggest otherwise. Yet when presented with a clear opportunity in this case to reboot our mangled jurisprudence, the majority responds by blessing this constitutional monstrosity, all the while pretending its hands are tied. The cases the majority relies on make a mockery of our constitutional order. This is a mess of this court’s making, and it is long past time for us to fix it.
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 Our founders were intentional about placing the legislative power in the hands of the legislature. They designed the Wisconsin legislature to be the institution most animated by, representative of, and responsive to the people. This representative design was meant to “unit[e] a disparate group of people into one society” by providing a collective “mechanism for bringing together, negotiating, and resolving the different interests.” Following the pattern of the federal constitution, the Wisconsin legislature is the institution “by which the body of the people can act; the only way in which their opinions can be known and collected; the only means by which their wills can be united, and their strength exerted.” In other words, by vesting the power to legislate in the legislature, the Wisconsin Constitution situates the power to make laws in “the collective wisdom of the people and their representatives.”

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The veto power is an aberration from and exception to the default constitutional structure. A veto gives the governor a powerful voice in whether a legislative proposal becomes law. This function is not naturally within the power to execute the law. Rather, it serves as a limit on the legislature’s vested power to make law. Alexander Hamilton similarly described the president’s veto in Federalist No. 73 as a “qualified negative” meant to check legislative power. The delegates to the Wisconsin Constitutional Convention of 1846 were clear that “the governor’s powers should be limited and the primary lawmaking power should reside with the legislature,” while acknowledging a narrow exception for the gubernatorial veto. In that way, the “veto is simply one of the instances in which our framers broke off a small piece of power that naturally belongs in one branch and put it in another.” But this quasi-legislative power to veto is still at root the power to influence legislation by subtraction, not addition. All laws—policy proposals that have been formed into legal commands and instructions in a bill—must come from the legislature. And while the governor may reject bills presented to him, he may not affirmatively design them on his own. This is Wisconsin’s constitutional design.

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Hagedorn then discusses how the supreme court strayed in prior caselaw.

So how should the court handle the 402-year “veto”? By doing what the majority suggests, but never does: “’focus on the constitutional text, reading it reasonably, in context, and with a view of the provision’s place within the constitutional structure.’” Once we do so, it is clear that the Governor’s “veto” in this case is not a veto at all, but merely gubernatorial lawmaking that is repugnant to our constitutional structure.

As we have explained, a “veto” is a power of negation. It allows the governor to do nothing more than to reject laws that the legislature has proposed. The fundamental nature of a veto does not change just because the governor can veto “part” rather than all of an appropriation bill. The partial veto simply means that the governor can now reject policy proposals contained within an appropriation bill instead of being forced to reject it in its entirety. As a power to “reject,” it may assuredly change aspects of the legislature’s collection of policy prescriptions; the legislature may get most of its proposals, but not all of them, enacted into law. But what the partial veto clause does not do is establish a second lawmaking branch of government. The governor has no constitutional power to create new proposals that did not originate with the legislature or go through the constitution’s lawmaking process.

An appropriations bill is not merely “a potpourri of individual letters, an alphabet soup if you will,” as the majority assumes. It contains draft statutes reflecting specific policies that have been considered and voted on by the legislature. This is what the constitution commands with all laws. So when the governor rejects part of an appropriations bill, the policy proposals that remain after the governor exercises his partial veto must still have been created and approved by the legislature in the first instance. Once again, we cannot lose sight of the constitution’s structure. The legislative power is vested in the legislature. And the constitutional amendment giving the governor power to partially veto appropriation bills did not change this.

Here, when the bill left the legislature’s hands, it permitted school districts to exceed their base tax revenue for two years, the 2023–24 and 2024–25 school years. By striking out numbers, words, commas, and some hyphens, the governor rewrote the bill to say that districts could increase their revenue by those amounts from 2023 through 2425. The legislature never proposed extending the increase through 2425. This simply was not a policy proposal considered and voted on by both houses of the legislature. This is not a policy that was presented to the governor for approval. And contra the majority, we are permitted to read the words in the bill and make sense of them, not just consider the bill an alphabet soup of options. Thus, after the governor exercised his “veto,” there was something in the bill that did not originate from the legislature, was never subject to lawmaking procedures, and was not presented to the governor. This is plainly unconstitutional.

It is true that the petitioners here do not explicitly ask us to . . . formally roll back the missteps of our prior cases. But where the governor’s actions are so out of step with the constitutional order, and where we are asked to apply the constitution, “the principle of stare decisis should yield to a result consistent with the plain meaning of the words within the amendment.” Instead of treating the fractured legal framework with another quick fix of judicial epoxy, it is time to raze it to the ground.

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