WSBU v. Brennan & Bartlett v. Evers: Wisconsin’s Gubernatorial Veto
WSBU v. Brennan & Bartlett v. Evers both involve challenges to gubernatorial vetoes decided on July 10th. The court dismissed WSBU v. Brennan, but in Bartlett v. Evers declared 3 of the 4 challenged vetoes unconstitutional.
Under the Wisconsin Constitution (Article V, Section 10), governors can partially veto provisions in the biennial budget bill. 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 veto gives the governor significant authority generally left unchecked by courts.
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 3
1, 2018), effectively delaying implementation of the provision to December 3018. In the second case, he struck a 1, 2, and 0, turning an implementation date of July 1, 2017 2018 to July 1, 2078. If you find that confusing, the short version is: he delayed implementation of two provisions by roughly 1,000 and 60 years respectively.
The Wisconsin Supreme Court declined to decide the case, instead dismissing it on the grounds of “the equitable doctrine of laches”, which in short form, means:
- WSBU waited too long to bring the case (the budget having been carried out and a new one now implemented)
- WSBU didn’t make it obvious they planned to sue (there was no notice until the lawsuit arose years after the vetoes)
- WSBU’s delay created a reliance problem since the new budget assumed the old was valid and people across the state made decisions based around those vetoes.
Accordingly, the court dismissed the case.
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 of the case in her dissent, concluding:
¶¶ 35, 56 The governor’s vetoes invaded the exclusive province of the legislature by amending the effective dates of laws previously passed by the legislature and approved by the governor, effectively erasing these laws from the books. The people of Wisconsin never gave the governor this power…Neither veto comported with the constitutional boundaries of the governor’s authority.
Bartlett v. Evers involved challenges to four 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 didn’t agree why.)
Chief Justice Roggensack wrote:
¶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.
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 series of vetoes altered a vehicle fee schedule by changing the amount truck owners must pay to register their vehicles. Justices Ziegler, Rebecca Grassl Bradley, Kelly and Hagedorn found it unconstitutional.
Veto 4: The Vehicle Fee Schedule
Finally, one 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. Chief Justice Roggensack and Justices Ann Walsh Bradley, Ziegler, Dallet and Hagedorn found it constitutional.