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August 19, 2019

8/10/2019 7:30:00 AM
Supreme Court asks for more data on partial veto case
Lawsuit contends that governor is a one-man Legislature

Richard Moore
Investigative Reporter

A petition asking the state Supreme Court to review some of Gov. Tony Evers's partial vetoes of the state budget bill as an original action and to find them unconstitutional earned a quick response this week from the high court, which said it wants more information before deciding whether to formally hear the case as an original action.

Specifically, as the justices stated in a memorandum, the petition by the Wisconsin Institute for Law and Liberty (WILL) on behalf of three state taxpayers alleges that certain of the governor's partial vetoes are unconstitutional and provides four examples that WILL deems unconstitutional. In all, the governor issued 78 partial vetoes.

WILL submitted a legal memorandum in support of its petition, but the justices say they want more before deciding whether to hear the case on its merits.

"In order to allow the respondents to submit more complete responses to the petition and in order to assist the court in deciding whether to grant leave to commence an original action, and consistent with the court's procedure in previous original actions, the court is directing the petitioners to file an amended petition in the form of a complaint that lists each of the partial vetoes that the petitioners seek to challenge in an original action, to specify the bases for the challenge to each partial veto, and to specify the relief sought for each challenge," the high court's memorandum stated.

The court also directed the respondents to file a joint response or separate responses, in the form of an answer, to the amended petition. The justices also directed both parties to file a stipulation of facts and a statement or statements describing any disputes of fact.

The justices gave WILL until Aug. 19 to comply. Among other things, WILL must cite each specific partial veto it is challenging, and it must identify the specific constitutional provision or constitutional doctrine that the partial veto is alleged to violate. Finally, WILL must provide a short statement of its claim regarding the constitutionality of that partial veto.

After the amended petition is filed, Gov. Tony Evers, Department of Administration secretary Joel Brennan, Department of Transportation secretary Craig Thompson, and Department of Revenue secretary Peter Barca must file joint or shared responses to the amended petition within 20 days.

The petition

In its petition, WILL argues the governor improperly and unlawfully used his partial veto powers on various provisions of the recently signed state budget bill to effectively create new laws never approved by the Legislature.

While Evers followed what is a common practice among Wisconsin governors - the governor's veto power is one of the most powerful in the country - WILL says governors violate the law when they use partial vetoes to change the fundamental policy measures contained in approved budget provisions.

In the legal memorandum supporting its petition, WILL said the constitutional language giving the governor partial veto authority in an appropriations bill sounds harmless enough but is anything but: "(a)ppropriation bills may be approved ... in part by the governor, and the part approved shall become law."

"This innocuous language - limited to approval of appropriations bills - has become a warrant to use the veto pen as a vehicle not simply to reject (to not 'approve') but to rewrite what the Legislature has passed; to make new law in a way that is inconsistent with the exclusive vesting of legislative power in the Assembly and Senate," the memo states, quoting previous case law.

That's surely not what the provision's framers intended, the memo states.

"The partial veto was created in 1930 for the simple purpose of preventing the Legislature from cramming a single appropriations bill with multiple proposals and then forcing the governor to approve or disapprove of the entire package," the memo states. "Allowing the governor to approve appropriation bills in part gave him 'the right to pass independently on every separable piece of legislation in an appropriation bill.' But the plain meaning of 'to pass' in this context is to approve or not approve; not to make up or rewrite."

The memo says the ambitions and ingenious gamesmanship of the executive branch have enlarged the scope of the governor's ability to approve appropriation bills "in part" such that, over the years, the governor acquired the authority to veto individual phrases, sentences, words, and digits, among other powers.

And while such excesses as the so-called Vanna White veto - allowing the governor to create new words by striking individual letters - and the Frankenstein veto - that is, "striking whole sentences, paragraphs and even pages of a law, taking a word or number here and there along the way to assemble an entirely new creature" - have both been prohibited by constitutional amendment, a different kind of veto abuse still exists, the memo stated.

"These old abuses stemmed, in part, from an old and fundamental error - the idea that the governor's partial veto is not simply a way to withhold approval, but to make new law," the memo states. "The technique challenged here is the governor's ability to remove essential conditions from legislation that he otherwise approves and thereby create a new - and different - law enacting a policy that the Legislature did not choose."

Approve or disapprove, not transform

To allow the governor that ability is to conflate "approval" with "transform," the memo states.

"It turns lawmaking into a context of semantic wit in which the legislative process is reduced to a game whose outcome turns on whether the legislature or governor proves to be the cleverer in playing what amounts to a game of Scrabble," the memo states. "Nothing in the language or history of (the constitutional provision) comes close to sanctioning such a bizarre state of affairs."

The bottom line is, WILL argues, the governor is unilaterally making new laws.

"There is no other way to say it: the governor is now drafting and enacting his own set of laws," the memo states. "In this case alone, the governor unilaterally created a grant program to award millions of dollars toward electric vehicle charging stations; unilaterally removed virtually all conditions from the use of $75 million appropriated by the Legislature; unilaterally decided that owners of heavier trucks should have to pay more in annual registration fees than owners of lighter trucks; and unilaterally redefined products subject to new taxes and regulation."

That is not the governmental system the framers of the Wisconsin constitution intended, WILL contends.

"Indeed, it is a governmental system foreign to the country that values liberty and the rule of law," the memo states. "What becomes law should not be reduced to an acrostic puzzle. The people of Wisconsin enacted a constitution that contemplated each branch acting as a check on the other; they did not intend to make legislation a game show."

What the original action seeks, WILL argues, is simply a modest check on the governor's veto powers.

"(A)lthough the governor may approve an appropriation bill in part, he may not do so while disapproving of provisions which are 'essential, integral, and interdependent parts of those which (he) approved,'" the memo states, quoting a previous court decision.

The idea is, by allowing the governor to excise provisions that are inseparable from provisions that are approved, the governor can transform the approved provision into something completely different from and even opposite of what the Legislature intended.

"This results in the enactment of a law which was never voted on, considered, or drafted by the Legislature and which is at odds with legislative intent," the memo contends. "It appropriates money in a way that the Legislature never intended. It goes past veto or disapproval to transformation."

Unfortunately, the high court inexplicably adopted that approach, the memo continues, after which veto power began to expand rapidly. Plus the court later approved the governor's ability to "veto individual words, letters and digits," and to strike appropriations and write-in smaller figures.

The court's previous decision should be overruled, WILL argues.

"Whatever might be said about this court's cases allowing the veto of parts of items and even of sentences, phrases, and words, permitting the governor to veto integral conditions and provisos of legislation was a mistake," the memo contends.

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at

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