Wisconsin high court gives mixed ruling on partial vetoes

MADISON, Wis. — The conservative-controlled Wisconsin Supreme Court on Friday overturned three of four partial budget vetoes issued by Democratic Gov. Tony Evers, bucking 85 years of court precedent that upheld the governor’s broad veto powers.

However, the justices also upheld one of Evers’ vetoes as well as two made by Republican Gov. Scott Walker in 2017. The court declined to hear a separate challenge to those vetoes, saying the 2019 lawsuit that came after Walker left office was filed too late.

A majority of justices could not agree on a rationale for why the three Evers vetoes were unconstitutional, finding generally that they created new law that the Legislature did not intend. The complex, 146-page ruling was limited to the four vetoes that were challenged and did not rein in the ability of future governors to make partial vetoes.

“In an important case like this, where the people of Wisconsin need clarity, we instead sow confusion,” wrote Justice Ann Walsh Bradley, one of two liberal justices. “Evidence of the lack of clarity is highlighted by the very fact that this case has generated four separate writings with various rationales. And not one of them has garnered a majority vote of this court. Thus, we are left with no clear controlling rationale or test for the future.”

Two of the vetoes were overturned by the five-justice conservative majority, with two liberal justices dissenting. But a third veto that was overturned 4-3 saw conservative Chief Justice Pat Roggensack side with the two liberals on the losing side. And in upholding one Evers veto, three conservatives joined with two liberals in support.

Wisconsin’s governor has one of the most powerful vetoes in the country, despite decades of limitations imposed by voters and lawmakers. The mixed results for Evers came a day after the court upheld laws that the Legislature passed during a lame-duck session to weaken Evers’ powers before he took office. In that ruling, the court also delivered a partial win for Evers, saying the Legislature overstepped its bounds with one lame duck law.

“Today’s ruling departs from decades of precedent and only creates chaos and confusion,” Evers said in a statement. Echoing comments after his defeat in the lame duck lawsuit, Evers said “we’re not going to let folks who are bitter about an election that happened nearly two years ago stop us from getting things done for the people of our state.”

Wisconsin governors, both Republican and Democratic, have long used the broad partial veto power to reshape the state budget. It’s an act of gamesmanship between the governor and Legislature, as lawmakers try to craft bills in a way that are largely immune from creative vetoes.

The governor’s veto power, which is spelled out in the Wisconsin Constitution, isn’t as extensive for regular bills that don’t spend money. For those, he can only either veto the entire proposal or sign it into law.

Walker issued 98 partial vetoes in his last budget in 2017 and 104 in the one before that. Former Republican Gov. Tommy Thompson holds the record, with 457 partial vetoes in 1991.

The lawsuit didn’t challenge the governor’s veto powers outright, but instead how Evers used them. Taxpayers represented by the conservative Wisconsin Institute for Law and Liberty argued that Evers violated the separation of powers between the legislative and executive branches by creating new laws never intended by the Legislature.

“Governor Evers used the partial veto power to create new laws never approved by the legislature,” said Rick Esenberg, president of the Wisconsin Institute for Law and Liberty. “The court’s decision recognizes limits to the partial veto power that will safeguard liberty and uphold the separation of powers.”

Friday’s ruling dealt specifically with four of the 78 partial vetoes Evers issued last year in the state budget. His vetoes shifted $10 million for replacing school buses to electric vehicle charging stations; allowed $75 million meant for local road construction to be used for any transportation program; eliminated a standard $100 truck registration fee; and expanded the types of vaping products subject to tax.

With one veto, Evers struck several sentences of law establishing a grant program to replace old school buses to instead create a new program to bolster alternative fuels as a way to combat climate change.

The court upheld the veto eliminating the truck registration fee, but overturned the others.

Lawmakers and voters have been attempting to scale back the governor’s veto power almost since it was created in 1930. Since 1935, there have been 25 constitutional amendments proposed to limit the governor’s power. The most recent one, banning the so-called “Frankenstein” veto where governors created a new sentence by combining parts of two or more sentences, was approved by voters in 2018.

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Scott Bauer, The Associated Press