Overturning Vetoes, Wisconsin Justices Hand Another Loss to Governor

Wisconsin Gov. Tony Evers holds a news conference in Madison on Feb. 6, 2020. (Steve Apps/Wisconsin State Journal via AP, File)

MADISON, Wis. (CN) — The conservative-majority Wisconsin Supreme Court jettisoned three of the Democratic governor’s budget vetoes on Friday, delivering a second blow to the governor’s executive authority in as many days.

The court’s meandering decision declared that three of four vetoes Governor Tony Evers enacted during negotiations over the Badger State’s 2019 biennial budget are unconstitutional, rebuking the chief executive for undermining legislative intent and forgoing decades of precedent that supported one of the most powerful veto pens in the nation.

Friday’s decision comes just a day after Wisconsin’s highest court upheld most of a spate of lame-duck laws passed by the Republican-controlled Legislature in late 2018, which clipped the powers of the Democratic governor and attorney general and gave the legislature broad authority to oversee and intervene in executive functions.

Three taxpayers represented by conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, sued the governor last summer over what they called unconstitutional partial vetoes to the 2019 budget. The suit took aim at four vetoes out of nearly 80 that Evers carried out during budget negotiations.

WILL, which has repeatedly sued Evers and members of his administration since he was elected in 2018, directly petitioned the Wisconsin Supreme Court on the grounds that Evers’ vetoes struck portions of the legislature’s budget to effectively create new laws never voted on by lawmakers – which has been a common, legally defensible practice for Badger State governors for almost 100 years.

The vetoes at issue created a grant program awarding taxpayer money for electric vehicle charging stations, eliminated conditions on how $75 million in transportation funds appropriated by the legislature can be divvied up, increased registration fees for drivers of heavy trucks, and set new regulations and imposed new taxes on vaping products.

While the court’s complex, nearly 150-page decision pertains only to the four challenged vetoes and does not necessarily change the partial veto powers of future Wisconsin governors, the decision affirms the latest in a series of targeted efforts from conservatives to rein in Evers’s executive powers – a campaign buttressed again and again by conservatives in the state’s most powerful judicial body.

No rationale in the court’s ruling had the support of all justices, but Friday’s disjointed decision laid out in four separate writings that the vetoes involving electric vehicle charging stations, conditions tied to transportation funds and vaping regulations were unconstitutional via 5-2, 5-2 and 4-3 majorities, respectively. The veto increasing heavy truck registration fees was found to be constitutional by a 5-2 bipartisan majority.

Justices’ explanations condemning or defending Evers’ varied, but the general thesis cosigned by the court’s five conservatives was that Evers’ crafty vetoing drastically changed the central idea that spurred the budget bill in the first place and rendered himself a one-man legislature under the guise of Wisconsin governors’ substantial veto powers.

Chief Justice Patience Roggensack, who aligned with the court’s conservatives on the electric vehicle charging station and transportation funds vetoes but defected with the court’s liberals on the vaping products veto, took particular issue with the first two in her 48-page writing.

For example, in order to arrive at funding for electric vehicle charging stations, Evers struck much of the language of a provision earmarking grant funds to school boards to replace current buses with energy efficient ones, leaving only language saying the grant funds would be used “for alternative fuels.”

“Governor Evers could not use his partial veto power to change the school bus modernization fund into an alternative fuel fund,” Roggensack wrote. “Nor could he use his partial veto to change the local road improvement fund into a fund for local grants or local supplements, devoid of any requirements that it be used for local roads.”

Justice Daniel Kelly, a conservative who will be replaced on the bench by liberal Dane County Circuit Court Judge Jill Karofsky next month, used a portion of his writing in Friday’s decision to revisit a granular consideration of what the word “part” means in terms of the governor being able to approve appropriation bills “in whole or part,” which he discussed at length during arguments in April.

The Wisconsin State Capitol building in Madison. (Photo via Vijay Kumar Koulampet/Wikipedia Commons)

Kelly offered that the court’s past suppositions about what it means to approve an appropriation bill in part “caused us to dress up the governor as the people’s legislative agent…and the legislature as the owner of an exceedingly difficult to deploy veto,” referring to the super-majority of both legislative chambers needed to overturn a veto.

The Trump-endorsed justice offered that “this we have done in obeisance to a single word, a word of merely serviceable merit in the ordinary affairs of life, but on which we have conferred the gigantic power to swap the governor for the legislature when an appropriation is under consideration.”

Kelly and fellow conservative Justice Rebecca Grassl Bradley, both of whom were appointed by former Republican Governor Scott Walker, were the only two justices to find all four of Evers’ vetoes unconstitutional in Friday’s opinion.

Justice Ann Walsh Bradley represented the liberal wing of the high court in considering Evers’ vetoes, all four of which she and fellow liberal Justice Rebecca Dallet considered constitutional.

“In an important case like this, where the people of Wisconsin need clarity, we instead sow confusion,” Bradley wrote. “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.”

Bradley laced into the court’s conservatives for using their majority to embrace theories and tests that no party advanced in the case, taking particular issue with a test that she said “eschews the ‘topic or subject matter’ language and instead focuses on an amorphous concept of what was the ‘legislative idea’ behind the bill,” something she argued would lead to subjective manipulation of what was once a purely objective test on veto powers.

Bradley said that instead of basing a consequential decision on arguments no one made, she would rely on nearly a century of precedent that “recognizes, time and again, that the Wisconsin governor’s veto power is incredibly broad.”

WILL president and general counsel Rick Esenberg celebrated the supreme court’s decision in a statement Friday.

“The court’s decision recognizes limits to the partial veto power that will safeguard liberty and uphold the separation of powers,” Esenberg said. “While there are multiple writings and their interaction is complex, today’s decision severely limits and perhaps even ends the governor’s power to create new law through vetoes.”

A statement from Evers’ office returned to what has become a common refrain for his administration: he tried to do good work, but the Republicans got in his way.

“Today’s ruling departs from decades of precedent and only creates chaos and confusion,” Evers said. “As I said yesterday, 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.”

In yet another prominent drubbing to Evers’ executive authority, the Wisconsin Supreme Court made national headlines when it struck down the Evers administration’s statewide Covid-19 lockdown order in mid-May. Similar to the spats over lame-duck laws and vetoes, Badger State conservatives bucked well-established precedent to repudiate Evers and his team for acting too unilaterally in a rapidly developing public health crisis without first getting lawmakers’ approval.

Michael Ford, an associate professor of public administration at the University of Wisconsin – Oshkosh, offered in an email statement Friday that the high court’s decision was unsurprising, calling it “part of the continued use of the judicial branch to weaken the power of the executive in Wisconsin,” Ford said.

Ford went on to point out that “the meandering nature of the opinion really illustrates that the Wisconsin Supreme Court is taking great pains to stop Evers from using powers available to his predecessors.”

The professor called Friday’s opinion the latest in “a continuing pattern of selectively applied judicial activism from the Wisconsin Supreme Court.”

On Friday, the court also ruled in a suit over two 2017 budget vetoes made by Walker during his second term. A bipartisan 5-2 majority threw out that suit because it came too late.

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