WSBU v. Joel Brennan ( 2020 )

2020 WI 69
SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP2054-OA
COMPLETE TITLE: Wisconsin Small Business United, Inc., Amy
Dailey, Larry Gierach, Doug Hustedt, Sandi
Vandervest and Tom Vandervest,
Petitioners,
v.
Joel Brennan, in his official capacity as
Secretary of the Department of Administration,
Peter Barca, in his official capacity as
Secretary of the Department of Revenue and
Carolyn Standford Taylor, in her official
capacity as Acting Wisconsin Superintendent of
Public Instruction,
Respondents.
ORIGINAL ACTION
OPINION FILED: July 10, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 20, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which KELLY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Mike B.
Wittenwyler, Kendall W. Harrison, Zachary P. Bemis, and Godfrey
& Kahn, S.C., Madison. There was an oral argument by Kendall W.
Harrison.
For the respondents there was a brief filed by Colin Roth,
assistant attorney general, and Hannah S. Jurss, assistant
attorney general; with whom on the brief was Joshua L. Kaul,
attorney general. There was an oral argument by Colin Roth.
2
2020 WI 69
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP2054-OA
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Small Businesses United, Inc., Amy
Dailey, Larry Gierach, Doug Hustedt, Sandi
Vandervest and Tom Vandervest,
Petitioners,
v.
FILED
Joel Brennan, in his official capacity as
Secretary of the Department of Administration, JUL 10, 2020
Peter Barca, in his official capacity as
Secretary of the Department of Revenue and Sheila T. Reiff
Carolyn Standford Taylor, in her official Clerk of Supreme Court
capacity as Acting Wisconsin Superintendent of
Public Instruction,
Respondents,
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which KELLY, J., joined.
ORIGINAL ACTION for declaratory judgment. Relief denied.
¶1 BRIAN HAGEDORN, J. This is an original action
challenging whether two partial vetoes in the 2017-19 biennial
budget exceeded the governor's constitutional authority. While
No. 2019AP2054-OA
the respondents defend the vetoes on their merits, they also
contend this challenge is too late and should be barred by the
equitable doctrine of laches. We agree that laches should be
applied here. The respondents have proved the three elements of
a laches claim——unreasonable delay, lack of knowledge a claim
would be brought, and prejudice. And given the reliance
interests at stake and the need for stability and certainty in
the enactment of state budget bills, we exercise our discretion
to apply laches based on the facts of this case. Accordingly,
we dismiss the original action.
I. BACKGROUND
¶2 Wisconsin's practice of funding the state's operations
and programs through biennial budget bills is nearly a century
old.1 As points of reference, the state's fiscal year begins on
July 1 and ends on the following June 30, and a new biennium
commences every odd-numbered year. Wis. Stat. § 20.002(1)
(2017-18).2
¶3 Each new biennial budget is a complex collaboration
and negotiation between the executive and legislative branches.3
See ch. 97, Laws of 1929; see also Richard A. Champagne,
1
Legislative Reference Bureau, Wisconsin Executive Budget Bills,
1931-2019, at 1 (2020) (describing the biennial budget bill as
"easily the most significant piece of legislation that is
enacted during the entire legislative session").
All subsequent references to the Wisconsin Statutes are to
2
the 2017-18 version unless otherwise indicated.
See Champagne, supra, at 1-6 (outlining
3 the biennial
budget process and its core principles).
2
No. 2019AP2054-OA
Relying on fiscal estimates and projections from the various
branches and agencies making up state government, the governor
creates a budget bill and submits it to the legislature. See
Wis. Stat. §§ 16.45, 16.46, 16.47. Once received, the bill is
referred to the Joint Committee on Finance, which reviews,
amends, and ultimately votes to recommend the revised bill for
legislative passage. See § 16.47(1m); Wis. Stat. § 13.093 to
§ 13.102. Like any other bill, the biennial budget is then
debated and may be amended by the two houses of the legislature.
After passage by both houses, the bill is presented to the
governor. Wis. Const. art. V, § 10(1)(a).
¶4 At this point, Article V, Section 10 of the Wisconsin
Constitution gives the governor three options: sign the whole
bill into law, veto the whole bill, or sign the bill into law
while vetoing parts of it. Upon presentment, a bill becomes law
if it receives the governor's approval and signature (or if he
does not sign or veto it within six days (Sundays excepted)).
Id. art. V, § 10(1)(b), § 10(3). When vetoed in whole, a bill
returns to the legislature and may still become law if approved
by two-thirds of both houses. Id. art. V, § 10(2)(a). A third
option is unique to appropriation bills, including biennial
budget bills. Namely, the governor may approve such bills in
whole or in part. Id. art. V, § 10(1)(b).
¶5 This power to partially veto appropriations bills was
added as an amendment to the constitution in 1930, but the
people of Wisconsin have since modified it twice. The governor
may not exercise his partial veto authority to create a new word
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No. 2019AP2054-OA
by rejecting individual letters in words, nor may he create a
new sentence by combining parts of two or more sentences. Id.
art V, § 10(1)(c). After any partial veto, the governor must
return the rejected part with objections in writing to the
legislature for its reconsideration. Id. art. V, § 10(2)(b).
The legislature can override the veto if two-thirds of both
houses agree to approve the rejected part. Id. Absent that,
the enacted law remains; only parts approved by the governor
become law. Id. art. V, § 10(1)(b).
¶6 Governor Scott Walker penned the partial vetoes at the
heart of this dispute within Wisconsin's 2017-19 biennial
budget. The governor signed that budget, with partial vetoes,
and it went into effect as 2017 Wis. Act 59 on September 23,
2017. Two of Governor Walker's vetoes struck individual digits
from dates written in numeral form. The petitioners
(collectively WSBU)4 contend that these digit vetoes violated the
constitutional prohibition against creating new words by
striking individual letters in words. Wis. Const. art. V,
§ 10(1)(c).
The petition for original action was filed by Wisconsin
4
Small Businesses United, Inc., Amy Dailey, Larry Gierach, Doug
Hustedt, and Sandi and Tom Vandervest.
The named respondents were Secretary of the Department of
Administration Joel Brennan, Secretary of the Wisconsin
Department of Revenue Peter Barca, and Acting Wisconsin
Superintendent of Public Instruction Carolyn Standford Taylor,
each in his or her official capacity and all represented by the
attorney general.
4
No. 2019AP2054-OA
¶7 The first disputed provision of Act 59 is § 1641m.
When presented to the governor, § 1641m imposed a one-year
moratorium on an existing law that enabled school districts to
increase their revenue limits by adopting a resolution based on
energy efficiency efforts. 2017 A.B. 64, § 1641m. See
generally Wis. Stat. § 121.91(4)(o). To accomplish this, the
text sent to the governor's desk proposed the revenue-limit
adjustment be effective "only to a resolution adopted after
December 31, 2018." Exercising a partial veto, the governor
struck the "1, 2" from "December 31, 2018" (December 31, 2018),
thereby changing the date to "December 3018." In effect, the
proposed one-year moratorium was transformed into a one-thousand
and one-year moratorium. 2017 Wis. Act 59, § 1641m (codified at
§ 121.91(4)(o)4.).
¶8 When the governor received the second disputed
provision of Act 59, § 2265, it would have imposed a year-long
delay for the implementation of 2013 Wis. Act 229. As signed
into law in 2013, Act 229 authorized third-party lenders that
provide credit by way of retailer-lender credit cards to take
tax deductions for bad debts. 2017 A.B. 64, § 2265. See
generally 2013 Wis. Act 229. Act 229 was originally scheduled
to go into effect on July 1, 2015, but the 2015-17 budget moved
the effective date to July 1, 2017. 2015 Wis. Act 55, § 4750.
In its 2017-19 budget bill, the legislature twice used the date
"July 1, 2017 2018" to authorize another new effective date for
Act 229. 2017 A.B. 64, § 2265. In other words, the law on the
books when the bill arrived at the governor's desk had an
5
No. 2019AP2054-OA
effective date of July 1, 2017, and the legislature sought to
delete "2017" and add the year "2018." In exercising his veto
pen, the governor rejected the legislature's effort to strike
"20" and "7" and accepted the legislature's insertion of "8,"
creating a veto that looked like this: July 1, 2017 2018. In
effect, each use of July 1, 2018 was changed to July 1, 2078,
and a one-year implementation delay was turned into a sixty-one-
year delay. 2017 Wis. Act 59, § 2265.
¶9 The 2017-19 biennial budget, as modified by these and
other partial vetoes, became law on September 23, 2017. No
vetoes were overridden by the legislature, and the biennium came
and went. In 2019, another biennial budget was proposed,
negotiated, passed, and signed into law. The 2019-21 biennial
budget went into effect as 2019 Wis. Act 9 on July 4, 2019. It
wasn't until October 28, 2019, nearly four months after the old
biennium had passed and the new biennial budget had been in
effect, that WSBU filed this petition for original action.
Having already granted a separate petition reviewing the
governor's partial veto powers,5 we granted WSBU's petition as
well and heard arguments in both cases on the same day.
II. DISCUSSION
¶10 While the respondents defend the constitutionality of
the challenged vetoes, they also urge us not to reach the merits
5Bartlett v. Evers, No. 2019AP1376-OA, slip op. (Wis. S.
Ct. July 10, 2020) (amended petition for original action granted
on October 16, 2019).
6
No. 2019AP2054-OA
and instead bar WSBU's action pursuant to the doctrine of
laches. Before this term, this court has addressed the
governor's constitutional authority to veto parts of
appropriations bills in eight decisions; none involved
consideration of a laches defense. All but one of these cases
were filed within a few months of the vetoes going into effect.6
6See State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302,
260 N.W 486 (1935) (vetoes of emergency relief budget bill, ch.
15, Laws of 1935, published on March 27, 1935, challenge filed
on April 2, 1935); State ex rel. Finnegan v. Dammann, 220
Wis. 143, 264 N.W 622 (1936) (vetoes of provisions regulating
motor carriers, ch. 546, Laws of 1935, published on October 4,
1935, challenge decided by court on January 7, 1936); State ex
rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W 662 (1940)
(vetoes of public welfare appropriations bill, ch. 533, Laws of
1939, published on November 18, 1939, challenge filed on
December 2, 1939); State ex rel. Sundby v. Adamany, 71
Wis. 2d 118, 237 N.W.2d 910 (1976) (vetoes of 1975-77 biennial
budget bill, ch. 39, Laws of 1975, published on July 30, 1975,
oral argument held on December 2, 1975); State ex rel. Kleczka
v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978) (vetoes of
provisions regarding public financing of election campaigns, ch.
107, Laws of 1977, published on October 20, 1977, challenge
filed on December 2, 1977); State ex rel. Wis. Senate v.
Thompson, 144 Wis. 2d 429, 424 N.W.2d 385 (1988) (vetoes of
1987-89 biennial budget bill, 1987 Wis. Act 27, published on
July 31, 1987, oral argument held on October 20, 1987); Citizens
Util. Bd. v. Klauser (CUB), 194 Wis. 2d 484, 534 N.W.2d 608
(1995) (veto of 1993-95 biennial budget bill, 1993 Wis. Act 16,
published on August 11, 1993, challenge filed on June 13, 1994);
Risser v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997)
(vetoes of transportation budget bill, 1995 Wis. Act 113,
published on December 20, 1995, challenge filed on January 4,
1996).
7
No. 2019AP2054-OA
And the lone outlier was filed within a year, well before a new
budget bill was even proposed.7
A. Laches Generally
¶11 Laches is an affirmative, equitable defense designed
to bar relief when a claimant's failure to promptly bring a
claim causes prejudice to the party having to defend against
that claim. Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595
N.W.2d 423 (1999). While formulated differently across cases
and jurisdictions, the laches doctrine is broadly understood to
ask whether a party delayed without good reason in raising a
claim, and whether that delay prejudiced the party seeking to
defend against that claim. See State ex rel. Wren v.
Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587
(explaining that laches "is founded on the notion that equity
aids the vigilant, and not those who sleep on their rights to
the detriment of the opposing party" (quoted source omitted)).
¶12 In Wisconsin, application of laches is premised on
proof of three elements: (1) a party unreasonably delays in
bringing a claim; (2) a second party lacks knowledge that the
7 The partial veto challenge in CUB was filed ten months
after the vetoed biennial budget bill went into effect. See 194
Wis. 2d at 487-89. While initiated later than the other veto
cases, this original action was still filed more than eight
months before a new biennial budget was proposed by the governor
and more than thirteen months before a new biennial budget bill
was published. See S. Journal, 92d. Reg. Sess., at 73-79
(governor's 1995-97 biennial budget message delivered to the
legislature on February 14, 1995); 1995 Wis. Act 27 (published
on July 28, 1995).
8
No. 2019AP2054-OA
first party would raise that claim; and (3) the second party is
prejudiced by the delay. Id., ¶15. The party seeking
application of laches bears the burden of proving each element.
Id. Whether that burden is carried is a question of law.
Id., ¶16. Even if all three elements are satisfied, application
of laches is left to the sound discretion of the court asked to
apply this equitable bar. Id., ¶15.
B. Laches Applied Here
¶13 The parties dispute all three elements, and contend
that we should exercise our discretion in their favor. We
consider each of these matters in turn.
1. Unreasonable Delay
¶14 The first element requires the respondents to prove
WSBU unreasonably delayed in bringing the suit. What
constitutes a reasonable time will vary and depends on the facts
of a particular case. Foote v. Harrison, 137 Wis. 588, 590, 119
N.W. 291 (1909) (quoting Rogers v. Van Nortwick, 87 Wis. 414,
429, 58 N.W. 762 (1894)); see also Wren, 389 Wis. 2d 516, ¶18
("Whether a delay is reasonable is case specific; we look at the
totality of circumstances." (citation omitted)).
¶15 There can be no dispute that WSBU's claim became
actionable on September 23, 2017, the day 2017 Wis. Act 59 went
into effect. At that point, the underlying facts of the
original action were set. This is true even though the
legislature could have subsequently overridden the disputed
9
No. 2019AP2054-OA
vetoes. It is the governor's procedural use of the vetoes, not
the substance of the underlying laws, that is at the heart of
WSBU's challenge. Notwithstanding, WSBU did not file its
original action until October 28, 2019, well after the
applicable biennium had closed and nearly four months after the
new biennial budget had gone into effect.
¶16 WSBU does not contest these basic facts. Instead, it
observes that other types of actions are governed by statutes of
limitation longer than the time period at issue here, and argues
the effect of these partial vetoes will be with us for years
(decades in one instance, and a millennium in the other). This
is true, but does not demonstrate that its delay was reasonable.
Laches is an equitable doctrine, and therefore can and regularly
does apply even before a statute of limitation has expired. See
Wren, 389 Wis. 2d 516, ¶13 n.8 (explaining Wisconsin
jurisprudence has long recognized laches as an equitable defense
that operates "independently of any statute of limitations"
(quoting Sheldon v. Rockwell, 9 Wis. 158 (*166), 162 (*181)
(1859))); Zizzo v. Lakeside Steel & Mfg. Co., 2008 WI App 69,
¶7, 312 Wis. 2d 463, 752 N.W.2d 889 ("Laches is distinct from a
statute of limitations and may be found where the statute of
limitations has not yet run."). Moreover, it would be quite
normal for partial vetoes to have a dramatic effect. Many a
legislative proposal has been irrevocably altered by a
governor's partial veto pen.
¶17 Where a litigant challenges the process by which a
bill becomes a lawindeed whether it should even be treated as a
10
No. 2019AP2054-OA
law at alla reasonably prompt lawsuit is and should be the
norm. See, e.g., State ex rel. Ozanne v. Fitzgerald, 2011
WI 43, ¶¶29, 36, 334 Wis. 2d 70, 798 N.W.2d 436 (Prosser, J.,
concurring) (bill signed by the governor on March 11, 2011,
constitutional challenge to the bill's procedural enactment
filed on March 16, 2011). This is far different than a
challenge to the substantive validity of a law, where such
lawsuits may not even ripen until enforcement begins. See
Schaeffer v. Anne Arundel Cty., 656 A.2d 751, 753-55 (Md. 1995)
(distinguishing substantive objections to statutes from belated
challenges to their procedural enactment for purposes of
laches); Stilp v. Hafer, 718 A.2d 290, 293-94 (Pa. 1998)
(finding lack of due diligence in pursuing procedural challenge
given relevant legislative record and constitutional provisions
publicly available at the time of the law's enactment).8 Here,
as we discuss more fully below, money has been spent, revenues
have come in, and the books have already been closed on the
operation of the 2017-19 biennial budget. Cf. Schulz v. State,
615 N.E.2d 953, 957 (N.Y. 1993) (finding an 11-month delay
unreasonable in constitutional challenge brought against the
8WSBU's reliance on a case rejecting a laches defense
against a constitutional challenge to the substance of a law is
misplaced given it is attacking the process by which Act 59,
§§ 1641m and 2265 were enacted, not the substance of those
provisions. Cf. Cathcart v. Meyer, 88 P.3d 1050, 1058-59 (Wyo.
2004) (rejecting laches defense against a challenge to a term-
limit initiative based on the constitutionality of its
substance, explaining there was no showing of particularized
prejudice and contrasting with a case based on a procedural
constitutional attack, not a substantive one).
11
No. 2019AP2054-OA
procedural enactment of public financing laws). Waiting years
after a budget bill has gone into effect to challenge whether it
was constitutionally enacted in the first place is too long.
See id. ("[F]iscal year 1990-1991 has come and gone and its
financial books in this respect have been closed. Equitable
considerations of time, in the laches sense, may justifiably
keep them closed . . . ."). Giving a stamp of approval to
delayed litigation raising procedural challenges like the proper
exercise of a partial veto would invite lawsuits over budgets of
yesteryear and disrupt the status quo. There must be a limit to
when a lawsuit like this may be filed. We conclude the
challenge here, brought well after the previous biennium had
passed, and after a new budget based on current law and future
projections had taken effect, constitutes unreasonable delay.9
2. Lack of Knowledge
¶18 We also determine the respondents lacked knowledge of
WSBU's forthcoming claim. The respondents assert they remained
unaware of any potential claim until this original action was
filed, an assertion WSBU does not deny or further dispute. WSBU
still contends, however, that the respondents "certainly could
have anticipated that someone might challenge vetoes with such
prolonged consequences." That's possible, but only in the sense
The respondents argue for a firm cutoff at the end of the
9
biennium for these kinds of challenges. However, laches is
always case-specific, and we need not establish such a rule to
conclude that the delay under these circumstances was too long.
12
No. 2019AP2054-OA
that every partial veto could one day become a litigated matter.
Based on the undisputed record before us, the respondents here
had no advance knowledge or warning of this particular claim.
That is sufficient to satisfy this element of a laches defense.10
3. Prejudice
¶19 The final element of laches requires proof of
prejudice resulting from the claimant's unreasonable delay.
"What amounts to prejudice . . . depends upon the facts and
circumstances of each case, but it is generally held to be
anything that places the party in a less favorable position."
Wren, 389 Wis. 2d 516, ¶32.
¶20 The respondents argue that, given their roles in the
state budget-making process, WSBU's delay places them in a less
favorable position with regard to the planning and management of
state receipts and expenditures. The respondents' claim is
specifically grounded in a prejudicial change to their position
regarding the 2019-21 budget (i.e., the state's current budget).
Collectively, this describes a form of prejudice that we have
called economic prejudice. See id., ¶33 & n.26 (distinguishing
economic and evidentiary prejudice); 27A Am. Jur. 2d Equity
10See Schafer v. Wegner, 78 Wis. 2d 127, 133, 254
N.W.2d 193 (1977) (concluding party asserting laches defense
lacked knowledge of claim given that claim had not been raised
in a reasonable time); cf. Watkins v. Milwaukee Cty. Civil Serv.
Comm'n, 88 Wis. 2d 411, 422-23, 276 N.W.2d 775 (1979) (noting
the petitioner informed the respondent at the time of his
resignation that litigation would be commenced if a
corresponding hearing was not held).
13
No. 2019AP2054-OA
§ 144 (discussing types of prejudice including economic
prejudice caused by a change in a responding party's position).
¶21 Broadly speaking, every new budget bill is created
with an understanding that earlier budgets, including any
provisions bearing marks of former vetoes, will serve as a
foundation. At the direction of the governor, the respondents
and other executive branch officers hold this understanding when
they create department budgets and ready all of the other fiscal
information that must be included in a biennial budget report.11
The governor then carries the same understanding when creating
his proposed budget and when signing the legislature's proposed
budget into law. See Champagne, supra, at 1 (describing the
state budget bill as Wisconsin's most significant piece of
legislation in part because "it contains most of the governor's
public policy agenda for the entire legislative session").
¶22 Turning to the making of the 2019-21 budget, if the
challenged vetoes from the outgoing budget are removed from the
picture, as WSBU now pleads, there would have been cascading
The
11 respondents, while acting in their official
capacities, each direct and supervise a department within the
executive branch structure. See Wis. Stat. § 15.10 (department
of administration); Wis. Stat. § 15.37 (department of public
instruction); Wis. Stat. § 15.43 (department of revenue). In
these roles, they all have various duties related to the state
budget-making process. See, e.g., Wis. Stat. § 15.04(1)(b)
(requiring from each department a biennial compilation of a
comprehensive program budget); Wis. Stat. §§ 16.43 and 16.46
(requiring the secretary of administration to prepare the
biennial state budget report); Wis. Stat. § 16.46(8) (requiring
the department of revenue to report on estimated state revenues
for inclusion in the budget report).
14
No. 2019AP2054-OA
effects on the state's global policy calculus and budget
outlook, as well as options available to policymakers. For
instance, eliminating the moratorium on the school district
revenue-limit adjustment in Act 59, § 1641m could have led to
property tax increases in school districts across the state.
Even a change like this adjusts how the state's policy puzzle
fits together. With potentially higher property taxes, the
respondents could have chosen to offer various offsetting
property tax relief measures. Maybe different revenue limits
would have been proposed. Maybe school district spending
priorities would have been altered by the incentive in a way
that would have changed their funding requests during the new
biennium. Likewise, according to the respondents' calculations,
putting 2013 Wis. Act 229 into effect by undoing the partial
veto in Act 59, § 2265 could have caused an annual decline of
more than $10 million in sales-and-use tax revenue. This is a
significant adjustment to the state balance sheet. To
compensate, policymakers could have enacted a tax increase to
make up for lost revenue. Or maybe they would have chosen to
spend $10 million less per year on some other state program or
priority.
¶23 WSBU responds that the financial footprint of these
budgetary programs was a "microscopic fraction" of the total
appropriations for the 2019-21 biennium. We disagree that $20
million is mere change in the state's coffers. While this
amount of specific tax revenue seems small in comparison to the
state's total revenues over the course of a biennium, it is
15
No. 2019AP2054-OA
still a significant sum. The state's budget reserve provides a
clear example of why this is so. The reserve, which is premised
on projections of revenues and expenditures, acts as a budget
stabilization mechanism in times of fiscal uncertainty.12 In
fact, state law imposes a mandatory reserve floor. Wis. Stat.
§ 20.003(4). For the 2019-21 budget, the state was required to
maintain a reserve of at least $80 million and $85 million in
the two fiscal years. See § 20.003(4)(L). Two years of $10
million in tax revenue is almost a quarter of the reserve
required for the entire biennium.
¶24 Even so, the point of this discussion is not the
specific amount of revenue loss or a definitive statement
regarding what would have happened. The point is that
unreasonable delay cost the respondents the opportunity to
account for those changes in the development and passage of the
2019-21 biennial budget. The alternatives are not "pure
speculation" as WSBU alleges. These examples show that the
2019-21 budget paid for and relied upon decisions the partial
vetoes solidified into law more than two years earlier.
¶25 In short, the provisions of a biennial budget are
hardly something that can be examined in isolation. Budget
bills are complex and dynamic creatures, and each individual
figure and measure incorporated within the enacted law plays a
12 See generally Christa Pugh, Legislative Fiscal Bureau,
Budget Stabilization Fund and General Reserve Fund Requirements
(2019) (outlining the design and purposes of Wisconsin's budget
reserve).
16
No. 2019AP2054-OA
part in an interconnected network of complementary policy
choices. WSBU's delay in seeking to reverse decisions from the
2017-19 biennium deprived the respondents of the opportunity to
take an altered policy foundation into account in subsequent
choices. For this, the respondents are surely placed "in a less
favorable position." Wren, 389 Wis. 2d 516, ¶32. And that
constitutes prejudice.13
4. Discretion
¶26 The respondents have proved all three elements of
laches are met in this case. Even so, application of laches is
within our equitable discretion. See id., ¶15 (explaining a
court may choose not to apply laches "if it determines that
application of the defense is not appropriate and equitable").
We conclude equity weighs strongly in favor of applying laches
here.
¶27 We have already covered the specific prejudicial
effect to the respondents. This by itself is weighty. But in
addition, every new budget generates substantial reliance
As part of their prejudice argument, the respondents
13
emphasize that the challenged vetoes were made by a previous
gubernatorial administration. All of the respondents have been
sued in their official capacity, which means the individual
occupant of any given position is irrelevant to the broader
prejudice argument. The prejudice to the official functions of
the named respondents is the same regardless of whether their
priorities or policy views may be different. In any event, the
respondents have shown they will be prejudiced regardless of
whether there was an intervening change in the governor's
office.
17
No. 2019AP2054-OA
interests on behalf of both public and private parties across
the state. The same cascading effects of even modest changes to
a broader policy framework are true not just within the biennial
budget itself, but for the budgets and outlook of counties,
municipalities, school districts, nonprofit organizations,
colleges, road contractors, health care systems, and innumerable
other public and private actors.14
¶28 Part of this is the reasonable presumption that
enacted laws, especially budget bills, can be relied upon to
order one's affairs. The respondents make this point in
reference to our recent decision in Winebow, Inc. v. Capitol-
Husting Co., which turned in part on the effect of partial
vetoes in the 1999-2001 budget. 2018 WI 60, ¶¶12–22, 381
Wis. 2d 732, 914 N.W.2d 631 (discussing 1999 Wis. Act 9, § 2166m
and § 2166s). There, on a certified question from the Seventh
Circuit, we determined whether a wine grantor-dealer
relationship satisfied the definition of a dealership in the
Wisconsin Fair Dealership Law. Id., ¶1. Underlying that
question, the parties each pointed to a different statutory
provision as containing the dispositive answer. See id., ¶¶23,
14See also 30A C.J.S. Equity § 155 ("The defense of laches
is applied with even greater force when delay in attacking the
legality of the collection and spending of public moneys will
result in grave public injury were the relief sought to be
granted."); 27A Am. Jur. 2d Equity § 145 ("The court may look at
the disruptive effect a plaintiff's relief would have on other
parties in determining whether laches applies to the claim.
Thus, laches is particularly justified where the plaintiff's
delay in pursuing a claim would have a catastrophic effect on
the rights of many third parties." (footnote omitted)).
18
No. 2019AP2054-OA
25 (citing Wis. Stat. §§ 135.02(3)(b), 135.066 (2015-16)). To
provide background, we unpacked the provisions' relevant
statutory history, which included partial vetoes from nearly two
decades earlier. Id., ¶¶12-22. In answering the certified
question, we did not address the constitutionality of those
vetoes. But if we had done so and ruled that they were beyond
the governor's constitutional authority, Wisconsin's commercial
wine industry could have been radically upended given statewide
reliance interests on a 19-year-old partial veto that was newly
determined invalid.
¶29 Other jurisdictions have similarly barred untimely
challenges to alleged procedural deficiencies in the enactment
of a law. In so doing, these courts acknowledge the broader and
more pervasive prejudicial effects resulting from belatedly
undoing statutory enactments. See, e.g., Schaeffer, 656 A.2d at
753, 755 (emphasizing prejudice that would be caused to hundreds
of county employees who relied on pension plan modifications
effected by an ordinance subject to belated procedural
challenge); Cole v. State ex rel. Brown, 42 P.3d 760, 764 (Mont.
2002) (identifying prejudice of former officeholders and
potential candidates who relied on presumptively valid
19
No. 2019AP2054-OA
constitutional term-limit initiative subject to belated
procedural challenge).15
15The New York Court of Appeals decision in Schulz v. State
appears to provide a particularly fitting comparison to this
case. There, the court held laches should apply against a
procedural challenge to various public financing laws that had
been enacted 11 months earlier. 615 N.E.2d 953, 957-58 (N.Y.
1993). In the intervening period, significant financial
activity was conducted in reliance on the statues. Id. Thus,
amongst the "profound destabilizing and prejudicial effects from
delay" that could affect the state in its "operation and
maintenance of orderly government," the New York court
explained:
Appellants' demand for relief on the merits of their
constitutional challenge would have the bonds recalled
and refunded and the nonbond transactions nullified.
Metaphorically, the impossibility of putting genies
back in their bottles springs to the imagination.
Realistically, constitutional challenges to public
financing of such massive and profound dimension,
possibly causing traumatic disturbance to settled
matters of public finances and governance, should be
undertaken reasonably promptly. To relax this
procedural safeguard could disproportionately incur or
threaten a greater harm to the public weal than the
alleged constitutional transgression itself. Undoing
such closed financial transactions would also add
hundreds of millions of dollars of unplanned
expenditures to the taxpayers' burdens. In sum,
fiscal year 1990–1991 has come and gone and its
financial books in this respect have been closed.
Equitable considerations of time, in the laches sense,
may justifiably keep them closed and do not warrant,
in the circumstances presented here, a piecemeal
invalidation challenge as suggested . . . .
Id. (citation omitted).
20
No. 2019AP2054-OA
¶30 Orderly state governance is premised in no small part
on the stability and certainty of state finances. Nowhere are
those principles needed more than in the state's biennial
budget. Each budget bill is a massive undertaking that is meant
to fully encapsulate the financing of the state's operations and
programs over the next two years. Our state is, to a very large
degree, publicly and privately ordered around that single piece
of legislation. Judicial disturbance of biennial budgets past
would be incredibly disruptive to the public and private affairs
of many whose livelihoods are tied to public policy (which is to
say, almost everyone).
¶31 It is true that the proper interpretation of the
governor's partial veto powers is an important question. But
that alone, in our view, does not counsel undoing the current
policy framework that was crafted in reliance on the policy
choices settled in the previous biennium. This court has
considered cases arising from the governor's veto authority
before; we will surely do so again. But it is crucial that
claims of this sort are brought in a timely manner. Because
this claim was not, application of laches in this case is
equitable and appropriate.
WSBU's citation to another New York case that distinguished
itself from Schulz simply shows that laches is a fact-specific
defense. Cf. Saratoga Cty. Chamber of Commerce, Inc. v. Pataki,
798 N.E.2d 1047, 1056-57 (N.Y. 2003) (rejecting laches defense
against a challenge to a gaming compact because, in contrast to
Schulz, there was no showing that delay caused economic
prejudice given the casino's operations had never been
interrupted).
21
No. 2019AP2054-OA
III. CONCLUSION
¶32 WSBU challenges two partial vetoes in the biennial
budget enacted in September 2017. But WSBU waited until October
2019 to file this action. The 2017-19 biennium has closed, and
a new biennial budget has since been enacted relying in part on
the law enacted in 2017. The respondents have established the
elements of laches and demonstrated that application of the
equitable doctrine is appropriate here. Accordingly, we dismiss
WSBU's original action.
By the Court.-Relief denied.
22
No. 2019AP2054-OA.rgb
¶33 REBECCA GRASSL BRADLEY, J. (dissenting). In
resolving this dispute over the scope of the governor's veto
power, the Wisconsin Supreme Court should have consulted the
Wisconsin Constitution, under which "all governmental power
derives 'from the consent of the governed' and government
officials may act only within the confines of the authority the
people give them. Wis. Const. art. I, § 1." Wis. Legislature
v. Palm, 2020 WI 42, ¶66, 391 Wis. 2d 497, 942 N.W.2d 900
(Rebecca Grassl Bradley, J., concurring). Instead, the majority
latches on to laches, an equitable doctrine that operates not as
a jurisprudential command, but merely as a discretionary option
for avoiding a decision on the merits. The text of the
constitution does not support the exercise of either veto
challenged in this case and the court should have so declared.
"Whenever any branch of government exceeds the boundaries of
authority conferred by the people, it is the duty of the
judicial branch to say so." Id.
¶34 Under the Wisconsin Constitution, all bills must
originate in the legislature, and only the legislature may amend
them. Wis. Const. art. IV, § 19.1 In the exercise of his veto
power, the governor may approve or reject an appropriation bill,
in whole or in part, and the approved part then becomes law.
1 Wisconsin Constitution, Article IV, Section 19 provides:
Any bill may originate in either house of the
legislature, and a bill passed by one house may be
amended by the other.
1
No. 2019AP2054-OA.rgb
Wis. Const. art. V, § 10(1)(b).2 With respect to each of the
bills at issue in this case, the legislature delayed the
effective date of a law, not a bill, by one year; in exercising
his "veto," the governor delayed their effective dates by 1000
years and 60 years, respectively, effectively nullifying each
law. The constitution does not confer on the governor any
authority to amend or otherwise rewrite a bill in this manner,
much less abolish laws altogether.
¶35 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.
Nonetheless, it is not at all surprising that many governors
have exceeded the veto authority the constitution accords them,
because this court has repeatedly "dress[ed] up the governor as
the people's legislative agent (with respect to appropriations
bills)" in utter disregard for what the constitution actually
says. Bartlett v. Evers, 2019AP1376-OA, slip op., ¶173 (Wis. S.
Ct. July 10, 2020) (Kelly, J., concurring in part; dissenting in
Wisconsin Constitution,
2 Article V, Section 10(1)(b)
provides, in relevant part:
Appropriation bills may be approved in whole or in
part by the governor, and the part approved shall
become law.
2
No. 2019AP2054-OA.rgb
part).3 Although this court's repeated and erroneous broadening
of the veto authority invariably contravenes the constitution's
separation of powers, even this court's atextual interpretations
of the veto power have never permitted a governor's repeal of
duly enacted law. Nor has this court ever ducked the merits
altogether after granting an original action petition to decide
whether a governor's veto violated the constitution. Until now.
¶36 Without any precedent to support its sidestepping, the
court declines to answer the constitutional question it had
agreed to decide. Instead, it makes the unprecedented move of
disposing of this case under the doctrine of laches, declaring
the petitioners filed this action a couple months too late to
warrant a substantive analysis, under a new rule the majority
just made up. The majority shirks its responsibility to decide
a fundamental issue of constitutional law. I respectfully
dissent.
I. BACKGROUND
¶37 This case arises from Governor Scott Walker's vetoes
within the 2017-19 budget bill, namely Section 1641m and Section
2265. Section 1641m affected Wis. Stat. § 121.91(4)(o), the
3Justice Daniel Kelly's concurrence/dissent in Bartlett v.
Evers, 2019AP1376-OA, slip op. (Wis. S. Ct. July 10, 2020),
thoroughly explores this court's partial veto jurisprudence and
how it conflicts with the text of the constitution. In that
opinion, Justice Kelly also explains the mechanism provided by
the Wisconsin Constitution for the enactment of laws, as well as
the original meaning of the provisions permitting a governor to
approve an appropriation bill "in part." See id. (Kelly, J.,
concurring in part; dissenting in part). I will not repeat that
analysis in this opinion, but refer the reader to Justice
Kelly's opinion in Bartlett.
3
No. 2019AP2054-OA.rgb
statute allowing a school district to exceed revenue limits if
it "implement[s] energy efficiency measures or" "purchase[s]
energy efficiency products." Id. This has been the law since
2009. See Wis. Stat. § 121.91(4)(o) (2009-10). The legislature
decided to impose a moratorium on the "Energy Efficiency Revenue
Limit Adjustment" for the calendar year 2018. The legislature's
one-year moratorium was drafted by adding subdivision 4 to
already-existing Wis. Stat. § 121.91(4)(o). Subdivision 4
provided: "Unless the resolution is adopted before January 1,
2018, subd. 1. applies only to a resolution adopted after
December 31, 2018." The governor struck "1, 2" from the
"December 31, 2018" date to change the one-year pause of the
Energy Efficiency Adjustment into a millennium moratorium (1,000
years) extending until December 3018.
¶38 Section 2265 modified Wis. Stat. § 77.585, a statute
affording retailers the ability to obtain a refund of sales tax
paid to the State for the uncollectible amount of customer
purchases made using retailer-issued credit cards that become
"bad debt" as defined in the statute. In 2013, the legislature
amended § 77.585 to allow refunds of sales taxes paid by a
retailer for the uncollectible amount of purchases made by
customers using credit cards (like Visa or Mastercard) issued by
third party lenders who partner with the retailer. When this
bill was enacted into law, the legislature initially delayed the
effective date to July 1, 2015, subsequently to July 1, 2017,
and later to July 1, 2018. The "Private Label Credit Card Bad
Debt Deduction" amendments would have taken effect on July 1,
4
No. 2019AP2054-OA.rgb
2018, but for the governor's use of his veto power to change the
effective date to July 1, 2078, thereby delaying the
implementation of the statute for 60 years.
¶39 After executing his vetoes, the governor approved the
2017-19 budget bill, which became 2017 Wisconsin Act 59 and was
published on September 22, 2017. The partial veto review was
placed on the Assembly calendar for May 8, 2018 as part of the
veto review session pursuant to Joint Rule 82(2)(a),4 but the
Assembly did not act to override the governor's vetoes. See
State of Wis. Assemb. J., May 8, 2018, at 943.
¶40 On July 4, 2019, the 2019-21 biennial budget went into
effect. On October 28, 2019, WSBU filed a petition with this
court seeking to initiate an original action challenging two of
the governor's vetoes within the 2017-19 budget. WSBU asked the
court to answer the following question: "May the Governor,
pursuant to his constitutional authority under art. V, sec. 10
of the Wisconsin Constitution, as amended in 1990, reject
individual parts of a date contained in an enrolled bill so as
to create a new date that was never approved by the
Legislature?" The court issued an order requiring the named
respondents to file a response to the petition, which the
Attorney General subsequently submitted to the court on December
6, 2019 on behalf of the respondents.
¶41 The Attorney General's response raised concerns with
the timing of WSBU's petition and requested the court deny the
4See Wis. Jt. Rules of Senate and Assembly § 82 ("Veto
review session, even numbered year.").
5
No. 2019AP2054-OA.rgb
petition on that basis. Emphasizing that WSBU filed the
petition after the 2017-19 biennium ended, the Attorney General
asserted that "Petitioners have not acted promptly" and "[t]heir
petition comes two years after Act 59 was published . . . and
more than three months after the successive biennial budget bill
was signed into law." The Attorney General advised the court
that the "timing of Petitioners' petition is in stark contrast
to prior lawsuits challenging governors' partial veto
authority"——noting other lawsuits contesting budget vetoes "were
challenged promptly, within the same budget biennium."
¶42 Despite knowing WSBU filed its petition after the
2017-19 budget time period, this court granted the petitioners'
request for this original action on the issue of whether
Governor Walker exceeded his authority when he used his veto
power to change the effective dates of two laws in the 2017-19
biennial budget bill. The court's order asked the parties to
file briefs, and the court held oral argument in April 2020.
II. ORIGINAL ACTIONS & CRITERIA FOR REVIEW
¶43 Article VII, Section 3 of the Wisconsin Constitution
confers jurisdiction on this court to hear "original actions and
proceedings." Wis. Const. art. VII, § 3(2). Original action
petitions are relatively rare and the court grants one only if
four or more justices vote to take the case. Wis. S. Ct. IOP
III (Sept. 13, 2019). Even before the vote, the respondents
file a response brief, as they did in this case. Wis. S. Ct.
IOP III (Sept. 13, 2019). The court then decides whether to
grant the petition, having had the benefit of hearing from both
6
No. 2019AP2054-OA.rgb
sides. "When a matter is brought to the Supreme Court for
review, the court's principal criterion in granting or denying
review is not whether the matter was correctly decided or
justice done in the lower court, but whether the matter is one
that should trigger the institutional responsibilities of the
Supreme Court." Wis. S. Ct. IOP III (Sept. 13, 2019). "The
same determination governs the exercise of the court's original
jurisdiction." Wis. S. Ct. IOP III (Sept. 13, 2019).
¶44 Wisconsin Stat. § 809.62(1r) enumerates "criteria for
granting review" and provides in pertinent part:
Supreme court review is a matter of judicial
discretion, not of right, and will be granted only
when special and important reasons are presented. The
following, while neither controlling nor fully
measuring the court's discretion, indicate criteria
that will be considered:
(a) A real and significant question of federal or
state constitutional law is presented.
(b) The petition for review demonstrates a need for
the supreme court to consider establishing,
implementing or changing a policy within its
authority.
(c) A decision by the supreme court will help develop,
clarify or harmonize the law, and
1. The case calls for the application of a new
doctrine rather than merely the application of well-
settled principles to the factual situation; or
2. The question presented is a novel one, the
resolution of which will have statewide impact; or
3. The question presented is not factual in nature but
rather is a question of law of the type that is likely
to recur unless resolved by the supreme court.
7
No. 2019AP2054-OA.rgb
Determining whether a governor exceeded his constitutional veto
authority in effectively repealing laws by changing their
effective dates unquestionably triggers the institutional
responsibility of this court. At least four justices agreed and
voted to grant the petitioners' original action petition.
III. THE MAJORITY'S REFUSAL TO DECIDE THE MERITS
¶45 The majority declines to decide the constitutionality
of Governor Walker's vetoes, a significant issue of statewide
importance that at least four members of this court agreed
should be resolved. Instead, the majority denies relief based
on the equitable doctrine of laches, which by its very nature
rests within the discretion of the court to apply——or not.
Although in a footnote the majority denies it,5 the majority's
opinion establishes a rule barring challenges to a governor's
vetoes unless filed within the biennium in which the vetoes
occurred. The majority concludes that because WSBU brought its
5 Majority op., ¶17 n.9. The majority's opinion focuses
entirely on the untimeliness of WSBU's action based on its
filing after the relevant biennium had passed and a new biennium
was underway. Nevertheless, the majority denies establishing
any laches rule with respect to veto challenges, emphasizing it
is merely concluding WSBU waited "too long" "under these
circumstances." Id. In other words, the majority knows it when
it sees it, but it's not disclosing "it." If the majority isn't
establishing a laches rule (which would be helpful) and isn't
resolving the substantive issue it said it would decide (which
leaves an important question unanswered), then why did the court
take this case? If the court is declaring merely that under
these specific facts, laches applies, then the court could have
(and should have) simply denied the petition. Instead, the
majority releases an opinion providing no answer to the question
granted and establishing no precedent. Future litigants will
have no idea how late is "too late" because the majority offers
nothing to guide them. So much for the rule of law.
8
No. 2019AP2054-OA.rgb
challenge a few months after the 2017-19 biennium ended, the
action is too late. The majority embraces this novel laches
argument (to which the Attorney General devoted a mere 6 pages
of his 47-page brief) even though laches was not an issue
presented in the petition.
¶46 The majority denies WSBU relief based on the laches
doctrine even though this court has never applied laches in an
original action challenging the constitutionality of a
governor's veto——giving WSBU no notice or warning that its veto
challenge would be denied without answering the substantive
question upon which this court granted WSBU's petition. The
court employs laches as a mechanism to avoid deciding a
fundamental question of constitutional law and leaves these
petitioners in the dark. The people of Wisconsin will never
know whether these vetoes comport with or violate the
constitution. Nor will current or future governors or
legislatures, unless and until the court decides to resolve this
issue——perhaps in 60 or 1,000 years.
¶47 The majority concludes that the Attorney General
satisfied his burden of proving all of the elements of laches.
I disagree.6 Even if the elements of laches were satisfied, I
The
6 majority's questionable analysis of laches is
unprecedented in resolving an original action challenging a
governor's veto. First, the majority concludes that WSBU could
have challenged these vetoes as early as September 23, 2017——the
effective date of the 2017-19 budget bill. Its presumption
ignores the time period allowed for a legislative override,
which did not expire until May 8, 2018. The Joint Rules of the
Wisconsin Senate and Assembly provide that "[t]he biennial
session schedule shall provide for a veto review session"
between April 1 and June 30 of even-numbered years that would
include gubernatorial vetoes or partial vetoes. See State of
9
No. 2019AP2054-OA.rgb
Wis. Jt. Rules of Senate and Assembly § 82(1) & (1m)(a). The
partial vetoes in this case were calendared and then sustained
on May 8, 2018, because the legislature did not act to override
them. See Adverse Disposal, State of Wis.
Assemb. J., May 8, 2018, at 943,
https://docs.legis.wisconsin.gov/2017/related/journals/assembly/
20180508.pdf. Citing nothing but cases from foreign
jurisdictions, the majority perfunctorily concludes WSBU waited
"too long" and "[t]here must be a limit to when a lawsuit like
this may be filed," although it refuses to announce what that
limit is. Majority op., ¶17. Of course, no Wisconsin law
specifies a limit, and the one the majority invents apparently
applies only under the circumstances in this particular case.
Worse yet, the majority imposes its amorphous time limit
retroactively on WSBU, who could not have foreseen its action
would be time-barred.
Second, "[w]hether the doctrine of laches applies is fact
specific." Riegleman v. Krieg, 2004 WI App 85, ¶22, 271
Wis. 2d 798, 679 N.W.2d 857. The existence of disputed facts
would preclude the application of laches, but the majority
pretends none exist. The majority summarily concludes the
respondents lacked knowledge of WSBU's forthcoming claim based
solely on the respondents saying so and "[b]ased on the
undisputed record before us." Majority op., ¶18. WSBU was
never afforded the opportunity to refute the assertion and there
is no "record" before us because this is an original action in
which no factual development occurred. Nevertheless, the
majority concludes the respondents proved the "lack of
knowledge" element of laches despite the absence of any
evidentiary or testimonial evidence to support it.
Finally, the majority's analysis of the doctrine's
prejudice prong details a number of speculative, alternative
actions the State might have taken if the claim against the
budget vetoes were brought earlier:
 "Maybe different revenue limits would have been
proposed."
 "Maybe school district spending priorities would have
been altered by the incentive in a way that would have
changed their funding requests during the new biennium."
 "[M]aybe they would have chosen to spend $10 million less
per year on some other state program or priority."
10
No. 2019AP2054-OA.rgb
would not apply the doctrine. A constitutional challenge to the
power of the governor, particularly as it implicates the
separation of powers, takes precedence over all other
considerations, including the economic consequences of
invalidating a governor's veto (which relate to the remedy
rather than the merits). The powers constitutionally assigned
to the legislative branch "must be kept forever separate" from
those assigned to the executive branch "because, as Madison once
observed, '[t]here can be no liberty where the legislative and
executive powers are united in the same person, or body of
magistrates.' The Federalist No. 47, at 299 (James Madison)
(Clinton Rossiter ed., 1961)." Palm, 391 Wis. 2d 497, ¶92
(Kelly, J., concurring). "[O]ur duty to ensure the lines do not
cross is mandatory and non-discretionary." Id. Regardless, the
reasoning underlying the majority's application of laches is
fundamentally unsound. The same economic consequences the
majority invokes to justify its application of laches would
exist if WSBU had filed this action on July 3, 2019——one day
before the 2019-21 biennium began, and therefore presumably
timely under the majority's new case-specific laches rule.
Given the importance of the issue presented in this original
action and this court's choice to take the case, the majority
should have addressed the merits. See Zizzo v. Lakeside Steel &
Mfg. Co., 2008 WI App 69, ¶6 n.3, 312 Wis. 2d 463, 752
N.W.2d 889 (Even if a court "find[s] all the elements of laches
Majority op., ¶22. However likely those actions would have
been, the court cannot cite anything to prove any form of
prejudice actually occurred.
11
No. 2019AP2054-OA.rgb
present, [it] may nevertheless exercise its discretion not to
apply the doctrine.").
¶48 In applying laches, the majority credits the
respondents' reliance on the budget but ignores WSBU's reliance
on the state of the law when the court granted its single-issue
petition. WSBU could not possibly have known that a challenge
on October 28, 2019 to the 2017-19 budget was too late, given
these circumstances:
 The court granted WSBU's petition solely on the issue
requested: "May the Governor, pursuant to his
constitutional authority under art. V, sec. 10 of the
Wisconsin Constitution, as amended in 1990, reject
individual parts of a date contained in an enrolled bill
so as to create a new date that was never approved by the
Legislature?"
 The court granted WSBU's original action petition knowing
it was filed after the 2017-19 budget biennium had
passed.
 The court has never granted an original action petition
challenging a governor's veto and then declined to
address the merits.
 There is no prior Wisconsin case declaring that laches
will bar a veto challenge if the petition is filed four
months beyond the biennium to which the challenge
applies.
 The petitioner challenges "vetoes" that set effective
dates 1,000 and 60 years into the future.
12
No. 2019AP2054-OA.rgb
¶49 The court could have established its new laches rule
barring post-biennium actions challenging gubernatorial vetoes
at the same time it addressed the merits of the constitutional
issue it agreed to decide in this case. The laches rule could
have been applied prospectively and all future litigants would
have fair warning that a veto challenge must be filed before the
biennium expires. Instead, the court chose to blindside WSBU.
Despite granting the petition, well-aware of its post-biennium
timing, the court refuses to analyze whether the governor
violated the constitution by employing his veto power to
eliminate previously enacted law. The court reasons that the
political branches relied on the 2017-19 budget in developing
the 2019-21 budget bill and if the governor had known about the
veto challenge before the enactment of the 2019-21 budget, he
may have acted differently. This is an unjustifiable excuse to
avoid deciding the fundamental question of constitutional law
the court announced it would decide. Any impact on the 2019-21
budget could have been rectified through a budget repair bill
under Wis. Stat. § 16.50(7) to address the effects of the court
declaring the vetoes unconstitutional. The majority took an
unprecedented and unwarranted "pass" on the issue it said it
would decide, leaving WSBU, the people, and current and future
governors and legislatures with a question that may never be
answered. Even more troubling, the court leaves these
unconstitutional vetoes unchecked and uncorrected——threatening
the "tripartite separation of independent governmental power"
that constitutes "the bedrock of the structure by which we
13
No. 2019AP2054-OA.rgb
secure liberty." Gabler v. Crime Victims Rights Bd., 2017 WI
67, ¶3, 376 Wis. 2d 147, 897 N.W.2d 384.
IV. THE WISCONSIN CONSTITUTION, SEPARATION OF POWERS,
AND APPROPRIATION VETOES
¶50 Under Article IV, Section 1 of the Wisconsin
Constitution, the people vested the legislative power in the
senate and assembly: "The legislative power shall be vested in
a senate and assembly." Wis. Const. art. IV, § 1. Under
Article V, Section 10 (1)(a), "Every bill which shall have
passed the legislature shall, before it becomes a law, be
presented to the governor." Wis. Const. art. V, § 10(1)(a).
With respect to a non-appropriation bill, the governor may
approve and sign the bill, which then becomes a law. See Wis.
Const. art. V, § 10(1)(b).7 Alternatively, the governor may
reject the bill and return it, along with his written
objections, to the house in which the bill originated. See Wis.
Const. art. V, § 10(2)(a).8 The governor may approve "in whole
7 Wisconsin Constitution, Article V, Section 10(1) provides:
(a) Every bill which shall have passed the legislature
shall, before it becomes a law, be presented to the
governor.
(b) If the governor approves and signs the bill, the
bill shall become law. Appropriation bills may be
approved in whole or in part by the governor, and the
part approved shall become law.
(c) In approving an appropriation bill in part, the
governor may not create a new word by rejecting
individual letters in the words of the enrolled bill,
and may not create a new sentence by combining parts
of 2 or more sentences of the enrolled bill.
8 Wisconsin Constitution, Article V, Section 10(2) provides:
14
No. 2019AP2054-OA.rgb
or in part" any appropriation bill, "and the part approved shall
become law." See Wis. Const. art. V, § 10(1)(b). Only a super
majority of the legislature (two-thirds of the members present)
may override the governor's veto of any bill. See Wis. Const.
art. V, § 10(2)(a)-(b).
¶51 Under the Wisconsin Constitution, the governor may
veto an appropriation bill, but only the legislature may amend
it. The "powers of amending and vetoing are different things,
(a) If the governor rejects the bill, the governor
shall return the bill, together with the objections in
writing, to the house in which the bill originated.
The house of origin shall enter the objections at
large upon the journal and proceed to reconsider the
bill. If, after such reconsideration, two-thirds of
the members present agree to pass the bill
notwithstanding the objections of the governor, it
shall be sent, together with the objections, to the
other house, by which it shall likewise be
reconsidered, and if approved by two-thirds of the
members present it shall become law.
(b) The rejected part of an appropriation bill,
together with the governor's objections in writing,
shall be returned to the house in which the bill
originated. The house of origin shall enter the
objections at large upon the journal and proceed to
reconsider the rejected part of the appropriation
bill. If, after such reconsideration, two-thirds of
the members present agree to approve the rejected part
notwithstanding the objections of the governor, it
shall be sent, together with the objections, to the
other house, by which it shall likewise be
reconsidered, and if approved by two-thirds of the
members present the rejected part shall become law.
(c) In all such cases the votes of both houses shall
be determined by ayes and noes, and the names of the
members voting for or against passage of the bill or
the rejected part of the bill notwithstanding the
objections of the governor shall be entered on the
journal of each house respectively.
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the respective exercise of which our constitution commits to
different branches of government." Bartlett, 2019AP1376-OA,
slip op., ¶180 (Kelly, J., concurring in part; dissenting in
part). The only clause in the constitution providing for
amendment of a bill appears in Article IV, Section 19, which
states: "Any bill may originate in either house of the
legislature, and a bill passed by one house may be amended by
the other." Wis. Const. art. IV, § 19. Accordingly, the
governor can veto, but he cannot amend the law or create law.
Bartlett, 2019AP1376-OA, slip op., ¶¶193-195 (Kelly, J.,
concurring in part; dissenting in part) ("Our constitution
commits the power to amend to the assembly or senate; it
contains no suggestion that the governor might be able to
partake of it."). The constitution vests these powers in the
legislature alone.
¶52 In establishing the Wisconsin Constitution, "[t]he
people bestowed much power on the legislature, comprised of
their representatives whom the people elect to make the laws."
Gabler, 376 Wis. 2d 147, ¶60. As reflected in the
constitutional text, "[t]he separation of powers 'operates in a
general way to confine legislative powers to the legislature.'"
League of Women Voters v. Evers, 2019 WI 75, ¶35, 387
Wis. 2d 511, 929 N.W.2d 209 (citing Goodland [v. Zimmerman], 243
Wis. [459] at 467, 10 N.W.2d 180). Accordingly, "an idea may
not become a law without the legislature having voted for it."
Bartlett, 2019AP1376-OA, slip op., ¶195 (Kelly, J., concurring
in part; dissenting in part). Acting as a check on the
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legislature, the governor may veto only the part of a presented
bill that represents "an idea expressing a potential complete,
entire, and workable law"——something on which the legislature
voted and thereby approved. See id., ¶¶193, 195 (Kelly, J.,
concurring in part; dissenting in part). The constitution does
not, however, give the governor the power to create an entirely
different idea, and the constitution decidedly does not give the
governor the ability to unilaterally enact a law of his own
creation on which the legislature never voted and which it
therefore never approved. See id., ¶195 (Kelly, J., concurring
in part; dissenting in part).
¶53 Precluding one branch of government from intruding on
the exclusive powers of another branch is fundamental to
preserving the balance of governmental power, which is
ultimately designed to protect the interests of the people the
government was formed to serve. "To the Framers of the United
States Constitution, the concentration of governmental power
presented an extraordinary threat to individual liberty: 'The
accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or
many, . . . may justly be pronounced the very definition of
tyranny.' The Federalist No. 47, at 298 (James Madison) (Clinton
Rossiter ed., 1961) . . . . As Madison explained when
advocating for the Constitution's adoption, neither the
legislature nor the executive nor the judiciary 'ought to
possess, directly or indirectly, an overruling influence over
the others in the administration of their respective powers.'
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Federalist No. 48, id. at 305 (James Madison)." Gabler, 376
Wis. 2d 147, ¶4. Joseph Story "'deemed [it] a maxim of vital
importance'" that "'the three great powers of
government . . . should for ever be kept separate and distinct.'
2 Joseph Story, Commentaries on the Constitution of the United
States § 519, at 2-3 (Boston, Hilliard, Gray, & Co., 1833)."
Gabler, 376 Wis. 2d 147, ¶3.
¶54 Although these legal principles are pertinent to the
vetoes challenged in this case, it is important to recognize how
this case differs from Bartlett and all other veto cases
previously decided by this court. This case involves two unique
factors. First, the governor used his veto to change provisions
of laws already on the books——the vetoes were not confined to
bills waiting to become laws, but instead disturbed previously
enacted laws. Second, the vetoes effectively eliminated the
laws entirely by extending their effective dates 1,000 years on
one and 60 years on the other. The constitution's text
restricts the governor's ability to reject the work of the
legislature to bills and nowhere gives the governor the ability
to repeal laws.
¶55 The veto power "furnishes an additional security
against the enaction of improper laws. It establishes a
salutary check upon the legislative body, calculated to guard
the community against the effects of faction, precipitancy, or
of any impulse unfriendly to the public good, which may happen
to influence a majority of that body." Federalist No. 73, at
443 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis
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added). As a general matter, the executive veto power may only
prevent a bill from becoming a law; therefore, it may be
exercised only against bills. Nothing in the Wisconsin
Constitution grants the governor the power to veto a law passed
years earlier. Even setting aside the effects of these vetoes
on previously enacted laws, the vetoes nevertheless exceeded the
governor's authority. Under the Wisconsin Constitution, the
governor's veto empowers him to negate, not create.
V. BOTH VETOES ARE UNCONSTITUTIONAL
¶56 WSBU challenges two vetoes executed by Governor Walker
with respect to the 2017-19 biennium budget. Both vetoes
changed effective dates of laws that had been enacted in
earlier, non-appropriation legislation. Both vetoes involved
bills previously passed by the legislature and signed by the
governor into law. At the time of their passage, the governor
could have vetoed either bill. He did not. When the
legislature later decided to delay the effective dates for each
law, the governor struck digits in dates and a comma, merging
what was left to create new dates never approved by the
legislature and set so far into the future that the governor's
actions essentially repealed two duly-enacted laws. As
explained below, neither veto "approved in whole or in part"
something that became law, both vetoes struck something smaller
than what constitutes a "part," and both vetoes left something
on which the legislature never voted and which it therefore
never approved. Neither veto comported with the constitutional
boundaries of the governor's authority.
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A. The First Veto
¶57 The first veto involves Wisconsin's school district
revenue limit law, see Wis. Stat. § 121.91, and the increases to
the revenue limits for school districts that spend money to
implement energy efficiency measures or to purchase energy
efficiency products, see Wis. Stat. § 121.91(4)(o). Before the
2017-19 budget bill, Wis. Stat. § 121.91(4)(o) (2015-16)
provided:
1. Except as provided in subd. 1m., if a school board
adopts a resolution to do so, the limit otherwise
applicable to a school district under sub. (2m) in any
school year is increased by the amount spent by the
school district in that school year on a project to
implement energy efficiency measures or to purchase
energy efficiency products, including the payment of
debt service on a bond or note issued, or a state
trust fund loan obtained, to finance the project, if
the project results in the avoidance of, or reduction
in, energy costs or operational costs, the project is
governed by a performance contract entered into under
s. 66.0133, and the bond or note issued or state trust
fund loan obtained to finance the project is issued
for a term not exceeding 20 years. If a school board
issues a bond or note or obtains a state trust fund
loan to finance a project described in this
subdivision, a resolution adopted by a school board
under this subdivision is valid for each school year
in which the school board pays debt service on the
bond, note, or state trust fund loan.
1m. If a school district issues a bond or note or
obtains a state trust fund loan to finance a project
described in subd. 1., the amount of debt service
included in the amount spent by the school district
under subd. 1. is the amount paid in the calendar year
that begins on January 1 of the school year in which
the school district's revenue limit is increased under
this paragraph.
2. Any additional revenue received by a school
district under this paragraph shall not be included in
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the base for determining the school district's limit
under sub. (2m) for the following school year.
3. If a school district issues a bond or note or
obtains a state trust fund loan to finance a project
described in subd. 1. and the school district's
utility costs are measurably reduced as a result of
the project, the school board shall use the savings to
retire the bond, note, or state trust fund loan.
This law had been in effect since 2009. Section 1641m of the
2017-19 budget bill added subdivision 4 to this statute, which
placed a one-year moratorium on the energy efficiency increase
to the revenue limits, prohibiting the increase for the 2018
calendar year. Section 1641m provided: "Unless the resolution
is adopted before January 1, 2018, subd. 1. applies only to a
resolution adopted after December 31, 2018."
¶58 Governor Walker deleted the "1" in "31" and the "2" in
"2018" as well as the comma and space between them so the
moratorium would not lift until December 3018: "Unless the
resolution is adopted before January 1, 2018, subd. 1. applies
only to a resolution adopted after December 31, 2018." The
legislature passed a one-year moratorium on the Energy
Efficiency Revenue Limit Adjustment, and Governor Walker's veto
changed one year to 1,000 years. The side-by-side chart below
shows what the legislature approved compared to what the
governor wrote in its place:
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Legislative Language Governor's Final Language
121.91 (4) (o) 4. 121.91 (4) (o) 4.
Unless the Unless the
resolution is resolution is
adopted before adopted before
January 1, 2018, January 1, 2018,
subd. 1. applies subd. 1. applies
only to a resolution only to a resolution
adopted after adopted after
December 31, 2018. December 3018.
¶59 The governor did not actually "approve" or "reject"
any idea passed by the legislature, either in whole or in part,
when presented with Section 1641m of the 2017-19 budget bill.
Instead, the governor amended a sentence by striking two digits,
a comma, and a space to drastically change what the legislature
wrote——effectively vetoing the entirety of Wis. Stat.
§ 121.91(4)(o)1 (which had been law since 2009). Nothing in the
Wisconsin Constitution authorizes the governor to amend or
create law, and nothing in the Wisconsin Constitution authorizes
the governor to unilaterally repeal laws (via his veto power or
otherwise). Despite this court's jurisprudence repeatedly
inventing veto powers not conferred under the constitution, the
court has never empowered the governor to change the effective
date of a bill, much less an existing law. See State ex rel.
Wis. Senate v. Thompson, 144 Wis. 2d 429, 434, 424 N.W.2d 385
(1988) (allowing the so-called "digit" veto, which permits a
governor to "veto" an appropriation amount by reducing it);
Citizens Utility Bd. v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608
(1995) (allowing a governor to write in a different
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appropriation amount, provided it is an amount lower than the
amount proposed by the legislature).
¶60 The governor's "veto" cannot withstand constitutional
scrutiny. The 2017-19 budget bill imposed a one-year moratorium
on the Energy Efficiency Revenue Limit Adjustment available to
Wisconsin school districts under previously enacted law. By
excising individual digits within the date in the bill (along
with a comma and a space), the governor imposed a 1,000-year
moratorium on the Adjustment. In doing so, he effectively
repealed the law, an action the people never approved as an
executive power under the constitution but instead reserved
solely for the legislature.9 The governor changed the one-year
moratorium approved by both houses of the legislature to 1,000
years, creating a law the legislature never considered,
approved, or presented. In doing so, the governor effectively
nullified a law that had been on the books for years,
singlehandedly eliminating the Energy Efficiency Revenue Limit
Adjustment. This veto encroached on the exclusive province of
9 "The constitutional authority to repeal statute law
resides exclusively with legislatures." 1A Norman Singer
Sutherland Statutory Construction § 32:3 (7th ed. Oct. 2019)
("Power to repeal") (quoted sources omitted; emphasis added).
See also Wisconsin Legislature v. Palm, 2020 WI 42, ¶¶91-92, 391
Wis. 2d 497, 942 N.W.2d 900 (Kelly, J., concurring) ("Powers
constitutionally vested in the legislature include the powers:
'to declare whether or not there shall be a law; to determine
the general purpose or policy to be achieved by the law; [and]
to fix the limits within which the law shall operate.' See,
e.g., Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 59, 158
N.W.2d 306 (1968) (quoting State ex rel. Wis. Inspection Bureau
v. Whitman, 196 Wis. 472, 505, 220 N.W. 929 (1928)). Koschkee
v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600
(alteration in original).").
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the legislature, thereby violating the separation of powers
reflected in the constitution, and this court should have so
declared in order to confine current and future governors to the
exercise of executive power as delineated in the text of the
constitution.
B. The Second Veto
¶61 The second veto involves the Private Label Credit Card
Bad Debt Deduction. Wisconsin law allows retailers who issue
credit cards to customers to claim a refund of state sales taxes
the retailers paid if the retailers are unable to collect
payments from customers who charged purchases on the credit
cards issued by the retailers, but then failed to pay the credit
card bills. Because retailers began partnering with third-party
lenders using payment processors such as Visa or Mastercard,
instead of using retailer-brand credit cards, the legislature
passed a law in 2013 Wisconsin Act 229, amending the definition
of "bad debt" in Wis. Stat. § 77.585 to include "dual purpose
credit debts and private label credit debts." See § 77.585
(2013-14). This allowed the retailer to take a tax deduction on
bad debts arising from credit cards issued by third-party
lenders.
¶62 Governor Walker could have vetoed this bad debt bill
when the legislature presented it to him in 2013. He did not.
He instead signed the bill into law, which was scheduled to take
effect on July 1, 2015. The legislature decided to delay the
effective date until July 1, 2017, amending § 77.585's effective
date in the 2015-17 budget bill. In the 2017-19 budget bill,
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the legislature decided to delay the effective date for an
additional year. The legislature approved July 1, 2018 as the
effective date for the bad debt deduction law, and included the
following language in Section 2265 of the 2017-19 budget bill:
Section 6(1) This act takes effect on July 1, 2017
2018, and first applies to bad debts resulting from
sales completed beginning on July 1, 2017 2018.
The governor rejected the legislature's deletion of the "20" in
"2017"; approved the deletion of the "1" in "2017"; rejected the
legislature's deletion of the "7" in "2017"; deleted the "201"
in "2018"; and deleted the space between the "2017" and "2018"
to create a new effective date of "July 1, 2078." A side-by-
side chart shows the legislative language compared to the
governor's amended language:
Legislative Language Governor's Final Language
[2013 Wisconsin Act [2013 Wisconsin Act
229] Section 6 (1) 229] Section 6 (1)
This act takes This act takes
effect on July 1, effect on July 1,
2017 2018 and first 2078 and first
applies to bad debts applies to bad debts
resulting from sales resulting from sales
completed beginning completed beginning
on July 1, 2017 on July 1, 2078.
2018.
Like the other veto, the governor never approved anything passed
by the legislature, in whole or in part. Instead, he amended
the legislature's language by rejecting the deletion of six
digits, striking six digits, deleting two spaces, and merging
what was left into a date 60 years in the future. The
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legislature never presented a 60-years-later effective date to
the governor and the legislature never voted on or approved a
60-year delay.
¶63 Similar to the other veto, the governor's actions
effectively repealed a law previously enacted and signed by the
governor. Unlike the 1,000 year delay created by the other
veto, the people will have to wait only 60 years for the law
enacted by the legislature to take effect. As a result, the
current statutes contain (and every subsequently printed statute
book for the next 60 years will contain) both the current Wis.
Stat. § 77.585 as well as the law enacted by the legislature
(albeit with an effective date unilaterally chosen by the
governor), which appears in a "Note" following the current
statute offering the following explanation: "Sub. (1) is
renumbered, in part, amended, in part, and created, in part,
eff. 7-1-2078 . . . to read:"; the text of the enacted statute
follows, as amended by the governor.10
10 On July 2, 2078, Wis. Stat. § 77.585 will provide:
(1) (a) In this subsection:
1. "Bad debt" means the portion of the sales price or
purchase price that the seller has previously reported
as taxable under this subchapter, and for which the
seller has paid the tax, and that the seller or lender
may claim as a deduction under section 166 of the
Internal Revenue Code. "Bad debt" does not include
financing charges or interest, sales or use taxes
imposed on the sales price or purchase price,
uncollectible amounts on tangible personal property or
items, property, or goods under s. 77.52 (1) (b), (c),
or (d) that remain in the seller's possession until
the full sales price or purchase price is paid,
expenses incurred in attempting to collect any debt,
debts sold or assigned to 3rd parties for collection,
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not including dual purpose credit debts and private
label credit debts, and repossessed property or items.
2. "Dual purpose credit card" means a credit card that
may be used as a private label credit card or to make
purchases from persons other than the seller whose
name or logo appears on the card or the seller's
affiliates or franchisees, if the credit card issuer
is able to determine the sales receipts of the seller
and the seller's affiliates or franchisees apart from
any sales receipts of unrelated persons.
3. "Dual purpose credit debt" means accounts and
receivables that result from credit sale transactions
using a dual purpose credit card, but only to the
extent the account or receivable balance resulted from
purchases made from the seller whose name or logo
appears on the card.
4. a. "Lender" means any person who owns a private
label credit debt, an interest in a private label
credit debt, a dual purpose credit debt, or an
interest in a dual purpose credit debt, if the person
purchased the debt or interest directly from a seller
who remitted the tax imposed under this subchapter or
from a third party or if the person originated the
debt or interest pursuant to the person's contract
with the seller who remitted the tax imposed under
this subchapter or with a third party.
b. "Lender" includes any person who is a member of the
same affiliated group, as defined under section 1504
of the Internal Revenue Code, as a lender or is an
assignee or other transferee of a lender.
5. "Private label credit card" means any charge card
or credit card that identifies a seller's name or logo
on the card and that may be used only for purchases
from that seller or from any of the seller's
affiliates or franchisees.
6. "Private label credit debt" means accounts and
receivables that result from credit sale transactions
using a private label credit card, but only to the
extent the account or receivable balance resulted from
purchases made from the seller whose name or logo
appears on the card.
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(b) A seller may claim as a deduction on a return
under s. 77.58 the amount of any bad debt that the
seller or lender writes off as uncollectible in the
seller's or lender's books and records and that is
eligible to be deducted as a bad debt for federal
income tax purposes, regardless of whether the seller
or lender is required to file a federal income tax
return. A seller who claims a deduction under this
paragraph shall claim the deduction on the return
under s. 77.58 that is submitted for the period in
which the seller or lender writes off the amount of
the deduction as uncollectible in the seller's or
lender's books and records and in which such amount is
eligible to be deducted as bad debt for federal income
tax purposes. If the seller or lender subsequently
collects in whole or in part any bad debt for which a
deduction is claimed under this paragraph, the seller
shall include the amount collected in the return filed
for the period in which the amount is collected and
shall pay the tax with the return.
(bm) For purposes of par. (b), a seller may compute
the seller's bad debt deduction using an estimate, if
the department approves the method for computing the
estimate. The department may audit the seller's books
and records to review the estimate and adjust the
estimate as necessary to reflect the actual allowable
bad debt amount.
(c) For purposes of computing a bad debt deduction or
reporting a payment received on a previously claimed
bad debt, any payment made on a debt or on an account
is applied first to the price of the tangible personal
property, or items, property, or goods under s. 77.52
(1) (b), (c), or (d), or service sold, and the
proportionate share of the sales tax on that property,
or items, property, or goods under s. 77.52 (1) (b),
(c), or (d), or service, and then to interest, service
charges, and other charges related to the sale. If
payment is received on an account for which the
balance reflects multiple sales transactions, the
payment is applied to the sales transactions in the
same order in which the sales transactions occurred.
(d) A seller may obtain a refund of the tax reported
for any bad debt amount deducted under par. (b) that
exceeds the amount of the seller's taxable sales as
provided under s. 77.59 (4), except that the period
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¶64 The governor used his veto power to modify the
effective date of a law passed years before the 2017-19 budget
bill and set to go into effect on July 1, 2018. The governor
did not veto a complete idea voted on and approved by the
legislature and presented to the governor as a bill. His veto
prevented existing law from taking effect for another six
decades. Like the other "veto," this veto also invaded the
province of the legislature by amending——to the point of
nullifying——an enacted law, previously passed by the legislature
and approved by the governor.
¶65 The people of Wisconsin never gave the governor this
power. It is the responsibility of this court to guard against
for making a claim as determined under s. 77.59 (4)
begins on the date on which the return on which the
bad debt could be claimed would have been required to
be submitted to the department under s. 77.58.
(e) If a seller is using a certified service provider,
the certified service provider may claim a bad debt
deduction under this subsection on the seller's behalf
if the seller has not claimed and will not claim the
same deduction. A certified service provider who
receives a bad debt deduction under this subsection
shall credit that deduction to the seller and a
certified service provider who receives a refund under
this subsection shall submit that refund to the
seller.
(f) If a bad debt relates to the retail sales of
tangible personal property, or items, property, or
goods under s. 77.52 (1) (b), (c), or (d), or taxable
services that were sourced to this state and to one or
more other states, as determined under s. 77.522, the
total amount of such bad debt shall be apportioned
among the states to which the underlying sales were
sourced in a manner prescribed by the department to
arrive at the amount of the deduction under par. (b).
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the encroachment of the executive branch upon the people's
representatives in the legislative branch. "The significance of
preserving clear boundaries between the branches has been
understood since the founding of our nation[.]" Gabler, 376
Wis. 2d 147, ¶60. It is the duty of this court to be "ever
vigilant in averting the accumulation of power by one body——a
grave threat to liberty[.]" Id. When this court hears a case
involving such encroachment by the governor via the exercise of
veto power not authorized by the constitution, it is the duty of
this court to check it.
¶66 In exercising each of these vetoes, the governor
violated the separation of powers by assuming the authority to
legislate, a power the constitution confers on the legislature
alone. Under the Wisconsin Constitution, the governor may
approve or reject a bill presented by the legislature and may
approve "in whole or in part" an appropriation bill. The vetoed
part as well as the approved part must each represent a complete
idea on which the legislature voted. The veto cannot be used to
change what the legislature presented; the veto cannot be used
to create new law the legislature never approved; and the veto
cannot be used to unilaterally erase laws enacted in previous
years.
¶67 These vetoes were unconstitutional, and this court
should have so declared. Instead, the majority leaves the
petitioners, the governor, the legislature, and the people of
Wisconsin without an answer to this important constitutional
question the court told them we would resolve.
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VI. CONCLUSION
¶68 The governor's vetoes challenged by WSBU transgressed
the boundaries of executive power in unilaterally repealing
existing laws by extending their effective dates 1,000 years and
60 years, respectively. Rather than approving these
appropriation bills "in whole or in part," as permitted under
the Wisconsin Constitution, the governor deleted digits in
dates, a punctuation mark, and spaces in order to create new
effective dates set far in the future. When a governor replaces
a law's legislatively-written effective date with his preferred
effective date——one never approved or presented by the
legislature——he assumes a power to create law, which only the
legislature may constitutionally exercise. Both vetoes are
patently unconstitutional because nothing in the constitution
authorizes a governor to unilaterally repeal existing law or
amend a law's effective date, actions reserved to the
legislature alone.
¶69 The majority refuses to consider the merits despite
having granted this original action on the sole and significant
issue of the constitutional scope of the governor's veto power
as exercised in the two instances presented for our review.
Instead, the majority takes the unprecedented and completely
discretionary step of declining to declare rights in an original
action presenting an issue of first impression regarding the
constitutionality of a governor's vetoes, electing to deny
relief under the doctrine of laches. In doing so, the majority
shirks its duty to preserve the constitutional balance of power
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between the political branches, abandoning the judiciary's
pivotal role in protecting the bedrock of our structure of
government. I respectfully dissent.
¶70 I am authorized to state that Justice DANIEL KELLY
joins this dissent.
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1