Nancy Bartlett v. Tony Evers

2020 WI 68SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1376-OA
COMPLETE TITLE: Nancy Bartlett, Richard Bowers, Jr. and Ted
Keneklis,
Petitioners,
v.
Tony Evers, in his official capacity as Governor
of the State of Wisconsin, Joel Brennan, in his
official capacity as Secretary of the Wisconsin
Department of Administration, Wisconsin
Department of Administration, Craig Thompson, in
his official capacity as Secretary of
the Wisconsin Department of Transportation,
Wisconsin Department of Transportation, Peter
Barca, in his official capacity as Secretary of
the Wisconsin Department of Revenue, and
Wisconsin Department of Revenue,
Respondents.
ORIGINAL ACTION
OPINION FILED: July 10, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 20, 2020
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
ROGGENSACK, C.J., filed an opinion concurring in part and
dissenting in part. ANN WALSH BRADLEY, J., filed an opinion
concurring in part and dissenting in part, in which DALLET, J.,
joined. KELLY, J., filed an opinion concurring in part and
dissenting in part, in which REBECCA GRASSL BRADLEY, J. joined.
HAGEGDORN, J., filed a concurring opinion, in which ZIEGLER, J.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Anthony LoCoco, Lucas T. Vebber, Luke N. Berg, and
Wisconsin Institute for Law & Liberty, Milwaukee. There was an
oral argument by Richard M. Esenberg.
For the respondents, there were briefs filed by Colin T.
Roth and Maura FJ Whelan, assistant attorneys general; with whom
on the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Colin T. Roth.
An amicus curiae brief was filed on behalf of The
Legislature by Misha Tseytlin, Kevin M. LeRoy, and Troutman
Sanders LLP, Chicago, Illinois. There was an oral argument by
Misha Tseytlin.
2
2020 WI 68NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1376-OA
STATE OF WISCONSIN : IN SUPREME COURT
Nancy Bartlett, Richard Bowers, Jr. and
Ted Keneklis,
Petitioners,
v.
Tony Evers, in his official capacity as
Governor of the State of Wisconsin, FILED
Joel Brennan, in his official capacity as
Secretary of the Wisconsin Department of JUL 10, 2020
Administration, Wisconsin Department of
Administration, Craig Thompson, in his official Sheila T. Reiff
capacity as Secretary of the Wisconsin Clerk of Supreme Court
Department of Transportation, Wisconsin
Department of Transportation, Peter Barca, in
his official capacity as Secretary of the
Wisconsin Department of Revenue, and Wisconsin
Department of Revenue,
Respondents.
¶1 PER CURIAM. We review the petitioners' original
action requesting a declaration that Governor Evers exceeded his
constitutional authority to partially veto appropriation bills.
The petitioners assert that four series of partial vetoes in
2019 Wis. Act 9——the state's 2019-21 biennial budget bill——are
unconstitutional.
No. 2019AP1376-OA
¶2 The parties refer to the provisions based on their
content before the vetoes: (1) the school bus modernization
fund; (2) the local roads improvement fund; (3) the vapor
products tax and (4) the vehicle fee schedule.
¶3 The petitioners contend that the four series of vetoes
are unconstitutional. Article V, Section 10(1)(b) of the
Wisconsin Constitution provides that the governor may approve
appropriation bills "in whole or in part."
¶4 No rationale has the support of a majority. However,
a majority has reached a conclusion with respect to the
constitutionality of each series of vetoes. Five justices
conclude that the vetoes to the school bus modernization fund
are unconstitutional. The same five also conclude that the
vetoes to the local roads improvement fund are unconstitutional.1
Four justices conclude that the vetoes to the vapor products tax
are unconstitutional.2 Five justices conclude that the vetoes to
the vehicle fee schedule are constitutional.3
¶5 Chief Justice Roggensack concludes that the vetoes to
the school bus modernization fund and the local roads
Chief Justice Roggensack and Justices Ziegler, Rebecca
1
Grassl Bradley, Kelly and Hagedorn conclude that these series of
vetoes are unconstitutional.
Justices Ziegler, Rebecca Grassl Bradley, Kelly and
2
Hagedorn conclude that the vetoes to the vapor products tax are
unconstitutional.
Chief Justice Roggensack and Justices Ann Walsh Bradley,
3
Ziegler, Dallet and Hagedorn conclude that the vetoes to the
vehicle fee schedule are constitutional.
2
No. 2019AP1376-OA
improvement fund are unconstitutional because they "resulted in
topics and subject matters that were not found in the enrolled
bill." Chief Justice Roggensack's concurrence/dissent, ¶99.
She also concludes that the vetoes to the vapor products tax and
vehicle fee schedule are constitutional because they did not
alter "the topic or subject matter of the part approved." Id.,
¶106.
¶6 Justice Ann Walsh Bradley and Justice Dallet conclude
that the four series of vetoes are constitutional because they
"result[ed] in objectively complete, entire, and workable laws."
Justice Ann Walsh Bradley's concurrence/dissent, ¶170.
Consequently, they would not grant relief.
¶7 Justice Kelly and Justice Rebecca Grassl Bradley
conclude that the four series of vetoes are unconstitutional.
Justice Kelly's concurrence/dissent, ¶230. They conclude that
the vetoes violate the Wisconsin Constitution's origination
clause, amendment clause and legislative passage clause.
Id., ¶¶223, 225-26, 228.
¶8 Justice Hagedorn and Justice Ziegler conclude that the
vetoes to the school bus modernization fund, the local roads
improvement fund and the vapor products tax are
unconstitutional. Justice Hagedorn's concurrence, ¶¶269–75.
They also conclude that the vetoes to the vehicle fee schedule
are constitutional because they merely negated a policy proposal
advanced by the legislature. Id., ¶268.
¶9 Accordingly, rights are declared such that the vetoes
to the school bus modernization fund, the local roads
3
No. 2019AP1376-OA
improvement fund and the vapor products tax are unconstitutional
and invalid. Relief is granted such that the portions of the
enrolled bills that were vetoed are in full force and effect as
drafted by the legislature. See State ex rel. Sundby v.
Adamany, 71 Wis. 2d 118, 125, 237 N.W.2d 910 (1976). The vetoes
to the vehicle fee schedule are constitutional, and no relief is
granted with respect to these vetoes.
By the Court.-Rights declared; relief granted in part and
denied in part.
4
No. 2019AP1376-OA.pdr
¶10 PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,
dissenting in part). This is an original action brought by
three taxpayers, Nancy Bartlett, Richard Bowers, Jr. and Ted
Keneklis (Taxpayers) against Governor Tony Evers and other
government officials and agencies. Taxpayers challenge the
validity of several vetoes Governor Evers made to the 2019–21
biennial budget.1 Specifically, they challenge a series of
vetoes that changed a school bus modernization fund into an
alternative fuel fund. They also challenge another series that
removed conditions from a local road improvement fund,
effectively changing it into a fund for "local grants" or "local
supplements." Third, they challenge a series of vetoes that
altered a vehicle fee schedule by changing the amount truck
owners must pay to register their vehicles. Lastly, they
challenge one veto that altered a section that imposed a tax on
"vapor products" by expanding the definition of vapor product to
include liquid heated by a vaping device. Taxpayers assert that
these vetoes went beyond the governor's partial veto power,
which is provided in Article V, Section 10(1)(b) of the
Wisconsin Constitution: "Appropriation bills may be approved in
whole or in part by the governor, and the part approved shall
become law."
¶11 I conclude that the part approved by the governor,
i.e., the consequences of the partial veto, must not alter the
1 "The Wisconsin budget process covers two fiscal years at a
time——a biennium." Benjamin W. Proctor, Comment, Wisconsin's
Chief Legislator: The Governor's Partial Veto Authority and the
New Tipping Point, 90 Marq. L. Rev. 739, 739 n.3 (2007).
1
No. 2019AP1376-OA.pdr
topic or subject matter of the "whole" bill before the veto.2
Stated otherwise, such a veto does not alter the stated
legislative idea that initiated the enrolled bill. Therefore,
Governor Evers could not use his partial veto power to change
the school bus modernization fund into an alternative fuel fund.
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. I partially concur with the per curiam opinion
that these two series of vetoes are invalid and have no effect
on the law enacted by the legislature. I further partially
concur that he lawfully used his partial veto power to alter the
amount truck owners must pay to register their vehicles.
However, I partially dissent from the per curiam opinion because
he also lawfully used his partial veto to alter the definition
of vapor product. This veto should stand.
I. BACKGROUND
¶12 On June 25 and 26, 2019, the Wisconsin State Assembly
and Senate, respectively, passed the 2019–21 biennial budget
bill. The enrolled bill was presented to Governor Evers, who
signed it with several vetoes on July 3, 2019.3 On July 31,
2019, Taxpayers filed an original action, which was amended on
2"Once identical versions of a bill pass both the state
assembly and the state senate, the bill is referred to as an
'enrolled bill' and is ready for the governor's consideration."
Id. at 741 n.19.
3 2019 Wis. Act 9.
2
No. 2019AP1376-OA.pdr
August 19, 2019. We took jurisdiction. The legislature filed
an amicus brief, generally supporting Taxpayers.
A. The School Bus Modernization Fund
¶13 The first series of vetoes changed a school bus
modernization fund into an alternative fuel fund. For context,
the State of Wisconsin is a beneficiary of a trust created by a
consent decree following litigation against Volkswagen. The
terms of the trust establish various permissible uses:
[T]he state could utilize funding from the trust to
scrap, and then repower or replace certain eligible
vehicles and equipment, including: (a) Class 8 local
freight trucks and port drayage trucks; (b) Class 4
through 8 school buses, shuttle buses, or transit
buses; (c) freight switchers; (d) ferries and tugs;
(e) ocean going vessels shore power; (f) Class 4
through 7 local freight trucks; (g) airport ground
support equipment; (h) forklifts and port cargo
handling equipment; and (i) light duty zero emission
vehicle supply equipment (electric or hydrogen vehicle
charging stations).[4]
During the 2017–19 biennium, Wisconsin used the settlement funds
"for replacing eligible state vehicles and for awarding grants
to transit systems to replace eligible public transit vehicles."5
4 Executive Session Record for Paper #505 from the Record of
Committee Proceedings on 2019 Assembly Bill 56 (Paper #505) at 3
(June 6, 2019),
https://docs.legis.wisconsin.gov/misc/lfb/budget/2019_21_biennia
l_budget/102_budget_papers/505_volkswagen_settlement_volkswagen_
settlement.pdf.
5 Joint Committee on Finance Motion #129 (Motion #129) (June
6, 2019),
https://docs.legis.wisconsin.gov/misc/lfb/jfcmotions/2019/2019_0
6_06/008_volkswagen_settlement/002_motion_129_volkswagen_settlem
ent.pdf.
3
No. 2019AP1376-OA.pdr
¶14 For 2019–21, Governor Evers proposed a budget that
would have expanded uses of the settlement funds to include "the
installation of charging stations for vehicles with an electric
motor."6 The Legislature's Joint Committee on Finance rejected
Governor Evers' proposal, instead opting to create a school bus
modernization fund to aid school boards in purchasing "energy
efficient" school buses.7
¶15 Governor Evers utilized his partial veto power to
attempt to accomplish his initial proposal. To do so, he
partially vetoed § 55c and vetoed the entirety of § 9101(2i).
¶16 The markup of § 55c reads:
16.047(4s) of the statutes is created to read:
16.047 (4s) SCHOOL BUS REPLACEMENT GRANTS. (a) In
this subsection: 1. "School board" has the meaning
given in s. 115.001(7).2. "School bus" has the
meaning given in s. 121.51(4).(b) The department [of
administration] shall establish a program to award
grants of settlement funds from the appropriation
under s. 20.855(4)(h) to school boards for the
replacement of school buses owned and operated by the
school boards with school buses that are energy
efficient, including school buses that use alternative
fuels. Any school board may apply for a grant under
the program. (c) As a condition of receiving a grant
under this subsection, the school board shall provide
matching funds equal to the amount of the grant award.
(d) A school board may use settlement funds awarded
under this subsection only for the payment of costs
6 2019 Assembly Bill 56, §§ 52, 53 & 54; see also Paper
#505, at 2 (explaining the governor wanted to "[e]xpand DOA's
authority to use settlement monies to award grants for the
replacement of public transit vehicles to also include awarding
grants for the installation of charging stations for electric
vehicles").
7 Joint Stipulation of Facts and Joint Statement that There
Are No Material Disputed Facts (Joint Statement), ¶¶21–22.
4
No. 2019AP1376-OA.pdr
incurred by the school board to replace school buses
in accordance with the settlement guidelines.
As partially vetoed, the section states: "The department shall
establish a program to award grants of settlement funds from the
appropriation under s. 20.855(4)(h) for alternative fuels."
¶17 Governor Evers vetoed the entirety of § 9101(2i):
(2i) VOLKSWAGEN SETTLEMENT FUNDS. Of the settlement
funds in s. 20.855(4)(h), during the 2019–21 fiscal
biennium, the department of administration shall
allocate $3,000,000 for grants under s. 16.047 (4s)
for the replacement of school buses.
B. The Local Road Improvement Fund
¶18 The second series of vetoes removed conditions from a
local road improvement fund, effectively changing it into a fund
for "local grants" or "local supplements," which did not require
expenditures for local roads. For context: "[the Department of
Transportation] DOT administers the Local Roads Improvement
Program (LRIP) to assist political subdivisions in improving
seriously deteriorating local roads by reimbursing political
subdivisions for certain improvements. LRIP includes an
entitlement component and a discretionary component."8
¶19 Governor Evers partially vetoed §§ 126 and 184s and
vetoed the entirety of § 1095m. Section 126, schedule item Wis.
Stat. § 20.395(2)(fc), of the enrolled bill appropriated
$90,000,000 for local road improvement as a discretionary
supplement.9 The markup reads: "(fc) Local roads improvement
8 Legislative Reference Bureau Analysis of 2019 Assembly
Bill 56 (Analysis of Bill 56), at 90, https://
docs.legis.wisconsin.gov/2019/related/proposals/ab56.pdf.
9 Joint Statement, ¶24.
5
No. 2019AP1376-OA.pdr
discretionary supplement . . . 90,000,000 [and Governor Evers
wrote in 75,000,000]." As partially vetoed, the scheduled item
states: "Local supplement . . . 75,000,000."
¶20 Governor Evers also partially vetoed § 184s:
"20.395(2)(fc) of the statutes is created to read: 20.395(2)
(fc) Local roads improvement discretionary supplement. From the
general fund, as a continuing appropriation, the amounts in the
schedule for the local roads improvement discretionary
supplemental grant program under s. 86.31 (3s)." As partially
vetoed, the section states: "Local supplement. From the
general fund, as a continuing appropriation, the amounts in the
schedule for local grant [sic]."
¶21 Governor Evers vetoed the entirety of § 1095m:
86.31 (3s) of the statutes is created to read:
86.31 (3s) DISCRETIONARY SUPPLEMENTAL GRANTS.
(a) Funds provided under s. 20.395 (2) (fc) shall be
distributed under this subsection as discretionary
grants to reimburse political subdivisions for
improvements. The department shall solicit and
provide discretionary grants under this subsection
until all funds appropriated under s. 20.395 (2) (fc)
have been expended. (b) 1. From the appropriation
under s. 20.395 (2) (fc), the department shall
allocate $32,003,200 in fiscal year 2019–20, to fund
county trunk highway improvements. 2. From the
appropriation under s. 20.395(2) (fc), the department
shall allocate $35,149,400 in fiscal year 2019–20, to
fund town road improvements. 3. From the
appropriation under s. 20.395 (2) (fc), the department
shall allocate $22,847,000 in fiscal year 2019–20, to
fund municipal street improvement projects. (c)
Notwithstanding sub. (4), a political subdivision may
apply to the department under this subsection for
reimbursement of not more than 90 percent of eligible
costs of an improvement.
6
No. 2019AP1376-OA.pdr
C. The Vehicle Fee Schedule
¶22 A third series of vetoes altered the amount truck
owners must pay to register their vehicles. Registration fees
had varied depending on the weight class of the vehicle.
Section 1988b of the enrolled bill would have made the fee for
four weight classes the same. In so doing, it would have
increased the fee for two weight classes and decreased the fee
for two others. Governor Evers used his partial veto powers to
retain the legislature's proposed fee increases and void its
proposed decreases. In the marked-up language, italicized words
represent deletions by the legislature, underlined words
represent insertions by the legislature and crossed-out words
represent partial vetoes by Governor Evers:
341.25(2)(a) to (cm) of the statutes are amended to
read: 341.25 (2)(a) Not more than 4,500 $ 75.00 100.00
(b) Not more than 6,000 . . . . . . . . . . 84.00
100.00 (c) Not more than 8,000 . . . . . . . . . .
106.00 100.00 (cm) Not more than 10,000 . . . . . . .
. . . 155.00 100.00
¶23 The parties stipulated to a table that summarizes the
changes:10
10 Id., ¶33.
7
No. 2019AP1376-OA.pdr
Maximum Pre-Act 9 Annual Fee Annual Fee
Gross Annual Approved by Chosen by
Weight in Fee the Governor
Pounds Legislature Evers
Not more $75.00 $100.00 $100.00
than 4,500
Not more $84.00 $100.00 $100.00
than 6,000
Not more $106.00 $100.00 $106.00
than 8,000
Not more $155.00 $100.00 $155.00
than 10,000
D. The Vapor Products Tax
¶24 The last challenged veto altered a section that
imposed a tax on "vapor products" by expanding the definition of
vapor product to include liquid heated by a vaping device. For
context, sometimes vaping fluid is sold separately from vaping
devices. An analogy is pipe tobacco, which is sold separately
from pipes. Section 1754 of the enrolled bill defined vapor
products to include the hardware that produces vapor from the
application of a heating element to liquid. However, the
definition did not encompass the liquid. Governor Evers
partially vetoed a clause in the definition, which expanded it
to include the liquid:
139.75 (14) of the statutes is created to read: 139.75
(14) "Vapor product" means a noncombustible product
that produces vapor or aerosol for inhalation from the
application of a heating element to a liquid or other
substance that is depleted as the product is used,
regardless of whether the liquid or other substance
contains nicotine.
8
No. 2019AP1376-OA.pdr
II. DISCUSSION
A. Standard of Review
¶25 As this is an original action, we have no lower court
opinion to review.11 We are required to interpret Article V,
Section 10(1)(b) to decide the pending controversy, which
presents a question of law. Koschkee v. Taylor, 2019 WI 76, ¶9,
387 Wis. 2d 552, 929 N.W.2d 600.
¶26 Taxpayers ask us to overturn our precedent in part.
They bear the burden of persuading us to do so. State v.
Breitzman, 2017 WI 100, ¶5 n.4, 378 Wis. 2d 431, 904 N.W.2d 93.
B. Overview of the Partial Veto Power
¶27 Taxpayers argue that some of our decisions have
deviated from the original meaning of Article V, Section
10(1)(b) and that we should return to the original meaning.
They assert, "[a]s originally enacted, Article V, Section
10(1)(b) of the Wisconsin Constitution authorized the governor
to approve or disapprove legislative proposals capable of
separate enactment but appearing in a single bill, nothing
more." Therefore, I thoroughly analyze the constitutional text
and our precedent. In addition, I consider failed and
successful amendments to the governor's partial veto power to
demonstrate that the people of Wisconsin have actively responded
to our decisions when they have deemed it proper to do so.
1. Amendment of Article V, Section 10
Original jurisdiction is proper under Wis. Const. art.
11
VII, § 3(2). We have invoked our original jurisdiction to
interpret the scope of the governor's partial veto powers on
eight prior occasions, which are discussed below.
9
No. 2019AP1376-OA.pdr
¶28 The Wisconsin Constitution, as originally adopted in
1848, did not allow the governor to veto less than an entire
bill. At that time, no state constitution authorized the veto
of less than an entire bill. Such authority first appeared in
the constitution of the Confederate States in 1861 and was
limited to appropriations bills. Henry Campbell Black, Relation
of the Executive Power to Legislation 103 (1919). By 1919,
thirty-seven states allowed their governor to veto less than an
entire appropriations bill. Id. Notably, these states
generally adopted "item" vetoes. For example, the Illinois
Constitution authorized the governor to disapprove "any one or
more items or sections" of an appropriations bill. State ex
rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 311, 260 N.W. 486(1935) (quoting Ill. Const. art. V, § 16 (1935)). One
contemporary source defined an "item" as "any part of a bill
[making appropriations] which is sufficiently distinct that it
may be separated without serious damage to the essential force
of the residue." John Mabry Mathews, American State Government
223 (1926).
¶29 In 1911, Wisconsinites began debating whether to
authorize the governor to veto less than an entire
appropriations bill because the legislature started "packaging
multiple appropriation measures into larger, omnibus bills."
Richard A. Champagne, Staci Duros & Madeline Kasper, The
Wisconsin Governor's Partial Veto, Reading the Constitution,
June 2019, at 1, 3-4. This became known as "logrolling":
[T]he practice of jumbling together in one act
inconsistent subjects in order to force a passage by
10
No. 2019AP1376-OA.pdr
uniting minorities with different interests when the
particular provisions could not pass on their separate
merits, with riders of objectionable legislation
attached to general appropriation bills in order to
force the governor to veto the entire bill and thus
stop the wheels of government or approve the obnoxious
act.
State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447-48, 289
N.W. 662 (1940).
¶30 Before 1911, the legislative practice was to pass on
each appropriation in a separate bill. Champagne et al., The
Wisconsin Governor's Partial Veto, at 3. By 1913, Governor
Francis E. McGovern began to publically complain about the
changes to the appropriations process. Id.; State ex rel. Wis.
Senate v. Thompson, 144 Wis. 2d 429, 438, 424 N.W.2d 385 (1988).
He argued that the legislature was passing "omnibus bills" with
"fifty to one hundred items." Champagne et al., The Wisconsin
Governor's Partial Veto, at 3 (quoting Associated Press,
McGovern Criticizes State Legislature, Janesville Daily Gazette,
Sept. 18, 1913, at 1). Furthermore, the legislature would wait
until the current budget was close to expiring. Champagne et
al., The Wisconsin Governor's Partial Veto, at 3. He said this
practice "tied the hands of the executive, and he practically
had no alternative except to approve the appropriations as a
whole." Id. (quoting McGovern Criticizes State Legislature, at
1). Ultimately, Governor McGovern lost his campaign for
increased veto powers. Champagne et al., The Wisconsin
Governor's Partial Veto, at 4.
¶31 The next substantial push for increased gubernatorial
power came in 1925. That year, two proposals were considered.
11
No. 2019AP1376-OA.pdr
The first never made it out of committee. Id. at 5 & n.32. The
second proposal failed by a vote of 14 to 9 in the Senate. Id.
at 6. It read, in part: "The governor may disapprove or reduce
items or parts of items in any bill appropriating money. So
much of such bill as he approves shall upon his signing become
law." 1925 Senate Joint Resolution 23.
¶32 In 1927, Senator William Titus introduced a similar
resolution: "Appropriation bills may be approved in whole or in
part by the governor, and the part approved shall become law,
and the part objected to shall be returned in the same manner as
provided for other bills." Champagne et al., The Wisconsin
Governor's Partial Veto, at 6 (quoting 1927 Senate Joint
Resolution 35; 1927 Enrolled Joint Resolution 37). The
resolution passed both houses. One newspaper explained, "This
would allow that executive to return unfavored appropriations to
the legislators, at the same time passing others in the same
bill thus speeding the legislative work." Champagne et al., The
Wisconsin Governor's Partial Veto, at 7 n.38 (quoting Beats Plan
for Repeal of Car Tax, Capital Times, March 15, 1927). The
resolution again passed both houses in 1929, and it was ratified
by the people in November 1930.12 Champagne et al., The
Wisconsin Governor's Partial Veto, at 7.
¶33 Both the failed 1925 resolution and the successful
1930 amendment are believed to have been drafted by Edwin Witte,
the Chief of the Legislative Reference Library (the predecessor
The Wisconsin Constitution provides that a proposed
12
amendment must be approved by two consecutive legislatures and
then ratified by the people. Wis. Const. art. XII, § 1.
12
No. 2019AP1376-OA.pdr
to the Legislative Reference Bureau), and drafting files
describe an item veto. See Frederick B. Wade, The Origin &
Evolution of the Partial Veto Power, Wis. Lawyer, Mar. 2008, at
12, 14; Mary E. Burke, Comment, The Wisconsin Partial Veto:
Past, Present and Future, 1989 Wis. L. Rev. 1395, 1402 n.44.
The drafting file for the 1927 resolution indicates that Senator
Titus requested the Legislative Reference Library to draft a
resolution "to allow the Governor to veto items in appropriation
bills." A cover sheet in the drafting file reads, "res. to
permit Gov. to veto items in app. bills." The library wrote to
Senator Titus, "Enclosed herewith is a revised draft of the
Joint Resolution you asked us to prepare, to allow the Governor
to veto items in appropriation bills." See John S. Weitzer,
Comment, The Wisconsin Partial Veto: Where Are We and How Did
We Get Here? The Definition of "Part" and the Test of
Severability, 76 Marq. L. Rev. 625, 631 n.35 (1993) (summarizing
the drafting file). The 1929 drafting file has a similar
reference to "allow[ing] the governor to veto items." Wade, The
Origin & Evolution of Partial Veto Power, at 14.
¶34 The drafting files do not indicate why, if the drafter
intended an item veto, he used the word, part. Champagne et
al., The Wisconsin Governor's Partial Veto, at 6. Notably
though, some contemporary sources used the term "partial" veto
to describe an item veto. Black, Relation of the Executive
Power to Legislation, at 101 (chapter titled "The Selective or
Partial Veto" describing an item veto used in many states).
13
No. 2019AP1376-OA.pdr
¶35 The campaign for ratification of the 1930 amendment
also described an item veto. Champagne et al., The Wisconsin
Governor's Partial Veto, at 5. For example, Witte——the believed
drafter——wrote a brief supporting its ratification. Edwin E.
Witte, Brief in Support of the Proposed Amendment to the
Constitution to Allow the Governor to Veto Items in
Appropriation Bills (1930). Its first sentence reads: "The
governor's veto of items in appropriation bills is an essential
part of an executive budget system." Id. As one article,
published in the Wisconsin Lawyer in 2008, summarizes: "The
brief uses the words item and items a total of 19
times. . . . Under these circumstances, it appears that Witte
viewed the terms part and item as interchangeable synonyms for
expressing the item veto concept." Wade, The Origin & Evolution
of the Partial Veto Power, at 14.
¶36 Several newspaper articles at the time of the
constitutional amendment described an item veto. For example,
The League of Women Voters' "explanation of the proposal" said
it would "enable the governor to veto single items in an
appropriations bill without vetoing the entire bill." A
Proposed Amendment, Wausau Daily Record-Herald, Oct. 28, 1930,
at 8. A Capital Times article quoted Senator Thomas Duncan, who
introduced the 1929 resolution, as saying, "[t]he item veto is
absolutely indispensable." It would "merely giv[e] back to the
governor the power" he had when "most appropriations were
divided into separate bills." Duncan Tells Need for New Vote
Powers, Capital Times, Oct. 14, 1930, at 7. Similarly, the
14
No. 2019AP1376-OA.pdr
Wisconsin State Journal reported him saying the new veto power
was "not revolutionary, but on the contrary [was] in successful
operation in 37 states." Veto Rule Better Law Step, Claim,
Wis. St. J., Oct. 13, 1930, at 7.
¶37 Following the amendment's ratification, sources also
described it as an item veto. For example, the 1931–32
Wisconsin Blue Book explained the amendment permitted the
governor "to veto single items in appropriation bills." The
Wisconsin Blue Book 583 n.1 (1931).
2. Our Precedent
¶38 We first interpreted the governor's partial veto power
in Henry.13 Since then, we have interpreted the governor's
partial veto powers seven more times. As our decisions
demonstrate, governors have become more creative and aggressive
with their partial vetoes. Yet, our decisions explain only two
relevant limits:14 (1) the part approved must be a complete,
entire and workable law; and (2) the part approved must be
germane to the topic or subject matter of the enrolled bill
before the veto. Constitutional amendments also have
added: "In approving an appropriation bill in part, the
At passage, the provisions now in Article V, Section
13
10(1)(b) were not in a subsection, but were italicized and
inserted into Section 10. The wording was a bit different:
"Appropriation bills may be approved in whole or in part by the
governor, and the part approved shall become law, and the part
objected to shall be returned in the same manner as provided for
other bills." Wis. Const. art. V, § 10 (1930).
For write-in vetoes, where a governor crosses out a
14
number and writes in a lesser number, we have articulated
additional restrictions, which are described below.
15
No. 2019AP1376-OA.pdr
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." Wis. Const. art. V, § 10(1)(c).
a. Early Cases
¶39 In the midst of the Great Depression, Wisconsinites
were suffering. The legislature passed an emergency relief
package. Henry, 218 Wis. at 307–08. As one comment summarizes,
"To raise revenue for the relief efforts, the nine-section bill
included six sections providing authority to impose emergency
income taxes. Another section of the bill appropriated funds
for relief efforts and specified how the funds were to be
distributed. Two other sections stated legislative intent."
Burke, The Wisconsin Partial Veto, at 1401. The governor "when
presented with the bill, vetoed the legislative intent sections
and the distribution subsections of the appropriation section."
Id. The assembly did not override his vetoes.
¶40 The Wisconsin Telephone Co., a taxpayer, commenced an
original action, arguing:
[T]he governor's disapproval of parts of the bill, as
originally passed, by the legislature, and his
approval of the remaining parts thereof, was
unauthorized under [Wis. Const. art. V, § 10] because
the constitutional grant of power to the governor by
that section to approve parts of an appropriation bill
and to disapprove parts thereof does not grant power
to him to approve the appropriation, and disapprove a
proviso or condition inseparably connected to the
appropriation, nor to disapprove parts of an
appropriation bill that are not an appropriation.
Henry, 218 Wis. at 309.
16
No. 2019AP1376-OA.pdr
¶41 We did not decide whether the governor had the power
to reject provisos or conditions that are inseparably connected.
Id. Instead, we concluded that "the parts which were
disapproved by the governor were not provisos or conditions
which were inseparably connected to the appropriation." Id.
But we acknowledged that there was a plausible argument that the
governor could not veto inseparable provisos or conditions. Id.
at 309–10 (citing State ex rel. Teachers & Officers v. Holder,
23 So. 643 (Miss. 1898)).
¶42 We also concluded that the governor could "pass
independently on every separable piece of legislation in an
appropriation bill." Henry, 218 Wis. at 315. In our
interpretation of the term, "part," which was employed in the
amendment of Article V, Section 10, we reasoned that the partial
veto power must be broader than an item veto. Id. at 310–14.
We also concluded that "part" should be given its "usual,
customary, and accepted meaning [as] . . . '[o]ne of the
portions, equal or unequal, into which anything is divided, or
regarded as divided; something less than a whole.'" Id. at 313
(quoting Part, Webster's New Int'l Dictionary 1781 (2d ed.)).
We observed that the part approved constituted a "complete,
entire, and workable law, for the appropriation for relief
purposes, of the money to be raised, as tax revenues thereunder,
and for the allotment and use of that appropriation." Henry,
218 Wis. at 314. The vetoes were upheld.
¶43 In State ex rel. Finnegan v. Dammann, 220 Wis. 143,
264 N.W. 622 (1936), we were asked to decide whether a bill on
17
No. 2019AP1376-OA.pdr
which the governor asserted a partial veto was an appropriation
bill. We concluded that the enrolled bill was not an
appropriations bill. Id. at 148-49. Therefore, the governor's
attempted veto was "ineffective because the subject matter of
the bill did not fall within the constitutional provision
authorizing a partial veto." Id. at 149. "Finnegan added
nothing to Henry's analysis of the definition of 'part' and the
test of severability." Weitzer, The Wisconsin Partial Veto, at
637.
¶44 Four years after Finnegan, we decided Martin. As one
comment summarizes, "the legislature enacted a bill changing the
amount of state funds appropriated as aid for dependent
children." Burke, The Wisconsin Partial Veto, at 1405. As with
Henry, the governor vetoed sections and subsections of the
enrolled bill. The Secretary of State refused to publish the
act on procedural grounds, which are unimportant for our
purposes, as well as substantive grounds. As a substantive
matter, he argued that the partial vetoes "so changed the
legislative program or policy . . . as to render the parts
approved . . . invalid." Martin, 233 Wis. at 450.
¶45 We began by construing Article V, Section 10. We
concluded that the partial veto amendment was not ambiguous, and
as "amended in 1930 it must be construed as a whole." Id. at
447. We explained that the amendment's "purpose was to prevent,
if possible, the adoption of omnibus appropriation bills,
logrolling, the practice of jumbling together in one act
inconsistent subjects in order to force a passage by uniting
18
No. 2019AP1376-OA.pdr
minorities with different interests when the particular
provisions could not pass on their separate merits." Id. at
447-48. We then rejected the Secretary of State's argument,
relying on Henry:
It must be conceded that the governor's partial
disapproval did effectuate a change in policy; so did
the partial veto of the bill involved in the case of
[Henry], supra, which this court held to be valid.
The question here is whether the approved parts, taken
as a whole, provide a complete workable law. We have
concluded that they do, and we must give them effect
as such.
Id. at 450.
¶46 For the next four decades, "the partial veto was
rarely used." Champagne et al., The Wisconsin Governor's
Partial Veto, at 1. "Aside from the 1931 and 1933 biennial
budget bills, in which there were 12 partial vetoes, subsequent
governors either did not partially veto any provisions or
partially vetoed only one or two provisions in budget bills
until the 1969 legislative session." Id.
b. Later Cases
¶47 We next addressed the partial veto in State ex rel.
Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976). As
one comment explains, "[i]n Sundby, Governor [Patrick] Lucey
vetoed clauses of sentences. Previously, partial vetoes
involved only sections and subsections of appropriation bills."
Weitzer, The Wisconsin Partial Veto, at 639 n.89. "The subject
matter of the portion of the appropriations bill to which these
partial vetoes appl[ied] involved tax levy limits imposed on
19
No. 2019AP1376-OA.pdr
towns, villages, cities and counties." Sundby, 71 Wis. 2d at
121. The markup read:
If the [governing body of the political subdivision]
desires to increase its tax levy above the limitations
specified in this section, it shall publish such
intent in a class I notice under ch. 985 in the
official town newspaper. The notice shall include a
statement of the purpose and the amount of the
proposed levy and the amount by which it wishes to
exceed the limits imposed by this section. If, within
20 days after publication of the notice, a petition is
filed with the town clerk signed by a number of
electors equal to, or in excess of, 5% of the number
of electors casting ballots in the town in the last
gubernatorial election, the question of the proposed
amount of increase in levy above the limitations
specified in this section shall be submitted to a
referendum at a spring election, general election or
special election.
Id. at 122–23. "In substance, the governor's veto made
mandatory the local referendums which the bill, as passed by the
legislature, made optional." Id. at 124.
¶48 We explained that the constitutions of other states
focused on item vetoes and limited partial vetoes to "item or
items." Id. at 128. However:
The Wisconsin Constitution, by way of contrast,
confers upon its chief executive the power to object
to "part" of the bill and, in construing this power,
this court has indicated that the chief executive has
a greater range of options pursuant to such
terminology as to the manner in which he may exercise
the partial veto than he might have if the power were
limited to "items."
Id.¶49 We addressed two arguments not thoroughly analyzed in
our prior decisions for curtailing the governor's partial veto
power. First, we considered how separation of powers analysis
20
No. 2019AP1376-OA.pdr
should impact our understanding of the amendment of Article V,
Section 10. In particular, we considered that "[t]he
legislative power is vested by the Wisconsin Constitution in the
senate and the assembly." Id. at 131. But we then explained
that the governor plays a role in the legislative process. Id.at 131–34. Second, we addressed whether the partial veto power
could "bring about an affirmative change in the result intended
by the legislature" or merely "negative what the legislature has
done." Id. at 134. We rejected the distinction between
affirmative and negative changes. Id. We stated:
Every veto has both a negative and affirmative ring
about it. There is always a change of policy
involved. We think the constitutional requisites of
[Wis. Const.] art. V, [§] 10, fully anticipate that
the governor's action may alter the policy as written
in the bill sent to the governor by the legislature.
Id. We upheld the vetoes, noting as we had in Henry that the
provisions were "separable." Id. at 135.
¶50 Two years after Sundby, we decided State ex rel.
Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978). The
governor's markup read: "(1) Every individual filing an income
tax statement may designate that their income tax liability be
increased by $1 for deposit into the Wisconsin Election Campaign
Fund for the use of eligible candidates under s. 11.50." Id. at
685. The consequence of this veto was that taxpayers could
choose to provide $1 to the campaign fund without increasing
their tax liability. Id.¶51 The petitioners and the legislature's amicus made two
arguments. First, the petitioners argued that the partial veto
21
No. 2019AP1376-OA.pdr
"created an appropriation where none existed before." Id. at
704. Second, the petitioners and the amicus argued that
"voluntary contributions were a proviso or condition upon which
the appropriation depended and that such proviso or condition
were ipso facto inseverable from the appropriation itself." Id.¶52 We rejected the first argument because it was
"incorrect, under the facts, for the petitioners to assert that
the bill as altered by the Governor created an appropriation
where none existed before. . . . Rather, it affected the source
from which the appropriated funds were to be derived." Id. at
704–05.
¶53 Next, we acknowledged that "[s]everability is indeed
the test of the Governor's constitutional authority to partially
veto a bill." Id. at 705. We explained that the test for
severability is whether the part approved constitutes a
complete, entire and workable law. Id. at 705–06. In Henry, we
had suggested that some provisos or conditions might be
inseparable; in Kleczka, we said that discussion in Henry was
simply dicta. Kleczka, 82 Wis. 2d at 712–14. Henry did not
need to speculate about the constitutionality of vetoing
provisos or conditions because the relevant sections and
subsections were not provisos or conditions. In Kleczka, we,
therefore, upheld the veto.
¶54 Justice Hansen authored the first separate writing in
this line of cases, concurring in part and dissenting in part.
He noted that "[i]n recent years, partial vetoes have not only
increased greatly in number; they have been applied to ever
22
No. 2019AP1376-OA.pdr
smaller portions of bills." Id. at 719 (Hansen, J., concurring
in part and dissenting in part). This concerned him, and he
stated, "the standard adopted by the court poses no discernible
obstacle to the use of deletions to produce a complete, entire
and workable bill concerning a subject utterly unrelated to that
of the bill as passed by the legislature." Id. at 723. His
separation of powers analysis came to the opposite conclusion of
the majority: "At some point this creative negative constitutes
the enacting of legislation by one person, and at precisely that
point the governor invades the exclusive power of the
legislature to make laws." Id. at 720.
¶55 He stated: "the partial veto power should be
exercised only as to the individual components, capable of
separate enactment, which have been joined together by the
legislature in an appropriation bill. That is, the portions
stricken must be able to stand as a complete and workable bill."
Id. at 726. Stated otherwise, Justice Hansen would have applied
the complete, entire and workable law requirement to both the
part approved and the part rejected.
¶56 A few years after Kleczka, in 1983, Governor Anthony
Earl was the first to veto individual letters, which has since
become known as the "Vanna White"15 or "pick-a-letter" veto.
Benjamin W. Proctor, Comment, Wisconsin's Chief Legislator: The
Governor's Partial Veto Authority and the New Tipping Point, 90
15 Vanna White is a television personality on Wheel of
Fortune. James K. Conant, Wisconsin Politics and Government:
America's Laboratory of Democracy 46 (2006).
23
No. 2019AP1376-OA.pdr
Marq. L. Rev. 739, 750 (2007). In a law review article he later
authored, he stated:
In the 1983–85 budget bill, I vetoed letters and
digits to reduce a paragraph of five sentences into a
one-sentence paragraph of twenty-two words. This
time, the legislature was not interested in the
political result; it looked only at the philosophical
question of the balance of power between the
legislative and executive branches. It determined
decisively that as a representative of the executive
branch, I had gone too far. The veto was overridden
unanimously by the state assembly and with only one
dissenting vote in the senate.
Anthony S. Earl, Personal Reflections on the Partial Veto, 77
Marq. L. Rev. 437, 440 (1994).
¶57 Just a few years later, Governor Tommy Thompson
utilized the Vanna White veto. He struck "phrases, digits,
letters, and word fragments in an executive budget bill, so as
to create new words, sentences, and dollar amounts." Champagne
et al., The Wisconsin Governor's Partial Veto, at 12.
¶58 Governor Thompson's vetoes were not overridden, and
the constitutionality of some of them came before us in Wis.
Senate, 144 Wis. 2d 429. In total, thirty-seven vetoes were
challenged. To give one example:
[O]ne section of the budget bill would have created a
statutory provision allowing courts to detain for "not
more than 48 hours" any juvenile violating a
delinquency proceeding court order. Governor Thompson
vetoed the term "48 hours" and creatively substituted
"ten days" by vetoing individual letters and words
from another sentence in that section.
Burke, The Wisconsin Partial Veto, at 1396. To give another
example, he reduced a $750,000 appropriation to $75,000 by
vetoing a "0." Id.24
No. 2019AP1376-OA.pdr
¶59 Reiterating our analysis from Kleczka——that the part
approved must be a complete, entire and workable law——we upheld
the partial vetoes. Wis. Senate, 144 Wis. 2d at 449–50.
¶60 We also explained that the consequences of any partial
veto must be a law that remains consistent with the topic or
subject matter of the "whole" bill. Id. at 437. "This
limit[ed] the ability of a governor to strike just any word in a
sentence." Champagne et al., The Wisconsin Governor's Partial
Veto, at 19; see also Gordon B. Baldwin, The Partial Veto Power
Threatens Democracy: A Rebuttal, 5 Graven Images 267, 268
(2002).
¶61 There have been two cases regarding the partial veto
power since Wis. Senate: Citizens Utility Bd. v. Klauser, 194
Wis. 2d 484, 534 N.W.2d 608 (1995) and Risser v. Klauser, 207
Wis. 2d 176, 558 N.W.2d 108 (1997). In Citizens Utility Board,
we concluded that the governor was permitted "to strike a
numerical sum appropriated in the bill and to insert a
different, smaller number as the appropriated sum." Citizens
Utility Bd., 194 Wis. 2d at 488. In Risser, we concluded that
the governor's "write-in veto may be exercised only on a
monetary figure which is an appropriation amount." Risser,
Wis. 2d at 181.
¶62 Notably, in both of these opinions, we reiterated the
limitation we had described as a "germaneness" limitation. Id.
at 183; Citizens Utility Bd., 194 Wis. 2d at 506. In Citizens
Utility Board, we explained the write-in veto "survives the
'topicality' or 'germaneness' requirement set forth in Wis.
25
No. 2019AP1376-OA.pdr
Senate. The new provision approved by the governor——'$250,000'—
—relates to the same subject matter as the original legislative
enactment, viz., a money appropriation to be utilized by
[Citizens Utility Board] as a public interest advocacy entity."
Citizens Utility Bd., 194 Wis. 2d at 505. In Risser, while we
mentioned a germaneness limitation, we did not apply it.
However, we did state that "a governor's power to craft
legislation necessarily must have constitutional limits."
Risser, 207 Wis. 2d at 197.
3. Failed and Successful Amendments
¶63 The executive and legislative branches are acutely
aware of our decisions in this area. There have been numerous
proposals to amend the partial veto power. Champagne et al.,
The Wisconsin Governor's Partial Veto, at Appendix Tbl. 3
(listing proposals from 1935 to 2013). Indeed, the same year as
Henry, "state legislators proposed limiting the governor's
partial veto authority to 'appropriation items.' The proposal,
however, failed to pass either the Assembly or the Senate."
Burke, This Wisconsin Partial Veto, at 1403. A similar series
of events followed Martin and Kleczka. Id. at 1406 n.77;
Proctor, Wisconsin's Chief Legislator, at 763 n.156.
¶64 Twice, the partial veto power has been successfully
curtailed by amendment, once in 1990 and once in 2008.
Together, these amendments are set out at Article V, Section
10(1)(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
26
No. 2019AP1376-OA.pdr
new sentence by combining parts of 2 or more sentences of the
enrolled bill." The 1990 amendment, which prohibited the
creation of words by deleting letters, was a response to Wis.
Senate. Burke, The Wisconsin Partial Veto, at 1426. The 2008
amendment was a response to partial vetoes made by Governor Jim
Doyle and prohibited the creation of new sentences by combining
parts of two or more sentences of the enrolled bill. Proctor,
Wisconsin's Chief Legislator, at 752–54.
C. Stare Decisis
¶65 In the case-at-hand, Taxpayers ask us to overturn
Henry because it adopted, in their view, an overly broad
definition of "part." Alternatively, they ask us to overrule
Kleczka and "hold that the governor may not exercise the partial
veto in a way that transforms the meaning and purpose of a law
into something entirely new." In particular, they ask us to
reconsider Kleczka's rejection of the suggestion in Henry that
the governor cannot veto "provisos or conditions which were
inseparably connected to the appropriation." The Legislature's
amicus asks us to adopt the test proposed by Justice Hansen's
separate writing in Kleczka: that both the part approved and
the part rejected must be complete, entire and workable laws.
¶66 "We are respectful of the doctrine of stare decisis."
State v. Roberson, 2019 WI 102, ¶49, 389 Wis. 2d 190, 935 N.W.2d
813. As we have explained:
[Adhering to precedent] ensures that existing law will
not be abandoned lightly. When existing law is open
to revision in every case, deciding cases becomes a
mere exercise of judicial will, with arbitrary and
unpredictable results. Consequently, this court has
27
No. 2019AP1376-OA.pdr
held that any departure from the doctrine of stare
decisis demands special justification.
Id., ¶49 (quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257
Wis. 2d 19, 653 N.W.2d 266) (modifications in the original).
¶67 Because Taxpayers' argument is grounded in
originalism, I note that even prominent originalists respect
stare decisis. As Justice Scalia once stated: "You have to
make stare decisis an exception to any philosophy of judicial
interpretation." Law and Justice Scalia, Hoover Institution at
23:30–38 (Mar. 16, 2009),
https://www.youtube.com/watch?v=zE9biZT_z1k&t=1435s (last
visited June 27, 2020); see also Antonin Scalia, A Matter of
Interpretation: Federal Courts and the Law 140 (1997) ("[S]tare
decisis is not a part of my originalist philosophy; it is a
pragmatic exception to it."). In one of Justice Scalia's best
known writings, he explained:
In [originalism's] undiluted form, at least, it is
medicine that seems too strong to swallow. Thus,
almost every originalist would adulterate it with the
doctrine of stare decisis——so that Marbury v. Madison
would stand even if [a prominent legal scholar] should
demonstrate unassailably that it got the meaning of
the Constitution wrong.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L.
Rev. 849, 861 (1989).
¶68 When we are asked to overturn precedent, we consider
whether:
(1) Changes or developments in the law have undermined
the rationale behind a decision; (2) there is a need
to make a decision correspond to newly ascertained
facts; (3) there is a showing that the precedent has
become detrimental to coherence and consistency in the
28
No. 2019AP1376-OA.pdr
law; (4) the prior decision is "unsound in principle;"
or (5) the prior decision is "unworkable in practice."
Roberson, 389 Wis. 2d 190, ¶50 (citing Bartholomew v. Wis.
Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI
91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216). "We also may consider
'whether [our past decision] has produced a settled body of
law.'" Roberson, 389 Wis. 2d 190, ¶50 (quoting Johnson
Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶99,
264 Wis. 2d 60, 665 N.W.2d 257) (modifications in original).
¶69 To begin with the request to overturn Henry, Taxpayers
argue:
[S]tare decisis is "at its weakest when [this Court]
interpret[s] the Constitution because [its]
interpretations[s] can be altered only by
constitutional amendment." Franchise Tax Bd. of
California v. Hyatt, 139 S. Ct. 1485, 1499 (2019)
(quoting Agostini v. Felton, 521 U.S. 203, 235
(1997)). Appropriately, then, this Court has
recognized it need not "retain constitutional
interpretations that were objectively wrong when
made." Koschkee, 387 Wis. 2d 552, ¶8 n.5. And, as
already explained, Henry's interpretation was
"objectively wrong when made."
By "objectively wrong," Taxpayers mean that Henry is not in
accord with the original meaning of the 1930 constitutional
amendment. In addition to the history of Article V, Section
10(1)(b), Taxpayers refer us to other provisions of the
Wisconsin Constitution that they assert support their argument.
For example, they cite Article VIII, Section 8, which provides:
On the passage in either house of the legislature of
any law which . . . makes, continues or renews an
appropriation of public or trust money . . . three-
fifths of all the members elected to such house shall
in all such cases be required to constitute a quorum
therein.
29
No. 2019AP1376-OA.pdr
Taxpayers further argue that Henry has not created a "reliance
interest." They also contend that Henry has proven "unworkable
in practice" because it has led to, arguably, abusive practices
by increasingly creative governors.
¶70 Governor Evers responds with several points. First,
he argues that Taxpayers' reliance on Koschkee is misplaced.
Koschkee "overruled a single decision from three years earlier
that had 'no common legal rationale' for its mandate." He
argues that Henry is different because of "[t]he near century of
consistent partial-veto decisions" stemming from it. In
essence, Governor Evers argues that Henry has produced a settled
body of law, and he claims a reliance interest. Second,
Governor Evers cites the constitutional amendments in 1990 and
2008. They are, according to him, a "part of the corpus of
settled law that must be uprooted if [Taxpayers] win" because
"both amendments presuppose that Article V, § 10(1)(b)[]
empowers the Governor to veto any 'part' of an appropriation
bill, no matter how small." Third, Governor Evers contends that
partial veto decisions have been workable in practice. He
claims we have had "no problem drawing a line between valid and
invalid vetoes."
¶71 I reject Taxpayers' request to overturn Henry. First,
I cannot say that Henry was objectively wrong. An objectively
wrong opinion is not merely an opinion that was "mistaken." Cf.
State v. Friedlander, 2019 WI 22, ¶18, 385 Wis. 2d 633, 923
N.W.2d 849 (explaining the difference between an opinion that is
objectively wrong and an opinion that is mistaken in the context
30
No. 2019AP1376-OA.pdr
of statutory interpretation); State v. Fuerte, 2017 WI 104, ¶61,
378 Wis. 2d 504, 904 N.W.2d 773 (same) (Abrahamson, J.,
dissenting). An objectively wrong opinion is one whose
interpretation of the law is not plausible. State v. Lagundoye,
2004 WI 4, ¶¶72–75, 268 Wis. 2d 77, 674 N.W.2d 526 (Abrahamson,
C.J., dissenting). That cannot be said about Henry's
interpretation of Article V, Section 10(1)(b).
¶72 As we explained in Henry, the words "item" and "part"
are not synonyms. Henry, 218 Wis. at 310–11. Furthermore,
nearly every state constitution that authorized an "item veto"
at the time of the 1930 amendment used the word "item." Id. at
310–12. Indeed, the failed 1925 resolution, likely drafted by
the same person that drafted the 1930 amendment, used the word
"item." Therefore, if the intent of the 1930 amendment was to
create an "item veto," it easily could have been done. In
addition, Henry was decided in 1935——a mere five years after the
amendment. Therefore, as the earliest case interpreting the
amendment, to some extent, Henry is itself evidence of the
original meaning of the 1930 amendment.
¶73 More fundamentally, the successful, subsequent
amendments to Article V, set out in § 10(1)(c), prohibit a
governor from "creat[ing] a new word by rejecting letters in the
words of the enrolled bill" and from "creat[ing] a new sentence
by combining parts of 2 or more sentences of the enrolled bill."
Article V, § 10(1)(c). If we were to read § 10(1)(b) as
permitting the veto of only an item, then there would have been
no need for § 10(1)(c), which prohibits the governor from
31
No. 2019AP1376-OA.pdr
removing letters to create a new word or creating new sentences
with words from two or more sentences. Stated otherwise,
§ 10(1)(c) would have no effect after an "item" is vetoed, as
nothing of the "item" would have been left. However, § 10(1)(c)
has effect because by vetoing "part," smaller portions of an
enrolled bill can be altered, as shown by Wis. Senate, on which
§ 10(1)(c) placed limits.
¶74 Taxpayers' references to other constitutional
provisions are not persuasive; indeed, the references highlight
why Taxpayers have not established that Henry is objectively
wrong. Taxpayers ask us to minimize the role Article V,
§ 10(1)(c) plays in our interpretation, even though it sets out
successful amendments, which clearly relate to Article V,
§ 10(1)(b). Yet, they ask us to consider other provisions that
are not clearly related. For example, Taxpayers have not
explained how Article VIII, Section 8 supports their argument.
It provides quorum requirements for votes on fiscal bills. What
that has to do with the partial veto power, which takes place
after such a vote, is unclear.
¶75 Second, our decisions, consisting of eight cases
dating back eighty-five years, have produced a "settled body of
law" despite naysayers' attempts to unsettle it. Roberson, 389
Wis. 2d 190, ¶50 (quoting Johnson Controls, 264 Wis. 2d 60,
¶99). Indeed, we have previously rejected a similar argument
about original meaning. Wis. Senate, 144 Wis. 2d at 461 n.18.
We cannot rehash original meaning——and its interaction with
stare decisis——every time a partial veto comes before us. There
32
No. 2019AP1376-OA.pdr
is good reason that prominent originalists have recognized stare
decisis as an exception to their judicial philosophy. Scalia,
Originalism: The Lesser Evil, at 861. Furthermore, the
political branches, as well as the media and legal scholars, are
aware of our interpretations of Article V, Section 10(1)(b), and
Wisconsinites actively have debated the proper scope of the
governor's partial veto power. As already explained, there have
been numerous attempts to amend the partial veto power, two of
which were successful.
¶76 At bottom, item veto advocates, despite substantial
effort, have not been able to convince their fellow citizens to
adopt an item veto. At this point, as we said in Henry:
If the legislature and people wish the governor to
have only the power to veto items in an appropriation
bill, a constitutional amendment may be desirable. It
should, however, be understood that this court has no
power to toy with the constitutional grant of a
partial veto to the governor and to replace it with a
veto power that may be more sensible and palatable.
Any claimed excesses on the part of the governor in
the exercise of this broad partial veto authority are
correctable not by this court, but by the people,
either at the ballot box or by constitutional
amendment.
Wis. Senate, 144 Wis. 2d at 465.
¶77 Third, Taxpayers are incorrect in suggesting that
Henry has proved unworkable in practice because governors have
exercised creative partial vetoes which we have evaluated. An
opinion may be unworkable in practice when courts have
difficulty applying it. See State v. Harris, 2010 WI 79, ¶43,
326 Wis. 2d 685, 786 N.W.2d 409. We have not had difficulty
33
No. 2019AP1376-OA.pdr
interpreting challenged vetoes in light of our past decisions;
therefore, Henry has not proved unworkable in practice.
¶78 Taxpayers alternatively argue we should overturn
Kleczka because it is "detrimental to coherence and consistency
in the law." They assert it is inconsistent with our decisions
interpreting separation of powers. They cite League of Women
Voters of Wis. v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929,
N.W.2d 209, Tetra Tech EC, Inc. v. DOR, 2018 WI 75, 382
Wis. 2d 496, 914 N.W.2d 21 (lead) and Gabler v. Crime Victims
Rights Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384. They
also cite Federalist No. 58 as authority for a particular model
of separation of powers.
¶79 The Legislature in its amicus brief adds:
When precedent does "not even discuss" a critical
aspect of the relevant text, stare decisis does not
require the [c]ourt to persist in a prior, deficient
interpretation. State v. Denny, 2017 WI 17, ¶¶67–70,
373 Wis. 2d 390, 891 N.W.2d 144. In the context of
Article V, Section 10, this [c]ourt has correctly
interpreted one portion of the text, reading "part
approved becomes law" to mean "a complete, entire, and
workable law." Wis[.] Senate, 144 Wis. 2d at 437.
Yet, this [c]ourt has not given attention to another
portion of the text, which explains when the "rejected
part" "become[s] law." This has created a serious
separation-of-powers problem, wherein the Governor can
effectively enact law by vetoing sentence fragments.
Legislature Amicus Br. at 3. To explain, the Legislature makes
a temporal argument about when the part rejected becomes law.
The part approved becomes law when it is signed by the governor;
the part rejected does not. The part rejected is returned to
the legislature and becomes law if and only if it is "approved
by two-thirds of the members present." Wis. Const. art. V,
34
No. 2019AP1376-OA.pdr
§ 10(2)(b). Therefore, the part rejected, according to the
Legislature's amicus, must be capable of separate enactment at a
later date, independent of the part approved.
¶80 Governor Evers responds that no inconsistency has been
created. The cases cited by Taxpayers dealt with issues bearing
no resemblance to the governor's partial veto power. In League
of Women Voters, we concluded that "[h]ow the Legislature meets,
when it meets, and what descriptive titles the Legislature
assigns to those meetings or their operating procedures
constitute parts of the legislative process with which the
judicial branch 'has no jurisdiction or right' to interfere."
League of Women Voters, 387 Wis. 2d 511, ¶37 (internal
quotations removed). In Tetra Tech, we concluded that we do not
give great weight deference to administrative agencies'
conclusions of law. Tetra Tech, 382 Wis. 2d 496, ¶108. In
Gabler, we concluded that an executive agency could not, "acting
pursuant to authority delegated by the legislature, review a
Wisconsin court's exercise of discretion, declare its
application of the law to be in error, and then sanction the
judge for making a decision the agency disfavors[.]" Gabler,
376 Wis. 2d 147, ¶36.
¶81 Governor Evers responds that the Legislature's amicus
is inconsistent with historical practice:
The phrase "shall become law" simply describes
the transformation that occurs when a bill is
presented to the Governor for his approval.
. . . .
35
No. 2019AP1376-OA.pdr
The Legislature would instead read "shall become
law" as imposing a complete-and-workable-law test
wherever the phrase appears. But that makes no sense
applied to the rejected part of an appropriation bill.
Unlike the part approved——which immediately becomes
law under Article V, § 10(1)(b)——the rejected part
never needs to function as a stand-alone law. Either
it remains rejected and never becomes law, or, upon a
successful legislative override, it rejoins the part
approved and "the bill as originally passed by the
legislature becomes law." Richard A. Champagne &
Madeline Kasper, Wis. Legis. Reference Bureau, The
Veto Override Process in Wisconsin 1 (2019).
¶82 I reject Taxpayers' request to overturn Kleczka.
Their argument presumes that states are obligated to follow a
particular model of separation of powers that delegates the
"power of the purse" totally to the legislature.
¶83 However, our jurisprudence consistently describes the
governor's role in the budgeting process as "quasi-legislative."
Wis. Senate, 144 Wis. 2d at 454 (quoting Henry, 218 Wis. 2d at
314). In Wis. Senate, we stated:
[The 1930 amendment] gave the governor a
constitutionally recognized role in the legislative
budgetary function. The legislature itself has
recognized the governor's legislative role in the
budget area by ceding to the governor the initial
responsibility for preparing the biennial budget
report and requiring him to submit his executive
budget bill together with suggestions for the best
methods for raising the needed revenues. It was no
coincidence that the same 1929 legislature which
passed [ch. 97, Laws of 1929], adopting the executive
budget system for this state, thereby creating a
statutory role for the governor in the budgetary
process, also passed——for the requisite second time——
the [] joint resolution proposing the constitutional
amendment to [Wis. Const.] art. V, [§] 10 to provide
for the governor's partial veto authority. These acts
were all part of the complete overhaul of the budget
system in this state that took place at that time.
The partial veto power the governor may exercise over
36
No. 2019AP1376-OA.pdr
appropriation bills is simply one tool he has for
controlling his own executive budget bill.
Wis. Senate, 144 Wis. 2d at 454–55 (internal citations omitted).
Taxpayers simply ignore these statements because they do not fit
their understanding of separation of powers.
¶84 Furthermore, our jurisprudence is not unique in
describing a quasi-legislative role for the governor. A veto
power, regardless of its contours, is inherently legislative.
The United States Supreme Court has said so in a number of
cases. For example, it has explained:
It is said that the approval by the President of a
bill passed by Congress is not strictly an executive
function, but is legislative in its nature; in this
view, it is argued, conclusively shows that his
approval can legally occur only on a day when both
Houses are actually sitting in the performance of
legislative functions. Undoubtedly the President when
approving bills passed by Congress may be said to
participate in the enactment of laws which the
Constitution requires him to execute. But that
consideration does not determine the question before
us. As the Constitution, while authorizing the
President to perform certain functions of a limited
number that are legislative in their general nature,
does not restrict the exercise of those functions to
the particular days on which the two Houses of
Congress are actually sitting in the transaction of
public business, the court cannot impose such a
restriction upon the Executive.
La Abra Silver Min. Co. v. United States, 175 U.S. 423, 453
(1899); see also Edwards v. United States, 286 U.S. 482, 490
(1932) ("The President acts legislatively under the
Constitution, but he is not a constituent part of the
Congress."); cf. Rateree v. Rockett, 852 F.2d 946, 951 (7th Cir.
1988) ("[W]hen the Vice President of the United States votes in
the Senate to break a tie, U.S. Const. art. I § III cl. 4, he
37
No. 2019AP1376-OA.pdr
acts legislatively, not executively. Similarly, the President
acts legislatively when he approves or vetoes bills passed by
Congress.").
¶85 Taxpayers seem to assume that the governor cannot have
a quasi-legislative role because creating law is a core power of
the legislature. Under this theory, the power to create
legislation cannot be shared. At least two problems exist with
this assumption.
¶86 First, as demonstrated by rulemaking, and as we have
long concluded, the legislature may delegate its power to make
law to the executive. Martinez v. DILHR, 165 Wis. 2d 687, 697,
478 N.W.2d 582 (1992) (citing Schmidt v. Local Affairs & Dev.
Dep't, 39 Wis. 2d 46, 56, 158 N.W.2d 306 (1968)) ("Legislative
power may be delegated to an administrative agency as long as
adequate standards for conducting the allocated power are in
place."). Such a delegation would be impossible if the
executive were not permitted to have at least a quasi-
legislative role in our constitutional structure.
¶87 Second, this theory does not account for the text of
the Wisconsin Constitution. As Kelczka said, we must look first
to the text of the Wisconsin Constitution, not references to
philosophical works, such as Montesquieu's The Spirit of Law.
Kleczka, 82 Wis. 2d at 710 n.3 (explaining how Montesquieu and
the Federalist Papers should impact our understanding of the
partial veto power). Taxpayers would have us reverse this by
first considering philosophical works and then consider the
constitutional text. Such an analysis would ignore that
38
No. 2019AP1376-OA.pdr
Wisconsinites are free to assign powers traditional to one
branch of government to another branch by constitutional
amendment.16 I also cannot ignore how the constitutional text
has been understood for nearly a century.
¶88 In addition, whether the Federalist Papers support
Taxpayers' position is unclear. As we explained in Kleczka, the
Federalist Papers can be read to support an expansive reading of
the partial veto power. "The authors of The
Federalist . . . repeatedly alluded to the tendency, in
republican forms of government, to the aggrandizement of the
legislative branch at the expense of the other branches."
Id. (citing Federalist No. 73 (Hamilton); No. 49 (Madison);
No. 48 (Madison)). Indeed, the legislature's practice of
logrolling spawned the need for Article V, Section 10(1)(b).
¶89 Moreover, I cannot accept the position of
Legislature's amicus that we should apply the complete, entire
and workable law test to the part rejected. The textual
analysis provided by Governor Evers fits historical practice:
the phrase "shall become law" describes the transformation that
occurs when proposed legislation takes on legally binding force.
It does not indicate that the part rejected must be a complete,
entire and workable law. Governors and legislatures have long
As Judge Posner explained when the partial veto power was
16
challenged in federal court: "That it is unusual, even quirky,
does not make it unconstitutional. It violates no federal
constitutional provision because the [United States]
Constitution does not fix the balance of power between branches
of state government." Risser v. Thompson, 930 F.2d 549, 554
(7th Cir. 1991).
39
No. 2019AP1376-OA.pdr
understood that the part rejected rejoins the part approved if
the legislature overrides the governor's veto. Governor Evers
cites a document by the Legislative Reference Bureau that says
as much. Champagne & Kasper, The Veto Override Process in
Wisconsin. Also, our decisions are consistent with this
understanding. Citizens Utility Bd., 194 Wis. 2d at 488. If
the governor were to veto "$100,000" and write in "$90,000," all
would understand that a legislative override of the veto would
mean that $10,000 is added to the $90,000 to return the
appropriation to its original number. See id.D. Application
¶90 Having broken no new ground, I employ our decisions
and continue the constitutional analysis of "part" in the four
vetoes that were challenged. Taxpayers do not dispute that the
"part approved" constitutes a complete, entire and workable law.
Rather, the dispute before us is whether Governor Evers' partial
vetoes went too far by altering the topic or subject matter of
the enrolled bills. Stated otherwise, we have a dispute over
whether the parts approved alter the stated legislative idea for
which the enrolled bill was passed.
1. Topic or Subject Matter
¶91 The legislature controls whether an idea will result
in an enrolled bill that will be presented to the governor for
signature. A veto that does not alter legislative control of
the topic or subject matter of enrolled bills has been referred
to as "germane." Wis. Senate, 144 Wis. 2d at 437. Stated
otherwise, such a veto does not alter the stated legislative
40
No. 2019AP1376-OA.pdr
idea that initiated the enrolled bill. The text of Article V,
§ 10(1)(b), which employs the term, "part," twice in the same
sentence and connects "part" to the "whole" bill states: "bills
may be approved in whole or in part by the governor, and the
part approved shall become law." A plain reading of the
constitutional text connects the "part" approved by the governor
to the "whole" bill because it is only a "part" of that "whole"
bill that is vetoed. When the part approved by the governor
does not alter the topic or subject matter of the whole bill
presented to him for signature, the part approved maintains the
legislature's choice of topic or subject matter that underlies
the "whole" bill. Stated otherwise, when legislative topic or
subject matter is maintained, the "part" approved and the "part"
that was not approved remain portions of the same "whole" bill,
consistent with the constitutional text of § 10(1)(b). Clearly,
the evaluation of "part" and "whole" in § 10(1)(b) depends on
how broadly the topic or subject matter is defined.
¶92 For example, we have previously concluded that
$250,000 is a "part" of $350,000, and, therefore, the governor
may veto $350,000 and write in $250,000. Citizens Utility Bd.,
194 Wis. 2d at 505-06. We explained that "$250,000 is 'part' of
$350,000[] because $250,000 is 'something less than' $350,000,
and $250,000 goes 'to make up, with others . . . a larger
number,' i.e., $350,000." Id. (quoting Part, Webster's New
Int'l Dictionary 1781 (2d ed.)).
¶93 We also rejected an argument that "part" means only
"physical part[s] of the bill." Citizens Utility Bd., 194
41
No. 2019AP1376-OA.pdr
Wis. 2d at 503–04. To explain, "[i]f the governor strikes a
$100 appropriation and writes in $80, the amount the governor
attempts to veto is $20. However, '$20' does not appear
anywhere in the bill. '$20' is not physically part of the bill.
It is part of the bill only conceptually." Id. at 503.
Nevertheless, we have permitted write-in vetoes because,
conceptually, the amount remaining after the veto is a part of
the bill. Id. at 510. Stated otherwise, the idea contemplated
by the legislature in funding an identified entity or described
project remains after the veto. If the entity or project is
funded to a lesser degree because of a write-in veto, the
legislative idea that initiated the enrolled bill remains after
the veto nevertheless. Similarly, an enrolled bill's topic or
subject matter is part of its makeup.
¶94 When the topic or subject matter of a bill is altered
through veto from that of the whole bill that was presented for
the governor's signature to a topic or subject matter conceived
by the governor, the veto is outside of the governor's
constitutional authority. When the veto is used in that manner,
the "part approved" cannot be defined as a "part" of the "whole"
bill passed by the legislature because it is inconsistent with
the constitutional meaning of "part" in Article V, Section
10(1)(b).
¶95 Secondary sources have discussed the topic and subject
matter limitation on vetoes. I note that their understanding,
which is referred to as germaneness, is consistent with my
analysis in this case. In particular, Jack Stark in discussing
42
No. 2019AP1376-OA.pdr
vetoes made by Governor Doyle that triggered the 2008
constitutional amendment, stated:
The case law has recently produced a significant
restriction, holding that the material left after a
veto must be germane to (have the same subject matter
as) the material from which it was fashioned. If the
vetoes of the most recent budget bill that got the
most attention had been challenged, they would most
likely have been reviewed in light of that principle.
With two related vetoes the Governor effected a
transfer of several hundred million dollars from the
transportation fund to the general fund. The money
transferred would ultimately increase school aid. In
both of those vetoes, the germaneness requirement
appears to have been violated. Most of the material
that was vetoed was about particular transportation
projects, and some of it was about the unfunded
liability of the state's retirement system.
Jack Stark, Symposium, Is the Wisconsin Constitution Obsolete? A
Conference on the Wisconsin Constitution, 90 Marq. L. Rev. 411,
417-18 (2007); see also Champagne et al., The Wisconsin
Governor's Partial Veto, at 18–19.
2. Application of Topic or Subject Matter Limitation
a. School Bus Modernization and Local Road Improvement Funds
¶96 Taxpayers argue:
Sections 55c and 9101(2i) of Act 9 allocated $3
million of certain settlement funds for modernizing
school buses, with specific conditions as to how that
program should operate. Governor Evers transformed
this into an open-ended grant "for alternative fuels"
with no conditions, and then directed by fiat that the
agency in charge spend up to $10 million "for electric
vehicle charging stations." This is so far removed
from what the Legislature intended to create that
there is no question that the portions Evers' vetoed
were non-severable.
¶97 As for the local road improvement fund, they state:
43
No. 2019AP1376-OA.pdr
Sections 126, 184s, and 1095m of Act 9 allocated
$90 million for the improvement of local roads, along
with specific sub-allocations for county trunk
highways, town roads, and municipal streets. Governor
Evers used the partial veto to transform this into a
$75 million allocation "for local grant [sic]." This
veto entirely eliminated the core purpose of the award
(local road improvements), instead creating a generic
slush fund with no meaningful constraints.
¶98 Governor Evers has made no response to these points.
Quoting from the dissent in Wis. Senate, he seems to acknowledge
in a footnote of his brief that "what remains [must] be
germane." Wis. Senate, 144 Wis. 2d at 474 (Bablitch, J.,
dissenting). But he does not explain how what he labels as
"parts that remain" are in accord with their originating actions
of the enrolled bill. Instead, he argues that he can veto "any
part, no matter how small" unless prohibited by Article V,
Section 10(1)(c).
¶99 I agree with Taxpayers; these vetoes resulted in
topics and subject matters that were not found in the enrolled
bill, i.e., they were not a "part" of the enrolled bill. Stated
otherwise, the enrolled bill says nothing about an "alternative
fuel fund." The parts of the enrolled bill that remain after
this veto have nothing to do with school buses; indeed, the
remaining part has nothing to do with schools or even education.
Governor Evers has publically stated he wants to use the fund
for electric charging stations, a use not contemplated by any
part of the enrolled bill and one specifically rejected by the
legislature.
¶100 Notably, Governor Evers vetoed the entirety of
§ 9101(2i), which "allocate[d] $3,000,000 for grants under
44
No. 2019AP1376-OA.pdr
s. 16.047 (4s) for the payment of school buses." (Emphasis
added.) Section 9101(2i) further demonstrates that the
legislative idea of § 16.047(4s) was to replace school buses.
The legislative idea of § 16.047(4s) was not, for example,
limiting carbon emissions.
¶101 Legislative history confirms that the legislative idea
was to replace school buses. Settlement funds in the previous
biennium were used to replace "eligible state vehicles" and
"public transit vehicles."17 Governor Evers sought to "[e]xpand
DOA's authority to use settlement monies to award grants for
replacement of public transit vehicles to also include grants
for the installation of charging stations for electric
vehicles."18 Governor Evers' proposed expansion was rejected in
favor of one more analogous to previous uses of the settlement
funds.
¶102 Similarly, the partial vetoes of the local road
improvement fund, which created a generic fund, are precisely
the kinds of vetoes commentators have assumed would violate the
topic or subject matter limitation. Stark, Is the Wisconsin
Constitution Obsolete, at 418 ("With two related vetoes the
Governor effected a transfer of several hundred million dollars
from the transportation fund to the general fund. The money
transferred would ultimately increase school aid. In both of
those vetoes, the germaneness requirement appears to have been
violated.").
17 Motion #129.
18 Paper #505.
45
No. 2019AP1376-OA.pdr
¶103 The legislative idea was to fund an ongoing road
improvement program.19 Section 1095m, vetoed in its entirety by
Governor Evers, made this clear. It allocated specific amounts
to fund "county truck highway improvements," "town road
improvements" and "municipal street improvements." A general
undirected fund was not part of a fund created to improve local
roads because a general fund can be spent on virtually any
subject, i.e., topics and subject matters never considered by
the legislature. Indeed, a general fund could be used to
accomplish goals explicitly rejected by the legislature during
its deliberative process.
¶104 I cannot uphold these vetoes. Accordingly, I
partially concur with the per curiam opinion that these vetoes
have no effect on the provisions in the enrolled bills that the
legislature enacted.
b. Vehicle Fee Schedule and Vapor Products Tax
¶105 Taxpayers have not carried their burden with respect
to the remaining vetoes. With regard to the vehicle
registration fees, Taxpayers argue:
Governor Evers accepted the increases and
rejected the decreases, creating a new fee schedule
that is neither graduated nor equalized. The
question, under traditional severability analysis, is
whether the Legislature would have intended the fee
increases on lighter trucks without the corresponding
decreases for heavier trucks. Given that the obvious
purpose of the statutory change was to equalize the
fee schedule, the answer is no.
19 Analysis of Bill 56, at 90.
46
No. 2019AP1376-OA.pdr
This is an inherently different argument than what Taxpayers
raised in regard to the school bus modernization fund and the
local road improvement fund. The part approved is clearly
related to the subject matter of vehicle registration fees.
These vetoes are consistent with those that we approved in Wis.
Senate and that long have been considered within the governor's
partial veto power. Burke, The Wisconsin Partial Veto, at 1396.
¶106 A similar analysis applies to the veto that altered
the definition of vapor product. The veto expanded the
definition of vapor product, thereby expanding what could be
taxed. But it did not alter the topic or subject matter of the
part approved. Rather, it would seem all products that would
have been taxed under the enrolled bill will continue to be
taxed. Furthermore, the liquid used in vaping devices is within
the scope of the phrase vapor product as used in common
parlance. Had the legislature left vapor product undefined,
reasonable people may have assumed it encompassed liquid sold
separately.
E. Remedy
¶107 The Legislature's amicus has asked us to consider a
remedy that is purely prospective. As it explains, while our
decisions "'[n]ormally' apply 'retrospectively,' purely
prospective application——which does not apply a new decision
even to the case at hand——is appropriate where retrospective
application of a 'new principle of law' would 'unsettl[e]'
reliance interests." See State v. Beaver Dam Area Dev. Corp.,
2008 WI 90, ¶¶95–101, 312 Wis. 2d 84, 752 N.W.2d 295. Had I
47
No. 2019AP1376-OA.pdr
accepted the Legislature's argument and concluded that the part
rejected by the governor should be a complete, workable law, I
might view its request differently. However, I reject this
request because I break no new ground with this decision.
Indeed, the topic and subject matter limitation, sometimes
referred to as germaneness, has been discussed in three prior
cases. It is not a new principle of law. Risser, 207 Wis. 2d
at 183; Citizens Utility Bd., 194 Wis. 2d at 506; Wis. Senate,
144 Wis. 2d at 451–52.
III. CONCLUSION
¶108 I conclude that the part approved by the governor,
i.e., the consequences of the partial veto, must not alter the
topic or subject matter of the "whole" bill before the veto.
Stated otherwise, such a veto does not alter the legislative
idea that initiated the enrolled bill. Therefore, Governor
Evers could not use his partial veto power to alter the school
bus modernization fund into an alternative fuel fund. Nor could
he use it to alter the local road improvement fund into a fund
for local grants or local supplements, devoid of any requirement
that it be used for local roads. These two series of vetoes are
invalid and have no effect on those laws. However, Governor
Evers lawfully used his partial veto power to alter the amount
truck owners must pay to register their vehicles. He also
lawfully exercised his partial veto power in regard to vaping
products. These vetoes stand.
48
No. 2019AP1376-OA.awb
¶109 ANN WALSH BRADLEY, J. (concurring in part,
dissenting in part). In an important case like this, where the
people of Wisconsin need clarity, we instead sow confusion.
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.
¶110 I agree with that part of the per curiam opinion that
upholds the vehicle fee schedule veto. The Governor lawfully
used his partial veto power when he altered the amount truck
owners must pay to register their vehicles.
¶111 Employing different rationales or tests, the majority
of justices err, however, by determining that the other three
vetoes at issue are unconstitutional and must be struck down on
the basis of arguments neither argued nor briefed by any party.
In doing so, Chief Justice Roggensack's concurrence/dissent
seeks to create a subjective test that unnecessarily inserts the
court into policy disputes between the other branches of
government, and is likely to lead to more uncertainty and
litigation over partial vetoes by future governors of this
state.
¶112 Not only does Chief Justice Roggensack's opinion base
this decision on a theory that no party has advanced, but it is
also based on a theory that has never been actually applied.
The opinion's proffered "topic or subject matter" test morphs
into an alternative test as the analysis unfolds. That test
1
No. 2019AP1376-OA.awb
eschews the "topic or subject matter" language and instead
focuses on an amorphous concept of what was the "legislative
idea" behind the bill. Both iterations of the test invite
manipulation and inject subjectivity into what was once a
clearly objective test. Such subjective and manipulative
determinations have no place in addressing the important
question of the constitutionality of the use of the governor's
partial veto power.
¶113 Justice Kelly's concurrence/dissent suffers from the
same infirmity as does Chief Justice Roggensack's: it, too,
embraces a test neither advanced by any party nor ever applied
in any case. Advocating for invalidating all four vetoes at
issue, Justice Kelly's writing would overrule or modify a
multitude of cases, spanning 85 years of precedent, and would
render two constitutional amendments superfluous.
¶114 Likewise, Justice Hagedorn's concurrence relies on a
theory not argued by the parties. The opinion would "revisit"
and overrule a number of precedential cases. It also injects
subjectivity into the determination of the constitutionality of
an exercise of the partial veto power, ultimately determining
that three of the four vetoes are unconstitutional.
¶115 Rather than embrace tests neither previously argued
nor applied, I would instead turn to and uphold our well-
established precedent. It recognizes, time and again, that the
Wisconsin governor's veto power is incredibly broad. Contrary
to the determinations based on untested theories set forth in
the various separate writings, I conclude that our precedent
2
No. 2019AP1376-OA.awb
inexorably leads to the determination that all four vetoes at
issue, including the Governor's vetoes related to the school bus
modernization fund, local road improvement fund, and vapor
products tax are constitutionally permissible exercises of the
partial veto power.
¶116 Accordingly, I concur in part and dissent in part to
the per curiam opinion.
I
¶117 Petitioners brought this case as an original action
against Governor Tony Evers, seeking to invalidate four partial
vetoes the Governor made to the 2019-21 biennial budget bill.
They asked this court to determine whether under the partial
veto power as granted by the Wisconsin Constitution1 the governor
may permissibly strike portions of a law that are "essential,
integral, and interdependent parts of those which were
approved." Additionally, they ask us to address whether the
governor may strike words so as to transform the meaning and
purpose of a law, essentially turning it into a different law.
¶118 The argument petitioners made rested on the assertion
that this court should overrule a laundry list of longstanding
precedents regarding the governor's partial veto power.
However, they focus their discussion on two specific cases,
State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302,
260 N.W. 486 (1935), and State ex rel. Kleczka v. Conta, 82
1 Pursuant to Article V, § 10(1)(b) of the Wisconsin
Constitution, "Appropriation bills may be approved in whole or
in part by the governor, and the part approved shall become
law."
3
No. 2019AP1376-OA.awb
Wis. 2d 679, 264 N.W.2d 539 (1978). Petitioners readily
acknowledge that without overruling our long-term precedents,
their argument cannot stand.2
¶119 Chief Justice Roggensack's opinion declines to
overrule any of our precedents and upholds only two of the
vetoes at issue. Chief Justice Roggensack's
concurrence/dissent, ¶¶71, 82. In contrast, Justice Kelly's
concurrence/dissent would affect a sea change in the law,
overruling or modifying multiple cases and upholding none of the
four vetoes at issue. Justice Hagedorn's concurrence would
"revisit" some of our prior cases (although it does not say
which ones), and would strike down three of the vetoes at issue
while upholding one. I address each opinion in turn.
II
¶120 Chief Justice Roggensack's opinion grounds its
analysis with a citation to State ex rel. Wisconsin Senate v.
Thompson, 144 Wis. 2d 429, 437, 424 N.W.2d 385 (1988), asserting
that Wisconsin Senate "explained that the consequences of any
partial veto must be a law that remains consistent with the
topic or subject matter of the 'whole' bill." Chief Justice
Roggensack's concurrence/dissent, ¶60. The actual language of
At oral argument, counsel for Petitioners acknowledged
2
that accepting Petitioners' position would require the court to
overrule several cases, which include: State ex rel. Wis. Tel.
Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935); State ex rel.
Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940); State ex
rel. Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976);
State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539(1978); State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429,
424 N.W.2d 385 (1988); and Citizens Util. Bd. v. Klauser, 194
Wis. 2d 484, 534 N.W.2d 608 (1995).
4
No. 2019AP1376-OA.awb
Wisconsin Senate sets forth that "the consequences of any
partial veto must be a law that is germane to the topic or
subject matter of the vetoed provisions." Wis. Senate, 144
Wis. 2d at 437.
¶121 In the opinion's view, the vetoes that "change the
school bus modernization fund into an alternative fuel fund" and
"change the local road improvement fund into a fund for local
grants or local supplements" fail this inquiry. Chief Justice
Roggensack's concurrence/dissent, ¶11. The school bus
modernization fund veto altered the original law's topic or
subject matter because, as the opinion posits, "the enrolled
bill says nothing about an 'alternative fuel fund.' The parts
of the enrolled bill that remain after this veto have nothing to
do with school buses; indeed, the remaining part has nothing to
do with schools or even education." Id., ¶99.
¶122 Similarly, Chief Justice Roggensack's opinion views
the local road improvement fund veto as altering the topic or
subject matter of the original law as passed by the legislature.
It contends that "[a] general undirected fund was not part of a
fund created to improve local roads because a general fund can
be spent on virtually any subject, i.e., topics and subject
matters never considered by the legislature." Id., ¶103.
Consequently, the opinion concludes that these two vetoes are an
unconstitutional use of the governor's partial veto and are thus
invalid.
¶123 The first problem with this approach is that no party
advocated for it. Thus, it has not been tested by the rigors of
5
No. 2019AP1376-OA.awb
appellate advocacy, i.e., briefing and oral argument. Deciding
a case based on a theory not argued by any party not only
blindsides the parties and sidesteps their input, but it also
too often results in an inadequate guidance and ill-conceived
legal analysis. Yet Chief Justice Roggensack's opinion, on its
own, selects language from the Wisconsin Senate opinion that
never before has been the basis of a partial veto decision,
rewords it, and runs with it.
¶124 In Wisconsin Senate, the court wrote:
We also accept, and for the first time in this case
give explicit judicial recognition to, the long-
standing practical and administrative interpretation
or modus vivendi between governors and legislatures,
that the consequences of any partial veto must be a
law that is germane to the topic or subject matter of
the vetoed provisions.
Wis. Senate, 144 Wis. 2d at 437.
¶125 The opinion claims that it breaks no new ground.
Chief Justice Roggensack's concurrence/dissent, ¶107. But
neither Wisconsin Senate nor any other case has been explicitly
decided based on the "topic or subject matter" limitation the
Wisconsin Senate court referred to as "germaneness." In other
words, no veto has ever been struck down because the resulting
law is not related to the topic or subject matter of the
original law.
¶126 To support its rationale, the opinion cites three
instances where the topic or subject matter limitation,
"sometimes referred to as germaneness," has been "discussed" in
prior cases: Wisconsin Senate, 144 Wis. 2d at 451-52, Risser v.
Klauser, 207 Wis. 2d 176, 183, 558 N.W.2d 108 (1997), and
6
No. 2019AP1376-OA.awb
Citizens Utility Board v. Klauser, 194 Wis. 2d 484, 506, 534
N.W.2d 608 (1995). Chief Justice Roggensack's
concurrence/dissent, ¶107. However, none of these cases used
topic or subject matter as a reason for striking down a partial
veto.
¶127 Although the Wisconsin Senate court stated the
limitation that "the consequences of any partial veto must be a
law that is germane to the topic or subject matter of the vetoed
provisions[,]" it ultimately held that "the governor
may . . . veto individual words, letters and digits, and also
may reduce appropriations by striking digits, as long as what
remains after veto is a complete, entire, and workable law."
Wis. Senate, 144 Wis. 2d at 437. Wisconsin Senate does not give
any examples of what is "germane to the topic or subject matter
of the vetoed provisions" and what is not. See id. It further
does not provide any guidance in making such a determination.
¶128 In Risser, the court merely cites in passing that "the
disapproval of part of an appropriation bill may not result in a
provision which is 'totally new, unrelated or non-germane' to
the original bill." Risser, 207 Wis. 2d at 183 (citing Wis.
Senate, 144 Wis. 2d at 451-53). However, it did not include any
analysis of germaneness.
¶129 In Citizens Utility Board, the court provided a
cursory analysis of topic or subject matter ("germaneness"), but
it was limited to the following:
There also can be no dispute that sec. 15 of 1993
Senate Bill 44, as partially vetoed by the governor,
survives the "topicality" or "germaneness" requirement
as set forth in Wisconsin Senate. The new provision
7
No. 2019AP1376-OA.awb
approved by the governor——"$250,000"——relates to the
same subject matter as the original legislative
enactment, viz., a money appropriation to be utilized
by CUB as a public interest advocacy entity.
Citizens Util. Bd., 194 Wis. 2d at 505. Again, little can be
gleaned from this regarding the meaning of Wisconsin Senate's
germaneness limitation, which the opinion terms "topic or
subject matter."
¶130 Far from supporting the argument presented in the
opinion, these cases serve to demonstrate the novelty of its
theory. Although Wisconsin Senate articulated the "germaneness"
limitation, no case has rejected a gubernatorial partial veto
for defying it or even truly defined what it means. Rather than
"breaking no new ground," Chief Justice Roggensack's opinion
thus bases its decision on a scantily referenced limitation,
rewords it, and attempts to transform it into the dispositive
test for a partial veto analysis. If this court is to address
the meaning of the "germaneness" language in Wisconsin Senate,
we should wait for a case where the parties present the issue
rather than raise it of our own accord without the benefit of
advocacy.
¶131 The second problem with the approach advanced in the
opinion is that it provides no clarity where clarity is sorely
needed. The proffered "topic or subject matter" test morphs
into an alternative test as the analysis unfolds. The
alternative test eschews the "topic or subject matter" language
and instead focuses on an amorphous concept of what was the
"legislative idea that initiated the enrolled bill." Chief
Justice Roggensack's concurrence/dissent, ¶11. But neither test
8
No. 2019AP1376-OA.awb
provides any guidance at all. Further, such alternatives will
surely breed more litigation regarding what test to apply and
the meaning of such terms as "topic," "subject matter," or
"legislative idea" behind an enrolled bill.3
¶132 Previous cases are clear that in evaluating the
constitutionality of a governor's exercise of the partial veto,
we apply an objective test. Premised on the language of our
state constitution, this "objective test permit[s] the
affirmative use of the partial veto power as long as the parts
remaining after the veto are a complete and workable law." Wis.
Senate, 144 Wis. 2d at 453.
¶133 Chief Justice Roggensack's opinion's approach moves
away from an objective analysis, and exposes determinations on
the constitutionality of a partial veto to the subjective
preferences of judges. To explain, the "topic" or "subject
matter" of an enrolled bill is subject to manipulation. It is a
function of the lens through which the bill is viewed. As the
opinion acknowledges, "topic" or "subject matter" can be broadly
or narrowly viewed. Chief Justice Roggensack's
concurrence/dissent, ¶91 ("Clearly, the evaluation of 'part' and
'whole' in § 10(1)(b) depends on how broadly the topic or
subject matter is defined.").
3To further illustrate the amorphous concept of "the
legislative idea that initiated the enrolled bill," an image
comes to mind: two legislators, after hours, are sitting at a
local pub across the street from the state capitol. As one
drinks a beer, he looks at his fellow legislator, announcing,
"Hey, I have an idea." Who knows whose idea and what kind of
idea will meet this amorphous "legislative idea" test, and the
opinion fails to explain.
9
No. 2019AP1376-OA.awb
¶134 Favoring a narrow interpretation of "topic," the
opinion states with respect to the school bus modernization fund
veto: "The parts of the enrolled bill that remain after this
veto have nothing to do with school buses; indeed, the remaining
part has nothing to do with schools or even education." Id.,
¶99.
¶135 But through a broad lens, the "topic" or "subject
matter" of the bill changes. The "topic" or "subject matter" of
the legislation could easily be viewed as not school buses
specifically, but vehicle efficiency generally. Through this
lens, the remaining alternative fuel provision is surely
"germane" to the "topic" or "subject matter" of the legislation.
¶136 Similarly, the local road improvement fund veto is
characterized by the opinion as the creation of a "general
undirected fund" that "was not part of a fund created to improve
local roads because a general fund can be spent on virtually any
subject, i.e., topics and subject matters never considered by
the legislature." Id., ¶103. But is the "topic" or "subject
matter" of the original legislation local road improvement
specifically or the appropriation of money to localities
generally? Both are reasonable readings, and deciding between
the two requires a subjective determination.
¶137 The approach of Chief Justice Roggensack's opinion has
taken an area of Wisconsin law that has been quite clear and
based on an objective test, and injected it with subjectivity.
Our case law clearly indicates that the governor has a
constitutional partial veto power that is broad, in fact much
10
No. 2019AP1376-OA.awb
broader than that provided by other states. Wis. Senate, 144
Wis. 2d at 439-40 (citing Henry, 218 Wis. at 313); see also John
S. Wietzer, The Wisconsin Partial Veto: Where Are We and How
Did We Get Here? The Definition of "Part" and the Test of
Severability, 76 Marq. L. Rev. 625, 645-46 (1993) (referring to
Wisconsin's partial veto power as "uniquely broad"); Anthony S.
Earl, Personal Reflections on the Partial Veto, 77 Marq. L. Rev.
437, 438 (1994) (discussing the governor's "broad power to veto
parts of appropriation bills").
¶138 Yet the opinion exposes that broad veto power to the
serendipity of what lens the judge subjectively chooses. This
would have the effect of inevitably inserting the court into
policy disputes between the other branches of government, a
result this court has previously considered undesirable. See
State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 134, 237
N.W.2d 910 (1976) (rejecting the argument that an affirmative
policy change constitutes an unconstitutional use of the partial
veto power).
¶139 A commentator has correctly observed three reasons for
steering clear of subjective considerations in the evaluation of
the constitutionality of partial vetoes. See Wietzer, supra, at
648. First, "a subjective test for partial veto validity would
foster uncertainty in the legislative process . . . ." Id.
Second, "subjective tests would place the court between the
executive and the legislature, with the court assuming
legislative powers . . . ." Id. Finally, "a subjective test
11
No. 2019AP1376-OA.awb
would involve the courts every time a partial veto dispute
arose." Id.
¶140 These concerns ring true. Indeed, the budgeting
process of this state benefits from certainty. However, Chief
Justice Roggensack's opinion takes us farther from that goal.
It leaves every partial veto subject to challenge by litigation,
where pursuant to the opinion's approach, judges can manipulate
the result by injecting their subjective policy preferences into
the analysis of the constitutionality of a partial veto.
III
¶141 I turn next to address Justice Kelly's opinion, which
invalidates all four vetoes. It proposes "that we respect the
constitution's structural limitations on what it means for a
bill to be approved 'in part.'" Justice Kelly's
concurrence/dissent, ¶217. Accordingly, Justice Kelly's writing
suggests that we add to the current "complete, entire, and
workable law" test: "After exercising the partial veto, the
remaining part of the bill must not only be a 'complete, entire,
and workable law,' it must also be a law on which the
legislature actually voted; and the part of the bill not
approved must be one of the proposed laws in the bill's
collection." Id.
¶142 This approach suffers from several infirmities.
First, it embraces a test not argued or briefed by either party.
Thus, it has not had the benefit of being tested by the fires of
advocacy.
12
No. 2019AP1376-OA.awb
¶143 Second, it cavalierly discards and overrules or
modifies multiple cases constituting 85 years of precedent in
derogation of the doctrine of stare decisis.4 It would abandon
our partial veto precedent because Justice Kelly deems our
precedent, in his view, "wrongly decided." Id., ¶206. I would
take a more modest approach.
¶144 Stare decisis, the principle that requires courts to
"stand by things decided," is fundamental to the rule of law.
Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257. "This court follows the
doctrine of stare decisis scrupulously because of our abiding
respect for the rule of law." Id.¶145 "Fidelity to precedent ensures that existing law will
not be abandoned lightly. When existing law is open to revision
in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results."
Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶67, 389 Wis. 2d 669, 937
N.W.2d 37 (quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257
Wis. 2d 19, 653 N.W.2d 266). As a result, any departure from
stare decisis requires "special justification." Id. Simple
disagreement with a prior court's rationale is not such a
"special justification." Progressive N. Ins. Co. v. Romanshek,
2005 WI 67, ¶46, 281 Wis. 2d 300, 697 N.W.2d 417.
Justice
4 Kelly's opinion would overrule Sundby, 71
Wis. 2d 118; Kleczka, 82 Wis. 2d 679; Wisconsin Senate, 144
Wis. 2d 429; Citizens Utility Board, 194 Wis. 2d 484; and Risser
v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997); and would
modify Henry, 218 Wis. 302. Justice Kelly's
concurrence/dissent, ¶230 n.14.
13
No. 2019AP1376-OA.awb
¶146 Third, the interpretation advanced by Justice Kelly's
opinion would render constitutional language superfluous.
Specifically, the language added to the partial veto provision
by constitutional amendments in 1990 and 2008 would have no
effect under the position the opinion takes.
¶147 The people of Wisconsin have twice limited the partial
veto power by constitutional amendment. Enacted in 1990 and
2008, the sum total of these amendments is provided in Article
V, Section 10(1)(c) of the state constitution: "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."
¶148 Under the interpretation espoused by Justice Kelly's
opinion, this language has no effect. If, as the opinion
posits, the part of the bill not approved must "be one of the
proposed laws in the bill's collection," then what would be the
need to proscribe the creation of new words or new sentences as
set forth in Article V, Section 10(1)(c)? If Article V, Section
10(1)(b) already prohibits the vetoes described in section
10(1)(c), the language of section 10(1)(c) is mere surplusage.
¶149 We are to construe constitutional provisions "to give
effect to each and every word, clause and sentence" and to avoid
rendering any language superfluous. Wagner v. Milwaukee Cty.
Election Comm'n, 2003 WI 103, ¶33, 263 Wis. 2d 709, 666
N.W.2d 816 (internal quotation and citation omitted). The
14
No. 2019AP1376-OA.awb
interpretation advanced in the opinion runs directly counter to
this established mode of constitutional interpretation.
¶150 Finally, Justice Kelly's opinion posits that the court
has gone astray by "compar[ing] our partial veto to the 'line-
item' vetoes adopted by some of our sister states and, assuming
the different words meant Wisconsin must have done something
very much different from the others, we consulted them no
further." Justice Kelly's concurrence/dissent, ¶182. Yet there
is a difference between a "partial" and an "item" veto, as our
precedent recognizes. Wis. Senate, 144 Wis. 2d at 439-40
(citing Henry, 218 Wis. at 313). The opinion does not account
for the difference and would, as a practical matter, result in
an "item" veto in spite of Wisconsin's unique constitutional
language.
IV
¶151 Next, I turn to address Justice Hagedorn's opinion,
which concludes that three of the vetoes at issue are
unconstitutional and that one, the vehicle fee schedule veto,
passes constitutional muster. After disavowing each test
proposed by both the parties and members of this court, the
opinion states that "[w]hile future litigation will surely
provide opportunities to refine the analysis, the principles
derived from our constitutional text, structure, and early cases
draw sufficient lines to decide this case." Justice Hagedorn's
concurrence, ¶264.
¶152 Those principles lead Justice Hagedorn's opinion to
this essential inquiry: "whether the governor vetoed a policy
15
No. 2019AP1376-OA.awb
the legislature proposed and passed, which is permissible, or
created a new policy the legislature did not propose or pass,
which is not." Id., ¶263. "[W]hat the governor may not do is
selectively edit parts of a bill to create a new policy that was
not proposed by the legislature. He may negate separable
proposals actually made, but he may not create new proposals not
presented in the bill." Id., ¶264. In the opinion's view, all
of the subject vetoes with the exception of the vehicle fee
schedule veto fail this inquiry.
¶153 Justice Hagedorn's writing suffers from several
analytical shortcomings. First, like both Chief Justice
Roggensack's opinion and Justice Kelly's opinion, it advances a
theory not specifically argued by any party. Indeed, the
opinion explicitly disavows each test proposed by the parties in
this case. Id., ¶¶259-63. Thus, the parties are deprived of
the opportunity to analyze and offer comment on this proposed
theory.
¶154 Second, although the opinion appears reticent to say
so, it would discard a significant amount of our precedent.
Justice Hagedorn's opinion would keep Henry intact, but would
"revisit" our "later cases . . . insofar as they abandoned the
core principles undergirding the way laws are made pursuant to
our constitution." Id., ¶266.
¶155 Which of the court's "later cases" must be
"revisited?" In a footnote, the opinion reveals that Kleczka is
one of these cases, and that it must be overruled rather than
merely "revisited." Id., ¶266 n.11. But the opinion also calls
16
No. 2019AP1376-OA.awb
into question the entirety of our partial veto jurisprudence.
It asserts that "[i]nsofar as our later decisions have treated
Kleczka as pronouncing that a veto shall stand simply if it
leaves a complete, entire, and workable law, these statements
too must be withdrawn." Id.
¶156 Yet, our court has never applied any test other than
the "complete, entire, and workable law" test. Thus, although
obscured in a footnote, Justice Hagedorn's opinion would tear
down a substantial amount of our precedent. As explained above,
such a position disregards the principle of stare decisis, which
is essential to the rule of law. Johnson Controls, 264
Wis. 2d 60, ¶94.
¶157 Third, Justice Hagedorn's proposed test injects an
element of subjectivity into partial veto decisions. In the
opinion's view, the essential inquiry is "whether the governor
vetoed a policy the legislature proposed and passed, which is
permissible, or created a new policy the legislature did not
propose or pass, which is not." Justice Hagedorn's concurrence,
¶263. As with the test proposed in Chief Justice Roggensack's
writing, such an inquiry is susceptible to manipulation and to
the subjective preferences of judges. The "policy" of a
proposed bill is just as amorphous as the "topic or subject
matter" of the proposed bill.
¶158 For example, with regard to the school bus
modernization veto, Justice Hagedorn's opinion suggests that
"[t]he legislature's budget bill did not propose an
appropriation in whole or in part for alternative fuels
17
No. 2019AP1376-OA.awb
generally. Instead, the legislature proposed an appropriation
for the replacement of school buses." Id., ¶271. Again, what
the "policy proposal" is depends on the lens through which the
bill is viewed. See supra, ¶¶134-35.
¶159 By asserting that "future litigation will surely
provide opportunities to refine the analysis," Justice Hagedorn
acknowledges the instability in the rule of law that these
separate writings generated. Justice Hagedorn's concurrence,
¶264. Without a clear rule, how will future courts know how to
apply this law? They won't. How can governors be assured that
the partial veto they are crafting is constitutional? They
can't. What is to happen if money has been paid or contracts
signed based on the statutory language as it currently exists?
Those who would strike down the vetoes provide no guidance.
¶160 Indeed, there will be future cases needed to iron out
the wrinkled mess we leave to the people of this state as this
court's partial veto jurisprudence.
V
¶161 Instead of Chief Justice Roggensack's approach that
would inject subjectivity into an objective test, Justice
Kelly's approach that would discard decades of case law, or
Justice Hagedorn's approach that would do both, I would apply
the time-honored test informed by our precedent. That is, we
ask whether "the part of the bill remaining constitutes a
'complete, entire, and workable law.'" Risser, 207 Wis. 2d at183 (citing Henry, 218 Wis. at 314; State ex rel. Martin v.
18
No. 2019AP1376-OA.awb
Zimmerman, 233 Wis. 442, 450, 289 N.W. 662 (1940)); see Wis.
Senate, 144 Wis. 2d at 453.
¶162 The resulting law after the school bus modernization
veto is clearly complete, entire, and workable.5 As Chief
Justice Roggensack's opinion sets forth, the law after the veto
states: "The department shall establish a program to award
grants of settlement funds from the appropriation under s.
20.855(4)(h) for alternative fuels." Chief Justice Roggensack's
concurrence/dissent, ¶16. This resulting sentence is complete
and workable on its face, providing clear direction on
administration of the subject grants.
¶163 Likewise, the local road improvement fund veto leaves
a complete, entire, and workable law. After the local road
improvement veto, § 126 of the budget bill states: "Local
supplement . . . 75,000,000." Id., ¶19. Relatedly, § 184s
provides: "Local supplement. From the general fund, as a
continuing appropriation, the amounts in the schedule for local
grant." Id., ¶20. Although this law does not get high marks
for grammar, that does not mean it is not complete and workable.
"Awkward phrasing, twisted syntax, alleged incomprehensibility
and vagueness are matters to be resolved only on a case-by-case
basis in which specific challenges to discrete applications of
the new provisions are raised in a complete factual setting."
Wis. Senate, 144 Wis. 2d at 463.
The vehicle fee schedule veto also results in a complete,
5
entire, and workable law, a premise that Petitioners do not
dispute. See Chief Justice Roggensack's concurrence/dissent,
¶90.
19
No. 2019AP1376-OA.awb
¶164 Similarly, the vapor products tax veto results in a
complete, entire, and workable law. After the Governor's veto,
the definition of "vapor product" is set forth as "a
noncombustible product that produces vapor or aerosol for
inhalation from the application of a heating element, regardless
of whether the liquid or other substance contains nicotine."
Chief Justice Roggensack's concurrence/dissent, ¶24. Again, the
veto leaves a coherent sentence that is complete, entire, and
workable on its face.
¶165 Rather than embrace the novel and untested approaches
advanced by each of the other separate opinions, this court
should tread lightly and act with restraint. Such approaches
foment confusion and inevitably will lead to more litigation.
¶166 The majority of the court likewise engenders more
litigation with the relief it affords. The petitioners suggest
that if this court finds the vetoes unconstitutional, then we
consider as possible relief "remanding to the Governor to allow
him to reconsider the relevant sections and either approve them
in whole, veto them in whole, or veto them in part consistent
with this Court's opinion." Such a suggestion for this court,
however, proves to be much too restrained.
¶167 Instead, the court grants an alternative relief,
choosing to do an end run around the Governor. The per curiam
opinion announces that the school bus modernization fund, local
roads improvement fund, and vapor products tax are "in full
force and effect as drafted by the legislature." Per curiam,
¶9.
20
No. 2019AP1376-OA.awb
¶168 Arguably, the constitution requires a remand to the
Governor. The Wisconsin Constitution provides for only two ways
for a bill to become law: if the governor approves and signs
the bill, Wis. Const. art. V, § 10(1)(b), or if the legislature
overrides the governor's veto. Wis. Const. art. V, § 10(2).
Neither occurred here.
¶169 Citing Sundby, 71 Wis. 2d at 125, the per curiam seeks
support for the action it takes. Specifically, the Sundby court
set forth: "If, in fact, the partial vetoes are invalid, the
secretary of state has a mandatory duty to publish those
sections of the enactment as if they had not been vetoed." Id.However, the statement in Sundby is not accompanied by any
constitutional analysis and comes in the context of deciding
whether the secretary of state was a proper party. That's a
pretty slim reed to use as support for the constitutionally
questionable relief the majority grants.
¶170 The people of this state deserve stability in the law
and clarity in our opinions. This court should uphold and
follow our well-established precedent. Based on that precedent
and the test it establishes, I determine that all four vetoes at
issue should be upheld because they result in objectively
complete, entire, and workable laws.
¶171 For the foregoing reasons, I concur in part and
dissent in part.
¶172 I am authorized to state that Justice REBECCA FRANK
DALLET joins this concurrence/dissent.
21
No. 2019AP1376-OA.dk
¶173 DANIEL KELLY, J. (concurring in part, dissenting in
part). What a vexatious thing the word "part" can be, and
indeed it has vexed us from the day we encountered it in Article
V of our constitution. When we first considered what it means
for a governor to approve an appropriation bill "in part," we
supposed the people of Wisconsin had adopted something very much
unlike the "line-item veto" many of our sister states have
adopted. Our supposing caused us to dress up the governor as
the people's legislative agent (with respect to appropriations
bills) and the legislature as the owner of an exceedingly
difficult to deploy veto. So now appropriation "bills" may
originate with the governor, and they must surely become law
unless a super-majority of both legislative houses say
otherwise. Not because the constitution says this is how an
appropriative law may come to be, but because we have said so.
And 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.
¶174 The balance of my discourse, I trust, will accomplish
three things. First, I mean to describe the mechanism provided
by the constitution for the enactment of laws. Second, I will
recount how our partial-veto jurisprudence has completely
disassembled that mechanism and reconstructed it with the parts
all out of place. And third, I will propose we retire our
suppositions and instead consult the constitution's actual text
1
No. 2019AP1376-OA.dk
to learn what it means for a governor to approve an
appropriation bill "in part."
I. SCHOOLHOUSE ROCK
¶175 A law begins as someone's idea. Somewhere, for some
often-unknown reason, it strikes someone that something within
the government's purview ought to be required, or prohibited, or
changed. Through whatever pathways the idea might travel, it
eventually comes to the attention of a legislator. And if the
idea finds there a receptive audience, the legislator engages
the constitutional mechanism for turning the idea into a law.
It must be a legislator (as opposed to, say, the governor)
because the power to make the law is legislative. Schmidt v.
Dep't of Res. Dev., 39 Wis. 2d 46, 59, 158 N.W.2d 306 (1968)
(The legislative power is the power "'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[.]'" (quoting State ex rel. Wis.
Inspection Bureau v. Whitman, 196 Wis. 472, 505, 220 N.W. 929(1928))); see also Wis. Legislature v. Palm, 2020 WI 42, ¶92,
391 Wis. 2d 497, 942 N.W.2d 900 (Kelly, J., concurring)
(describing the legislative power as the ability to determine
and declare what the laws and policy of the state will be). And
according to the unambiguous and unqualified command of our
constitution, "[t]he legislative power [is] vested in a senate
and assembly." Wis. Const. art. IV, § 1.
¶176 The legislative process must begin with the drafting
of a bill to contain the championed idea because "[n]o law shall
2
No. 2019AP1376-OA.dk
be enacted except by bill." Wis. Const. art. IV, §17(2). When
the drafting is done, the bill contains a complete and workable
potential law, which is then introduced to the legislature:
"Any bill may originate in either house of the
legislature . . . ." Wis. Const. art. IV, § 19 (the
"origination clause"). There is, obviously, correspondence
between the houses because a bill cannot become a law until
approved by both: "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) (the first clause is
the "legislative passage clause," and the second is the
"presentment clause"). And in that correspondence, each house
may modify the proposed law considered by the other. Wis.
Const. art. IV, § 19 ("[A] bill passed by one house may be
amended by the other.") (the "amendment clause").
¶177 Once both houses have agreed upon a bill, it comes
under the governor's scrutiny as it passes from the legislative
branch to the executive branch. Wis. Const. art. V, § 10(1)(a).
The bill becomes a law "[i]f the governor approves and signs the
bill . . . ." Wis. Const. art. V, § 10(1)(b). The process for
appropriation bills (which is our particular topic of interest
here) is, however, a little different. Such bills "may be
approved in whole or in part by the governor, and the part
approved shall become law." Id. But the governor's disapproval
of some part of an appropriation bill does not necessarily
identify its terminus. Instead, the rejected part returns to
the legislative branch for further consideration. If two-thirds
3
No. 2019AP1376-OA.dk
of the members of both houses approve, the rejected part becomes
law notwithstanding the governor's disapproval.1
¶178 I beg forgiveness for this pedantry, but I find that
our partial veto jurisprudence requires recourse to these
fundamental principles so that we may recover the law-making
process provided by our constitution. We have before us two
potential understandings of what it means to approve an
appropriations bill "in part." One is extraordinarily broad,
and in consequence of its broadness it rejects almost every
other piece of the legislative machinery described in our
constitution. The other is much more modest, but has the
benefit of leaving the pieces of the legislative machinery where
the constitution put them, and in its operation it precisely
answers the problem it was meant to solve.
¶179 I believe we should adopt the latter understanding in
no small part because one of the fundamental rules of textual
interpretation is that, when given a choice, we do not read one
1 Wis. Const. art. V, § 10(2)(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.
4
No. 2019AP1376-OA.dk
constitutional provision to conflict with others. See Thomas M.
Cooley, A Treatise on the Constitutional Limitations Which Rest
upon the Legislative Power of the States of the American Union,
58 (1868) ("[O]ne part is not to be allowed to defeat, if by any
reasonable construction the two can be made to stand
together."); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 180 (2012) ("The provisions of a
text should be interpreted in a way that renders them
compatible, not contradictory."). So we construe constitutional
provisions with the assumption that they are all supposed to
function together in concert. When faced with two permissible
constructions of the word "part," we must choose the one that
harmonizes with other relevant text. A reading that introduces
dissonance is a powerful hint that we're doing it wrong.
¶180 The tuning fork by which I will test for harmony and
dissonance comprises three interrelated propositions called
forth by our constitution's text. The first proposition is that
the most elemental part of a bill is an idea (that is, a
proposal for a complete, entire, and workable law). The second
is that the powers of amending and vetoing are different things,
the respective exercise of which our constitution commits to
different branches of government. And the third is that an idea
may not become law without the legislature having first voted
for it. It seems remarkable to me that I should be offering
these as propositions rather than as settled descriptions of
constitutional principles, but our partial-veto jurisprudence is
at odds with each of them. And that means all I can do is
5
No. 2019AP1376-OA.dk
recommend them to the attention of future courts who may be
called upon to consider the meaning of Wis. Const. art. V, § 10.
II. ON THE JUMBLING OF THE LEGISLATIVE MECHANISM
¶181 Great variances often begin as minor imprecisions, and
such is the case with the path we traveled over the years as we
addressed the partial veto. I will detail only enough of that
journey to describe how we disassembled some of the key pieces
of the legislative mechanism and then reassembled them into
something that is constitutionally unrecognizable.
A. The Disassembly
¶182 We first entertained a claim that the governor had
improperly employed his partial veto power in State ex rel.
Wisconsin Tel. Co. v. Henry, 218 Wis. 302, 260 N.W 486 (1935).
Having never encountered such a veto before, we sensibly looked
about for tools to help us understand its telos. Our first step
was to compare our partial veto to the "line-item" vetoes
adopted by some of our sister states and, assuming the different
words meant Wisconsin must have done something very much
different from the others, we consulted them no further. It was
certainly fair to observe that a partial veto must differ in
some measure from a line-item veto——the word-choice suggests as
much. But it was a mistake to suppose the measure of difference
was so great that other states' experience with vetoes of less
than an entire bill could tell us nothing about their impact on
the overall law-making mechanism. So we missed out on what we
might have learned about whether such vetoes have any effect on
the vesting of legislative authority, or the origination of
6
No. 2019AP1376-OA.dk
bills, or the difference between amendments and vetoes, or the
need for the legislature to vote on a proposed law. Finding no
pedagogical value in the partial veto's cousin, we instead
consulted a dictionary wherein, unknowingly, we found mischief.
¶183 We learned from Webster's New International Dictionary
that "part" means
one of the portions, equal or unequal, into which
anything is divided, or regarded as divided; something
less than a whole; a number, quantity, mass, or the
like, regarded as going to make up, with others or
another, a large number, quantity, mass, etc., whether
actually separate or not; a piece, fragment, fraction,
member, or constituent.
Henry, 218 Wis. at 313 (quoting Part Webster's New International
Dictionary 1781 (2d ed. 1934)). This provided a reasonably
adequate etymological meaning;2 but what we needed was a
constitutionally contextualized meaning. Antonin Scalia & Bryan
A. Garner, supra at 427 (We consider a word's meaning "in
context according to a fair reading."). That is, we needed to
discover the most elemental part of a bill, the further
subdivision of which leaves something no longer identifiable as
a part of a bill. If we had done this work then, it would have
saved us from concluding in subsequent cases (which I address
below) that the most elemental part of a bill is not an idea,
but instead a letter or a digit.
¶184 But we did not know then what would be urged upon us
later, and so our analysis in Henry was adequate for our
2A common, contemporaneous dictionary may provide a word's
generally understood meaning. State v. Sample, 215 Wis. 2d 487,
499–500, 573 N.W.2d 187 (1998).
7
No. 2019AP1376-OA.dk
immediate needs, if not for future cases. All we needed to do
there was decide whether the partial veto empowered the governor
to unbundle what the legislature had bundled——a practice then
known as "logrolling." A case we decided a few years later
neatly summed up the relationship between the problem and the
solution provided by the partial veto:
Its purpose [the partial veto] was to prevent, if
possible, the adoption of omnibus appropriation bills,
log–rolling, the practice of jumbling together in one
act inconsistent subjects in order to force a passage
by uniting minorities with different interests when
the particular provisions could not pass on their
separate merits, with riders of objectionable
legislation attached to general appropriation bills in
order to force the governor to veto the entire bill
and thus stop the wheels of government or approve the
obnoxious act. Very definite evils were inherent in
the law–making processes in connection with
appropriation measures. Both the legislature and the
people deemed it advisable to confer power upon the
governor to approve appropriation bills in whole or in
part . . . .
State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447-48, 289
N.W. 662 (1940). We foreshadowed this conclusion in Henry where
we observed that "there is nothing in that provision [art. V, §
10] which warrants the inference or conclusion that the
Governor's power of partial veto was not intended to be as
coextensive as the Legislature's power to join and enact
separable pieces of legislation in an appropriation bill." 218
Wis. at 315. The rule we developed in Henry was sufficient to
meet the problem of logrolling. It required that the parts of
the bill remaining after the partial veto "constitute, in and by
themselves, a complete, entire, and workable law . . . ." Id.
at 314. Applied in this context, it was a workable rule because
8
No. 2019AP1376-OA.dk
its operation reflected the partial veto's purpose——separating
ideas the legislature had joined. Unfortunately, embedded in
this rule is an intrinsic deficiency: We had neglected to say
that the "complete, entire, and workable law" remaining after
the veto must be one on which the legislature had actually
voted. The deficiency was not apparent in Henry because the
parts of the bill remaining after the veto were the same as they
had been when transmitted to the governor. What we didn't
foresee at the time was that a future governor might so employ
the partial veto that the remaining parts would comprise a law
the legislature had never seen.
¶185 The rule's deficiency bore fruit in State ex rel.
Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976).
There, the bill in question gave local taxpayers the option of
calling for a public referendum before a municipality increased
its tax levy. Id. at 121-22. But the governor vetoed part of
one sentence in such a way that the remaining language made the
referendum mandatory. The legislature, of course, had neither
proposed nor approved such a thing. The idea had not been
drafted as a bill, it did not originate in the senate or
assembly, it was not subject to amendment in the corresponding
legislative house, and no one in the legislature had ever voted
on it. And yet we said the gubernatorial-authored law was
constitutionally permissible. Why? Because, apparently, a veto
has affirmative policy-making powers:
Some argument is advanced that in the exercise of
the item veto the governor can negative what the
legislature has done but not bring about an
affirmative change in the result intended by the
9
No. 2019AP1376-OA.dk
legislature. We are not impressed by this argued
distinction. Every veto has both a negative and
affirmative ring about it. There is always a change
of policy involved. We think the constitutional
requisites of art. V, sec. 10, fully anticipate that
the governor's action may alter the policy as written
in the bill sent to the governor by the legislature.
Sundby, 71 Wis. 2d at 134 (emphasis added). Every veto has an
affirmative "ring" about it? Well, I suppose so, but only in
the sense that declining a marriage proposal has the "ring" of a
wedding about it. A veto cannot be the genesis of a new policy
any more than telling an amorous suitor "no" means there is a
reception to plan. Vetoes and "noes" are for stopping things,
not creating them. See Federalist No. 73, 440-41 (Hamilton) (C.
Rossiter ed. 1961) (The veto power "is the qualified negative of
the [executive] upon the acts or resolutions of the two houses
of the legislature; or, in other words, his power of returning
all bills with objections, to have the effect of preventing
their becoming laws[.]").
¶186 To Chief Justice Roggensack, however, a veto is an
invitation to participate in law making rather than just law
stopping. She says: "Furthermore, our jurisprudence is not
unique in describing a quasi-legislative role for the governor.
A veto power, regardless of its contours, is inherently
legislative." Chief Justice Roggensack's concurrence/dissent,
¶84. The second sentence is certainly true, but it has no
connection to what she means by a "quasi-legislative role" in
the first sentence. The veto is simply one of the instances in
which our framers broke off a small piece of power that
naturally belongs in one branch and put it in another. So, yes,
10
No. 2019AP1376-OA.dk
it is quite obviously legislative in nature. But there are no
penumbras emanating from the veto power; it authorizes the
executive to do nothing more than what it says——stop a law from
coming into being. In the Chief Justice's hands, however, the
veto is a clandestine vehicle for smuggling the legislature's
law-authoring function into the executive branch where, through
the power of the word "part," it turns the governor into a
quasi-legislator (whatever that might be). If we are to be
constrained by the words of the constitution, this operation is
simply impossible. So the first sentence of the quote above is
incorrect. Our misguided jurisprudence might describe the
governor as having a "quasi-legislative role" beyond merely
stopping a proposed law, but literally no other authority in
these United States does.3
¶187 And that brings us back to Henry's unfinished work——
defining the "thing" that a partial veto may stop. The rule we
adopted in that case assumed, but never stated, that it was a
bundled piece of legislation. But without a contextualized
3 The Chief Justice buttresses the executive's claim to
legislative powers with reference to its rule-making authority
(which it borrows from the legislature). See Chief Justice
Roggensack's concurrence/dissent, ¶86 ("First, as demonstrated
by rulemaking, and as we have long concluded, the Legislature
may delegate its power to make law to the executive."); Koschkee
v. Taylor, 2019 WI 76, ¶34, 387 Wis. 2d 552, 929 N.W.2d 600("The source for rulemaking is legislative delegation."). The
nature, scope, effect, and validity of administrative rule-
making are subjects of a continually growing body of literature
that is enormous both in terms of its volume and potential
constitutional implications. So this probably isn't the best
reference if the goal is to show that executive law-making is a
settled and universally accepted phenomenon.
11
No. 2019AP1376-OA.dk
definitional anchor point for "part," we concluded in Sundby
that the most elemental part of a bill can be something smaller
than one of the proposed laws bundled into an appropriation
bill; we said it could be part of a sentence in one of the
bundled proposals, so long as the resulting document still
comprised a "complete, entire, and workable law." So we
accepted the veto of a part of a part of an idea even though the
result expressed an idea not contained in the bill presented to
the governor.
¶188 But wait, there's more. We've said the most elemental
part of a bill a veto can stop isn't a sentence, or even part of
a sentence——it's a letter or a digit:
Thus, in this opinion, we break no new ground except
as we now, on the facts before us, have the obligation
to clarify that the governor may, in the exercise of
his partial veto authority over appropriation bills,
veto individual words, letters and digits, and also
may reduce appropriations by striking digits, as long
as what remains after veto is a complete, entire, and
workable law.
State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 437, 424
N.W.2d 385 (1988). In what came to be known as the Vanna White
veto, a governor would strike individual letters or numbers to
create words, sentences, and ideas that appeared nowhere in the
bill passed by the legislature.4
4 See, e.g., State ex rel. Wisconsin Senate v. Thompson, 144
Wis. 2d 429, 460 n.15, 424 N.W.2d 385 (1988):
12
No. 2019AP1376-OA.dk
¶189 We approved this practice in large part because we
considered it all part of the governor's "quasi-legislative"
role. Id. at 446. Warming to our theme a few pages later, we
dropped both the "quasi" and any remaining pretense that the
legislature is the exclusive legislative branch of government:
"This broad and expansive interpretation of the governor's
partial veto authority as mandated by the constitution has, in
effect, impelled this court's rejection of any separation of
powers-type argument that the governor cannot affirmatively
legislate by the use of the partial veto power." Id. at 453.
¶190 After releasing our Wisconsin Senate opinion in 1988,
the court-approved method of enacting appropriation bills no
longer bore any resemblance to the mechanism described by our
constitution. The three propositions I introduced above, and
which I now address, demonstrate that our experience in
reconstructing the dismantled legislative process left several
of the key pieces in the wrong place.
B. The Reassembled Legislative Mechanism
¶191 The first proposition traduced by our partial veto
jurisprudence is that the irreducible part of a bill is an idea—
—that is, a proposal for a complete, entire, and workable law.
Governor Lee Sherman Dreyfus used a digit veto to cut
$8.9 million appropriated for state school aids in the
1979–81 budget bill. He accomplished this by vetoing
the decimal point and number 9 from the percentage
"96.9%", thereby decreasing the percentage used for
calculating a portion of such school aids. That veto
was not challenged, and the legislature subsequently
failed to override it.
13
No. 2019AP1376-OA.dk
This is the first because it necessarily informs our
understanding of the entire legislative mechanism——specifically,
it identifies the required entry point to the legislative
process, where and how the idea may be changed, and whose
approval is needed before the idea may become a law. However,
by treating a bill as a potpourri of letters and digits, rather
than an expression of one or more complete and comprehensible
ideas, our reconstruction of the legislative mechanism
dramatically changed the legislative process.
¶192 Our refutation of this proposition started when we
looked to a dictionary to learn what "part" means. We had
recourse to that venerable source because, surprisingly, we
didn't think the context in which the constitution used the word
was significant:
As the meaning of that word, as used in section 10,
art. 5, Wis. Const., is not . . . rendered doubtful by
reason of context, or uncertainty as to application to
a particular subject–matter, or otherwise, there is
nothing because of which that word, as used in that
section, is not to be given its usual, customary, and
accepted meaning . . . .
Henry, 218 Wis. at 313. But it's one thing to understand that a
"part" is something less than the whole, as the dictionary says;
it's an entirely different thing to understand what a part of a
bill might be.
¶193 As we learned in Schoolhouse Rock, a bill encompasses
someone's idea. The purpose of the bill, of course, is to
introduce the idea it contains to the legislature, where the
14
No. 2019AP1376-OA.dk
legislators evaluate its merits as a potential law.5 The fate of
a bill in each legislative house, therefore, is to be the
subject of debate. See Wis. Const. art. IV, § 16 (Our
constitution anticipates a vigorous debate: "No member of the
legislature shall be liable in any civil action, or criminal
prosecution whatever, for words spoken in debate.");
Legislature——Public Officers——Secretary of State——Wisconsin
Statutes, 10 Wis. Op. Att'y Gen. 613 (1921) (Broadly describing
the legislative process as an introduction of a bill in one
house, potential amendment in the other, and ultimate agreement
between them before presentation to the governor). Debates
(proper ones, at least) involve reasoning——the setting forth of
intelligible arguments for or against a rationally
comprehensible proposal. Dividing a bill into anything smaller
completely destroys its distinctive nature——that is, the
expression of a proposed law susceptible of debate and adoption.
This is why the basic part of a bill cannot be a letter or a
digit. Neither the letter "y" nor the number "5" (nor any of
their relations) can be, in isolation, a bill because such a
thing would be incomprehensible in debate or as a law. So the
irreducible part of any bill, even the simplest, most
uncomplicated, inconsequential bill one can imagine, must
necessarily be, at a minimum, an idea expressing a potential
5See, e.g., Follow the Process: The Legislative Process,
Wisconsin State Legislature (Last Accessed Jun. 13, 2020),
https://legis.wisconsin.gov/about/follow ("When a legislator
gets an idea or is prompted by their constituency to make a
change, they have a drafting lawyer prepare a draft of a bill to
see what laws will need to change.").
15
No. 2019AP1376-OA.dk
complete, entire, and workable law. This is why Justice Hansen
said the partial veto "is not a power to reduce a bill to its
single phrases, words, letters, digits and punctuation marks."
State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 726, 264
N.W.2d 539 (1978) (Hansen, J., concurring in part, dissenting in
part).
¶194 The second proposition is that the powers of amending
and vetoing are different things, the respective exercise of
which our constitution commits to different branches of
government. Amending belongs to the legislative houses: "[A]
bill passed by one house may be amended by the other." Wis.
Const. art. IV, § 19. The power to amend a bill comprehends
changing its meaning: "When a change is made in a bill, it is
said to be amended. There are simple and substitute
amendments."6 See also Amend, Black's Law Dictionary (11th ed.
2019) ("To change the wording of; specif., to formally alter (a
statute, constitution, motion, etc.) by striking out, inserting,
or substituting words.") An amendment may accomplish something
as minor as subtracting a penny from an appropriation, as major
as introducing an entirely new idea, or quite literally anything
in between. 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. This should have given us pause
as we were developing our theory of partial vetoes, but instead
How a Bill Becomes Law, Wisconsin State Legislature 14
6
(available at
http://legis.wisconsin.gov/assembly/acc/media/1106/howabillbecom
eslaw.pdf) (May 2016).
16
No. 2019AP1376-OA.dk
we rejected the idea that "the governor cannot affirmatively
legislate by the use of the partial veto power." Wis. Senate,
144 Wis. 2d at 453. This is patent error because it draws the
amending power into the executive branch in direct and express
contradiction to the constitution. If we say the governor's
"veto" may change a bill's idea, then there's really no
cognizable difference between the concepts of amendments and
partial vetoes. Because we failed to keep these concepts
distinct, our reconstructed legislative mechanism now allows for
amendments in the assembly, the senate, and the governor's
mansion. Obviously, we put the power to amend in the wrong
place as we were reconstructing the legislative mechanism.
¶195 The third (and perhaps most important) proposition is
that an idea may not become a law without the legislature having
voted for it. But when we finished reassembling the legislative
mechanism, this proposition was, disturbingly, no longer
categorically true. If a bill contains an appropriation, our
reconstruction allows a new idea to originate not as a bill but
as a partial veto. It further allows the idea to originate in
the executive branch instead of the legislative branch. And,
finally, it allows this new idea to become law so long as the
legislature does not reject it by a two-thirds vote in both
houses. So our reconstruction put more legislative pieces in
the wrong place——we made the governor the author of the law
(instead of the legislature), and we reduced the legislature to
wielding a very difficult to deploy veto over the governor's
edict. The net effect is that the governor may create a law
17
No. 2019AP1376-OA.dk
without ever having to obtain legislative approval. In fact, a
majority of both houses' members may affirmatively reject the
governor's law, yet it is law nonetheless unless that majority
is super-sized.
¶196 This reconstructed mechanism violates four specific
constitutional requirements. The first is that all bills must
originate in one of the two legislative houses, the second is
that they must be subject to amendment in the corresponding
house. Wis. Const. art. IV, § 19 ("Any bill may originate in
either house of the legislature, and a bill passed by one house
may be amended by the other."). The third is that "[n]o law
shall be enacted except by bill," and the fourth is that the
bill must be approved by both houses of the legislature. Wis.
Const. art. IV, § 17(2); Wis. Const. art. V, § 10(1)(a) ("Every
bill which shall have passed the legislature shall, before it
becomes a law, be presented to the governor." (emphasis added)).
To the extent a governor's partial veto introduces an idea not
previously present in the bill, its origin is in the executive
branch, not the legislature. And because the new idea did not
originate in the assembly or senate, it was never subject to
amendment in the corresponding house. Finally——and this should
definitively dispose of our partial veto jurisprudence——it
allows an idea to become a law even though it has not "passed
the legislature."
¶197 Now, to be sure, the judicially-engineered executive
legislative power (how's that for a tri-lateral oxymoron?) is
not as comprehensive as that belonging to the legislature. We
18
No. 2019AP1376-OA.dk
have left some limitations in place, which is encouraging even
if they have nothing to do with the constitution. For example,
when the governor addresses himself to a dollar figure, we allow
him to make it smaller, not larger. Citizens Util. Bd. v.
Klauser, 194 Wis. 2d 484, 488, 534 N.W.2d 608 (1995).
Presumably, this limit derives from the mathematical principle
that $10 is a part of $100. But it still allows introduction of
an idea different from the one to which the legislature
assented. Another limitation relates to the letters the
governor may use in the creation of new words and ideas: We
have never said he may add letters not already present in the
bill. I suppose this is an etymological limit based on the
proposition that a letter (as opposed to an idea) is the
indivisible part of a bill, and so a new letter cannot be said
to be a part of the existing potpourri. Speaking of which, we
have not said (at least not yet) that he may change the order of
letters in the potpourri. This limit almost certainly survives
because we haven't turned our attention to it. If the governor
may create new words and ideas not already present in the bill,
it seems like scrupling at a trifle to insist that the letters
he uses to create them remain in the order presented. If a
letter really is the most elemental part of a bill, it is just
as much a "part" if it appears before rather than after any of
the bill's other "parts." Nothing in the dictionary definition
of "part" suggests that sequencing has anything to do with it.
In any event, aside from these few limitations, our cases say
the governor is free to draft new ideas and we will pretend the
19
No. 2019AP1376-OA.dk
resulting document is still a bill that has "passed the
legislature" when, quite obviously, it isn't. As a consequence,
our cases refute the proposition that no idea shall become a law
without legislative approval.
¶198 So, as far as the Wisconsin Supreme Court is concerned
(at least until we were contradicted by a brace of
constitutional amendments),7 because the most elemental part of
an appropriations bill is a letter, a bill may originate with
the governor, it is not subject to legislative amendment, and it
may become the law of Wisconsin even if the legislature has not
approved it (or, more shockingly, has actually affirmatively
voted against it, albeit by less than a supermajority). As
Justice Hansen said,
[i]t appears that we have now arrived at a stage
where one person can design his own legislation from
the appropriation bills submitted to him after they
have been approved by the majority of the legislature.
The laws thus designed by one person become the law of
the sovereign State of Wisconsin unless disapproved by
two-thirds of the legislators. I am not persuaded that
7The people of Wisconsin amended their constitution in 1990
to prevent a veto from "creat[ing] a new word by rejecting
individual letters in the words of the enrolled bill[.]" Wis.
Const. art. V, § 10(1)(c). They amended it again in 2008, this
time to prevent a veto from creating "a new sentence by
combining parts of 2 or more sentences of the enrolled bill."
Id.
The Chief Justice and Justice Ann Walsh Bradley treat these
amendments as though they have something to say about the
meaning of the original partial veto power. Chief Justice
Roggensack's concurrence/dissent, ¶73; Justice Ann Walsh
Bradley's concurrence/dissent, ¶146. They don't. These
amendments were directed at us; they were meant to rein in our
jurisprudential excesses, not limit the meaning of the
constitution's actual text.
20
No. 2019AP1376-OA.dk
art. V, sec. 10, was ever intended to produce such a
result.
Kleczka, 82 Wis. 2d at 727 (Hansen, J., concurring in part,
dissenting in part). I agree. All of this upending of the
constitutional order we have done because of the word "part," a
word so meek and mild that it should be entirely incapable of
wreaking such havoc on our constitutional order. This case
presents an opportunity to return the disordered pieces of the
law-making machinery to their proper places, and I think we
should take it. In fact, I think we are required to take it.
III. ON THE DUTY TO RETURN TO THE CONSTITUTIONAL TEXT
¶199 The majority of the court's members base their
analyses on two propositions. The first is that our decision
here must follow what we have done in our prior cases, even if
we were wrong before. And the second is that we must respect
the governor and legislature's historical practice of allowing
partial vetoes so long as the resulting legislation is either on
the same topic as the bill passed by the legislature (according
to the Chief Justice), or is a "complete, entire, and workable
law" (according to other members of our court). I disagree
because I believe our obligation to the Wisconsin Constitution
supersedes both of them. I appreciate the Chief Justice's
opinion because she attempts to cabin in the governor's use of
the partial veto so that the resulting law is at least on the
same topic, and in doing so she moves at least part of the way
back to the constitutional limitations on the partial veto.
Other members of the court would not even attempt that much. To
the extent my opinion responds to others, it focuses primarily
21
No. 2019AP1376-OA.dk
on the Chief Justice's opinion——not because I disagree with her
the most (I don't), but because in moving closer to the
constitution, her opinion helpfully illustrates the remaining
distance we need to go before we can call ourselves
constitutionally orthodox.
A. What we have done before
¶200 "We cannot rehash original meaning——and its
interaction with stare decisis——every time a partial veto comes
before us[,]" the Chief Justice says. Chief Justice
Roggensack's concurrence/dissent, ¶75. Maybe. But if we were
to address ourselves to the original meaning of the relevant
constitutional text in this case, we wouldn't be rehashing it,
we would be analyzing it for the first time. In our 85 years of
experience with the partial veto, we have not once asked how it
fits with the origination clause, the amendment clause, or the
legislative passage clause.
¶201 Standing between us and the constitution's original
meaning, however, is a string of cases stretching back over
those 85 years. Stare decisis counsels that we tread carefully
here, and that we not upset what has been settled without a good
reason. This principle rests on the premise that we do not
begin every analysis ab initio mundi; our work builds on the
accomplishments of our capable predecessors. If a court
disregards this premise, there is a risk that "deciding cases
becomes a mere exercise of judicial will, with arbitrary and
unpredictable results." State v. Roberson, 2019 WI 102, ¶49,
389 Wis. 2d 190, 935 N.W.2d 813 (quoting Schultz v. Natwick,
22
No. 2019AP1376-OA.dk
2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (citations and
quotations omitted)). Embedded within our commitment to stare
decisis is our recognition that "reliance interests are real,
prior generations of judges did their job with wisdom, and
efficiency in dispute resolution is important." Daniel R. Suhr
& Kevin LeRoy, The Past and the Present: Stare Decisis in
Wisconsin Law, 102 Marq. L. Rev. 839, 859 (2019). It is also
conducive to what others legitimately expect of their judicial
servants: "Litigants and the public at large need to know
courts function as neutral decision makers, delivering equal
justice under law." Id. All of this explains why we must be
"'respectful of the doctrine of stare decisis.'" Chief Justice
Roggensack's concurrence/dissent, ¶66 (quoting Roberson, 389
Wis. 2d 190, ¶49).
¶202 But we mustn't let this principle capture us, for it
contains dangers of its own. To err is human, and judges are
nothing if not human——especially when the mellifluousness of
"your honor" makes the humility necessary to recognize mistakes
harder to maintain. See generally Marah Stith McLeod, A Humble
Justice, The Yale L.J. Forum (Aug. 2, 2017). And the potential
for mistakes is constantly at hand, because it is tempting for a
creative court to reach a decision "by extorting from precedents
something which they do not contain." Robert Rantoul, Oration
in Scituate (July 4, 1836) in Antonin Scalia, A Matter of
Interpretation 39 (1991). Once embarked on this path, it is too
easy for the court to "extend [its] precedents, which were
themselves the extensions of others, till, by this accommodating
23
No. 2019AP1376-OA.dk
principle, a whole system of law is built up without the
authority or interference of the [people]." Id. In this way,
it is possible for us to "'do more damage to the rule of law by
obstinately refusing to admit errors, thereby perpetuating
injustice, than by overturning an erroneous decision.'"
Roberson, 389 Wis. 2d 190, ¶49 (quoting Johnson Controls, Inc.
v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665
N.W.2d 257).
¶203 We risk this doctrine becoming a mechanism for error-
perpetuation if we don't respect its purpose: To remind us that
those who came before were diligent and capable in their work,
and that in doubtful matters it is best to leave settled things
settled unless there is a clear and present need to do
otherwise.
In the matter of reforming things, as distinct from
deforming them, there is one plain and simple
principle; a principle which will probably be called a
paradox. There exists in such a case a certain
institution or law; let us say, for the sake of
simplicity, a fence or gate erected across a road.
The more modern type of reformer goes [happily] up to
it and says, "I don't see the use of this; let us
clear it away." To which the more intelligent type of
reformer will do well to answer: "If you don't see
the use of it, I certainly won't let you clear it
away. Go away and think. Then, when you can come
back and tell me that you do see the use of it, I may
allow you to destroy it.
G.K. Chesterton, The Thing: Why I am Catholic 27 (Dodd, Mead
and Co., Inc. 1930).
¶204 Most of the members of this court would turn this
prudential lesson into a permanent fence that would deprive
Chesterton's reformer of the ability to bring change even after
24
No. 2019AP1376-OA.dk
he had gained the necessary wisdom. To fortify this fence, the
Chief Justice turns to Justice Scalia, who once said:
"In [originalism's] undiluted form, at least, it is
medicine that seems too strong to swallow. Thus,
almost every originalist would adulterate it with the
doctrine stare decisis——so that Marbury v. Madison
would stand even if [a prominent legal scholar] should
demonstrate unassailably that it got the meaning of
the Constitution wrong."
Chief Justice Roggensack's concurrence/dissent, ¶67 (quoting
Antonin Scalia, Originalism: The Lesser Evil, 57
U. Cinn. L. Rev. 849, 861 (1989) (alteration in original)). But
if the Chief Justice believes Justice Scalia thought stare
decisis should unalterably privilege precedent over text, she is
mistaken. Both Chesterton and Justice Scalia were both
consciously addressing something that could be described as a
paradox, and this quote captures only one of its sides. The
other is on display in Justice Scalia's many opinions in which
he sets the doctrine aside in favor of the text. So, for
example, he disregarded precedent when it was "wrong and
unworkable," or its rationale had no support in "history,
precedent, or common sense." See, e.g., Witte v. United States,
515 U.S. 389, 406 (1995) (Scalia, J., concurring) ("This is one
of those areas in which I believe our jurisprudence is not only
wrong but unworkable as well, and so persist in my refusal to
give that jurisprudence stare decisis effect."); Dickerson v.
United States, 530 U.S. 428, 450, 461-65 (2000) (Scalia, J.,
dissenting) (urging the Court to disregard Miranda v. Arizona,
25
No. 2019AP1376-OA.dk
384 U.S. 436 (1966), because its underlying rationale had no
support in "history, precedent, or common sense.").8
¶205 So when precedent unavoidably collides with the law——
that is, when it is wrong and its rationale has no support in
history, precedent, or common sense——there must be no doubt
about which will prevail. I agree with Justice Clarence Thomas,
who said that "[w]hen faced with a demonstrably erroneous
precedent, my rule is simple: We should not follow it. This
view of stare decisis follows directly from the Constitution's
supremacy over other sources of law——including our own
precedents." Gamble v. United States, 139 S. Ct. 1960, 1984
(2019) (Thomas, J., concurring). It also follows from the fact
that no amount of judicial error can change the constitution,
for "[t]he meaning of the constitutional provision having been
once firmly established as of the time of its adoption, such
meaning continues forever, unless it is changed or modified by
8The Chief Justice isn't quite as wed to stare decisis as
her opinion would seem to suggest. For an abbreviated sample of
cases in which she wrote an opinion overturning one or more
precedents, see State v. Roberson, 2019 WI 102, 389 Wis. 2d 190,
935 N.W.2d 813, abrogating State v. Dubose, 2005 WI 126, 285
Wis. 2d 143, 699 N.W.2d 582; Koschkee v. Taylor, 2019 WI 76, ¶1,
387 Wis. 2d 552, 929 N.W.2d 600, overruling Coyne v. Walker,
2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520; Megal v. Green Bay
Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274
Wis. 2d 162, 682 N.W.2d 857, abrogating Balas v. St. Sebastian's
Congregation, 66 Wis.2d 421, 225 N.W.2d 428 (1975) and Lealiou
v. Quatsoe, 15 Wis. 2d 128, 112 N.W.2d 193 (1961); State v.
Ferguson, 2009 WI 50, 317 Wis. 2d 586, 767 N.W.2d 187,
overruling State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132,
647 N.W.2d 421; State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695
N.W.2d 277, overruling State v. Hart, 2001 WI App 283, 249
Wis. 2d 329, 639 N.W.2d 213.
26
No. 2019AP1376-OA.dk
the Constitution." State v. Schinz, 194 Wis. 397, 403, 216
N.W. 509 (1927).
¶206 Justice Thomas's formulation also respects the fact
that the judiciary's authority to decide cases is dependent upon
an oath in which we swear to uphold the constitution——an oath
that makes no reference to our precedents. "[T]he Constitution
does not mandate that judicial officers swear to uphold judicial
precedents. And the Court has long recognized the supremacy of
the Constitution with respect to executive action and
'legislative act[s] repugnant to' it." Gamble, 139 S. Ct. at
1985 (Thomas, J., concurring) (quoted source omitted; second
alteration in original)); see also Mayo v. Wis. Injured Patients
& Families Comp. Fund, 2018 WI 78, ¶91, 383 Wis. 2d 1, 914
N.W.2d 678 (Rebecca Grassl Bradley, J., concurring) ("'[T]he
Constitution is to be considered in court as a paramount
law[.]'" (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178
(1803)). This supreme law is the very source of the authority
we exercise. If we used it in a manner repugnant to its source,
we would break faith with those who are the stewards of the
document from which that authority arises. This we must avoid
at all cost, even should it mean abandoning our wrongly decided
cases. We have been equal to the task when called upon to do so
before, and we must not shrink from it now.
B. Of the provenance and operation of "topicality"
¶207 Today's decision expressly carries forward our partial
veto jurisprudence, along with all of its errors, with the
unremarkable consequence that, when we finished our work, pieces
27
No. 2019AP1376-OA.dk
of the legislative mechanism were still in the wrong place. The
Chief Justice says "[h]aving broken no new ground, I employ our
decisions and continue the constitutional analysis of 'part' in
the four vetoes that were challenged." Chief Justice
Roggensack's concurrence/dissent, ¶90.9 The undisturbed ground
on which the Chief Justice builds her analysis is the
germaneness test we adopted in Wisconsin Senate:
[F]or the first time in this case [we] give explicit
judicial recognition to[] the long-standing practical
and administrative interpretation or modus vivendi
between governors and legislatures, that the
consequences of any partial veto must be a law that is
germane to the topic or subject matter of the vetoed
provisions.
Wis. Senate, 144 Wis. 2d at 437. The Chief Justice's statement
of the rule is almost identical: "A veto that does not alter
legislative control of the topic or subject matter of enrolled
bills has been referred to as 'germane.'" Chief Justice
Roggensack's concurrence/dissent, ¶91. Whether we call this a
"germaneness" test (as we did in Wisconsin Senate) or a "topic
or subject matter" test (as the Chief Justice does) it has
nothing to do with the constitution, as the Wisconsin Senate
quote makes clear. It is, instead, merely descriptive of how
the executive and legislative branches have conducted
themselves. As I will explain below, while this may helpfully
The "continu[ing] constitutional analysis of 'part[,]'"
9
unfortunately, did not extend beyond reciting the partial veto
language and noting that "part" is something less than the
whole. Neither the Chief Justice nor Justice Ann Walsh Bradley
mention any of the constitutional provisions that must be
ignored to operationalize our historical understanding of
"part."
28
No. 2019AP1376-OA.dk
guide us to a starting point for our analysis, it can never
authoritatively establish what the judiciary must consider to be
constitutionally orthodox. Consequently, our analysis ended
where we should have just been starting, which means we are no
closer to a constitutional understanding of our subject than we
were in Wisconsin Senate. I'll say a brief word about the
inadequacy of the topicality test first, and then address why we
shouldn't be in the business of blessing the other branches'
modi vivendi, as Wisconsin Senate says.
1. Why "topicality" is an inadequate rule
¶208 The Chief Justice says a partial veto is appropriate
so long as it does "not alter the topic or subject matter of the
'whole' bill before the veto . . . . [S]uch a veto does not
alter the stated legislative idea that initiated the enrolled
bill." Chief Justice Roggensack's concurrence/dissent, ¶11
(footnote omitted). It then repeats the proposition at greater
length, but without any additional explanatory power:
When the part approved by the governor does not alter
the topic or subject matter of the whole bill
presented to him for signature, the part approved
maintains the legislature's choice of topic or subject
matter that underlies the "whole" bill. Stated
otherwise, when the legislative topic or subject
matter is maintained, the "part" approved and the
"part" that was not approved remain portions of the
same "whole" bill, consistent with the constitutional
text of § 10(1)(b).
Id., ¶91.
¶209 The problem with the topicality rule is that it does
nothing to repatriate the law-authoring piece of the legislative
mechanism to the legislature. From a constitutional
29
No. 2019AP1376-OA.dk
perspective, it really doesn't matter whether the remaining
parts of the bill speak to the same topic or subject as the bill
passed by the legislature. It matters whether they are
different from what the legislature passed. The legislature
does not pass a topic on which the governor may riff, it passes
one or more proposed laws that he may accept or reject. And, as
the Chief Justice's opinion very capably explains, id., ¶29, we
understand that the partial veto power arose in response to the
legislature's practice of bundling several proposed laws into
one appropriations bill, and that its telos was to give the
governor the option of severally treating each of the proposed
laws. But a bundle of proposed laws is not an invitation to
bebop. The topicality rule may keep the governor's
improvisations attached to the neighborhood of the original
bill, but it still allows him to change the legislatively
proposed law into something on which the legislature never
voted. So the topicality test still leaves law-authoring power
where it does not belong.
2. Why we cannot accede to the other branches' modus vivendi
¶210 Not only is the topicality rule insufficient to put
the pieces of the legislative mechanism back where they belong,
the rationale on which it rests is at odds with our
responsibility to ensure the branches of government don't barter
their powers. Part of the undisturbed ground on which the Chief
Justice bases her analysis is the executive and legislative
branches' "historical practice," which we said in Wisconsin
Senate was a "modus vivendi" that had "achieved the force of
30
No. 2019AP1376-OA.dk
law." Wis. Senate, 144 Wis. 2d at 453. But when it comes to
the allocation of powers amongst the branches, there is no force
of law capable of reallocating them, save only a constitutional
amendment.
¶211 I have addressed elsewhere the nature and rough
contours of how the constitution allocates power amongst the
branches of government, so I won't belabor them here. See,
e.g., Wis. Legislature, 391 Wis. 2d 497, ¶92 (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.'" quoting Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46,
59, 158 N.W.2d 306 (1968) (alterations in original)); State ex
rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 159, 277
N.W. 278, on reh'g, 228 Wis. 147, 280 N.W. 698 (1938) ("It is
fundamental that under our constitutional system the
governmental power to execute the laws is vested in the
executive department of the state[.]"); and Gabler v. Crime
Victims Rights Bd., 2017 WI 67, ¶37, 376 Wis. 2d 147, 897
N.W.2d 384 ("No aspect of the judicial power is more fundamental
than the judiciary's exclusive responsibility to exercise
judgment in cases and controversies arising under the law.").
¶212 The piece of the doctrine that bears some emphasis in
this case is that the location of the boundaries between the
branches is a structural limitation that is beyond the branches'
power to move, no matter the length of their practice to the
31
No. 2019AP1376-OA.dk
contrary. Even if two coordinate branches of government should
agree that the boundary might lie more comfortably elsewhere,
they are powerless to affect its actual location. The
importance of constitutional limitations, Chief Justice Marshall
once said, is that they compel restraint when restraint is not
desired: "To what purpose are powers limited, and to what
purpose is that limitation committed to writing, if these limits
may, at any time, be passed by those intended to be restrained?"
Marbury, 5 U.S. (1 Cranch) at 176. This forbids the voluntary
transfer of core powers to another branch just as much as it
protects one branch from encroachment by another. "It
is . . . fundamental and undeniable that no one of the three
branches of government can effectively delegate any of the
powers which peculiarly and intrinsically belong to that
branch." Rules of Court Case, 204 Wis. 501, 503, 236 N.W. 717(1931); see also id. (stating that "'any attempt to abdicate [a
core power] in any particular field, though valid in form, must,
necessarily, be held void'" (quoting State ex rel. Mueller v.
Thompson, 149 Wis. 488, 491, 137 N.W. 20 (1912))). Even the
abandonment of a branch's own authority cannot justify a
coordinate branch taking it up and using it as its own. "'As to
these areas of authority, . . . any exercise of authority by
another branch of government is unconstitutional.'" Gabler, 376
Wis. 2d 147, ¶31 (quoting State ex rel. Fiedler v. Wis. Senate,
155 Wis. 2d 94, 100, 454 N.W.2d 770 (1990) (ellipses in
original)).
32
No. 2019AP1376-OA.dk
¶213 The operative principle here is not that the branches
should not delegate their core authority, it is that they
cannot. This principle is a matter of power, not of prudence:
the constitution's progenitors did not grant the various
branches permission to shuffle their distinct powers amongst
themselves. Justice Neil Gorsuch, commenting on this principle
in the federal context, consulted John Locke ("one of the
thinkers who most influenced the framers' understanding of the
separation of powers") for its animating rationale:
"The legislative cannot transfer the power of making
laws to any other hands; for it being but a delegated
power from the people, they who have it cannot pass it
over to others. The people alone can appoint the form
of the commonwealth, which is by constituting the
legislative, and appointing in whose hands that shall
be. And when the people have said we will submit to
rules, and be governed by laws made by such men, and
in such forms, nobody else can say other men shall
make laws for them; nor can the people be bound by any
laws but such as are enacted by those whom they have
chosen and authorised to make laws for them."
Gundy v. United States, 139 S. Ct. 2116, 2133–34 (2019)
(Gorsuch, J., dissenting) (quoting John Locke, The Second
Treatise of Civil Government and a Letter Concerning Toleration
§ 41, p. 71 (1947)).
¶214 It is for that reason that the several branches of
government cannot alienate their core powers, even if they
consciously intend that end. Not because it would be unwise, or
imprudent, but because those who created them gave them no power
to do so. Therefore, prohibiting the legislature and executive
from swapping their powers "isn't about protecting institutional
prerogatives or governmental turf." Gundy, 139 S. Ct. at 2135
33
No. 2019AP1376-OA.dk
(Gorsuch, J., dissenting). Instead, "[i]t's about respecting
the people's sovereign choice to vest the legislative power in
[the legislature] alone. And it's about safeguarding a
structure designed to protect their liberties, minority rights,
fair notice, and the rule of law." Id. In the constellation of
constitutional doctrines, this serves as one of the central
organizing principles. Without it, our constitution would be an
incomprehensible jumble: "If [the Legislature] could pass off
its legislative power to the executive branch, the '[v]esting
[c]lauses, and indeed the entire structure of the Constitution,'
would 'make no sense.'" Id. at 2134-35 (quoted source omitted;
second and third alterations in original).
¶215 But just because the legislative and executive
branches shouldn't pass their powers around doesn't mean they
won't sometimes try. Indeed, Wisconsin Senate's recognition
that the legislative and executive branches have arrived at a
"modus vivendi" in the allocation of their powers proves not
only that they are willing to try, but that they sometimes
succeed. This would not necessarily come as a surprise to the
constitution's authors. They structured it to prevent the
shifting of boundaries through its internal system of checks and
balances, and by arraying ambition against ambition, yet they
knew these structures wouldn't be sufficient to prevent all
attempted incursions. "The framers knew . . . that the job of
keeping the legislative power confined to the legislative branch
couldn't be trusted to self-policing by Congress; often enough,
legislators will face rational incentives to pass problems to
34
No. 2019AP1376-OA.dk
the executive branch." Id. at 2135. When an attempted
incursion comes before us, we do not have the luxury of
shrugging off our duty to repulse it.
[T]he Constitution does not permit judges to look the
other way; we must call foul when the constitutional
lines are crossed. Indeed, the framers afforded us
independence from the political branches in large part
to encourage exactly this kind of "fortitude . . . to
do [our] duty as faithful guardians of the
Constitution."
Id. (quoting The Federalist No. 78, at 468-469 (C. Rossiter ed.
1961) (ellipsis in original)).
¶216 The Chief Justice may very well be right that the
legislative and executive branches have fallen into a
comfortable partial veto routine in which the legislature allows
the governor to unilaterally create law so long as it's on the
same topic as the bill he is reviewing. But basing our analysis
on that practice is quite literally the definition of "begging
the question." We should not base our analysis on a logical
35
No. 2019AP1376-OA.dk
fallacy, especially when the assumed conclusion is one our
constitution so thoroughly rejects.10
IV. WHAT WE SHOULD DO
¶217 I propose that we respect the constitution's
structural limitations on what it means for a bill to be
approved "in part." As I explained above, the law-making
mechanism described by our constitution contemplates that the
most elemental part of a bill can be no less than an idea——that
is to say, a proposal for a complete, entire, and workable law.
This, of course, makes perfect sense in light of the partial
veto power's purpose, which the Chief Justice persuasively
described as answering the legislative practice of bundling many
proposed laws into one bill.11 Therefore, because the partial
The Chief Justice finds this constitutional analysis
10
faulty because it "does not account for the text of the
Wisconsin Constitution," and it "ignore[s] that Wisconsinites
are free to assign powers traditional to one branch of
government to another branch by constitutional amendment."
Chief Justice Roggensack's concurrence/dissent, ¶87. Well, the
people of Wisconsin certainly are free to reassign the
traditional powers of one branch to another. But whether the
people did so by making the governor into a one-man legislature
requires accounting for all of the constitutional provisions
relevant to the legislative process. Might I remind the Chief
Justice that her conclusion that the people of Wisconsin did
this novel and radical thing is based on a single word? And
that her opinion did not even refer to the constitutional
provisions that define the legislative process even once? The
word "part" simply isn't powerful enough to countermand all the
constitutional text necessary to make the Chief Justice's
understanding of the partial veto viable.
We have understood this as the rationale for the partial
11
veto from the very beginning:
36
No. 2019AP1376-OA.dk
veto power cannot act against any division less than the most
elemental part, the governor must take the bill as he finds it:
as a collection of proposed laws. So the smallest part of a
bill against which the partial veto may act is one of the
proposed laws in that collection. Consequently, the applicable
rule guiding the application of the partial veto is as follows:
After exercising the partial veto, the remaining part of the
bill must not only be a "complete, entire, and workable law," it
must also be a law on which the legislature actually voted; and
the part of the bill not approved must be one of the proposed
laws in the bill's collection.12 Nothing less than this will
[T]he Legislature may, if it pleases, unite as many
subjects in one bill as it chooses. Therefore, in
order to check or prevent the evil consequences of
improper joinder, so far, at least, as appropriation
bills are concerned, it may well have been deemed
necessary, in the interest of good government, to
confer upon the Governor, as was done by the amendment
in 1930 of section 10, art. 5, Wis. Const., the right
to pass independently on every separable piece of
legislation in an appropriation bill.
State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 315,
260 N.W. 486 (1935).
This, of course, is very close to the rule stated in
12
Henry. Indeed, the rule, in the main, simply makes Henry's
unstated assumption explicit in that it requires the remaining
parts of the bill to contain ideas on which the legislature
actually voted.
37
No. 2019AP1376-OA.dk
restore the pieces of the legislative machinery to their proper
places.13
13Justice Ann Walsh Bradley says we should not return to
our constitution's structural limitations on the partial veto
because it "embraces a test neither advanced by any party nor
ever applied in any case." Justice Ann Walsh Bradley's
concurrence/dissent, ¶113. I disagree, of course. But I think
a few words on the nature of this objection would be
appropriate, starting with the latter clause. It is an
embarrassment, not a source of authority, that our court has
never honored the constitution's limitations on the partial
veto. Perpetuating an embarrassment is not a judicial doctrine
to which I subscribe. Nor is the novelty of applying the
constitution's terms to this case an argument against doing so.
There is a first time for everything that happens——including the
"topicality/germaneness" test, which had never been applied in
any case in Wisconsin's history until the day it was. Because
everything has its genesis, a proscription against doing
something for the first time——if we were to take it seriously——
would be a condemnation of everything that has ever been done.
That is not a workable standard.
But even more interesting to me, because of its
curiousness, is the objection that we should not interpret the
law in a manner not advanced by one of the parties. That
sentiment compasses an understanding of the court that is
entirely foreign to me. The work of the judiciary is not some
glorified form of "baseball arbitration" in which we are
constrained to choosing one of the proposals offered by the
competing parties. The attorneys who appear before us are there
to help us discover what the law requires, not to control us.
It is our job, not theirs, to "say what the law is." Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). If we should
discover, in the course of our research, that the parties both
mistook it for something other than it is, it would be an
abdication of our sworn duty to simply adopt whichever argument
seemed closest to what the law actually says. Our
responsibility is to determine for ourselves——in every single
case, without exception——what the law requires. And there is no
one to whom we can delegate that responsibility. So even if
neither of the parties' arguments were correct, our duty would
remain the same——to discover and say what the law says, not what
a party says.
38
No. 2019AP1376-OA.dk
¶218 Justice Ann Walsh Bradley is concerned that my
analysis would collapse our constitution's partial veto into
something indistinguishable from other states' line-item vetoes.
"[T]here is a difference," she says, "between a 'partial' and an
'item' veto . . . [;] [Justice Kelly's opinion] does not account
for the difference and would, as a practical matter, result in
an 'item' veto in spite of Wisconsin's unique constitutional
language." Justice Ann Walsh Bradley's concurrence/dissent,
¶150. I do not think that is so. There is no mandatory, single
definition for what a "line-item veto" might comprise, so its
content and operation could vary from state to state. But
generally speaking, line-item vetoes operate only on the fiscal
elements of an appropriation bill. Corpus Juris Secundum
contains the following description of such a veto:
The purposes of an appropriations item or line-item
veto are to give the executive, who is elected
statewide rather than from a particular district, the
power to achieve fiscal constraint and to advance
statewide rather than parochial fiscal interests by
excising unneeded "pork barrel" programs or projects
from an appropriations bill so as to restrain public
expenditures and to permit the governor to disentangle
issues so they will be considered on their individual
merits . . . .
. . . Specific allocations within a general
appropriation are subject to separate veto, either
leaving the general appropriation intact in its full
Happily, Justice Ann Walsh Bradley's concern about whether
I grounded my analysis in a party's argument is unwarranted
here. The petitioner's brief and the legislature's amicus
brief, in combination, either directly or obliquely advance most
of the analysis in my opinion. And if the concern is that part
of the analysis appears in an amicus brief rather than a party
brief, then I wonder why we allow amici at all.
39
No. 2019AP1376-OA.dk
and original amount or reduced by a sum less than the
aggregate of the specific items vetoed.
82 C.J.S. Statutes § 68 (2020) (footnotes omitted).
¶219 Currently, 43 states have some form of the
item/partial veto. Most limit the vetoes to the fiscal elements
of an appropriation bill. So Wisconsin's partial veto would not
be the same as a line-item veto inasmuch as ours could be used
as against any of the legislative ideas bundled into an
appropriations bill, even if the vetoed part contained no
appropriation.
V. APPLICATION
¶220 2019 Assembly Bill 56 (which became 2019 Wis. Act 9,
as amended by the governor's "veto") contained a multitude of
proposed laws, amongst which were a school bus modernization
fund, a local roads improvement fund, a modified vehicle
registration fee schedule, and a tax on vapor products. Here is
how a constitutionally-grounded partial veto analysis would
address the governor's actions.
A. School Bus Modernization Fund
¶221 The first partial veto at issue in this case changed a
school bus modernization fund into an alternative fuel fund.
Section 55c established a grant for the replacement of school
buses. And § 9101(2i) identified the monies to be used to fund
the replacement program. The governor's partial "veto" amended
§ 55c as follows:
16.047(4s) of the statutes is created to read: 16.047
(4s) SCHOOL BUS REPLACEMENT GRANTS. (a) In this
subsection: 1. "School board" has the meaning given in
s. 115.001(7).2. "School bus" has the meaning given in
s. 121.51(4).(b) The department shall establish a
40
No. 2019AP1376-OA.dk
program to award grants of settlement funds from the
appropriation under s. 20.855(4)(h) to school boards
for the replacement of school buses owned and operated
by the school boards with school buses that are energy
efficient, including school buses that use alternative
fuels. Any school board may apply for a grant under
the program. (c) As a condition of receiving a grant
under this subsection, the school board shall provide
matching funds equal to the amount of the grant award.
(d) A school board may use settlement funds awarded
under this subsection only for the payment of costs
incurred by the school board to replace school buses
in accordance with the settlement guidelines.
The governor entirely struck § 9101(2i):
(2i) VOLKSWAGEN SETTLEMENT FUNDS. Of the settlement
funds in s. 20.855(4)(h), during the 2019–21 fiscal
biennium, the department of administration shall
allocate $3,000,000 for grants under s. 16.047 (4s)
for the payment of school buses.
The surviving language reads: "16.047(4s) of the statutes is
created to read: 16.047 (4s) GRANTS. The department shall
establish a program to award grants of settlement funds from the
appropriation under s. 20.855(4)(h) for alternative fuels."
¶222 The Chief Justice says the result is not on the same
topic as the original bill. But "topicality" is an elastic
measuring tape, as even the Chief Justice recognizes. Chief
Justice Roggensack's concurrence/dissent, ¶91 ("Clearly, the
evaluation of 'part' and 'whole' in § 10(1)(b) depends on how
broadly you define the topic or subject matter."). Both before
and after the veto, this part of the bill created a grant
program. And the funding would still come from the Volkswagen
dispute settlement. The Chief Justice says the "topic" of the
provision was replacement of buses, not limiting carbon
emissions. Actually, it was both. The legislature wanted
41
No. 2019AP1376-OA.dk
school boards to replace current school buses not with just any
buses, but "with school buses that are energy efficient,
including school buses that use alternative fuels." So it seems
that under the Chief Justice's "topicality" test, the
constitutionality of a partial veto depends on which topic we
figure is more important.
¶223 The resolution called for by the constitution is
considerably more straightforward. Here, the legislature
bundled the creation of a school bus replacement fund into a
bill with many other proposed laws. As relevant here, the
school bus replacement fund is the proposed law, the legislative
idea. The governor could approve that part of the bill or he
could reject it. What he may not do is turn it into something
other than what passed the legislature. This partial "veto" was
inappropriate because it violated the origination clause, the
amendment clause, and the legislative passage clause.
B. The Local Road Improvement Fund
¶224 In another part of 2019 Assembly Bill 56, the
legislature proposed the creation of a local road improvement
fund. The governor amended the proposed law by using his
partial "veto" on §§ 126, 184s, and 1085m:
 Section 126: "(fc) Local roads improvement
discretionary supplement . . . 90,000,000 [the
governor replaced it with 75,000,000]."
 Section 184s: "20.395(2)(fc) of the statutes is
created to read: 20.395(2) (fc) Local roads
improvement discretionary supplement. From the
general fund, as a continuing appropriation, the
amounts in the schedule for the local roads
42
No. 2019AP1376-OA.dk
improvement discretionary supplemental grant
program under s. 86.31 (3s)."
 Section 1085m: "86.31 (3s) of the statutes is
created to read: 86.31 (3s) DISCRETIONARY
SUPPLEMENT GRANTS. (a) Funds provided under s.
20.395 (2) (fc) shall be distributed under this
subsection as discretionary grants to reimburse
political subdivisions for improvements. The
department shall solicit and provide
discretionary grants under this subsection until
all funds appropriated under s. 20.395 (2) (fc)
have been expended. (b) 1. From the appropriation
under s. 20.395 (2) (fc), the department shall
allocate $32,003,200 in fiscal year 2019–20, to
fund county truck highway improvements. 2. From
the appropriation under s. 20.395 (2) (fc), the
department shall allocate $35,149,400 in fiscal
year 2019–20, to fund town road improvements. 3.
From the appropriation under s. 20.395 (2) (fc),
the department shall allocate $22,847,000 in
fiscal year 2019–20, to fund municipal street
improvement projects. (c) Notwithstanding sub.
(4), a political subdivision may apply to the
department under this subsection for
reimbursement of not more than 90 percent of
eligible costs of an improvement."
The surviving language reads: "20.395(2)(fc) of the statutes is
created to read: 20.395(2) (fc) Local supplement. From the
general fund, as a continuing appropriation, the amounts in the
schedule for local grant."
¶225 These, of course, were amendments just as much as the
partial "veto" of the school bus modernization fund was an
amendment, not a veto. The result of these amendments is that
the new idea introduced by the amendment passed into law without
the legislature ever voting for it. This "veto" was
inappropriate for the same reasons the partial "veto" of the
school bus modernization fund was inappropriate.
43
No. 2019AP1376-OA.dk
C. Vehicle Fee Schedule
¶226 Section 1988b of the bill would have made the
registration fee for four truck weight classes identical. The
governor amended this section with his partial "veto" as
follows:
341.25(2)(a) to (cm) of the statutes are amended to
read: 341.25 (2)(a) Not more than 4,500 $ 75.00 100.00
(b) Not more than 6,000 . . . . . . . . . . 84.00
100.00 (c) Not more than 8,000 . . . . . . . . . .
106.00 100.00 (cm) Not more than 10,000 . . . . . . .
. . . 155.00 100.00
Prior to the "veto," all registration fees were $100, but what
remained afterwards was a graduated schedule according to
vehicle size. This might be good policy, but it's not a veto.
It's an amendment, and it fails for the same reason as the
others.
D. Vapor Products Tax
¶227 Section 1754 addresses taxation of vapor products.
The governor amended it with his partial "veto" as follows:
139.75 (14) of the statutes is created to read: 139.75
(14) "Vapor product" means a noncombustible product
that produces vapor or aerosol for inhalation from the
application of a heating element to a liquid or other
substance that is depleted as the product is used,
regardless of whether the liquid or other substance
contains nicotine.
The surviving language reads: "139.75 (14) of the statutes is
created to read: 139.75 (14) 'Vapor product' means a
noncombustible product that produces vapor or aerosol for
inhalation from the application of a heating element regardless
of whether the liquid or other substance contains nicotine."
44
No. 2019AP1376-OA.dk
¶228 In this part of the bill, the legislature proposed a
law that would tax "vaping" equipment, but not the liquids used
in the equipment. The governor's partial "veto" expanded the
tax to include the liquids as well, which made it an amendment,
not a veto. For anyone even vaguely familiar with our country's
history and the revolution that brought it into existence, this
should make you sit up and take notice: The governor, all by
himself, imposed a tax on a product without legislative
approval. Taxation without representation was once a powerful
rallying cry. See Declaration of Independence (U.S. 1776) (One
of our grievances with the King of England was his habit of
"imposing taxes on us without our consent[.]"; John Dickinson,
Letter's From a Farmer in Pennsylvania reprinted in Tracts of
the American Revolution 141 (1763-1776) (Merrill Jensen ed.,
Hackett Pub. Co. 2003) (1768) ("That it is inseparably essential
to the freedom of a people, and the undoubted right of
Englishmen, that NO TAX be imposed on them, but with their own
consent, given personally, or by their representatives."). As
with all the other partial "vetoes" in this case, this one
violated the origination clause, the amendment clause, and the
legislative passage clause. It also violated the unwritten, but
only slightly less well-known, "don't do revolution-inciting
things" clause.
VI. CONCLUSION
¶229 Because a majority of this court does not favor this
analysis, our partial veto jurisprudence leaves key pieces of
the legislative machinery in places where they do not belong.
45
No. 2019AP1376-OA.dk
As a direct and unavoidable result, our cases (including this
one) condone violations of the origination clause, the amendment
clause, and the legislative passage clause.
¶230 The proper role of the partial veto is to separate the
several proposed laws the legislature bundled into one
appropriations bill. After exercising this veto power, the
remaining document must comprise one or more "complete, entire,
and workable laws," all of which must have passed the
legislature. The corollary to this is that the part or parts of
the bill the governor did not approve must also comprise one or
more "complete, entire, and workable laws" that had passed the
legislature. This symmetry guarantees that the partial veto
does nothing but unbundle the proposed laws the legislature had
bundled.14 Because the majority of this court does not
accurately apply the legislative mechanism the constitution
created, I cannot join it. However, I concur with that part of
the court's judgment that strikes two of the vetoes at issue in
I would overrule State ex rel. Sundby v. Adamany, 71
14
Wis. 2d 118, 237 N.W.2d 910 (1976); State ex rel. Kleczka v.
Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978); Citizens Util. Bd.
v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995); Risser v.
Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997); and State ex
rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, N.W.2d 385
(1988). Each of these decisions depends on the unconstitutional
transfer of law-making power to the governor through the use of
a partial veto.
I would not, however, overrule State ex rel. Wisconsin Tel.
Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935). Instead, I
would modify its holding to make its assumption explicit: The
parts of the bill remaining after exercise of the partial veto
must comprise "a complete, entire, and workable law" that was
actually voted on by the legislature.
46
No. 2019AP1376-OA.dk
this case, and respectfully dissent from the court's judgment
upholding the other two.
¶231 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this opinion.
47
No. 2019AP1376-OA.bh
¶232 BRIAN HAGEDORN, J. (concurring). In 1930, the
people of Wisconsin amended our constitution and gave the
governor power to veto parts of appropriation bills.
Nonetheless, the constitution retains the basic structural
principle that legislating is the job of the legislature. The
question in this case is whether the judiciary will sanction the
former swallowing the latter.
¶233 The partial veto power grants the governor the
authority to disapprove appropriations bills in part——a power
that no doubt allows the governor to alter the legislature's
global policy objectives. The partial veto power in this sense
is quasi-legislative in nature. But a bill presented to the
governor is not sand on a seashore from which a governor can
construct any sandcastle his ingenuity conceives. A bill is not
merely a collection of words, letters, and numbers that can be
repurposed; it is a set of legislatively chosen policies. A
partial veto is the power to negate some proposed policies and
accept others, not the power to unilaterally create new policies
never passed by the legislature.
¶234 While the governor's partial veto power is incredibly
broad, it should not be read to fundamentally upend the overall
structure of our government embedded in our constitution. The
constitution's placement of law-creation in the hands of the
legislature means we cannot permit a practice that turns the
governor into a one-person legislature. Because the
constitution contains these substantive limitations, we should
1
No. 2019AP1376-OA.bh
enforce them, even acknowledging the potential difficulty of
that project.
¶235 In this case, the petitioners challenge four sets of
vetoes in the state's 2019-21 biennial budget bill. I conclude
that with three of the challenges——the school bus modernization
fund, the local road improvement fund, and the vapor products
tax——the governor's vetoes went beyond negating legislative
policy proposals; they created brand new ones. These are in
excess of the governor's constitutional veto authority. The
fourth challenge to the vehicle fee schedule vetoes was properly
within constitutional boundaries. Therefore, I respectfully
concur.
I. LEGAL PRINCIPLES
¶236 Something is amiss in our jurisprudence when a
constitutional provision allowing the governor to strike parts
of an appropriation bill has, through creativity and judicial
acquiescence, turned into a license for an enterprising governor
to create brand new policies from a proposed package of
statutory words. This is a bipartisan affair, of course, as
governors for decades have been working within the Wild West
framework this court has established. But no one conducting a
reasonable reading of the partial veto provision in its greater
constitutional context would see it as a fundamental reshaping
of our constitutional order. See Justice Kelly's
concurrence/dissent, ¶198. We are here because this court has
allowed it to be so. As one former justice aptly prophesied, "I
2
No. 2019AP1376-OA.bh
fear that the court may now have painted itself into a corner,
and that a time may come when we regret having done so." State
ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 724, 264 N.W.2d 539(1978) (Hansen, J., dissenting). For me, that time is now.
¶237 So where do we go from here? The petitioners candidly
ask us to start from scratch. They ask us to overturn or modify
language in every case that we've ever decided on this
significant and repeatedly litigated provision. That's a big
ask. But the petitioners come with the right question: What is
the original public meaning of the constitutional text? Our
starting point in constitutional interpretation must be the
original public meaning of the constitution's language because
this is the law the people have enacted. Attorney Gen. ex rel.
Bashford v. Barstow, 4 Wis. *567, *757–58 (1855) (explaining
that because the people "made this constitution, and adopted it
as their primary law," constitutional interpretation rests not
in generic theories of governance, but on the "true intent and
meaning" of the "authoritative and mandatory" words of the
document itself). But our analysis is informed by, and gives
proper deference to, the reasoned decisions of those who have
come before us.
A. Lawmaking in the Wisconsin Constitution
¶238 Three types of government power are described in the
Wisconsin Constitution, and each power is vested in a
corresponding branch of government. Gabler v. Crime Victims
Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384.
3
No. 2019AP1376-OA.bh
The senate and assembly are vested with the power to legislate,
the governor is vested with the power to execute the laws, and
the judiciary is vested with the power to decide cases based on
the law. Wis. Const. art. IV, § 1; id. art. V, § 1; id. art.
VII, § 2.
¶239 The mechanism for exercising legislative power under
the constitution is the enactment of laws; the legislature is
the chief lawmaker. League of Women Voters of Wis. v. Evers,
2019 WI 75, ¶35, 387 Wis. 2d 511, 929 N.W.2d 209; Justice
Kelly's concurrence/dissent, ¶175. A law begins with a proposed
bill, which can originate in either house of the legislature.
Wis. Const. art. IV, § 17(2), § 19; Justice Kelly's
concurrence/dissent, ¶176. Bills may be amended during this
process, and when a bill is passed by both houses of the
legislature, it is presented to the governor. Wis. Const. art.
IV, § 19; id. art. V, § 10(1)(a); Justice Kelly's
concurrence/dissent, ¶¶176-77. The governor then has four
potential options: (1) sign the whole bill into law; (2) do
nothing and allow the bill to become law on its own after six
days (Sundays excluded); (3) veto the whole bill; or (4) if the
bill contains an appropriation, sign the bill into law while
vetoing part of it.1 Wis. Const. art. V, § 10(1)(b), § 10(2)(a),
§ 10(3).
If rejected in whole or in part, the bill is returned,
1
with objections, to the originating house, and that which was
rejected may nevertheless become law if it garners approval of
two-thirds of the members of both houses. Wis. Const. art. V,
§ 10(2).
4
No. 2019AP1376-OA.bh
¶240 The fourth option, the partial veto, was added to the
constitution in 1930. The relevant constitutional language
today provides: "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." Id. art. V, § 10(1)(b).2 Appropriation bills are
required to pay money out of the treasury. Id. art. VIII, § 2
("No money shall be paid out of the treasury except in pursuance
of an appropriation by law.").
¶241 This framework deserves a few reflections. First, the
constitutional meaning of a "bill" must be rooted in the concept
of what the legislature is producing when a bill is passed. A
bill presented to the governor is not a potpourri of words,
letters, and numbers that the governor may do with as he wishes.
See State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 473,
424 N.W.2d 385 (1988) (Bablitch, J., dissenting). As Justice
Kelly explains, a bill is composed of policy proposals (or as
Justice Kelly calls them, ideas). See Justice Kelly's
concurrence/dissent, ¶¶175-76, 180. It is the legislature's
province to exercise the legislative power to determine and
declare what the policies of the state shall be. Wis. Const.
art. IV, § 1. And this is done by passing bills composed of its
policy choices. Borgnis v. Falk Co., 147 Wis. 327, 351, 133
2 The amendment as initially adopted provided:
"Appropriation bills may be approved in whole or in part by the
governor, and the part approved shall become law, and the part
objected to shall be returned in the same manner as provided for
other bills." 1927 S.J. Res. 35.
5
No. 2019AP1376-OA.bh
N.W. 209 (1911) ("When acting within constitutional limitations,
the Legislature settles and declares the public policy of a
state . . . .").
¶242 Second, the veto power is a bit of an aberration from
the general distribution of constitutional power. That is, the
power to veto, whether in whole or in part, is legislative in
nature; it is a participation in lawmaking. Edwards v. United
States, 286 U.S. 482, 490-91 (1932) (characterizing the
President's ability to approve or disapprove bills as
"legislative" in character); Rateree v. Rockett, 852 F.2d 946,
951 (7th Cir. 1988) ("[T]he President acts legislatively when he
approves or vetoes bills passed by Congress."); Chief Justice
Roggensack's concurrence/dissent, ¶84. And while a partial veto
places more quasi-legislative power in the hands of the governor
than a whole-bill veto, we cannot lose sight of the nature of a
veto. A veto is, by definition, the ability to negate, not
create. This is the plain meaning of the word "veto." Veto,
Black's Law Dictionary (11th ed. 2019) ("A power of one
governmental branch to prohibit an action by another branch."
(emphasis added)); The Federalist No. 73 (Hamilton) (describing
the veto as "the qualified negative of the President upon the
acts or resolutions of the two houses of the legislature").
¶243 Finally, the partial veto power must be read in the
context of the whole constitutional structure and design.
Namely, any policy proposal that becomes law must be a policy
proposed by the legislature——one that originates as a bill that
eventually passes both houses of the legislature. Wis. Const.
6
No. 2019AP1376-OA.bh
art. IV, § 17(2), § 19; id. art. V, § 10(1)(a). Partial veto or
not, the legislature is still the constitutional branch charged
with making law, not the governor. See Justice Kelly's
concurrence/dissent, ¶175.
¶244 We must hold all of these lessons from the
constitution together. A blind focus on the partial veto power
alone at the expense of the rest of constitutional text is not
constitutional faithfulness. State v. City of Oak Creek, 2000
WI 9, ¶18, 232 Wis. 2d 612, 605 N.W.2d 526 (we discern the
meaning of the constitutional text based on the context in which
it is used). This means any reading of the partial veto power
that enables the governor to take the raw materials of a bill
(words, letters, and numbers) and recast them to create a new
policy not proposed and passed by the legislature contradicts
the constitutional design for how a bill becomes a law. And the
core negating, not creating, concept of a veto must be true if
the legislature is still the branch authorized by the
constitution to make law and appropriate funds. Wis. Const.
art. IV, § 1, § 17(2), § 19; id. art. VIII, § 2. The
legislature must be the primary policymaker, and the governor
cannot usurp that role by creating new policies from the
reworked language of enacted bills.
¶245 With this broader constitutional framework in view, we
turn to a brief overview of how this court has previously
handled the partial veto power in particular.
7
No. 2019AP1376-OA.bh
B. The Partial Veto and the Wisconsin Supreme Court
¶246 Alfred North Whitehead famously said that Western
philosophy consists of a series of footnotes to Plato.3 In the
same way, this court's decisions interpreting the governor's
partial veto power consist largely of a series of footnotes to
our first case on that matter, State ex rel. Wisconsin Telephone
Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935). Handed down
just five years after the ratification of the 1930 amendment,
Henry presented two questions: whether the governor could
"disapprove parts of an appropriation bill that are not an
appropriation" and whether he could "disapprove a proviso or
condition inseparably connected to the appropriation." Id. at
309. The court engaged in a considered plain meaning
examination of the text and reached several conclusions that
establish the framework for the partial veto power.
¶247 Of primary importance, the court reasoned that the
choice of constitutional language——using "part" and not "item"——
was intentional and must be given meaning. Id. at 313-14.4 The
amendment, the court concluded, was not an item veto, but a part
veto that authorized gubernatorial disapproval of something less
than an entire legislative policy proposal. Id. A governor,
Alfred North Whitehead, Process and Reality 39 (The Free
3
Press 1978) (1929).
The court in Henry surveyed constitutions of other states
4
that permitted some form of partial veto. State ex rel. Wis.
Tel. Co. v. Henry, 218 Wis. 302, 310-15, 260 N.W. 486 (1935).
Noting that many states used "items" or "any item or items or
part or parts," the court concluded that our constitution's use
of the word "part" but not the word "item" was significant and
must be given meaning. Id. at 310-11.
8
No. 2019AP1376-OA.bh
then, could veto non-appropriation language in appropriation
bills. Id. He could also strike portions of a broader policy
proposal that did not constitute provisos or conditions
inseparably connected to the appropriation. Id. As long as
what remained was a complete, entire, and workable law, vetoing
portions of the proposed law that were not "essential, integral,
and interdependent parts of those which were approved" was
consistent with the constitution. Id. at 314, 317. Applying
this to the facts before it, the court concluded that the vetoed
language declaring the purpose for a new appropriation and the
proposed creation of a new administrative apparatus for
distribution of that appropriation were not provisos or
conditions inseparably connected to the remainder. Id. at 317.
The governor's veto was therefore within his constitutional
authority. Id.
¶248 From this, we observe that Henry identified both
procedural and substantive limitations on the partial veto
power. Procedurally, what is left must be a complete, entire,
and workable law. Id. at 314. This is obviously correct if the
part approved is actually to become law as the constitution
specifies. Wis. Const. art. V, § 10(1)(b). But the court also
recognized substantive limitations, unsubtly suggesting that
provisos and conditions that could not be separated from a
policy proposal could not be stricken. Henry, 218 Wis. 2d at
309-10. The court labelled the veto power coextensive with the
legislature's power to assemble. Id. at 315. But this is just
as much a limitation on the power's reach as it is a recognition
9
No. 2019AP1376-OA.bh
of the power's breadth. Id. at 315. The court also discussed
how severability principles——which include at least some focus
on legislative intent——were relevant to an inquiry into the
scope of the partial veto power. Id. at 314-15.
¶249 The petitioners ask us to overturn Henry. They argue
this court misconstrued the original public meaning from the
beginning, and that the partial veto was intended to be an item
veto. Some evidence, including newspaper stories reflecting the
sponsor's goals and other public discussion on the proposed 1930
amendment, certainly supports this view. But plenty of evidence
goes the other way too. See Chief Justice Roggensack's
concurrence/dissent, ¶¶31-36 (summarizing the evidence which
supports both an item veto and a part veto). Notably, one draft
amendment in 1925 would have permitted the governor to
disapprove "items or parts of items."5 This shows the
legislature understood the difference between "part" and "item,"
and that the choice to use this language is reasonably read to
mean something. And it is not insignificant that Henry, a
decision close in time to the enactment of the amendment,
unanimously rejected the petitioners' view. I accept Henry as a
fair, considered, and likely correct effort to discern the
original public meaning of our constitutional text. At the very
least, the petitioners have not demonstrated that the original
public meaning is clearly otherwise.
See 1925 S.J. Res. 23 (proposing to amend Article V,
5
Section 10 to allow the governor to "disapprove or reduce items
or parts of items in any bill appropriating money").
10
No. 2019AP1376-OA.bh
¶250 For the first 45 years of the partial veto power's
history, the principles announced in Henry, including a
recognition that the broader constitutional context requires
both procedural and substantive limitations, remained
substantially in place. Our veto cases that abided by these
principles are, in my view, unproblematic and consistent with
the constitution's meaning. See State ex rel. Finnegan v.
Dammann, 220 Wis. 143, 264 N.W. 622 (1936); State ex rel. Martin
v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940).
¶251 The broadly accepted legal framework, however, started
to drift in the 1970s. Around that time, governors began to
take their partial veto power to new artistic heights.6 Rather
than maintain the twin pillars of both procedural and
substantive limitations on that power, this court started to
jettison its commitment to any standard other than the
requirement that after a partial veto the part approved must be
a complete, entire, and workable law.
¶252 This change was explicitly undertaken in Kleczka, 82
Wis. 2d 679. There, the legislature had proposed allowing a
taxpayer to effectively increase her tax liability such that $1
would be deposited into the Wisconsin Election Campaign Fund.
Id. at 685. As partially vetoed by the governor, the published
law enabled the taxpayer to designate that the campaign fund was
Among other novelties, governors started removing words
6
such as "not" from sentences to reverse the policy enacted by
the legislature (i.e., an "editing veto"). See Richard A.
Champagne, Legislative Reference Bureau, The Wisconsin
Governor's Partial Veto, at 14-15 (2019).
11
No. 2019AP1376-OA.bh
to receive $1 from the state's general funds. Id. We upheld
the veto, and expressly dispensed with Henry's discussion of
inseparable provisos or conditions. Id. at 711-15. By
sanctioning this action, we allowed the governor to take a
policy proposal from the legislature, edit the words, and create
a different policy that had not been proposed by the
legislature.
¶253 Justice Hansen vigorously dissented on the grounds
that abandoning any substantive limitations on the partial veto
authority could not possibly be consistent with the
constitutional design. "It appears," Justice Hansen observed,
"that we have now arrived at a stage where one person can design
his own legislation from the appropriation bills submitted to
him after they have been approved by the majority of the
legislature." Id. at 727 (Hansen, J., dissenting). Indeed. As
Justice Hansen explained:
Only the limitations on one's imagination fix the
outer limits of the exercise of the partial veto power
by incision or deletion by a creative person. At some
point this creative negative constitutes the enacting
of legislation by one person, and at precisely that
point the governor invades the exclusive power of the
legislature to make laws.
Id. at 720.
¶254 Justice Hansen's prescience did not stop this court
from proceeding further down this path, but we have continued to
wrestle with the implications of our jurisprudence. In
Wisconsin Senate, while upholding the most creative uses yet of
the partial veto power, we recognized as having obtained the
12
No. 2019AP1376-OA.bh
"force of law" the notion that vetoes cannot change a policy
proposal's topic or subject matter into something unrelated.
144 Wis. 2d at 452-53. This "germaneness" limitation was a
clear attempt to acknowledge that the constitution must
countenance some kind of substantive limitation of the
governor's partial veto power. Id. While we have since
reaffirmed the germaneness requirement, this court has never
fleshed out what it means or how it operates in practice. See
Citizens Util. Bd. v. Klauser, 194 Wis. 2d 484, 505, 534
N.W.2d 608 (1995); Risser v. Klauser, 207 Wis. 2d 176, 183, 558
N.W.2d 108 (1997).
¶255 Finally, it is worth noting that in direct response to
gubernatorial practice and the outer reaches of our later
decisions, the people have twice amended the partial veto power
to prevent the governor from using a partial veto to combine
sentences or strike letters to make new words. Wis. Const. art.
V, § 10(1)(c).7 These amendments should be given substantive
effect, but they should not be read as green-lighting everything
less than the limitations they impose. While the amendments
represent the people's effort to rein in certain excesses, these
constitutionally prescribed procedural limitations aren't
particularly instructive regarding whether the constitution
still contains other substantive limitations on the partial veto
power.
7"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."
Wis. Const. art. V, § 10(1)(c).
13
No. 2019AP1376-OA.bh
C. Implementing Doctrine
¶256 The core question presented in this case is whether
and how this court will enforce substantive limitations on the
scope of the governor's partial veto power moving forward. As
reflected in the multiplicity of writings in today's decision
and in the tests put forward by the litigants, it is not always
easy to discern the line between negating some proposed policies
in a bill and a veto that strategically edits statutory language
to create a policy that was not in the legislatively passed
bill.
¶257 One response to this dilemma could be to declare that
line-drawing is too difficult and to surrender that project
altogether. Our more recent cases have trended in this
direction, enforcing only procedural limitations and offering at
best a tip-of-the-cap to future enforcement of substantive
limitations. In effect, this leaves the policing of substantive
limitations to politics rather than constitutional law. Such an
approach is not without merit. Not all constitutional questions
need a judicial referee. We must acknowledge that increased
judicial patrolling of these constitutional borderlands is
fraught with some danger.8 Engaging in this line-drawing may
lead to uncertainty for political actors and entangle the
See, e.g., State ex rel. Friedrich v. Circuit Court for
8
Dane Cty., 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (per curiam)
("In these borderlands it is neither possible nor practical to
categorize governmental action as exclusively legislative,
executive or judicial.").
14
No. 2019AP1376-OA.bh
judiciary in more political and policy fights. And sometimes we
make things worse, not better, when we attempt to make
distinctions that are——let's be honest here——awfully hard to
delineate with precision from the constitutional text.
¶258 That said, giving up on judicial enforcement of
constitutional limits poses greater dangers, especially in an
area so central to our constitutional design for how law is
made. We swear an oath to uphold the constitution, and it is
incumbent on us to defend the separation of powers, even if it
involves getting a little dirt under our nails.
¶259 If we are to retain judicially enforceable substantive
limitations on the partial veto power, there remains the
difficult task of identifying an implementing doctrine, or legal
test,9 that gets us to the heart of the constitution's meaning.
Several options are presented in this case.
¶260 The petitioners propose a standard severability test.
Under this test, the inquiry is whether the legislature intended
for provisions to be severable. Burlington N., Inc. v. City of
Superior, 131 Wis. 2d 564, 580, 388 N.W.2d 916 (1986).
See Ezell v. City of Chicago, 651 F.3d 684, 700-04 (7th
9
Cir. 2011) (devising an implementing doctrine for Second
Amendment litigation based on the Supreme Court's original
public meaning interpretation of that constitutional provision
in District of Columbia v. Heller, 554 U.S. 570 (2008)). See
generally Lawrence B. Solum, The Interpretation-Construction
Distinction, 27 Const. Comment. 95 (2010) (explaining how
authoritative legal texts are applied in two stages: one, the
text is interpreted to discern its linguistic meaning and
semantic context, and two, the text is given legal effect by
translating that meaning and context into implementable legal
doctrine).
15
No. 2019AP1376-OA.bh
Essentially, we'd have to determine whether the legislature
would still have wanted the provisions as vetoed to become law.
This has the virtue of being grounded in some of the discussion
in Henry, and theoretically works within existing judicial
competence. But it seems difficult, if not impossible, to
determine the legislature's intent and preferences when
reviewing discrete proposals in omnibus bills reflecting the
whole of state government operations. This test also depends on
the petitioners' request that we overrule Henry, which I do not
believe is warranted.
¶261 The legislature proposes a separate test based on
Justice Hansen's dissent in Kleczka: the part rejected, as well
as the part remaining, must be a complete, entire, and workable
law on its own. Kleczka, 82 Wis. 2d at 726 (Hansen, J.,
dissenting). The petitioners also support this as an acceptable
approach. This test has the virtue of being an objective
inquiry that does not entangle the judiciary in subjectively
evaluating policy proposals. But as the Chief Justice points
out, there is no basis in the constitutional text to suggest
that the rejected part must stand on its own as though it were
itself enacted law. See Chief Justice Roggensack's
concurrence/dissent, ¶89. Justice Hansen's test is at best an
indirect way of getting at the core constitutional line of
demarcation: allowing the governor to create something the
legislature has not proposed, rather than just approve or veto
separable proposals. In addition, the legislature's proposal
appears to be a backdoor way to turn the part veto into an item
16
No. 2019AP1376-OA.bh
veto, or very close to it. And this too does not square with
the proposition announced in Henry that the constitutional text
allows governors to strike portions of proposals smaller than an
item.
¶262 The Chief Justice adopts and attempts to breathe life
into the germaneness requirement discussed in Wisconsin Senate.
See Chief Justice Roggensack's concurrence/dissent, ¶¶91-94.
This test has the virtue of being grounded in our precedent.
Moreover, the Wisconsin Senate court adopted the germaneness
requirement, which focuses on the topic or subject matter of a
provision, as a nod to the need for some substantive limitation
on unadulterated gubernatorial creation of legislation. See
Wis. Senate, 144 Wis. 2d at 451-52. But this standard suffers
from some flaws as well. As to its foundation, the germaneness
requirement has not been firmly rooted in the constitutional
text, but instead in the historical practice of the legislative
and executive branches. Id. at 437, 452-53. Second, while
cited, none of our cases have done much to explain what this
requirement actually means or how it would guide legal analysis
going forward. See Citizens Util. Bd., 194 Wis. 2d at 505;
Risser, 207 Wis. 2d at 183. Finally, it does not seem to get to
the core issue of policy creation by the governor. It is far
too underinclusive. A topicality approach would presumably let
the governor rewrite laws to create new policy based on the same
topic as the legislature's proposal, thereby allowing the
governor to usurp the role of the legislature in violation of
the structural separation of powers. In other words, as an
17
No. 2019AP1376-OA.bh
implementing doctrine, it does not do well in doing what any
good legal test should do: allowing the original public meaning
of the constitutional text to come to life when applied to a new
set of facts.
¶263 Justice Kelly proposes yet another way. His writing
does an excellent job outlining the separation-of-powers
problems with our current approach. Justice Kelly frames his
proposed legal test as whether the legislature voted on the
policy proposal. At a high level, I agree the question is
whether the governor vetoed a policy the legislature proposed
and passed, which is permissible, or created a new policy the
legislature did not propose or pass, which is not. But in
application, Justice Kelly's opinion would appear to require
sweeping away much if not all of our cases, including Henry. I
do not believe the constitutional standard we agree upon
requires going this far. I accept Henry's holding that
something less than a separate item may be vetoed, and this will
necessarily involve some modification of the legislature's
policy choice. So while I agree with Justice Kelly on the core
constitutional limits, I do not agree with his application of
that standard.
¶264 While future litigation will surely provide
opportunities to refine the analysis, the principles derived
from our constitutional text, structure, and early cases draw
sufficient lines to decide this case. The partial veto power is
broad and expansive. When presented with an appropriation bill
containing various legislative proposals, the governor can——as a
18
No. 2019AP1376-OA.bh
general matter——negate some proposals and accept others. This
will necessarily effect a partial change in the policy soup
reflected in the proposed bill. But what the governor may not
do is selectively edit parts of a bill to create a new policy
that was not proposed by the legislature. He may negate
separable proposals actually made, but he may not create new
proposals not presented in the bill.
¶265 By way of a hypothetical, imagine the legislature
proposes that $500,000 be appropriated for the building of a
house, which may be painted white or blue or brown. Under the
principles derived from the constitutional text and our early
cases, the governor could strike the word "brown" so that the
house may only be white or blue. But the governor could not
strike words to create a law that simply appropriates $500,000
to the general fund.10 While some policy modification is
inherent in striking parts of a proposal, a governor may not
usurp the legislature's lawmaking role by creating a policy
proposal that was not previously there.
¶266 Putting this together, I conclude that the
petitioners' request that we overturn Henry and our early cases
should be rejected based on the arguments presented in this
case. But I agree that later cases must be revisited insofar as
they abandoned the core principles undergirding the way laws are
As discussed further below, this type of gubernatorial
10
creation is similar to the local road improvement fund vetoes,
which were an effective rewriting of specific provisions to
create a generic appropriation for an undefined local grant.
19
No. 2019AP1376-OA.bh
made pursuant to our constitution.11 Rather than simply
approving or disapproving of proposed policies, the governor's
partial veto power cannot be converted into a tool for wholesale
policy creation. By turning the governor into a one-person
legislature subject only to a two-thirds override vote, our
basic constitutional structure is turned on its head.
II. APPLICATION
¶267 Applying those principles to this case, three of the
four sets of partial vetoes challenged by the petitioners go
beyond what the constitution permits.
¶268 We begin with the sole veto challenge that survives in
light of our constitutional framework. In 2019 Wis. Act 9,
§ 1988b, the legislature sought to amend the registration fees
assessed to truck owners based on vehicle weight. The
preexisting fees for vehicles weighing not more than 4,500
pounds, 6,000 pounds, 8,000 pounds, and 10,000 pounds
respectively were $75, $84, $106, and $155. § 1988b. The
legislature proposed modifications to make each of them $100.
Id. The governor accepted the increased fee for the lighter
weight classifications, but rejected the reduction of the fee
for the heavier vehicles. Id. This rejection of the proposed
Accordingly, I agree with petitioners that State ex rel.
11
Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978) is
"unsound in principle" and must be overruled. Johnson Controls,
Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶99, 264 Wis. 2d 60,
665 N.W.2d 257. Insofar as our later decisions have treated
Kleczka as pronouncing that a veto shall stand simply if it
leaves a complete, entire, and workable law, these statements
too must be withdrawn.
20
No. 2019AP1376-OA.bh
decreases in two registration fees may not reflect the uniform
schedule the legislature was apparently intending. But the
governor here chose a partially uniform fee schedule by
accepting part of the proposed fee schedule and rejecting part
of the new fee schedule. These partial vetoes served to negate
parts of the broader policy proposal. In rejecting this
proposal in part, the governor did not cobble together words or
phrases to create a new policy or fee. Rather, he declined to
adopt part of a policy change advanced by the legislature. See
Wis. Stat. § 341.25(2)(a)-(cm) (2017-18).12
¶269 The other three sets of partial vetoes, however,
cannot be upheld. All three exceed the governor's
constitutional power to partially veto appropriation bills.
¶270 First, faced with an appropriation for the replacement
of school buses, the governor used multiple vetoes to create an
appropriation for alternative fuels. Wisconsin is a beneficiary
of the Environmental Mitigation Trust created by a partial
consent decree in In re Volkswagen, 2016 WL 6442227 (N.D. Cal.
2016). In Act 9, the legislature enacted two provisions to
address the allocation of these funds, §§ 55c and 9101(2i). The
governor partially vetoed § 55c as follows:
16.047(4s) of the statutes is created to read:
16.047(4s) SCHOOL BUS REPLACEMENT GRANTS. (a) In this
subsection:
1. "School board" has the meaning given in s. 115.001
(7).
All subsequent references to the Wisconsin Statutes are
12
to the 2017-18 version.
21
No. 2019AP1376-OA.bh
2. "School bus" has the meaning given in s. 121.51
(4).
(b) The department [of administration] shall establish
a program to award grants of settlement funds from the
appropriation under [Wis. Stat. §] 20.855(4)(h) to
school boards for the replacement of school buses
owned and operated by the school boards with school
buses that are energy efficient, including school
buses that use alternative fuels. Any school board may
apply for a grant under the program.
(c) As a condition of receiving a grant under this
subsection, the school board shall provide matching
funds equal to the amount of the grant award.
(d) A school board may use settlement funds awarded
under this subsection only for the payment of costs
incurred by the school board to replace school buses
in accordance with the settlement guidelines.
2019 Wis. Act 9, § 55c. Removing the vetoed words, Wis. Stat.
§ 16.047(4s) now reads: "The department shall establish a
program to award grants of settlement funds from the
appropriation under [Wis. Stat. §] 20.855(4)(h) for alternative
fuels." The governor also vetoed in full a nonstatutory
provision regarding the allocations of these funds. 2019 Wis.
Act 9, § 9101(2i).13
¶271 The legislature's budget bill did not propose an
appropriation in whole or in part for alternative fuels
generally. Instead, the legislature proposed an appropriation
13The legislature's proposal stated: "Of the settlement
funds in [Wis. Stat. §] 20.855(4)(h), during the 2019-21 fiscal
biennium, the department of administration shall allocate
$3,000,000 for grants under [Wis. Stat. §] 16.047(4s) for the
replacement of school buses."
22
No. 2019AP1376-OA.bh
for the replacement of school buses.14 While both proposals may
have similar green energy goals, the governor's partial vetoes
created an entirely new policy proposal that spends money in
ways not proposed in the legislature's bill. This
gubernatorial-created policy sidestepped the constitutionally
mandated procedures governing how a bill becomes a law.
¶272 Second, the governor used a trio of vetoes to rewrite
an appropriation for local road funding into an appropriation
for some other undefined local grant. The governor began with a
partial veto of Act 9, § 126 (schedule item Wis. Stat.
§ 20.395(2)(fc)) as follows: "(fc) Local roads improvement
discretionary supplement . . . 90,000,000[inserting
75,000,000]." Next, the governor partially vetoed Act 9, § 184s
as follows: "20.395(2)(fc) of the statutes is created to read:
20.395(2)(fc) Local roads improvement discretionary supplement.
From the general fund, as a continuing appropriation, the
amounts in the schedule for the local roads improvement
discretionary supplemental grant program under s. 86.31 (3s)."
Wisconsin Stat. § 20.395(2)(fc) now reads: "Local supplement.
From the general fund, as a continuing appropriation, the
amounts in the schedule for local grant." Finally, the governor
vetoed in full Act 9, § 1095m, which detailed how the Department
The governor's budget had proposed utilizing these funds
14
to allow for "the installation of charging stations for vehicles
with an electric motor," which the legislature rejected in favor
of creating a school bus modernization fund. See Chief Justice
Roggensack's concurrence/dissent, ¶14 & n.6-7. In effect, the
governor's vetoes could allow for something the legislature
considered but rejected in enacting its own policy proposal.
23
No. 2019AP1376-OA.bh
of Transportation was to structure and allocate the
discretionary grants for local road improvements.15
¶273 The legislature did not propose a broad and vague
appropriation for local grants in whole or in part. Rather, the
legislature detailed a grant program for the express purpose of
improving local roads. By clever editing, the governor created
a new appropriation out of thin air. But again, appropriations
15Prior to the governor's veto of this provision in full,
it provided:
86.31(3s) of the statutes is created to read:
86.31(3s) DISCRETIONARY SUPPLEMENTAL GRANTS. (a) Funds
provided under [Wis. Stat. §] 20.395(2)(fc) shall be
distributed under this subsection as discretionary
grants to reimburse political subdivisions for
improvements. The department [of transportation]
shall solicit and provide discretionary grants under
this subsection until all funds appropriated under
[§] 20.395(2)(fc) have been expended.
(b)1. From the appropriation under [§] 20.395(2)(fc),
the department shall allocate $32,003,200 in fiscal
year 2019−20, to fund county trunk highway
improvements.
2. From the appropriation under [§] 20.395(2)(fc), the
department shall allocate $35,149,400 in fiscal year
2019−20, to fund town road improvements.
3. From the appropriation under [§] 20.395(2)(fc), the
department shall allocate $22,847,400 in fiscal year
2019−20, to fund municipal street improvement
projects.
(c) Notwithstanding sub. (4), a political subdivision
may apply to the department under this subsection for
reimbursement of not more than 90 percent of eligible
costs of an improvement.
2019 Wis. Act 9, § 1095m.
24
No. 2019AP1376-OA.bh
must originate in the legislature, which has the power to enact
such laws in the first instance. Wis. Const. art. IV, § 17(2),
§ 19; id. art. VIII, § 2. While the governor may generally
accept or reject appropriations proposed to him, he cannot
through creative editing author a new appropriation never
proposed to him.
¶274 Finally, the governor created a new vaping-related tax
not proposed by the legislature. The vetoed provision reads:
139.75 (14) of the statutes is created to read:
139.75 (14) "Vapor product" means a noncombustible
product that produces vapor or aerosol for inhalation
from the application of a heating element to a liquid
or other substance that is depleted as the product is
used, regardless of whether the liquid or other
substance contains nicotine.
2019 Wis. Act 9, § 1754. As enacted by the legislature, this
section taxed the hardware that produces vapor as a result of
applying the heating element to the liquid. Through his vetoes
the governor created a new tax on the liquid which goes inside
the device, often sold separately.
¶275 Once more, a tax on the liquid inside a vaping device
was not proposed to the governor. His veto went beyond negating
a proposal; he created a new tax on a product. Because the
legislature did not propose this new tax, the governor did not
have the power to rewrite language to create it. This kind of
editing exceeds the governor's partial veto power.
25
No. 2019AP1376-OA.bh
III. CONCLUSION
¶276 Faithfulness to the whole constitution and the
structure it establishes means our partial veto jurisprudence
needs a partial reset. We cannot myopically focus our attention
on the words of the partial veto provisions in our constitution
at the expense of the rest of the document's text. Early cases
established principles outlining a broad and expansive partial
veto power that is no doubt legislative in nature. I accept
those cases and the basic framework they outlined. But more
recent cases, in combination with gubernatorial creativity, have
upset the constitutional order and allowed governors to invade
the lawmaking powers of the legislature. It is time to
reestablish these core constitutional principles. I conclude
that three sets of vetoes challenged here go beyond what the
constitution permits.16 For these reasons, I respectfully
concur.
¶277 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
A
16 compelling case can be made that prospective
application of the new rule announced in this case is warranted
here. See State v. Beaver Dam Area Dev. Corp., 2008 WI 90,
¶¶95-96, 312 Wis. 2d 84, 752 N.W.2d 295 (explaining when
prospective application is warranted). However, under the
circumstances, I join the court's mandate that grants the relief
requested for all vetoes we determine are unconstitutional.
26
No. 2019AP1376-OA.bh
1