In a blow to Gov. Tony Evers, state Supreme Court overturns three budget vetoes

MADISON - A divided state Supreme Court scaled back Democratic Gov. Tony Evers' veto authority Friday, throwing out three changes he made to the state budget last year. 

The ruling, written by conservatives who control the court, is a setback for Evers and future governors. For decades, the high court has given Wisconsin governors broad authority to rewrite budgets and some other legislation using partial vetoes. 

The decision came a day after the high court handed Evers a mixed ruling by throwing out part of a set of lame-duck laws that limited his power but upholding other portions of them.

In Friday's ruling, the justices tossed aside three of Evers' vetoes but upheld a fourth one that had been challenged. The decision was fractured, with different groups of justices reaching different conclusions about when to throw out vetoes. 

"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," wrote Justice Brian Hagedorn, a conservative who previously worked as former Gov. Scott Walker's chief legal counsel.

The decision was splintered, with no majority defining how future vetoes should be reviewed. Dissenting from most of the ruling, the court's liberals called that a problem.

"In an important case like this, where the people of Wisconsin need clarity, we instead sow confusion," Justice Ann Walsh Bradley wrote in a dissent joined by Justice Rebecca Dallet.

"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."

Evers rewrote portions of the state budget last year by using his veto powers to eliminate parts of some sentences to come up with new proposals. 

Three taxpayers represented by the conservative Wisconsin Institute for Law & Liberty sued over that veto and others. The justices agreed to take the case without having it first heard by a lower court, as typically happens.

Specifically, the lawsuit asked the court to block vetoes that shifted public money from school buses to electric vehicle charging stations; expanded what vaping products are taxed; lifted restrictions on how $75 million in transportation funding could be spent; and required owners of heavier trucks to pay higher vehicle fees than owners of lighter trucks. 

On 5-2 votes, the justices struck down the vetoes regarding charging stations and how transportation funds could be spent. On a 4-3 vote, they struck down the veto that expanded what vaping products are taxed.

But the justices agreed 5-2 to uphold the veto on truck fees. 

In a statement, Evers expressed disappointment with Friday's ruling.

"Today’s ruling departs from decades of precedent and only creates chaos and confusion," he said in his statement.

Rick Esenberg, the president of the institute that brought the lawsuit, hailed the decision.

"Governor Evers used the partial veto power to create new laws never approved by the Legislature," he said in a statement. "The court's decision recognizes limits to the partial veto power that will safeguard liberty and uphold the separation of powers."

For decades, the state Supreme Court has repeatedly ruled that governors have expansive veto powers. That's given governors of both parties the ability to slice and dice budgets to come up with policies and programs that have no resemblance to what legislators intended.

But the court on Friday concluded Evers had exceeded his authority with some of the vetoes.

"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," Hagedorn wrote.

Friday's ruling was a change of course for the high court, which has repeatedly ruled in the favor of governors in decisions going back to 1935.

In 1988, for instance, the high court ruled the governor held a "quasi-legislative" role and was allowed to strike out words, digits and even individual letters from budgets to string together new sentences, according to the nonpartisan Legislative Reference Bureau. 

Under Republican Gov. Tommy Thompson, voters later amended the state constitution to prevent governors from eliminating letters from words. The practice was dubbed the "Vanna White veto" in a nod to the hostess who turns letters on the game show "Wheel of Fortune."

Years later, voters again amended the constitution to prevent vetoes like ones issued by Democratic Gov. Jim Doyle that strung together words from two or more sentences to create a new sentence. Critics called those vetoes "Frankenstein vetoes" because they stitched together parts from unrelated sections of the budget.

But even with those constitutional amendments, governors have still flexed their creativity.

In their version of the budget last year, Republican legislators directed $25 million from a court settlement toward purchasing fuel-efficient buses. Evers strategically knocked words out of the budget to create a new program to have the state help pay for electric vehicle charging stations using $10 million that would have gone to buy buses. 

The Legislature wrote that the state was to “establish a program to award grants of settlement funds … 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.”

Evers erased almost all those words, rewriting the phrase so that the grants would be used "for alternative fuels." Evers said that gave him leeway to spend money on electric vehicle charging stations — an idea the Legislature hadn't approved.

The Supreme Court on Friday determined that veto was among those that went too far. In the majority were Hagedorn and the court's other conservatives, Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler.

The same five ruled against the veto on how transportation funds could be spent.

Four of them — Rebecca Bradley, Kelly, Hagedorn and Ziegler — struck down the veto affecting what products are subject to the vaping tax. Roggensack joined the liberals in saying she thought that veto was valid.

An alliance of three conservatives and two liberals upheld the veto affecting truck fees. In the majority were Ann Walsh Bradley, Dallet, Hagedorn, Roggensack and Ziegler. In dissent were Rebecca Bradley and Kelly. 

But a majority could not agree on how to decide when to throw out vetoes. 

Rebecca Bradley and Kelly argued vetoes could be used only to stop the adoption of a specific measure the Legislature had voted on.

Hagedorn and Ziegler contended a governor could use vetoes to slightly modify budget provisions, but could not selectively edit legislation to write new policies. 

And Roggensack maintained partial vetoes were acceptable as long as they dealt with the same subject matter as what was written in the original legislation.

Also Friday, the Supreme Court threw out a narrower case that challenged vetoes by Walker from 2017. They determined that lawsuit had been filed too late and dismissed it.

Friday's decisions are some of the last that will be joined by Kelly. He will be leaving the court at the end of the month because he lost his April election to liberal Dane County Judge Jill Karofsky.

Karofsky's addition to the court will narrow the conservative majority from 5-2 to 4-3.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.