The seven members of the Wisconsin Supreme Court hear oral arguments in 2023. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court heard arguments Thursday in a case related to a statewide literacy program that considers Gov. Tony Evers’ partial veto power and lawmakers’ handling of emergency funds.

The case comes as the result of the last state budget and efforts by state lawmakers, Gov. Tony Evers and the Department of Public Instruction to overhaul literacy programs in Wisconsin. 

During the 2023-25 budget cycle, lawmakers placed $50 million aside in an emergency fund controlled by the Joint Finance Committee that was meant to go towards funding new literacy programs. Lawmakers also passed AB 321 — now 2023 Wisconsin Act 20 — to establish the policy portions of the initiative, which included creating a new office in the Department of Public Instruction and instructing the agency to hire literacy coaches and create a grant program. 

Lawmakers subsequently passed SB 971, now 2023 Wisconsin Act 100, to create a mechanism for DPI to spend the money when the funds were transferred. A partial veto by Gov. Tony Evers caused lawmakers to sue, saying it wasn’t an appropriations bill therefore not subject to a partial veto.  Evers argued that the law included an appropriation and further asserted that DPI has been urging lawmakers to release the funds, which will lapse back into the state’s $4 billion budget surplus if not used before June 30.

Before the Supreme Court heard the case, a Dane County judge had ruled Evers’ veto proper, but said there wasn’t a case for the release of the funds. Both parties appealed to the Wisconsin Court of Appeals, but the Wisconsin Supreme Court agreed to take the appeal directly

Assistant Attorney General Charlotte Gibson, the Department of Justice lawyer for DPI and Evers, argued that lawmakers don’t have the power to withhold the money and the court should order the release of the money to DPI. 

The issues at hand, Gibson said, “reflect an interlocking strategy to control how the executive branch spends funds and to limit the governor’s partial veto power. It involves dissecting appropriations into multiple bills and crediting funds set aside for executive agency programs to [the Joint Finance Committee] to control their destination and use. Those efforts are illegal, and they misread the governor’s veto authority.” 

Gibson said that the intention of the law, and the money being placed in the emergency fund, was to give money to specific agencies for specific purposes. A brief notes that “over the past few decades, the Legislature has increasingly used that appropriation not for emergencies, but rather to fund anticipated expenses through a legislative committee that purports to retain veto power over how the executive branch spends appropriated money.” 

Gibson said that the purpose of the emergency fund statute was not to serve as “a holding pen for lots of money that the Legislature wanted to give [the committee] power over,” but lawmakers are using it “to say, actually, we can spend it on whatever purpose…” 

“We think to correct the constitutional violation here, this agency can order those funds to be released,” Gibson said. 

Justices questioned Gibson on why the funds would need to be released to DPI if there was never an appropriation.

“The reality is the money’s sitting in a fund right now, and it hasn’t done anything with it,” Justice Rebecca Dallet said. “For all, we know they are going to use it for an emergency and not give it to anybody for anything else … that just hasn’t happened yet.”

Gibson replied that DPI has asked for the money and lawmakers haven’t given it to the agency. 

“But, I’m saying, [JFC] hasn’t appropriated it anywhere,” Dallet said. “Is DPI having an emergency where you think this is emergency money that you should get…?” 

“No, we think it’s unconstitutional for DPI not to get the money.” Gibson said. 

“Even if you were right, that the statutory structure here is constitutionally problematic, I still don’t see how you win and get the money, because that is not what the law says,” Justice Brian Hagedorn said. “There’s no provision of law that actually gives the money to DPI or appropriates the money to DPI.”

Gibson noted that the co-chairs of the committee Sen. Howard Marklein and Rep. Mark Born have said the money is earmarked for the purpose of the literacy programs. 

“What we’re struggling with is that we understand that there are hints and clues, earmarks — so different from an appropriation — and the way I’m looking at it, it could probably be parked in that fund indefinitely and that’s where I’m struggling with what’s the legal nexus,” said Justice Janet Protasiewicz. 

Ryan Walsh, the attorney representing the Legislature, argued Evers’ veto was inappropriate because the bill was not an appropriation bill, and that the remedy should be that the bill is law as passed by the Legislature, without Evers’ veto. 

“You can’t have an appropriation bill that makes no appropriation. It just doesn’t make sense,” Walsh said. However, he also said that if he is wrong then it means the law was improperly enacted because lawmakers passed it by voice vote, not roll call as is required of appropriations bills. 

Walsh said that under his argument the money would stay in JFC and go back to the treasury at the end of the biennium. 

“It doesn’t go to DPI,” Walsh said. “There is no obligation for [JFC] to disperse this money.” 

Justice Jill Karofsky said that she didn’t disagree about the discretion of the committee, but asked about the potential for lawmakers to abuse the discretion. 

“There aren’t really any guardrails here,” Karofsky said. 

Walsh said abuse “just doesn’t happen.” 

“What would stop the Legislature from emptying every last dollar of the Wisconsin treasury into a [JFC] emergency account?” Karofsky asked further. 

Walsh said many things could prevent that from happening, including the governor refusing to sign a budget that does so. 

Walsh also said the emergency account is a small portion of the state budget. He said that in the last 10 years the percentage of the budget that has gone to the supplemental account has ranged from 0.06% in the 2017-19 budget to 0.33% in the 2021-23 budget.

Justice Ann Walsh Bradley said she thought “part of why we are here [is] that some want us to take a look at this structure — allowing JFC to have this discretion — and that to not address it would be a rather lame opinion.”

Walsh said that he didn’t think the Court needed to reach the constitutional question. 

“I don’t think anybody is insisting that you decide whether [Wisconsin should retain the] supplemental funding structure, which has been in place a long time, and by the way, the governor and the Legislature are assuming it’s still in place,” Walsh said. “We have a new budget pending… There are lots of reasons to be cautious here.”