During the 2022–23 school year, book bans occurred in 153 districts across 33 states, according to a PEN America report. (Getty Images)

The Wisconsin Supreme Court ruled unanimously Wednesday that Gov. Tony Evers overstepped his partial veto power by exercising it on a bill to implement new literacy programs in the state. Evers scolded the decision, while lawmakers said it upheld the balance of power and that they plan to release the funds now. 

The decision reverses a lower court, which ruled Evers hadn’t overstepped his power but held that the court did not have the power to compel the Legislature to release the funds. 

The case, Wisconsin State Legislature v. Wisconsin Department of Public Instruction, involves 2023 Wisconsin Act 100 — one part of a series of measures meant to support the creation of new literacy programs in Wisconsin. 

In the 2023-25 budget, lawmakers and Evers approved $50 million for new literacy programs but the funding went into a supplemental fund, meaning it required the Republican-led Joint Finance Committee to approve its release to the Department of Public Instruction before it could be used.

2023 Wisconsin Act 20  created an Office of Literacy within the Department of Public Instruction, which would be responsible for establishing an early literacy coaching program and awarding grants to schools. Act 100  was a separate law to create a way for the agency to expend the money transferred by the Joint Committee on Finance.

Evers exercised a partial veto when signing Act 100 into law to expand it from covering a “literacy coaching program” to covering a “literacy program.” The action led to lawmakers withholding the funding, saying he didn’t have the authority to change the law’s purpose, the argument at the center of their subsequent lawsuit. Evers’ administration had argued the bill was an appropriation, and therefore it was within the governor’s powers to partially veto it, and that the Legislature was not within its right to withhold the money.

The Wisconsin Supreme Court ruled the Legislature had not been improperly withholding the funding from DPI and that Act 100 was not an appropriation, so Evers overstepped the boundaries of the veto power given to him in the Wisconsin State Constitution. The decision overturns part of the ruling of a Dane County judge.

The state constitution gives the governor the power to sign or veto bills in full, and a 1930 amendment gave the governor the power to partially veto “appropriation bills.” Wisconsin’s executive partial veto power is one of the strongest in the country, though it has been limited over the last several decades by constitutional amendments and through Court rulings.

The state Supreme Court’s 7-0 ruling Wednesday reigns in Evers’ partial veto power.

Justice Rebecca Bradley wrote in the majority opinion that the bills “did not set aside public funds for a public purpose” but rather “created accounts into which money could be transferred to fund the programs established under Act 19 [the state budget] and Act 20, and it changed other aspects of the ‘literacy coaching program.’”

“The bill, however, does not set aside any public funds; in fact, it expressly states that “$0” was appropriated,” Bradley wrote.  

Bradley said it was within the Legislature’s authority to pass the bills in the way that it did, and the Constitution only gives the governor power to “veto in part only appropriation bills — not bills that are closely related to appropriation bills.”

“Although the executive branch may be frustrated by constitutional limits on the governor’s power to veto non-appropriation bills, the judiciary must respect the People’s choice to impose them,” Bradley wrote. “This court has no authority to interfere with the Legislature’s choices to structure legislation in a manner designed to insulate non-appropriation bills from the governor’s exercise of the partial veto power.” 

Under the ruling, the law will revert to what it was when the Legislature passed it.

Another recent state Supreme Court ruling upheld another of Evers’ partial vetoes that extended school revenue increases for 400 years, though that decision was split. In that ruling, the Supreme Court said lawmakers could avoid the partial veto power by drafting bills separate from appropriation bills. Republican lawmakers have been considering for years ways to limit Evers’ veto power, and it remains an issue of controversy in the current budget process as lawmakers pass bills without funding attached. 

Evers called the Supreme Court decision “unconscionable” and urged lawmakers to release the nearly $50 million.

“Twelve lawmakers should not be able to obstruct resources that were already approved by the full Legislature and the governor to help get our kids up to speed and ensure they have the skills they need to be successful,” Evers said in a statement. “It is unconscionable that the Wisconsin Supreme Court is allowing the Legislature’s indefinite obstruction to go unchecked.” 

Evers said he would accept the Court’s decision.

“A basic but fundamental responsibility of governors and executives is to dutifully comply with decisions of a court and the judiciary, even if — and, perhaps most importantly, when — we disagree,” Evers said. 

Evers said lawmakers failing to release the funds would be “reckless” and “irresponsible.” 

“Stop messing around with our kids and their futures and get it done,” Evers said. 

Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Devin LeMahieu (R-Oostburg) said in a joint statement that the ruling is a “rebuke of the Governor’s attempt to break apart a bipartisan literacy-funding bill and JFC’s constitutional authority to give supplemental funding to agencies.”

“While the Governor wanted to play politics with money earmarked for kids’ reading programs, it is encouraging to see the Court put an end to this game,” Vos and LeMahieu said. “Wisconsin families are the real winners here.”

The end of the state’s fiscal year and deadline for getting the next state budget done is June 30, and if the money isn’t released, it will lapse back into the general fund going back to the state’s $4 billion budget surplus.

Co-chairs of the Joint Finance Committee Rep. Mark Born (R-Beaver Dam) and Sen. Howard Marklein (R-Spring Green) said in a joint statement they plan to release the funds now that the Supreme Court has ruled on the issue

“The Supreme Court’s unanimous decision confirmed what we already knew: the Governor’s partial veto of Act 100 was unconstitutional. We are happy to see that the court ruled in favor of the Legislature as a co-equal branch of government and provided us much needed guidance,” the lawmakers said. “Now that there is clarity, we look forward to releasing the $50 million set aside to support kids struggling to read and help implement these important, bipartisan reforms. It is unfortunate that the Governor’s unconstitutional veto has delayed this funding needed by kids and families across the state.”

At a press conference Wednesday afternoon, Democrats on the Joint Finance Committee called for lawmakers to meet before Monday to release the funds. 

“Unless the Joint Finance Committee acts before Monday, those kids and those school districts will not see another dime. Wisconsinites are tired of Republicans playing politics with our public schools,” Rep. Deb Andraca (D-Whitefish Bay) said. She noted that Evers had requested an additional $80 million for literacy in his budget proposal, but lawmakers have so far not included that. 

Republican lawmakers have approved the K-12 portion of the state budget, which includes an increase for the state’s special education reimbursement rate from about 32% to 37.5% and a 90% rate for high cost special education in the second year of the budget, along with funding for other priorities. Democrats and education advocates have been critical, saying that the budgeted amounts are not enough to ease the financial burdens public schools are facing.

Rep. Tip McGuire (D-Kenosha) said Democrats haven’t heard from Republican lawmakers about working on the budget.

“We are ready to work,” Sen. Kelda Roys (D-Madison) said. “We would like to see immediately some action on the funding that is going to disappear if it’s not spent by June 30th, particularly the literacy funding. The Joint Finance Committee has also refused to release other funds, including $125 million to combat PFAS and $15 million to support Chippewa Valley hospitals.

Roys said it was “great to hear” that the co-chairs said they would release the funds and that she hopes he “stands by his word.” 

State Superintendent Jill Underly also urged the release of the funds, saying part of the compromise struck by Evers and lawmakers was “to provide districts with funding to implement new strategies and change practices” and districts have been working to implement the literacy changes but have yet to see funding.

“It is devastating that despite bipartisan agreement on how to proceed, we have been stuck in neutral,” Underly said. 

Peggy Wirtz-Olsen, president of the Wisconsin Education Association Council (WEAC), the state’s largest teachers’ union, said in a statement that Republican lawmakers are “bent on using schools as pawns for political payback” and are giving “lip service to literacy, while leaving educators without funding to do our job.” 

“On the cusp of another state budget, these same politicians again threaten to underfund public schools instead of working across the aisle for the good of students,” Wirtz-Olsen said, adding that WEAC will continue to advocate for funding from the state.