Gov. Tony Evers after signing the 2023-25 budget bill with 51 partial vetoes on July 5, 2023. (Baylor Spears | Wisconsin Examiner)

A split Wisconsin Supreme Court ruled Friday that Gov. Tony Evers’ partial veto in the last state budget extending school funding increases for an additional 400 years was within his constitutional powers. 

The executive partial veto powers granted in the Wisconsin State Constitution are uniquely expansive, though they have been limited in the past through Supreme Court decisions and constitutional amendments passed by the Legislature and approved by voters.

In the 2023-25 state budget bill, Evers used his partial veto power striking two digits and a dash from the years to extend the annual increases through 2425, saying the action would help provide ongoing financial support to schools. The initial bill had included a $325 increase to schools’ revenue limits for the 2023-24 and 2024-25 school years.

Justice Jill Karofsky wrote in a majority opinion that the partial veto was within the power given to Evers in the state constitution, which says “appropriation bills may be approved in whole or in part by the governor.”

“We uphold the 2023 partial vetoes, and in doing so we are acutely aware that a 400-year modification is both significant and attention-grabbing,” Karofsky wrote. “However, our constitution does not limit the governor’s partial veto power based on how much or how little the partial vetoes change policy, even when that change is considerable.”

The case challenging the partial veto was brought by Wisconsin Manufacturers and Commerce on behalf of two Wisconsin taxpayers, Jeffery A. LeMieux, a retired professor, and David T. DeValk, a Fox Valley substitute teacher — arguing that the action was unconstitutional and undemocratic. 

WMC Executive Vice President of Government Relations Scott Manley said they were disappointed by the ruling, and that Evers “exceeded his authority at the expense of taxpayers, and now our great-great-great-great-grandchildren will still be paying the price for his reckless disregard for the law.”

Karofsky laid out several options that lawmakers could take if they want to address the issue further, including by addressing it in a future budget — such as the 2025-27 budget that is being worked on now, by passing a constitutional amendment or by drafting bills separate from appropriation bills to avoid the governor’s partial veto or trying to anticipate how the power might be used. 

Lawmakers have introduced a couple of proposed constitutional amendments. One, which passed last session, would bar the governor from using the veto power to create or increase any tax or fee. Another introduced in January would replace current language that says a partial veto 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” to say the governor may “only reject one or more entire bill sections.” 

Those proposals have to pass in two consecutive sessions of the Legislature before they could go to voters for ratification. 

Karofsky wrote that the Court “takes no position regarding these measures. We merely outline them to illustrate legislative alternatives to the action before us.”

The three conservative justices on the Court slammed the majority opinion, saying that by upholding the veto the Court has given the executive the power to make law separately from legislators.

“How does a bill become a law?” Justice Brian Hagedorn wrote in the dissenting opinion. “According to the majority, one option looks like this: The legislature passes a bill in both houses and sends it to the governor. The governor then takes the collection of letters, numbers, and punctuation marks he receives from the legislature, crosses out whatever he pleases, and — presto! — out comes a new law never considered or passed by the legislature at all. And there you have it — a governor who can propose and enact law all on his own.” 

Hagedorn wrote that the majority’s opinion makes “a mockery of our constitutional order. This is a mess of this court’s making, and it is long past time for us to fix it.” 

In an opinion concurring with the majority, Justice Rebecca Dallet said the precedent set forth in other cases before the court have “emphasized that a partial veto may affirmatively change the policy of the original bill.” Dallet said that she is “open to revisiting” that, but “this case is not a ‘clear opportunity’ to do so.”

“Petitioners do not ask us to overturn any of our prior decisions, let alone reimagine completely our approach,” Dallet wrote. 

Republican leaders and Evers react to decision, upcoming budget

Republican leaders were critical of the decision, saying that the Court had granted the governor unchecked power and that the decision would lead to tax increases for Wisconsinites.

Assembly Speaker Robin Vos (R-Rochester) said that the decision was evidence of the Court being partisan and “should worry every Wisconsinite.” 

“Is any Wisconsin citizen surprised that the liberals on the Wisconsin Supreme Court are now a rubber stamp for liberal ally Tony Evers?” Vos asked. “The liberal Justices’ decision itself describes the effects of this decision as ‘significant and attention-grabbing.’ Modest words for a tortured reading of our Constitution that will hurt Wisconsin taxpayers for hundreds of years to come, all in the name of supporting their ally in the Governor’s office.”

Senate Majority Leader Devin LeMahieu (R-Oostburg) said that the Court “proved again that they will rule based on partisanship and politics rather than the rule of law” and that the veto was “an unprecedented overreach that will impact generations of Wisconsin taxpayers.”

Senate President Mary Felzkowski (R-Tomahawk) said that the state cannot afford to provide money for the increases, calling it “wildly unrealistic” and “fiscally unsustainable,” and that increases would be felt by property taxpayers. 

The partial veto applied to increases to schools’ revenue limits, meaning that school districts will have more leeway to bring in funds through property taxes or state funds. The partial veto did not allocate additional state dollars for the increases, though lawmakers could decide to provide state funds for the increases. The partial veto also did not automatically mean school districts would raise taxes, though they would have the option.

Wisconsin has limited school districts’ ability to raise funds through property taxes since 1993. Schools originally received regular adjustments to their limits on an inflationary basis, but that was eliminated in 2009 and since then increases have relied on lawmakers or school districts going to taxpayers for permission to increase taxes.

“It doesn’t matter if it’s via property taxes or income taxes, this money is going to come out of the pockets of Wisconsinites from Tomahawk to Racine,” Felzkowski said. She called on Evers to “come to the table to find a solution to this problem that he created, otherwise average Wisconsinites will be forced to take on the financial burden that he has put on them.” 

Evers said in a statement that schools deserve “sustainable, dependable, and spendable state support and investment” and said the decision was great news.  

“For over a decade, the Legislature has failed to meet that important obligation. Importantly, this decision does not mean our work is done — far from it,” Evers said. “Today’s decision only further underscores the urgent need for Republican lawmakers to approve the K-12 investments I’ve proposed to ensure our kids and our schools have the resources they need now and into the future.”

Evers has called for an additional $3 billion in investments for the state’s K-12 schools, funded with the state’s $4 billion budget surplus. Lawmakers have said the decision would be influential in the shape of education funding in the 2025-27 state budget. 

Department of Public Instruction Superintendent Jill Underly echoed Evers’ sentiment, calling the decision a win.

“The broader need remains: real, usable investments in our schools. That means fair special education reimbursement, meeting the mental health needs of our kids, stronger support for our educators, and access to nutritious school meals at no cost for every child,” Underly said. “These priorities must be reflected in the upcoming state budget. Without meaningful investment and an aid commitment from our Legislature, the burden continues to fall on local property taxpayers.”

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