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.”

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UW President Jay Rothman tells lawmakers that this will be a “make it or break it” budget for the UW system. Photo by Baylor Spears/Wisconsin Examiner.

Leaders of the Universities of Wisconsin and the state Department of Corrections (DOC) defended Gov. Tony Evers’ budget requests to lawmakers on the Joint Finance Committee during a meeting Tuesday. 

The hearing marks the start of lawmakers’ official work on the state budget, which will continue this week with public hearings in Kaukauna on Wednesday and West Allis on Friday. 

Sen. Howard Marklein (R-Spring Green) and Rep. Mark Born (Beaver Dam), co-chairs of the Joint Finance Committee, said during a press conference ahead of the meeting that they were looking for “justification” on the “massive” requests from the UW and wanted an explanation of the plan for DOC. 

“[The DOC request is] lacking in a lot of details and seems to be a little short of being able to accomplish its mission, but I’m interested to hear more about how they arrived at that and why they made some of the decisions they made and hopefully provide some information that will allow us to improve that plan and make sure that it’s a good plan for the future of the Wisconsin Department of Corrections and for public safety here in Wisconsin,” Born said.

In the past, lawmakers have heard from a greater number of agencies about their requests. During the last budget cycle, lawmakers heard from four agencies, including DOC, the Department of Transportation, the Department of Safety and Professional Services and the Department of Administration. That year, state Superintendent Jill Underly traveled to Eau Claire to talk to lawmakers about the Department of Public Instruction budget after not getting an invitation to speak. 

The lawmakers said it would have been a “waste of their time and our time” to hold briefings with other agencies.

“[The agency leaders] just have not been straight with us on things. They just don’t want to really talk about what they’re doing and why they’re doing it,” Born said. He said lawmakers were hopeful that the UW and DOC would work with them to answer some questions. 

Universities of Wisconsin President Jay Rothman told lawmakers during the briefing that he agrees with Gov Tony Evers’ assessment that this will be a “make it or break it” budget for the UW system. Evers’ request for the UW includes an additional $856 million, which would be one of the largest investments in the university campuses in state history. 

Rothman acknowledged that the request is “significant” but he emphasized that Wisconsin currently sits at 43rd out of 50 when it comes to state investment in public universities. The investments in the request would bring the system up to the median nationwide. 

Rothman explained to lawmakers that inflation and a lack of state investment over the last three decades to meet increasing costs has hindered the UW system. 

UW schools have worked to make changes, he said. When he started as president in June 2022, Rothman said 10 of the system’s 13 campuses were running fiscal deficits. That number is now six and should hit zero over the next year or so. He also noted there have been six two-year colleges that have closed or will close this year.

Rothman called the reforms necessary and said that the changes position the system for sound investments from the state. 

“We have to be asking ourselves a question: who will teach our children and grandchildren? Where will the nurses come from that will help care for our families and perhaps ourselves? Where will the engineers come from?” Rothman told lawmakers.

Rothman explained that the proposals seek to address five goals including increasing affordability, accessibility, developing talent, ensuring quality and investing in innovation.

“You cannot cut your way to success,” Rothman said. “You need to invest.” 

Rep. Tip McGuire (D-Kenosha) asked Rothman what would happen if the state did not fund the requests. 

“If we get the budget funded, we will not have to raise tuition. If we don’t get funded at an adequate level, that’s one of the levers… that I don’t want to have to use,” Rothman said. “I want to be able to maintain the accessibility that our students get, but we will do what we need to do, and it won’t be just one piece. That will be multiple levers, and we get more efficient in some places. We have to stop offerings, programs at certain universities.”

Republican lawmakers grilled Rothman on “administrative bloat” across the system and requests for additional positions and funding from the UW schools. 

The budget request would add 214 positions funded by state general purpose revenue to UW campuses. Rothman noted that UW campuses, excluding flagship UW-Madison, have lost 6,000 positions funded by the state since 2019. 

Born asked why there was a request for 13 additional staff members to support students who have aged out of the foster care system. He noted that a 2023-24 report found there were 420 of those students across the system. 

“I’m trying to wrap my head around — you talked about strategic investments, sound investments, and you’re asking for 13 positions, one on every campus to serve 420 kids?” Born asked. 

Rothman said the intention would be to expand the number of students who could be supported. 

“They’ve had a tough lot in life to start with,”  Rothman said, adding that the additional staffing  could give those students a leg up. “I would hope that we could expand that number.” 

Rothman also said that the specific request is part of the general goal of investing in students to ensure they make it to graduation. 

“If you look at the positions that we have asked for, they are all student-facing. We are trying to help our students be successful,” Rothman said. 

“This is a shining example of the governor’s desire to grow government and your desire to grow your system, and it’s not focused on the reality of how you invest in this stuff,” Born said. 

Born also focused on the idea of funding new programs on UW campuses. 

“Why would we need to fund a curriculum of the future? Isn’t there things that are fading away, things that are no longer of interest to students, things are no longer of interest to the workforce? Shouldn’t there be funds available to offer new things?” Born asked. 

Rothman said that the UW system has cut about 100 programs already. 

“So you’ve eliminated about 100 programs, but you can’t fund a new program and curriculum and AI without more funding?” Born continued. 

“I think the fact of the matter is if we had kept up with inflation in terms of our state support, we’d be in a different position,” Rothman answered. 

Corrections budget 

DOC Sec-designee Jared Hoy also defended Evers’ proposals during the hearing, saying that policy changes, increased investments and capital projects are needed to improve safety in facilities across the state. The proposal, Hoy said, is “not simply a list of funding requests” but is a “blueprint for the future” of state corrections. 

Under the proposal, the state would invest about $634 million in the DOC. The majority of the money would be used to fund major reforms throughout the state’s prisons including infrastructure upgrades and capital improvements to Waupun Correctional Institution, Lincoln Hills School, Stanley Correctional Institution, Sanger B. Powers Correctional Center and John C. Burke Correctional Center. The improvements would culminate in the closure of the Green Bay Correctional Institution. 

Hoy told lawmakers that the budget proposal was developed through conversations with DOC staff, legislators and outside experts with a focus on “safety for those in our communities and the people that work in our facilities every day.” 

The proposal also includes some policy changes meant to help limit recidivism, including by expanding access to workforce training and substance use treatment for people who have 48 months or less left in their sentences for nonviolent offenses.

“A system that prioritizes re-entry and release, but fails to reduce recidivism is not truly safe. A facility that contains individuals but is dangerous and unstable inside its walls is not safe,” Hoy said. “Safety must be both measured by what happens inside the walls of our facilities, and by what happens when a person releases into the community.”

Hoy said that he hoped lawmakers would see some of their thoughts and ideas for the agency reflected in the plan.

“The governor’s budget request is an opportunity for our state to come together and use our taxpayers’ money responsibly to help keep our children and our communities safe,” Hoy said.

The idea that some lawmakers have floated of building a new facility would take significantly more time and money, he added. 

“Our agency does not have time to wait 10 to 12 years for a new facility to be built,” Hoy said.

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Gov. Tony Evers said Monday the state needs to approve projects as costs could rise due to President Donald Trump's tariffs. Here, Evers is shown speaking to reporters last week. (Photo by Baylor Spears/Wisconsin Examiner)

Gov. Tony Evers announced a $4.1 billion capital budget proposal on Monday that would include new buildings at University of Wisconsin campuses and for prison building overhaul. 

Evers said in a statement the investment would be critical to addressing Wisconsin’s aging infrastructure and to “build for our state’s future.”

“We can’t afford to kick the can down the road on key infrastructure projects across our state, most especially as the cost of building materials may only get more expensive with each day of delay due to potential tariff taxes and trade wars,” Evers said. 

President Donald Trump’s plans of implementing tariffs on goods from Mexico, Canada and China, which have been delayed multiple times, are expected to put added stress on the construction industry as the costs of raw materials, including steel, aluminum and cement could grow.

“We must take the important steps necessary to invest in building a 21st-century infrastructure, workforce, and economy,” Evers said. “I am hopeful that these recommendations will receive bipartisan support to get these projects done that communities across our state are depending on.”

The State Building Commission — which is made up of eight members including Evers, four Republican lawmakers, two Democratic lawmakers and one citizen member — will meet on March 25 to vote on the capital budget recommendations. It’s likely his proposal will be blocked by Republican lawmakers, who have done so in previous budgets, to allow the Republican lawmakers who are a majority on the Joint Finance Committee to create their own proposal. 

During the last budget session, Evers proposed a $3.8 billion proposal that was cut down to $2.69 billion. 

In a joint statement Sen. Howard Marklein (R-Spring Green) and Rep. Mark Born (R-Beaver Dam) called Evers’ plan “another example of his irresponsible spending.” They said Republicans would “craft a responsible capital budget that Wisconsin can afford.” 

“It will balance the needs of our state with sound fiscal responsibility. We must ensure that our operating budget and capital budget will work together to fund the priorities of the state. Legislative Republicans will work to right-size these proposals and craft a budget Wisconsin can be proud of,” the lawmakers said.

One of the largest parts of Evers’ plan — nearly $1.6 billion — would be for the University of Wisconsin System. His recommendation is 90% of the $1.78 billion that was requested from UW and would go towards an array of projects across UW campuses. 

UW System President Jay Rothman said in a statement the plan would provide “key funding necessary for building repairs and renovations as well as critical new projects that modernize classroom and research facilities” and ensure the state is “continuing to build opportunities for future generations of students.”

One large project includes $292 million for the demolition and replacement of the Mosse Humanities Building at UW-Madison by February 2031. The building was constructed in 1966 and opened in 1968 and has recently suffered from structural and environmental deficiencies, including asbestos, putting students at risk. 

“The building is well past its expected useful life, with a significantly deteriorated building envelope and exterior window/wall system, uncorrectable humidification conditions and insufficient environmental controls,” the proposal states.

The plan would also include $293 million for new residence halls at UW-Madison.

UW-Madison Chancellor Jennifer Mnookin said in a statement that the proposal recognizes the “infrastructure improvements that are critical to maintaining UW–Madison’s competitive edge in education and research.” 

“We are grateful for the governor’s commitment to investing in essential projects that will ensure the state’s flagship will continue to meet the needs of our state and its workforce. We also deeply appreciate the continued advocacy on our behalf from the Universities of Wisconsin and the Board of Regents,” Mnookin said. 

Evers’ proposal would also dedicate $194 million for UW-La Crosse to complete its Prairie Springs Science Center and demolishing Cowley Hall, which lacks fire suppression, has failing mechanical systems and doesn’t meet modern science and research needs. 

The first phase of this project was completed in the summer of 2018, but the second part needs to be approved. New building additions would include instructional and research laboratories with associated support spaces, classrooms, greenhouse, observatory, specimen museum and animal care facility, which is meant to help support STEM education and workforce development.

The plan also includes $189 million for UW-Milwaukee to renovate the Northwest Quadrant complex for its College of Health Sciences. The project, which has been needed for years, was not included in Evers’ budget last session. 

UW-Oshkosh would get $137 million for the Polk Learning Commons — a project that would include the demolition of its library facility, which was constructed in 1962, and replacing it with a new facility. 

Whether lawmakers will be supportive of projects for UW system schools is unclear. During the last budget cycle, Republican lawmakers withheld funding for building projects to use in negotiations over diversity, equity and inclusion on campus. Major projects, including an engineering building at UW-Madison, were only approved after the UW system agreed to change certain policies related to DEI.

Evers’ plan would also dedicate $634 million to the Department of Corrections for his proposed “domino” prison reform plan and other projects. This would include infrastructure upgrades and capital improvements to Waupun Correctional Institution, Lincoln Hills School, Stanley Correctional Institution, Sanger B. Powers Correctional Center and John C. Burke Correctional Center. In addition, the improvements would enable the final part of the proposal, which is closing the Green Bay Correctional Institution. 

Other projects in the proposal include: 

• $195 million for health facilities, including $44 million for renovating the food service building at Central Wisconsin Center, $55 million for upgrading utility infrastructure at the Mendota Mental Health Institute and $61 million for similar upgrades at Winnebago Mental Health Institute.
• $170 million for Department of Veterans Affairs’ projects, including $101 million for food service and laundry facilities at Wisconsin Veterans Home at King.
• $164 million in projects requested for the Department of Natural Resources to invest in Wisconsin’s state parks and forests and fund bridge replacements, trail upgrades and fire response ranger stations upgrades.
• $40 million for elevator and fiber and cable upgrades at the Wisconsin State Capitol
• $36.6 million, which is only about 20% of the requested funds, for the Department of Military Affairs.
• Nearly $22 million for State Fair Park.
• $25 million for planning, design, and sitework at the Milwaukee County Courthouse Complex. County Executive David Crowley said in a statement that the public safety building is “crumbling, inefficient and poses significant risks to community safety” and that it must be removed and replaced.

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