Bartlett v. Evers

Citation2020 WI 68,393 Wis.2d 172,945 N.W.2d 685
Decision Date10 July 2020
Docket NumberNo. 2019AP1376-OA,2019AP1376-OA
Parties Nancy BARTLETT, Richard Bowers, Jr. and Ted Keneklis, Petitioners, v. Tony EVERS, in his official capacity as Governor of the State of Wisconsin, Joel Brennan, in his official capacity as Secretary of the Wisconsin Department of Administration, Wisconsin Department of Administration, Craig Thompson, in his official capacity as Secretary of the Wisconsin Department of Transportation, Wisconsin Department of Transportation, Peter Barca, in his official capacity as Secretary of the Wisconsin Department of Revenue, and Wisconsin Department of Revenue, Respondents.
CourtUnited States State Supreme Court of Wisconsin

For the petitioners, there were briefs filed by Richard M. Esenberg, Anthony LoCoco, Lucas T. Vebber, Luke N. Berg, and Wisconsin Institute for Law & Liberty, Milwaukee. There was an oral argument by Richard M. Esenberg.

For the respondents, there were briefs filed by Colin T. Roth and Maura FJ Whelan, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Colin T. Roth.

An amicus curiae brief was filed on behalf of The Legislature by Misha Tseytlin, Kevin M. LeRoy, and Troutman Sanders LLP, Chicago, Illinois. There was an oral argument by Misha Tseytlin.

ROGGENSACK, C.J., filed an opinion concurring in part and dissenting in part. ANN WALSH BRADLEY, J., filed an opinion concurring in part and dissenting in part, in which DALLET, J., joined. KELLY, J., filed an opinion concurring in part and dissenting in part, in which REBECCA GRASSL BRADLEY, J. joined. HAGEGDORN, J., filed a concurring opinion, in which ZIEGLER, J., joined.

PER CURIAM.

¶1 We review the petitioners' original action requesting a declaration that Governor Evers exceeded his constitutional authority to partially veto appropriation bills. The petitioners assert that four series of partial vetoes in 2019 Wis. Act 9—the state's 2019-21 biennial budget bill—are unconstitutional.

¶2 The parties refer to the provisions based on their content before the vetoes: (1) the school bus modernization fund; (2) the local roads improvement fund; (3) the vapor products tax and (4) the vehicle fee schedule.

¶3 The petitioners contend that the four series of vetoes are unconstitutional. Article V, Section 10(1)(b) of the Wisconsin Constitution provides that the governor may approve appropriation bills "in whole or in part."

¶4 No rationale has the support of a majority. However, a majority has reached a conclusion with respect to the constitutionality of each series of vetoes. Five justices conclude that the vetoes to the school bus modernization fund are unconstitutional. The same five also conclude that the vetoes to the local roads improvement fund are unconstitutional.1 Four justices conclude that the vetoes to the vapor products tax are unconstitutional.2 Five justices conclude that the vetoes to the vehicle fee schedule are constitutional.3

¶5 Chief Justice Roggensack concludes that the vetoes to the school bus modernization fund and the local roads improvement fund are unconstitutional because they "resulted in topics and subject matters that were not found in the enrolled bill." Chief Justice Roggensack's concurrence/dissent, ¶99. She also concludes that the vetoes to the vapor products tax and vehicle fee schedule are constitutional because they did not alter "the topic or subject matter of the part approved." Id., ¶106.

¶6 Justice Ann Walsh Bradley and Justice Dallet conclude that the four series of vetoes are constitutional because they "result[ed] in objectively complete, entire, and workable laws." Justice Ann Walsh Bradley's concurrence/dissent, ¶170. Consequently, they would not grant relief.

¶7 Justice Kelly and Justice Rebecca Grassl Bradley conclude that the four series of vetoes are unconstitutional. Justice Kelly's concurrence/dissent, ¶230. They conclude that the vetoes violate the Wisconsin Constitution's origination clause, amendment clause and legislative passage clause. Id., ¶¶223, 225-26, 228.

¶8 Justice Hagedorn and Justice Ziegler conclude that the vetoes to the school bus modernization fund, the local roads improvement fund and the vapor products tax are unconstitutional. Justice Hagedorn's concurrence, ¶¶269–75. They also conclude that the vetoes to the vehicle fee schedule are constitutional because they merely negated a policy proposal advanced by the legislature. Id., ¶268.

¶9 Accordingly, rights are declared such that the vetoes to the school bus modernization fund, the local roads improvement fund and the vapor products tax are unconstitutional and invalid. Relief is granted such that the portions of the enrolled bills that were vetoed are in full force and effect as drafted by the legislature. See State ex rel. Sundby v. Adamany, 71 Wis. 2d 118, 125, 237 N.W.2d 910 (1976). The vetoes to the vehicle fee schedule are constitutional, and no relief is granted with respect to these vetoes.

By the Court. -Rights declared; relief granted in part and denied in part.

PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, dissenting in part).

¶10 This is an original action brought by three taxpayers, Nancy Bartlett, Richard Bowers, Jr. and Ted Keneklis (Taxpayers) against Governor Tony Evers and other government officials and agencies. Taxpayers challenge the validity of several vetoes Governor Evers made to the 2019–21 biennial budget.1 Specifically, they challenge a series of vetoes that changed a school bus modernization fund into an alternative fuel fund. They also challenge another series that removed conditions from a local road improvement fund, effectively changing it into a fund for "local grants" or "local supplements."

Third, they challenge a series of vetoes that altered a vehicle fee schedule by changing the amount truck owners must pay to register their vehicles. Lastly, they challenge one veto that altered a section that imposed a tax on "vapor products" by expanding the definition of vapor product to include liquid heated by a vaping device. Taxpayers assert that these vetoes went beyond the governor's partial veto power, which is provided in Article V, Section 10(1)(b) of the Wisconsin Constitution : "Appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law."

¶11 I conclude that the part approved by the governor, i.e., the consequences of the partial veto, must not alter the topic or subject matter of the "whole" bill before the veto.2 Stated otherwise, such a veto does not alter the stated legislative idea that initiated the enrolled bill. Therefore, Governor Evers could not use his partial veto power to change the school bus modernization fund into an alternative fuel fund. Nor could he use his partial veto to change the local road improvement fund into a fund for local grants or local supplements, devoid of any requirements that it be used for local roads. I partially concur with the per curiam opinion that these two series of vetoes are invalid and have no effect on the law enacted by the legislature. I further partially concur that he lawfully used his partial veto power to alter the amount truck owners must pay to register their vehicles. However, I partially dissent from the per curiam opinion because he also lawfully used his partial veto to alter the definition of vapor product. This veto should stand.

I. BACKGROUND

¶12 On June 25 and 26, 2019, the Wisconsin State Assembly and Senate, respectively, passed the 2019–21 biennial budget bill. The enrolled bill was presented to Governor Evers, who signed it with several vetoes on July 3, 2019.3 On July 31, 2019, Taxpayers filed an original action, which was amended on August 19, 2019. We took jurisdiction. The legislature filed an amicus brief, generally supporting Taxpayers.

A. The School Bus Modernization Fund

¶13 The first series of vetoes changed a school bus modernization fund into an alternative fuel fund. For context, the State of Wisconsin is a beneficiary of a trust created by a consent decree following litigation against Volkswagen. The terms of the trust establish various permissible uses:

[T]he state could utilize funding from the trust to scrap, and then repower or replace certain eligible vehicles and equipment, including: (a) Class 8 local freight trucks and port drayage trucks; (b) Class 4 through 8 school buses, shuttle buses, or transit buses; (c) freight switchers; (d) ferries and tugs; (e) ocean going vessels shore power; (f) Class 4 through 7 local freight trucks; (g) airport ground support equipment; (h) forklifts and port cargo handling equipment; and (i) light duty zero emission vehicle supply equipment (electric or hydrogen vehicle charging stations).[4 ]

During the 2017–19 biennium, Wisconsin used the settlement funds "for replacing eligible state vehicles and for awarding grants to transit systems to replace eligible public transit vehicles."5

¶14 For 2019–21, Governor Evers proposed a budget that would have expanded uses of the settlement funds to include "the installation of charging stations for vehicles with an electric motor."6 The Legislature's Joint Committee on Finance rejected Governor Evers' proposal, instead opting to create a school bus modernization fund to aid school boards in purchasing "energy efficient" school buses.7

¶15 Governor Evers utilized his partial veto power to attempt to accomplish his initial proposal. To do so, he partially vetoed § 55c and vetoed the entirety of § 9101(2i).

¶16 The markup of § 55c reads:

16.047(4s) of the statutes is created to read: 16.047 (4s) SCHOOL BUS REPLACEMENT GRANTS. (a) In this subsection: 1. "School board" has the meaning given in s. 115.001(7).2. "School bus" has the meaning given in s. 121.51(4).(b) The department [of administration] shall establish a program to award grants of settlement funds from the appropriation under s. 20.855(4)(h) to school boards for the replacement of
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