June 27, 2025 – A bill creating an account for literacy programs cannot be transformed by association with related bills into an appropriation bill, rendering Gov. Tony Evers’ partial veto unconstitutional, a unanimous Wisconsin Supreme Court recently in Wisconsin State Legislature v. Wisconsin Department of Public Instruction (DPI), 2025 WI 17 –

The inter-branch spat spurred the Joint Committee on Finance (JCF) to withhold funds from DPI, but the Supreme Court held that was OK: The appropriation was the JCF’s.

“The Wisconsin Constitution controls the resolution of this dispute between the political branches of government,” summarized Justice Rebecca Grassl Bradley, who wrote the opinion.

Three Bills

The 2023-25 biennial budget included an appropriation of more than $250 million to the JCF’s supplemental funding account. Of that amount, JCF earmarked $50 million for future literacy programs. An earmark is a budget document, not enacted law.

A second bill established an “Office of Literacy” and two new literacy programs. Six months later, a third bill, S.B. 971 proposed to create accounts for each of the two programs but provided no funds.

Gov. Evers partially vetoed S.B. 971, effectively creating one account for DPI literacy programs in general without the bill’s sunset provision. S.B. 971 was enacted as 2023 Wisconsin Act 100 without the partially vetoed language.

The JCF had already moved $327,400 of earmarked funds to DPI. Believing the governor’s partial veto unconstitutional, the JCF refused to give DPI the remaining $49,672,600.

The Legislature sued the governor in Dane County Circuit Court, arguing that the partial veto was unconstitutional on a non-appropriation bill.

DPI and the governor counterclaimed, seeking the withheld funds earmarked for DPI. They argued the JCF could withhold funds only for “unforeseen emergencies” and that the action was a “legislative veto.”

The circuit court concluded the partial veto was fine because the three bills, in effect, were one appropriation bill, and the result was a workable law. The funds could be withheld “[b]ecause the Legislature appropriated the money to JCF,” not to DPI.

Everyone appealed. The governor and DPI sought bypass to the Supreme Court, which it granted.

Partial Veto Amendment

A governor’s partial veto authority of appropriation bills came from constitutional amendment in 1930 as amended in 1990, the Supreme Court’s opinion began.

Only six years after the initial constitutional amendment, the court had to determine what is an “appropriation bill.”

Relying on several definitions, including from courts across the country, an “‘appropriation bill’ … must contain an appropriation within its four corners, which we later called the ‘four corners rule,’” the Supreme Court explained.

The partial veto amendment served to address “[t]he evil” of “jumbling together in one act inconsistent subjects in order to force passage by uniting minorities with different interests when the particular provisions could not pass on their separate merits,” the court explained in 1997.

Another case clarified that an appropriation bill “authorized the expenditure of public moneys” even when it “set apart a portion of the public funds for a public purpose.” An additional clarification limits a partial veto of a numeral only in appropriation amounts.

These cases serve to create “a ‘bright line rule’ governing disputes between the political branches ‘to preclude continuing judicial involvement in and the need for frequent judicial resolution of inter-branch disputes.’”

“Precedent has consistently held that a bill’s interaction with, interplay between, or indirect bearing on an appropriation bill cannot transform a non-appropriation bill into an appropriation bill,” the Supreme Court summarized its cases.

No Appropriation Here

“[T]he text of S.B. 971 did not set aside public funds for a public purpose” – it only created accounts with an appropriation of “$0” to be funded later – “therefore, S.B. 971 was not an appropriation bill,” the Supreme Court said.

“The circuit court erred in concluding otherwise,” the Supreme Court ruled. The three bills could not be considered, in effect, one appropriation bill.

It was “this court’s suggestion decades ago that the legislature ought to separate bills in this manner to avoid a partial veto.”

“We said, ‘if the [L]egislature wants to insulate its initiatives from the governor’s partial veto, it should make sure that it submits its policy legislation as individual, general bills, and not include such enactments in the budget bill.”

In LeMieux v. Evers, 2025 WI 12, decided in April, the court reiterated that legislative practice tip.

“Because S.B. 971 was not an appropriation bill, the governor had no constitutional authority to partially veto it,” making the bill as passed by the Legislature the law, the Supreme Court concluded.

No Legal Authority

In seeking the rest of the earmarked funds, the executive branch argued that “Wisconsin’s budget process treats money reserved for executive branch agencies through JCF budget motions as incorporated into the budget bill,” leaving no discretion for JCF to withhold the funds.

But “this court lacks any legal basis to override the [L]egislature’s appropriation to JCF and transfer it to DPI or anyone else,” the Supreme Court warned.

“DPI and the governor do not identify any legal authority permitting this court to unilaterally change an appropriation to JCF into an appropriation to DPI.”

The budget motion that earmarked the funds and a Legislative Fiscal Bureau summary they used to support their claim aren’t legal authority, the Supreme Court explained.

“Because the [L]egislature appropriated the funds to JCF, however, only JCF possesses a legal claim to the money,” the Supreme Court said.

Not only does DPI have “no valid claim to receive the funds under any theory of law,” the Supreme Court explained, “[n]either equitable principles nor our inherent authority empower this court to override the [L]egislature’s policy choices in appropriating money to JCF.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.