May 2, 2025 – The partial veto power extends to allow Gov. Tony Evers to change a biennial budget provision to last 402 years, a 4-3 majority of the Wisconsin Supreme Court recently held in LeMieux v. Evers, 2025 WI 12.

The dissent found this partial veto problem greater than the acts of the current governor – 49 years of supreme court decisions strayed from the constitution, necessitating correction.

Revenue Increase Through 2425

In the 2023-25 biennial budget, Gov. Evers used partial vetoes to change a $325 per pupil revenue increase from the “the 2023-24 school year and the 2024-25 school year” to the “2023-2425 school year.” He also increased an amount that affects limits to school district revenue increases for the same 402 years by adding $146.

The Wisconsin State Senate “voted to override the partial vetoes, but the assembly declined to vote on the override,” and the partially vetoed law went into effect.

Two taxpayers, Jeffrey LeMieux and David DeValk, sued Evers, Secretary of State Sarah Godlewski, and Superintendent of Public Instruction Jill Underly. Petitioners argued that the partial vetoes exceeded the authority granted in the state constitution.

The supreme court accepted the case directly, as an original action.

As the majority decision described it, petitioners agreed that existing precedent, which they did not ask to reverse, allowed the vetoes.

Instead, petitioners brought two new challenges, arguing that extending a duration of time “did not veto the bill ‘in part,’” and that the partial veto power did not allow the governor to “strik[e] digits to create new numbers.”

Constitutional Partial Veto Power

The majority opinion, written by Justice Jill J. Karofsky and joined in full by Justices Ann Walsh Bradley and Janet C. Protasiewicz and in most respects by Justice Rebecca Frank Dallet, first reviewed the extent of a governor’s partial veto power in the constitution and as interpreted by the supreme court.

The state constitution, article V, section 10(1) has granted Wisconsin governors partial veto power for 95 years, as construed by the supreme court since 1935 and twice amended by the people of Wisconsin.

Two constitutional limitations are relevant to the partial vetoes here. “Appropriation bills may be approved in whole or in part by the governor,” but a partial veto “may not create a new word by rejecting individual letters in the words of an enrolled bill.”

In addition, supreme court precedent requires that “the remaining text of the bill constitutes a ‘complete, entire, and workable law,’” and the partial veto “may not result in a law that is ‘totally new, unrelated or non-germane’ to the original bill.”

In reviewing whether the governor approved the budget bill “in whole or in part” according to section 10(1)(b), the majority noted that the court’s review of whether the remaining law is “complete, entire, and workable” involved “an objective inquiry,” reading only the text, not whether the change was substantive.

Given the above principles, the majority concluded the partial vetoes fulfill section 10(1)(b).

The petitioners’ other argument raised whether the governor’s deletion of digits to create new numbers failed section 10(1)(c).

The majority explained that, consistent with precedent, “[t]he plain meaning of ‘word’ does not include numbers written out using digits, and the plain meaning of ‘letters’ does not include digits.”

As the partial vetoes involved numerals, the limitation in section 10(1)(c) did not apply, the majority concluded.

Majority and Concurrence Variation

An additional consideration involved application of Citizens Utility Board (CUB) v. Klauser, 194 Wis. 2d 484 (1995), which allows a governor to “strike an appropriation amount and write in a smaller appropriation amount” in what is called a write-in veto.

Petitioners claimed that CUB should apply because the vetoes extended duration of time making them “not ‘less than’ and thus not ‘part’” of what the Legislature approved.

The majority agreed that CUB did not apply. The governor did not write in the vetoes – they were deletions – and did not change appropriation amounts as limited by CUB.

Justice Dallet, however, wrote a concurrence regarding CUB to explain her understanding of petitioners’ argument while agreeing that the vetoes remained constitutional.

According to Dallet, the petitioners also argued that the “in part” analysis should include whether the vetoes substantively “approved ‘something less than [the] whole’ of what the [L]egislature passed.”

Dallet explained that “while Petitioners argue that their substantive-part analysis is separate from, and in addition to, the ‘complete and workable law’ requirement, our case law in fact holds that if the veto results in a ‘complete and workable law,’ then the veto approved the original bill ‘in part.’”

“But even more importantly,” Dallet said, “our cases have repeatedly emphasized that a partial veto may affirmatively change the policy of the original bill.”

Although precedent “illustrate[s] the tension between our case law and [p]etitioners’ position,” it is the governing precedent, Dallet wrote.

‘This Court Ignores the Constitution’

The dissent, written by Justice Brian Hagedorn and joined by Chief Justice Annette Kingsland Ziegler and Rebecca Grassl Bradley, called the majority’s conclusion “fantastical.” In their view, things have gotten out of hand.

“[A]s governors pushed the boundaries over the last half-century,” the dissent said, “this court largely responded by throwing up its hands. … The cases the majority relies on make 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.”

Basic civics teaches that the legislative branch enacts laws and the governor reviews and may approve or veto them, but the partial veto has become a means for the governor to create new laws, the dissent complained.

A dictionary available to the framers of the Wisconsin Constitution defined a “veto” as “negativing bills” – a rejection, not a creation, the dissent showed.

The veto “in part,” a broader power than the line-item veto allowed in other states, still contained limits, the dissent explained.

Even the partial veto, created because bills by 1930 contained “multiple unrelated appropriations,” began with a supreme court interpretation of substantive limitations, the dissent emphasized, allowing vetoes only “of any separable part of an appropriation bill.”

A 1976 case, State ex rel. Sunby v. Adamany, 71 Wis. 2d 118, created a tipping point from those fundamental principles, the dissent argued. The partial veto allowed in that case resulted in a creation, a law never passed by the Legislature. As partial veto cases reached the supreme court, a governor could veto mere words.

“Governors have become ever more creative,” the dissent said, “and the court has continued down the absurd path of allowing the governor to scratch out anything on the face of the bill and construct entirely new statutory commands.”

The majority continues down this path, the dissent criticizes, not exploring “whether any of this has anything to do with our actual constitution.”

“Under the majority’s almost-anything-goes doctrine,” the dissent said, “one person can create policy that only a supermajority of the legislature can overturn. … The effect is to flip the constitutional roles of the legislature and the governor. … The governor now makes the law, and the legislature must try to ‘veto’ it.”

Even if the majority were right about whether this new partial veto fits within a recent case, “that does not mean they do not transgress the constitution itself,” the dissent said.

It would be an easy correction to make, the dissent explained, applying only prospectively. “So we have every reason to get the constitution right, and not perpetuate our prior errors.”