                                                             2020 WI 68


                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2019AP1376-OA


COMPLETE TITLE:        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.

                                        ORIGINAL ACTION

OPINION FILED:         July 10, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 20, 2020

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
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.
NOT PARTICIPATING:



ATTORNEYS:
    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.




                                     2
                                                                   2020 WI 68


                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.    2019AP1376-OA


STATE OF WISCONSIN                       :            IN SUPREME COURT

Nancy Bartlett, Richard Bowers, Jr. and
Ted Keneklis,

           Petitioners,

      v.

Tony Evers, in his official capacity as
Governor of the State of Wisconsin,                             FILED
Joel Brennan, in his official capacity as
Secretary of the Wisconsin Department of                   JUL 10, 2020
Administration, Wisconsin Department of
Administration, Craig Thompson, in his official               Sheila T. Reiff
capacity as Secretary of the Wisconsin                     Clerk of Supreme Court
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.




      ¶1   PER   CURIAM.   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.
                                                                        No.     2019AP1376-OA



       ¶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



       Chief Justice Roggensack and Justices Ziegler, Rebecca
       1

Grassl Bradley, Kelly and Hagedorn conclude that these series of
vetoes are unconstitutional.

       Justices Ziegler, Rebecca Grassl Bradley, Kelly and
       2

Hagedorn conclude that the vetoes to the vapor products tax are
unconstitutional.

       Chief Justice Roggensack and Justices Ann Walsh Bradley,
       3

Ziegler, Dallet and Hagedorn conclude that the vetoes to the
vehicle fee schedule are constitutional.

                                               2
                                                                  No.    2019AP1376-OA



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
                                            3
                                                           No.    2019AP1376-OA



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.




                                    4
                                                                  No.   2019AP1376-OA.pdr


    ¶10        PATIENCE DRAKE ROGGENSACK, C.J.                  (concurring in part,

dissenting in part).                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


    1  "The Wisconsin budget process covers two fiscal years at a
time——a biennium."    Benjamin W. Proctor, Comment, Wisconsin's
Chief Legislator: The Governor's Partial Veto Authority and the
New Tipping Point, 90 Marq. L. Rev. 739, 739 n.3 (2007).

                                             1
                                                                No.    2019AP1376-OA.pdr


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



      2"Once identical versions of a bill pass both the state
assembly and the state senate, the bill is referred to as an
'enrolled bill' and is ready for the governor's consideration."
Id. at 741 n.19.
      3   2019 Wis. Act 9.

                                           2
                                                            No.   2019AP1376-OA.pdr


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




     4 Executive Session Record for Paper #505 from the Record of
Committee Proceedings on 2019 Assembly Bill 56 (Paper #505) at 3
(June                          6,                          2019),
https://docs.legis.wisconsin.gov/misc/lfb/budget/2019_21_biennia
l_budget/102_budget_papers/505_volkswagen_settlement_volkswagen_
settlement.pdf.
     5 Joint Committee on Finance Motion #129 (Motion #129) (June
6,                                                         2019),
https://docs.legis.wisconsin.gov/misc/lfb/jfcmotions/2019/2019_0
6_06/008_volkswagen_settlement/002_motion_129_volkswagen_settlem
ent.pdf.

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                                                        No.   2019AP1376-OA.pdr


     ¶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 school buses owned and operated by the
     school boards with school buses that are energy
     efficient, including school buses that use alternative
     fuels.   Any school board may apply for a grant under
     the program. (c) As a condition of receiving a grant
     under this subsection, the school board shall provide
     matching funds equal to the amount of the grant award.
     (d) A school board may use settlement funds awarded
     under this subsection only for the payment of costs


     6 2019 Assembly Bill 56, §§ 52, 53 & 54; see also Paper
#505, at 2 (explaining the governor wanted to "[e]xpand DOA's
authority to use settlement monies to award grants for the
replacement of public transit vehicles to also include awarding
grants for the installation of charging stations for electric
vehicles").
     7 Joint Stipulation of Facts and Joint Statement that There
Are No Material Disputed Facts (Joint Statement), ¶¶21–22.

                                     4
                                                              No.    2019AP1376-OA.pdr

     incurred by the school board to replace school buses
     in accordance with the settlement guidelines.
As partially vetoed, the section states: "The department shall

establish a program to award grants of settlement funds from the

appropriation under s. 20.855(4)(h) for alternative fuels."

     ¶17    Governor Evers vetoed the entirety of § 9101(2i):

     (2i) VOLKSWAGEN SETTLEMENT FUNDS. Of the settlement
     funds in s. 20.855(4)(h), during the 2019–21 fiscal
     biennium, the department of administration shall
     allocate $3,000,000 for grants under s. 16.047 (4s)
     for the replacement of school buses.
                    B.    The Local Road Improvement Fund

     ¶18    The second series of vetoes removed conditions from a

local road improvement fund, effectively changing it into a fund

for "local grants" or "local supplements," which did not require

expenditures for local roads.            For context: "[the Department of

Transportation]      DOT    administers        the    Local     Roads    Improvement

Program    (LRIP)    to    assist   political        subdivisions       in   improving

seriously    deteriorating       local   roads       by   reimbursing        political

subdivisions    for       certain     improvements.           LRIP      includes   an

entitlement component and a discretionary component."8
     ¶19    Governor Evers partially vetoed §§ 126 and 184s and

vetoed the entirety of § 1095m.               Section 126, schedule item Wis.

Stat.     § 20.395(2)(fc),       of     the     enrolled      bill      appropriated

$90,000,000    for       local   road    improvement       as    a    discretionary

supplement.9     The markup reads:            "(fc) Local roads improvement


     8 Legislative Reference Bureau Analysis of 2019 Assembly
Bill    56   (Analysis   of   Bill    56),   at    90,   https://
docs.legis.wisconsin.gov/2019/related/proposals/ab56.pdf.
     9   Joint Statement, ¶24.

                                         5
                                                        No.   2019AP1376-OA.pdr


discretionary     supplement . . . 90,000,000      [and       Governor     Evers

wrote in 75,000,000]."        As partially vetoed, the scheduled item

states:    "Local supplement . . . 75,000,000."

    ¶20    Governor       Evers     also    partially     vetoed      § 184s:

"20.395(2)(fc) of the statutes is created to read:                  20.395(2)

(fc) Local roads improvement discretionary supplement.               From the

general fund, as a continuing appropriation, the amounts in the

schedule    for     the     local   roads    improvement       discretionary

supplemental grant program under s. 86.31 (3s)."                As partially

vetoed,    the    section   states:    "Local   supplement.         From    the

general fund, as a continuing appropriation, the amounts in the

schedule for local grant [sic]."

    ¶21    Governor Evers vetoed the entirety of § 1095m:

          86.31 (3s) of the statutes is created to read:
    86.31    (3s)   DISCRETIONARY     SUPPLEMENTAL    GRANTS.
    (a) Funds provided under s. 20.395 (2) (fc) shall be
    distributed under this subsection as discretionary
    grants    to  reimburse    political   subdivisions   for
    improvements.     The department shall solicit and
    provide discretionary grants under this subsection
    until all funds appropriated under s. 20.395 (2) (fc)
    have been expended.     (b) 1.    From the appropriation
    under s. 20.395 (2) (fc), the department shall
    allocate $32,003,200 in fiscal year 2019–20, to fund
    county trunk highway improvements.        2.    From the
    appropriation under s. 20.395(2) (fc), the department
    shall allocate $35,149,400 in fiscal year 2019–20, to
    fund    town   road   improvements.        3. From    the
    appropriation under s. 20.395 (2) (fc), the department
    shall allocate $22,847,000 in fiscal year 2019–20, to
    fund municipal street improvement projects.           (c)
    Notwithstanding sub. (4), a political subdivision may
    apply to the department under this subsection for
    reimbursement of not more than 90 percent of eligible
    costs of an improvement.



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                                                                  No.   2019AP1376-OA.pdr


                           C.    The Vehicle Fee Schedule

       ¶22    A    third   series      of    vetoes     altered   the    amount      truck

owners must pay to register their vehicles.                        Registration fees

had    varied      depending      on    the    weight     class    of    the   vehicle.

Section 1988b of the enrolled bill would have made the fee for

four    weight     classes      the    same.       In   so   doing,     it   would    have

increased the fee for two weight classes and decreased the fee

for two others.         Governor Evers used his partial veto powers to

retain the legislature's proposed fee increases and void its

proposed decreases.             In the marked-up language, italicized words

represent         deletions      by    the     legislature,       underlined         words

represent insertions by the legislature and crossed-out words

represent partial vetoes by Governor Evers:

       341.25(2)(a) to (cm) of the statutes are amended to
       read: 341.25 (2)(a) Not more than 4,500 $ 75.00 100.00
       (b) Not   more   than   6,000 . . . . . . . . . . 84.00
       100.00 (c) Not more than 8,000 . . . . . . . . . .
       106.00 100.00 (cm) Not more than 10,000 . . . . . . .
       . . . 155.00 100.00
       ¶23    The parties stipulated to a table that summarizes the

changes:10




       10   Id., ¶33.

                                               7
                                                                      No.   2019AP1376-OA.pdr

      Maximum              Pre-Act 9     Annual Fee            Annual Fee
      Gross                Annual        Approved by           Chosen by
      Weight in            Fee           the                   Governor
      Pounds                             Legislature           Evers
      Not more             $75.00        $100.00               $100.00
      than 4,500
      Not more             $84.00        $100.00               $100.00
      than 6,000
      Not more             $106.00       $100.00               $106.00
      than 8,000
      Not more             $155.00       $100.00               $155.00
      than 10,000
                           D.    The Vapor Products Tax

    ¶24    The      last    challenged          veto        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.                                For

context, sometimes vaping fluid is sold separately from vaping

devices.     An analogy is pipe tobacco, which is sold separately

from pipes.      Section 1754 of the enrolled bill defined vapor

products to include the hardware that produces vapor from the

application    of    a     heating     element         to    liquid.          However,   the

definition    did     not       encompass       the     liquid.             Governor   Evers

partially vetoed a clause in the definition, which expanded it

to include the liquid:

    139.75 (14) of the statutes is created to read: 139.75
    (14) "Vapor product" means a noncombustible product
    that produces vapor or aerosol for inhalation from the
    application of a heating element to a liquid or other
    substance that is depleted as the product is used,
    regardless of whether the liquid or other substance
    contains nicotine.




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                                                                     No.   2019AP1376-OA.pdr


                                        II.    DISCUSSION

                                   A.   Standard of Review

       ¶25     As this is an original action, we have no lower court

opinion to review.11                We are required to interpret Article V,

Section       10(1)(b)        to     decide      the   pending       controversy,      which

presents a question of law.                    Koschkee v. Taylor, 2019 WI 76, ¶9,

387 Wis. 2d 552, 929 N.W.2d 600.

       ¶26     Taxpayers ask us to overturn our precedent in part.

They bear the burden of persuading us to do so.                                     State v.

Breitzman, 2017 WI 100, ¶5 n.4, 378 Wis. 2d 431, 904 N.W.2d 93.

                   B.    Overview of the Partial Veto Power

       ¶27     Taxpayers       argue          that   some    of     our    decisions    have

deviated       from     the        original      meaning     of     Article   V,     Section

10(1)(b) and that we should return to                             the original meaning.

They     assert,      "[a]s         originally       enacted,       Article   V,     Section

10(1)(b) of the Wisconsin Constitution authorized the governor

to     approve     or    disapprove            legislative        proposals   capable     of

separate       enactment       but      appearing      in   a     single    bill,    nothing
more."        Therefore, I thoroughly analyze the constitutional text

and     our    precedent.               In    addition,     I     consider    failed     and

successful amendments to the governor's partial veto power to

demonstrate that the people of Wisconsin have actively responded

to our decisions when they have deemed it proper to do so.

                   1.    Amendment of Article V, Section 10


       Original jurisdiction is proper under Wis. Const. art.
       11

VII, § 3(2).    We have invoked our original jurisdiction to
interpret the scope of the governor's partial veto powers on
eight prior occasions, which are discussed below.

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                                                                    No.    2019AP1376-OA.pdr


      ¶28    The Wisconsin Constitution, as originally adopted in

1848, did not allow the governor to veto less than an entire

bill.     At that time, no state constitution authorized the veto

of less than an entire bill.                 Such authority first appeared in

the   constitution      of     the    Confederate       States       in    1861     and   was

limited to appropriations bills.                Henry Campbell Black, Relation

of the Executive Power to Legislation 103 (1919).                                  By 1919,

thirty-seven states allowed their governor to veto less than an

entire      appropriations       bill.         Id.          Notably,        these     states

generally     adopted       "item"    vetoes.        For    example,        the     Illinois

Constitution authorized the governor to disapprove "any one or

more items or sections" of an appropriations bill.                                 State ex

rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 311, 260 N.W. 486

(1935)      (quoting    Ill.    Const.       art.      V,    §     16     (1935)).        One

contemporary source defined an "item" as "any part of a bill

[making appropriations] which is sufficiently distinct that it

may be separated without serious damage to the essential force

of the residue."         John Mabry Mathews, American State Government
223 (1926).

      ¶29    In     1911,    Wisconsinites          began        debating     whether     to

authorize         the   governor        to    veto      less        than      an     entire

appropriations bill because the legislature started "packaging

multiple     appropriation       measures       into    larger,         omnibus      bills."

Richard      A.    Champagne,        Staci   Duros      &    Madeline        Kasper,      The

Wisconsin     Governor's       Partial       Veto,   Reading        the     Constitution,

June 2019, at 1, 3-4.          This became known as "logrolling":

      [T]he practice of jumbling together in one act
      inconsistent subjects in order to force a passage by
                               10
                                                              No.   2019AP1376-OA.pdr

      uniting minorities with different interests when the
      particular provisions could not pass on their separate
      merits, with riders of objectionable legislation
      attached to general appropriation bills in order to
      force the governor to veto the entire bill and thus
      stop the wheels of government or approve the obnoxious
      act.
State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447-48, 289

N.W. 662 (1940).

      ¶30    Before 1911, the legislative practice was to pass on

each appropriation in a separate bill.                   Champagne et al., The

Wisconsin Governor's Partial Veto, at 3.                      By 1913, Governor

Francis     E.    McGovern    began    to    publically     complain      about   the

changes to the appropriations process.               Id.; State ex rel. Wis.

Senate v. Thompson, 144 Wis. 2d 429, 438, 424 N.W.2d 385 (1988).

He argued that the legislature was passing "omnibus bills" with

"fifty to one hundred items."                Champagne et al., The Wisconsin

Governor's        Partial    Veto,     at    3   (quoting     Associated     Press,

McGovern Criticizes State Legislature, Janesville Daily Gazette,

Sept. 18, 1913, at 1).            Furthermore, the legislature would wait

until the current budget was close to expiring.                       Champagne et

al., The Wisconsin Governor's Partial Veto, at 3.                     He said this
practice "tied the hands of the executive, and he practically

had no alternative except to approve the appropriations as a

whole."     Id. (quoting McGovern Criticizes State Legislature, at

1).       Ultimately,       Governor    McGovern     lost     his    campaign     for

increased        veto   powers.        Champagne    et      al.,    The   Wisconsin

Governor's Partial Veto, at 4.

      ¶31    The next substantial push for increased gubernatorial
power came in 1925.           That year, two proposals were considered.

                                            11
                                                               No.    2019AP1376-OA.pdr


The first never made it out of committee.                  Id. at 5 & n.32.          The

second proposal failed by a vote of 14 to 9 in the Senate.                           Id.

at 6.      It read, in part:         "The governor may disapprove or reduce

items or parts of items in any bill appropriating money.                              So

much of such bill as he approves shall upon his signing become

law."      1925 Senate Joint Resolution 23.

      ¶32    In 1927, Senator William Titus introduced a similar

resolution:     "Appropriation bills may be approved in whole or in

part by the governor, and the part approved shall become law,

and the part objected to shall be returned in the same manner as

provided for other bills."                 Champagne et al.,           The Wisconsin

Governor's      Partial     Veto,     at     6    (quoting     1927    Senate      Joint

Resolution      35;    1927    Enrolled          Joint   Resolution         37).     The

resolution passed both houses.                   One newspaper explained, "This

would allow that executive to return unfavored appropriations to

the legislators, at the same time passing others in the same

bill thus speeding the legislative work."                    Champagne et al., The

Wisconsin Governor's Partial Veto, at 7 n.38 (quoting Beats Plan
for Repeal of Car Tax, Capital Times, March 15, 1927).                               The

resolution again passed both houses in 1929, and it was ratified

by   the    people     in   November       1930.12       Champagne     et     al.,   The

Wisconsin Governor's Partial Veto, at 7.

      ¶33    Both     the   failed    1925       resolution   and     the    successful

1930 amendment are believed to have been drafted by Edwin Witte,

the Chief of the Legislative Reference Library (the predecessor

       The Wisconsin Constitution provides that a proposed
      12

amendment must be approved by two consecutive legislatures and
then ratified by the people. Wis. Const. art. XII, § 1.

                                           12
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to     the    Legislative       Reference        Bureau),        and     drafting         files

describe an item veto.              See Frederick B. Wade, The Origin &

Evolution of the Partial Veto Power, Wis. Lawyer, Mar. 2008, at

12, 14; Mary E. Burke, Comment,                       The Wisconsin Partial Veto:

Past, Present and Future, 1989 Wis. L. Rev. 1395, 1402 n.44.

The drafting file for the 1927 resolution indicates that Senator

Titus requested the Legislative Reference Library to draft a

resolution "to allow the Governor to veto items in appropriation

bills."       A cover sheet in the drafting file reads, "res. to

permit Gov. to veto items in app. bills."                        The library wrote to

Senator Titus, "Enclosed herewith is a revised draft of the

Joint Resolution you asked us to prepare, to allow the Governor

to veto items in appropriation bills."                       See John S. Weitzer,

Comment, The Wisconsin Partial Veto:                     Where Are We and How Did

We     Get    Here?    The     Definition        of     "Part"    and        the       Test   of

Severability, 76 Marq. L. Rev. 625, 631 n.35 (1993) (summarizing

the    drafting       file).     The   1929      drafting        file    has       a    similar

reference to "allow[ing] the governor to veto items."                              Wade, The
Origin & Evolution of Partial Veto Power, at 14.

       ¶34    The drafting files do not indicate why, if the drafter

intended an item veto, he used the word, part.                                 Champagne et

al.,    The    Wisconsin       Governor's     Partial      Veto,        at    6.        Notably

though, some contemporary sources used the term "partial" veto

to describe an item veto.               Black, Relation of the Executive

Power to Legislation, at 101 (chapter titled "The Selective or

Partial Veto" describing an item veto used in many states).



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      ¶35    The campaign for ratification of the 1930 amendment

also described an item veto.               Champagne et al., The Wisconsin

Governor's Partial Veto, at 5.              For example, Witte——the believed

drafter——wrote a brief supporting its ratification.                                 Edwin E.

Witte,   Brief     in    Support     of    the       Proposed         Amendment       to       the

Constitution       to    Allow      the     Governor             to       Veto     Items        in

Appropriation      Bills    (1930).        Its       first       sentence        reads:    "The

governor's veto of items in appropriation bills is an essential

part of an executive budget system."                         Id.          As one article,

published    in    the   Wisconsin     Lawyer         in    2008,      summarizes:         "The

brief    uses      the     words    item        and        items      a     total     of        19

times. . . .       Under these circumstances, it appears that Witte

viewed the terms part and item as interchangeable synonyms for

expressing the item veto concept."                   Wade, The Origin & Evolution

of the Partial Veto Power, at 14.

      ¶36    Several     newspaper        articles          at     the      time     of        the

constitutional amendment described an item veto.                                 For example,

The League of Women Voters' "explanation of the proposal" said
it   would   "enable     the     governor       to    veto       single      items        in   an

appropriations      bill     without      vetoing          the     entire         bill."         A

Proposed Amendment, Wausau Daily Record-Herald, Oct. 28, 1930,

at 8.    A Capital Times article quoted Senator Thomas Duncan, who

introduced the 1929 resolution, as saying, "[t]he item veto is

absolutely indispensable."            It would "merely giv[e] back to the

governor     the   power"      he   had    when       "most        appropriations          were

divided into separate bills."               Duncan Tells Need for New Vote
Powers, Capital Times, Oct. 14, 1930, at 7.                                 Similarly, the

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Wisconsin State Journal reported him saying the new veto power

was "not revolutionary, but on the contrary [was] in successful

operation in 37 states."                     Veto Rule Better Law Step, Claim,

Wis. St. J., Oct. 13, 1930, at 7.

      ¶37    Following the amendment's ratification, sources also

described        it    as    an     item     veto.           For    example,         the    1931–32

Wisconsin        Blue       Book     explained         the    amendment         permitted          the

governor "to veto single items in appropriation bills."                                            The

Wisconsin Blue Book 583 n.1 (1931).

                                     2.    Our Precedent

      ¶38    We first interpreted the governor's partial veto power

in   Henry.13          Since       then,   we    have    interpreted            the   governor's

partial     veto        powers       seven      more    times.            As    our        decisions

demonstrate, governors have become more creative and aggressive

with their partial vetoes.                   Yet, our decisions explain only two

relevant limits:14             (1) the part approved must be a complete,

entire     and    workable          law;   and    (2) the          part   approved          must    be

germane to the topic or subject matter of the enrolled bill
before      the        veto.          Constitutional               amendments         also      have

added:     "In        approving       an     appropriation           bill       in    part,        the


       At passage, the provisions now in Article V, Section
      13

10(1)(b) were not in a subsection, but were italicized and
inserted into Section 10.     The wording was a bit different:
"Appropriation bills may be approved in whole or in part by the
governor, and the part approved shall become law, and the part
objected to shall be returned in the same manner as provided for
other bills." Wis. Const. art. V, § 10 (1930).

       For write-in vetoes, where a governor crosses out a
      14

number and writes in a lesser number, we have articulated
additional restrictions, which are described below.

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governor     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 of the

enrolled bill."      Wis. Const. art. V, § 10(1)(c).

                                 a.       Early Cases

       ¶39   In the midst of the Great Depression, Wisconsinites

were   suffering.        The   legislature         passed     an    emergency      relief

package.     Henry, 218 Wis. at 307–08.                 As one comment summarizes,

"To raise revenue for the relief efforts, the nine-section bill

included six sections providing authority to impose emergency

income taxes.       Another section of the bill appropriated funds

for    relief   efforts    and    specified        how     the     funds    were   to   be

distributed.       Two    other   sections        stated      legislative       intent."

Burke, The Wisconsin Partial Veto, at 1401.                        The governor "when

presented with the bill, vetoed the legislative intent sections

and the distribution subsections of the appropriation section."

Id.    The assembly did not override his vetoes.

       ¶40   The Wisconsin Telephone Co., a taxpayer, commenced an
original action, arguing:

       [T]he governor's disapproval of parts of the bill, as
       originally passed, by the legislature, and his
       approval   of   the  remaining   parts   thereof,  was
       unauthorized under [Wis. Const. art. V, § 10] because
       the constitutional grant of power to the governor by
       that section to approve parts of an appropriation bill
       and to disapprove parts thereof does not grant power
       to him to approve the appropriation, and disapprove a
       proviso or condition inseparably connected to the
       appropriation,   nor   to  disapprove   parts   of  an
       appropriation bill that are not an appropriation.
Henry, 218 Wis. at 309.


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       ¶41    We did not decide whether the governor had the power

to reject provisos or conditions that are inseparably connected.

Id.       Instead,        we      concluded        that     "the      parts        which      were

disapproved        by    the     governor    were     not      provisos      or     conditions

which were inseparably connected to the appropriation."                                         Id.

But we acknowledged that there was a plausible argument that the

governor could not veto inseparable provisos or conditions.                                     Id.

at 309–10 (citing State ex rel. Teachers & Officers v. Holder,

23 So. 643 (Miss. 1898)).

       ¶42    We    also       concluded      that       the    governor       could          "pass

independently        on    every      separable      piece      of    legislation          in   an

appropriation           bill."        Henry,       218     Wis.      at     315.         In     our

interpretation of the term, "part," which was employed in the

amendment of Article V, Section 10, we reasoned that the partial

veto power must be broader than an item veto.                               Id. at 310–14.

We    also   concluded         that    "part"      should      be    given     its       "usual,

customary,         and    accepted        meaning         [as] . . . '[o]ne              of     the

portions, equal or unequal, into which anything is divided, or
regarded as divided; something less than a whole.'"                                 Id. at 313

(quoting Part, Webster's New Int'l Dictionary 1781 (2d ed.)).

We    observed     that     the    part     approved       constituted        a     "complete,

entire,      and    workable       law,     for    the     appropriation           for     relief

purposes, of the money to be raised, as tax revenues thereunder,

and for the allotment and use of that appropriation."                                      Henry,

218 Wis. at 314.          The vetoes were upheld.

       ¶43    In State ex rel. Finnegan v. Dammann, 220 Wis. 143,
264 N.W. 622 (1936), we were asked to decide whether a bill on

                                              17
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which the governor asserted a partial veto was an appropriation

bill.         We     concluded         that    the    enrolled           bill     was    not       an

appropriations bill.               Id. at 148-49.           Therefore, the governor's

attempted veto was "ineffective because the subject matter of

the    bill        did   not    fall     within      the    constitutional              provision

authorizing         a    partial      veto."        Id.    at    149.          "Finnegan      added

nothing to Henry's analysis of the definition of 'part' and the

test of severability."                 Weitzer, The Wisconsin Partial Veto, at

637.

       ¶44     Four years after Finnegan, we decided Martin.                                 As one

comment summarizes, "the legislature enacted a bill changing the

amount       of     state      funds     appropriated           as     aid      for     dependent

children."          Burke, The Wisconsin Partial Veto, at 1405.                          As with

Henry,       the    governor       vetoed      sections         and    subsections           of   the

enrolled bill.             The Secretary of State refused to publish the

act     on    procedural        grounds,       which       are        unimportant       for       our

purposes, as well as substantive grounds.                                 As a substantive

matter,       he    argued     that     the    partial          vetoes    "so     changed         the
legislative          program     or     policy . . . as           to     render        the    parts

approved . . . invalid."                Martin, 233 Wis. at 450.

       ¶45     We began by construing Article V, Section 10.                                       We

concluded that the partial veto amendment was not ambiguous, and

as "amended in 1930 it must be construed as a whole."                                        Id. at

447.     We explained that the amendment's "purpose was to prevent,

if     possible,         the   adoption        of    omnibus          appropriation          bills,

logrolling,          the    practice      of     jumbling         together        in    one       act
inconsistent subjects in order to force a passage by uniting

                                                18
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minorities      with       different          interests      when         the     particular

provisions could not pass on their separate merits."                                  Id. at

447-48.      We then rejected the Secretary of State's argument,

relying on Henry:

      It must be conceded that the governor's partial
      disapproval did effectuate a change in policy; so did
      the partial veto of the bill involved in the case of
      [Henry], supra, which this court held to be valid.
      The question here is whether the approved parts, taken
      as a whole, provide a complete workable law. We have
      concluded that they do, and we must give them effect
      as such.
Id. at 450.

      ¶46    For    the     next    four      decades,      "the    partial        veto   was

rarely    used."          Champagne      et    al.,   The       Wisconsin         Governor's

Partial Veto, at 1.                "Aside from the 1931 and 1933 biennial

budget bills, in which there were 12 partial vetoes, subsequent

governors     either       did     not   partially       veto      any     provisions      or

partially vetoed only one or two provisions in budget bills

until the 1969 legislative session."                  Id.

                                    b.   Later Cases

      ¶47    We next addressed the partial veto in State ex rel.

Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976).                                  As

one   comment      explains,       "[i]n   Sundby,       Governor         [Patrick]    Lucey

vetoed      clauses    of     sentences.           Previously,            partial     vetoes

involved only sections and subsections of appropriation bills."

Weitzer, The Wisconsin Partial Veto, at 639 n.89.                               "The subject

matter of the portion of the appropriations bill to which these

partial vetoes appl[ied] involved tax levy limits imposed on



                                              19
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towns, villages, cities and counties."               Sundby, 71 Wis. 2d at

121.     The markup read:

       If the [governing body of the political subdivision]
       desires to increase its tax levy above the limitations
       specified in this section, it shall publish such
       intent in a class I notice under ch. 985 in the
       official town newspaper.   The notice shall include a
       statement of the purpose and the amount of the
       proposed levy and the amount by which it wishes to
       exceed the limits imposed by this section. If, within
       20 days after publication of the notice, a petition is
       filed with the town clerk signed by a number of
       electors equal to, or in excess of, 5% of the number
       of electors casting ballots in the town in the last
       gubernatorial election, the question of the proposed
       amount of increase in levy above the limitations
       specified in this section shall be submitted to a
       referendum at a spring election, general election or
       special election.
Id.    at    122–23.       "In   substance,   the    governor's   veto    made

mandatory the local referendums which the bill, as passed by the

legislature, made optional."           Id. at 124.

       ¶48    We explained that the constitutions of other states

focused on item vetoes and limited partial vetoes to "item or

items."      Id. at 128.    However:

            The Wisconsin Constitution, by way of contrast,
       confers upon its chief executive the power to object
       to "part" of the bill and, in construing this power,
       this court has indicated that the chief executive has
       a   greater  range   of  options  pursuant   to  such
       terminology as to the manner in which he may exercise
       the partial veto than he might have if the power were
       limited to "items."
Id.

       ¶49    We addressed two arguments not thoroughly analyzed in

our prior decisions for curtailing the governor's partial veto
power.       First, we considered how separation of powers analysis

                                        20
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should impact our understanding of the amendment of Article V,

Section      10.          In   particular,       we      considered     that    "[t]he

legislative power is vested by the Wisconsin Constitution in the

senate and the assembly."                 Id. at 131.       But we then explained

that the governor plays a role in the legislative process.                           Id.

at 131–34.         Second, we addressed whether the partial veto power

could "bring about an affirmative change in the result intended

by the legislature" or merely "negative what the legislature has

done."       Id.     at    134.      We    rejected      the   distinction     between

affirmative and negative changes.                Id.     We stated:

       Every veto has both a negative and affirmative ring
       about it.     There is always a change of policy
       involved.   We think the constitutional requisites of
       [Wis. Const.] art. V, [§] 10, fully anticipate that
       the governor's action may alter the policy as written
       in the bill sent to the governor by the legislature.
Id.    We upheld the vetoes, noting as we had in Henry that the

provisions were "separable."               Id. at 135.

       ¶50   Two     years     after      Sundby,   we    decided     State    ex   rel.

Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978).                             The

governor's markup read:              "(1) Every individual filing an income

tax statement may designate that their income tax liability be

increased by $1 for deposit into the Wisconsin Election Campaign

Fund for the use of eligible candidates under s. 11.50."                        Id. at

685.      The consequence of this veto was that taxpayers could

choose to provide $1 to the campaign fund without increasing

their tax liability.           Id.

       ¶51   The petitioners and the legislature's amicus made two
arguments.     First, the petitioners argued that the partial veto


                                            21
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"created an appropriation where none existed before."                                 Id. at

704.      Second,       the    petitioners          and     the    amicus    argued         that

"voluntary contributions were a proviso or condition upon which

the appropriation depended and that such proviso or condition

were ipso facto inseverable from the appropriation itself."                                 Id.

       ¶52   We    rejected       the     first           argument     because       it      was

"incorrect, under the facts, for the petitioners to assert that

the bill as altered by the Governor created an appropriation

where none existed before. . . .                   Rather, it affected the source

from which the appropriated funds were to be derived."                                Id. at

704–05.

       ¶53   Next, we acknowledged that "[s]everability is indeed

the test of the Governor's constitutional authority to partially

veto a bill."           Id. at 705.            We explained that the test for

severability       is     whether       the        part     approved       constitutes        a

complete, entire and workable law.                   Id. at 705–06.          In Henry, we

had    suggested        that   some      provisos          or     conditions        might    be

inseparable; in Kleczka, we said that discussion in Henry was
simply dicta.       Kleczka, 82 Wis. 2d at 712–14.                          Henry did not

need    to   speculate         about     the       constitutionality           of     vetoing

provisos     or    conditions          because       the        relevant    sections        and

subsections were not provisos or conditions.                           In Kleczka, we,

therefore, upheld the veto.

       ¶54   Justice Hansen authored the first separate writing in

this line of cases, concurring in part and dissenting in part.

He noted that "[i]n recent years, partial vetoes have not only
increased greatly in number; they have been applied to ever

                                              22
                                                                  No.   2019AP1376-OA.pdr


smaller portions of bills."               Id. at 719 (Hansen, J., concurring

in part and dissenting in part).                     This concerned him, and he

stated, "the standard adopted by the court poses no discernible

obstacle to the use of deletions to produce a complete, entire

and workable bill concerning a subject utterly unrelated to that

of the bill as passed by the legislature."                        Id. at 723.         His

separation of powers analysis came to the opposite conclusion of

the majority:         "At some point this creative negative constitutes

the enacting of legislation by one person, and at precisely that

point    the     governor        invades       the      exclusive       power   of    the

legislature to make laws."              Id. at 720.

    ¶55     He    stated:        "the     partial        veto     power     should      be

exercised      only    as   to    the     individual      components,       capable     of

separate    enactment,        which     have     been    joined     together    by    the

legislature in an appropriation bill.                         That is, the portions

stricken must be able to stand as a complete and workable bill."

Id. at 726.      Stated otherwise, Justice Hansen would have applied

the complete, entire and workable law requirement to both the
part approved and the part rejected.

    ¶56     A few years after Kleczka, in 1983, Governor Anthony

Earl was the first to veto individual letters, which has since

become   known    as    the      "Vanna    White"15      or   "pick-a-letter"        veto.

Benjamin W. Proctor, Comment, Wisconsin's Chief Legislator:                            The

Governor's Partial Veto Authority and the New Tipping Point, 90



    15 Vanna White is a television personality on Wheel of
Fortune.   James K. Conant, Wisconsin Politics and Government:
America's Laboratory of Democracy 46 (2006).

                                            23
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Marq. L. Rev. 739, 750 (2007).             In a law review article he later

authored, he stated:

    In the 1983–85 budget bill, I vetoed letters and
    digits to reduce a paragraph of five sentences into a
    one-sentence paragraph of twenty-two words.        This
    time, the legislature was not interested in the
    political result; it looked only at the philosophical
    question   of  the   balance   of   power  between  the
    legislative and executive branches.       It determined
    decisively that as a representative of the executive
    branch, I had gone too far.     The veto was overridden
    unanimously by the state assembly and with only one
    dissenting vote in the senate.
Anthony S. Earl, Personal Reflections on the Partial Veto, 77

Marq. L. Rev. 437, 440 (1994).

    ¶57    Just    a    few       years   later,   Governor     Tommy    Thompson

utilized the Vanna White veto.                 He struck "phrases, digits,

letters, and word fragments in an executive budget bill, so as

to create new words, sentences, and dollar amounts."                    Champagne

et al., The Wisconsin Governor's Partial Veto, at 12.

    ¶58    Governor Thompson's vetoes were not overridden, and

the constitutionality of some of them came before us in Wis.

Senate, 144 Wis. 2d 429.              In total, thirty-seven vetoes were

challenged.     To give one example:

    [O]ne section of the budget bill would have created a
    statutory provision allowing courts to detain for "not
    more   than  48   hours"  any   juvenile  violating  a
    delinquency proceeding court order. Governor Thompson
    vetoed the term "48 hours" and creatively substituted
    "ten days" by vetoing individual letters and words
    from another sentence in that section.
Burke, The Wisconsin Partial Veto, at 1396.                    To give another

example,   he   reduced       a    $750,000    appropriation    to   $75,000   by
vetoing a "0."    Id.

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       ¶59    Reiterating our analysis from Kleczka——that the part

approved must be a complete, entire and workable law——we upheld

the partial vetoes.          Wis. Senate, 144 Wis. 2d at 449–50.

       ¶60    We also explained that the consequences of any partial

veto must be a law that remains consistent with the topic or

subject      matter     of   the     "whole"        bill.          Id.    at    437.          "This

limit[ed] the ability of a governor to strike just any word in a

sentence."      Champagne et al., The Wisconsin Governor's Partial

Veto, at 19; see also Gordon B. Baldwin, The Partial Veto Power

Threatens      Democracy:       A    Rebuttal,            5    Graven     Images       267,       268

(2002).

       ¶61    There have been two cases regarding the partial veto

power since Wis. Senate: Citizens Utility Bd. v. Klauser, 194

Wis. 2d 484, 534 N.W.2d 608 (1995) and Risser v. Klauser, 207

Wis. 2d 176, 558 N.W.2d 108 (1997).                           In Citizens Utility Board,

we    concluded       that   the     governor        was       permitted       "to     strike      a

numerical      sum     appropriated           in    the        bill     and     to     insert      a

different, smaller number as the appropriated sum."                                     Citizens
Utility Bd., 194 Wis. 2d at 488.                     In Risser, we concluded that

the    governor's       "write-in        veto       may       be   exercised         only    on    a

monetary     figure     which       is   an    appropriation             amount."           Risser,

Wis. 2d at 181.

       ¶62    Notably, in both of these opinions, we reiterated the

limitation we had described as a "germaneness" limitation.                                        Id.

at 183; Citizens Utility Bd., 194 Wis. 2d at 506.                                    In Citizens

Utility      Board,    we    explained        the    write-in         veto     "survives          the
'topicality'      or    'germaneness'           requirement           set      forth    in     Wis.

                                              25
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Senate.       The new provision approved by the governor——'$250,000'—

—relates to the same subject matter as the original legislative

enactment,          viz.,   a   money      appropriation           to     be        utilized       by

[Citizens Utility Board] as a public interest advocacy entity."

Citizens Utility Bd., 194 Wis. 2d at 505.                          In Risser, while we

mentioned       a     germaneness       limitation,          we    did        not    apply     it.

However,       we     did   state    that        "a    governor's         power        to    craft

legislation          necessarily      must        have       constitutional               limits."

Risser, 207 Wis. 2d at 197.

                      3.    Failed and Successful Amendments

       ¶63     The    executive      and    legislative           branches          are     acutely

aware of our decisions in this area.                         There have been numerous

proposals to amend the partial veto power.                              Champagne et al.,

The    Wisconsin       Governor's        Partial        Veto,     at     Appendix           Tbl.    3

(listing proposals from 1935 to 2013).                       Indeed, the same year as

Henry,       "state     legislators        proposed          limiting         the     governor's

partial veto authority to 'appropriation items.'                                The proposal,

however, failed to pass either the Assembly or the Senate."
Burke, This Wisconsin Partial Veto, at 1403.                              A similar series

of    events    followed        Martin     and    Kleczka.          Id.       at     1406     n.77;

Proctor, Wisconsin's Chief Legislator, at 763 n.156.

       ¶64     Twice, the partial veto power has been successfully

curtailed       by     amendment,        once     in     1990     and         once    in     2008.

Together, these amendments are set out at Article V, Section

10(1)(c):       "In    approving      an    appropriation           bill       in     part,    the

governor      may     not   create    a    new        word   by   rejecting           individual
letters in the words of the enrolled bill, and may not create a

                                             26
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new sentence by combining parts of 2 or more sentences of the

enrolled     bill."       The   1990   amendment,        which       prohibited       the

creation of words by deleting letters, was a response to Wis.

Senate.      Burke, The Wisconsin Partial Veto, at 1426.                        The 2008

amendment was a response to partial vetoes made by Governor Jim

Doyle and prohibited the creation of new sentences by combining

parts of two or more sentences of the enrolled bill.                            Proctor,

Wisconsin's Chief Legislator, at 752–54.

                                C.   Stare Decisis

       ¶65   In   the    case-at-hand,       Taxpayers    ask        us    to   overturn

Henry    because    it    adopted,     in    their     view,    an        overly    broad

definition of "part."           Alternatively, they ask us to overrule

Kleczka and "hold that the governor may not exercise the partial

veto in a way that transforms the meaning and purpose of a law

into something entirely new."               In particular, they ask us to

reconsider Kleczka's rejection of the suggestion in Henry that

the    governor    cannot   veto     "provisos    or    conditions          which    were

inseparably connected to the appropriation."                    The Legislature's
amicus asks us to adopt the test proposed by Justice Hansen's

separate writing in Kleczka:            that both the part approved and

the part rejected must be complete, entire and workable laws.

       ¶66   "We are respectful of the doctrine of stare decisis."

State v. Roberson, 2019 WI 102, ¶49, 389 Wis. 2d 190, 935 N.W.2d

813.    As we have explained:

       [Adhering to precedent] ensures that existing law will
       not be abandoned lightly.   When existing law is open
       to revision in every case, deciding cases becomes a
       mere exercise of judicial will, with arbitrary and
       unpredictable results.   Consequently, this court has

                                        27
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    held that any departure from the doctrine of stare
    decisis demands special justification.
Id., ¶49 (quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257

Wis. 2d 19, 653 N.W.2d 266) (modifications in the original).

    ¶67    Because        Taxpayers'        argument      is    grounded      in

originalism,   I   note    that    even     prominent   originalists    respect

stare decisis.       As Justice Scalia once stated:              "You have to

make stare decisis an exception to any philosophy of judicial

interpretation."      Law and Justice Scalia, Hoover Institution at

23:30–38                   (Mar.                    16,                  2009),

https://www.youtube.com/watch?v=zE9biZT_z1k&t=1435s                        (last

visited June 27, 2020); see also Antonin Scalia, A Matter of

Interpretation:      Federal Courts and the Law 140 (1997) ("[S]tare

decisis is not a part of my originalist philosophy; it is a

pragmatic exception to it.").             In one of Justice Scalia's best

known writings, he explained:

    In [originalism's] undiluted form, at least, it is
    medicine that seems too strong to swallow.       Thus,
    almost every originalist would adulterate it with the
    doctrine of stare decisis——so that Marbury v. Madison
    would stand even if [a prominent legal scholar] should
    demonstrate unassailably that it got the meaning of
    the Constitution wrong.
Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L.

Rev. 849, 861 (1989).

    ¶68    When we are asked to overturn precedent, we consider

whether:

    (1) Changes or developments in the law have undermined
    the rationale behind a decision; (2) there is a need
    to make a decision correspond to newly ascertained
    facts; (3) there is a showing that the precedent has
    become detrimental to coherence and consistency in the

                                       28
                                                              No.   2019AP1376-OA.pdr

    law; (4) the prior decision is "unsound in principle;"
    or (5) the prior decision is "unworkable in practice."
Roberson,    389   Wis. 2d   190,   ¶50     (citing         Bartholomew    v.    Wis.

Patients Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI

91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216).                   "We also may consider

'whether [our past decision] has produced a settled body of

law.'"       Roberson,   389     Wis. 2d       190,     ¶50    (quoting     Johnson

Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108, ¶99,

264 Wis. 2d 60, 665 N.W.2d 257) (modifications in original).

    ¶69     To begin with the request to overturn Henry, Taxpayers

argue:

    [S]tare decisis is "at its weakest when [this Court]
    interpret[s]     the    Constitution       because    [its]
    interpretations[s]     can     be     altered    only    by
    constitutional amendment."         Franchise Tax Bd. of
    California v. Hyatt, 139 S. Ct. 1485, 1499 (2019)
    (quoting Agostini v. Felton, 521 U.S. 203, 235
    (1997)).      Appropriately,    then,    this   Court   has
    recognized    it   need    not    "retain    constitutional
    interpretations that were objectively wrong when
    made."   Koschkee, 387 Wis. 2d 552, ¶8 n.5.         And, as
    already    explained,    Henry's      interpretation    was
    "objectively wrong when made."
By "objectively wrong," Taxpayers mean that                     Henry   is not in

accord   with   the   original    meaning      of     the    1930   constitutional
amendment.      In addition to the history of Article V, Section

10(1)(b),    Taxpayers    refer     us    to    other        provisions     of    the

Wisconsin Constitution that they assert support their argument.

For example, they cite Article VIII, Section 8, which provides:

    On the passage in either house of the legislature of
    any law which . . . makes, continues or renews an
    appropriation of public or trust money . . . three-
    fifths of all the members elected to such house shall
    in all such cases be required to constitute a quorum
    therein.

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                                                                 No.    2019AP1376-OA.pdr


Taxpayers further argue that Henry has not created a "reliance

interest."       They also contend that Henry has proven "unworkable

in practice" because it has led to, arguably, abusive practices

by increasingly creative governors.

       ¶70     Governor Evers responds with several points.                        First,

he argues that Taxpayers' reliance on Koschkee is misplaced.

Koschkee "overruled a single decision from three years earlier

that    had    'no    common      legal    rationale'    for    its     mandate."     He

argues that Henry is different because of "[t]he near century of

consistent       partial-veto        decisions"       stemming        from   it.      In

essence, Governor Evers argues that Henry has produced a settled

body    of     law,    and   he    claims    a     reliance     interest.       Second,

Governor Evers cites the constitutional amendments in 1990 and

2008.        They are, according to him, a "part of the corpus of

settled law that must be uprooted if [Taxpayers] win" because

"both     amendments         presuppose       that     Article     V,     § 10(1)(b)[]

empowers the Governor to veto any 'part' of an appropriation

bill, no matter how small."                Third, Governor Evers contends that
partial       veto    decisions     have    been     workable    in    practice.      He

claims we have had "no problem drawing a line between valid and

invalid vetoes."

       ¶71     I reject Taxpayers' request to overturn Henry.                      First,

I cannot say that Henry was objectively wrong.                          An objectively

wrong opinion is not merely an opinion that was "mistaken."                          Cf.

State v. Friedlander, 2019 WI 22, ¶18, 385 Wis. 2d 633, 923

N.W.2d 849 (explaining the difference between an opinion that is
objectively wrong and an opinion that is mistaken in the context

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of statutory interpretation); State v. Fuerte, 2017 WI 104, ¶61,

378     Wis. 2d        504,    904    N.W.2d         773      (same)      (Abrahamson,           J.,

dissenting).             An    objectively           wrong      opinion        is    one    whose

interpretation of the law is not plausible.                            State v. Lagundoye,

2004 WI 4, ¶¶72–75, 268 Wis. 2d 77, 674 N.W.2d 526 (Abrahamson,

C.J.,     dissenting).               That      cannot         be     said      about       Henry's

interpretation of Article V, Section 10(1)(b).

       ¶72    As we explained in Henry, the words "item" and "part"

are not synonyms.              Henry, 218 Wis. at 310–11.                           Furthermore,

nearly every state constitution that authorized an "item veto"

at the time of the 1930 amendment used the word "item."                                    Id. at

310–12.      Indeed, the failed 1925 resolution, likely drafted by

the same person that drafted the 1930 amendment, used the word

"item."      Therefore, if the intent of the 1930 amendment was to

create an "item veto," it easily could have been done.                                           In

addition, Henry was decided in 1935——a mere five years after the

amendment.          Therefore, as the earliest case interpreting the

amendment,        to    some   extent,         Henry    is      itself      evidence       of    the
original meaning of the 1930 amendment.

       ¶73    More       fundamentally,              the        successful,          subsequent

amendments        to    Article      V,   set    out       in   § 10(1)(c),          prohibit      a

governor from "creat[ing] a new word by rejecting letters in the

words of the enrolled bill" and from "creat[ing] a new sentence

by combining parts of 2 or more sentences of the enrolled bill."

Article      V,    § 10(1)(c).            If    we     were     to    read     § 10(1)(b)         as

permitting the veto of only an item, then there would have been
no    need    for      § 10(1)(c),        which       prohibits        the     governor         from

                                                31
                                                                   No.    2019AP1376-OA.pdr


removing letters to create a new word or creating new sentences

with    words       from   two   or    more      sentences.        Stated        otherwise,

§ 10(1)(c) would have no effect after an "item" is vetoed, as

nothing of the "item" would have been left.                     However, § 10(1)(c)

has effect because by vetoing "part," smaller portions of an

enrolled bill can be altered, as shown by Wis. Senate, on which

§ 10(1)(c) placed limits.

       ¶74     Taxpayers'        references           to    other         constitutional

provisions are not persuasive; indeed, the references highlight

why Taxpayers have not established that Henry is objectively

wrong.        Taxpayers      ask      us   to    minimize    the     role       Article    V,

§ 10(1)(c) plays in our interpretation, even though it sets out

successful       amendments,       which        clearly     relate       to     Article     V,

§ 10(1)(b).         Yet, they ask us to consider other provisions that

are    not    clearly      related.         For      example,   Taxpayers         have    not

explained how Article VIII, Section 8 supports their argument.

It provides quorum requirements for votes on fiscal bills.                                What

that has to do with the partial veto power, which takes place
after such a vote, is unclear.

       ¶75     Second,     our     decisions,         consisting     of        eight   cases

dating back eighty-five years, have produced a "settled body of

law" despite naysayers' attempts to unsettle it.                              Roberson, 389

Wis. 2d      190,    ¶50   (quoting        Johnson     Controls,     264       Wis. 2d     60,

¶99).        Indeed, we have previously rejected a similar argument

about original meaning.               Wis. Senate, 144 Wis. 2d at 461 n.18.

We    cannot    rehash     original        meaning——and      its     interaction          with
stare decisis——every time a partial veto comes before us.                              There

                                                32
                                                          No.    2019AP1376-OA.pdr


is good reason that prominent originalists have recognized stare

decisis as an exception to their judicial philosophy.                    Scalia,

Originalism:    The    Lesser     Evil,    at    861.         Furthermore,     the

political branches, as well as the media and legal scholars, are

aware of our interpretations of Article V, Section 10(1)(b), and

Wisconsinites   actively    have    debated      the    proper   scope   of    the

governor's partial veto power.           As already explained, there have

been numerous attempts to amend the partial veto power, two of

which were successful.

    ¶76   At bottom, item veto advocates, despite substantial

effort, have not been able to convince their fellow citizens to

adopt an item veto.     At this point, as we said in Henry:

    If the legislature and people wish the governor to
    have only the power to veto items in an appropriation
    bill, a constitutional amendment may be desirable. It
    should, however, be understood that this court has no
    power to toy with the constitutional grant of a
    partial veto to the governor and to replace it with a
    veto power that may be more sensible and palatable.
    Any claimed excesses on the part of the governor in
    the exercise of this broad partial veto authority are
    correctable not by this court, but by the people,
    either at the ballot box or by constitutional
    amendment.
Wis. Senate, 144 Wis. 2d at 465.

    ¶77   Third,      Taxpayers    are    incorrect      in    suggesting     that

Henry has proved unworkable in practice because governors have

exercised creative partial vetoes which we have evaluated.                      An

opinion   may   be     unworkable    in     practice      when     courts     have

difficulty applying it.         See State v. Harris, 2010 WI 79, ¶43,

326 Wis. 2d 685, 786 N.W.2d 409.                We have not had difficulty



                                     33
                                                          No.   2019AP1376-OA.pdr


interpreting challenged vetoes in light of our past decisions;

therefore, Henry has not proved unworkable in practice.

    ¶78     Taxpayers    alternatively       argue   we     should     overturn

Kleczka because it is "detrimental to coherence and consistency

in the law."     They assert it is inconsistent with our decisions

interpreting separation of powers.            They cite League of Women

Voters of Wis. v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929,

N.W.2d    209,   Tetra   Tech   EC,   Inc.   v.   DOR,    2018    WI   75,    382

Wis. 2d    496, 914 N.W.2d 21 (lead) and Gabler v. Crime Victims

Rights Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384.                     They

also cite Federalist No. 58 as authority for a particular model

of separation of powers.

    ¶79     The Legislature in its amicus brief adds:

         When precedent does "not even discuss" a critical
    aspect of the relevant text, stare decisis does not
    require the [c]ourt to persist in a prior, deficient
    interpretation.   State v. Denny, 2017 WI 17, ¶¶67–70,
    373 Wis. 2d 390, 891 N.W.2d 144.     In the context of
    Article V, Section 10, this [c]ourt has correctly
    interpreted one portion of the text, reading "part
    approved becomes law" to mean "a complete, entire, and
    workable law."    Wis[.] Senate, 144 Wis. 2d at 437.
    Yet, this [c]ourt has not given attention to another
    portion of the text, which explains when the "rejected
    part" "become[s] law."     This has created a serious
    separation-of-powers problem, wherein the Governor can
    effectively enact law by vetoing sentence fragments.
Legislature Amicus Br. at 3.          To explain, the Legislature makes

a temporal argument about when the part rejected becomes law.

The part approved becomes law when it is signed by the governor;

the part rejected does not.           The part rejected is returned to

the legislature and becomes law if and only if it is "approved
by two-thirds of the members present."               Wis. Const. art. V,

                                      34
                                                                      No.    2019AP1376-OA.pdr


§ 10(2)(b).          Therefore,         the    part       rejected,       according    to   the

Legislature's amicus, must be capable of separate enactment at a

later date, independent of the part approved.

       ¶80    Governor Evers responds that no inconsistency has been

created.      The cases cited by Taxpayers dealt with issues bearing

no resemblance to the governor's partial veto power.                                In League

of Women Voters, we concluded that "[h]ow the Legislature meets,

when   it     meets,       and    what    descriptive            titles    the     Legislature

assigns       to    those        meetings       or       their     operating       procedures

constitute         parts    of    the    legislative         process        with    which   the

judicial branch 'has no jurisdiction or right' to interfere."

League       of    Women     Voters,          387    Wis. 2d        511,     ¶37     (internal

quotations removed).             In Tetra Tech, we concluded that we do not

give     great       weight       deference          to     administrative           agencies'

conclusions of law.               Tetra Tech, 382 Wis. 2d 496, ¶108.                         In

Gabler, we concluded that an executive agency could not, "acting

pursuant to authority delegated by the legislature, review a

Wisconsin          court's       exercise           of     discretion,        declare       its
application of the law to be in error, and then sanction the

judge for making a decision the agency disfavors[.]"                                   Gabler,

376 Wis. 2d 147, ¶36.

       ¶81    Governor Evers responds that the Legislature's amicus

is inconsistent with historical practice:

            The phrase "shall become law" simply describes
       the transformation that occurs when a bill is
       presented to the Governor for his approval.

              . . . .



                                                35
                                                            No.   2019AP1376-OA.pdr

         The Legislature would instead read "shall become
    law" as imposing a complete-and-workable-law test
    wherever the phrase appears. But that makes no sense
    applied to the rejected part of an appropriation bill.
    Unlike the part approved——which immediately becomes
    law under Article V, § 10(1)(b)——the rejected part
    never needs to function as a stand-alone law. Either
    it remains rejected and never becomes law, or, upon a
    successful legislative override, it rejoins the part
    approved and "the bill as originally passed by the
    legislature becomes law."     Richard A. Champagne &
    Madeline Kasper, Wis. Legis. Reference Bureau, The
    Veto Override Process in Wisconsin 1 (2019).
    ¶82   I    reject      Taxpayers'    request      to    overturn     Kleczka.

Their argument presumes that states are obligated to follow a

particular    model   of   separation        of   powers   that   delegates    the

"power of the purse" totally to the legislature.

    ¶83   However, our jurisprudence consistently describes the

governor's role in the budgeting process as "quasi-legislative."

Wis. Senate, 144 Wis. 2d at 454 (quoting Henry, 218 Wis. 2d at

314).   In Wis. Senate, we stated:

    [The   1930    amendment]   gave   the    governor   a
    constitutionally recognized role in the legislative
    budgetary function.      The legislature itself has
    recognized the governor's legislative role in the
    budget area by ceding to the governor the initial
    responsibility for preparing the biennial budget
    report and requiring him to submit his executive
    budget bill together with suggestions for the best
    methods for raising the needed revenues.     It was no
    coincidence that the same 1929 legislature which
    passed [ch. 97, Laws of 1929], adopting the executive
    budget system for this state, thereby creating a
    statutory role for the governor in the budgetary
    process, also passed——for the requisite second time——
    the [] joint resolution proposing the constitutional
    amendment to [Wis. Const.] art. V, [§] 10 to provide
    for the governor's partial veto authority. These acts
    were all part of the complete overhaul of the budget
    system in this state that took place at that time.
    The partial veto power the governor may exercise over

                                        36
                                                        No.    2019AP1376-OA.pdr

    appropriation bills is simply one tool he                   has    for
    controlling his own executive budget bill.
Wis. Senate, 144 Wis. 2d at 454–55 (internal citations omitted).

Taxpayers simply ignore these statements because they do not fit

their understanding of separation of powers.

    ¶84    Furthermore,       our   jurisprudence     is      not   unique    in

describing a quasi-legislative role for the governor.                   A veto

power, regardless of its contours, is inherently legislative.

The United States Supreme Court has said so in a number of

cases.    For example, it has explained:

    It is said that the approval by the President of a
    bill passed by Congress is not strictly an executive
    function, but is legislative in its nature; in this
    view, it is argued, conclusively shows that his
    approval can legally occur only on a day when both
    Houses are actually sitting in the performance of
    legislative functions. Undoubtedly the President when
    approving bills passed by Congress may be said to
    participate in the enactment of laws which the
    Constitution requires him to execute.       But that
    consideration does not determine the question before
    us.    As the Constitution, while authorizing the
    President to perform certain functions of a limited
    number that are legislative in their general nature,
    does not restrict the exercise of those functions to
    the particular days on which the two Houses of
    Congress are actually sitting in the transaction of
    public business, the court cannot impose such a
    restriction upon the Executive.
La Abra Silver Min. Co. v. United States, 175 U.S. 423, 453

(1899); see also Edwards v. United States, 286 U.S. 482, 490

(1932)     ("The     President      acts       legislatively        under    the

Constitution,      but   he   is    not    a   constituent     part    of    the

Congress."); cf. Rateree v. Rockett, 852 F.2d 946, 951 (7th Cir.

1988) ("[W]hen the Vice President of the United States votes in
the Senate to break a tie, U.S. Const. art. I § III cl. 4, he

                                      37
                                                                  No.   2019AP1376-OA.pdr


acts legislatively, not executively.                  Similarly, the President

acts legislatively when he approves or vetoes bills passed by

Congress.").

      ¶85   Taxpayers seem to assume that the governor cannot have

a quasi-legislative role because creating law is a core power of

the   legislature.          Under   this      theory,     the      power    to     create

legislation cannot be shared.            At least two problems exist with

this assumption.

      ¶86   First, as demonstrated by rulemaking, and as we have

long concluded, the legislature may delegate its power to make

law to the executive.         Martinez v. DILHR, 165 Wis. 2d 687, 697,

478 N.W.2d 582 (1992) (citing Schmidt v. Local Affairs & Dev.

Dep't, 39 Wis. 2d 46, 56, 158 N.W.2d 306 (1968)) ("Legislative

power may be delegated to an administrative agency as long as

adequate standards for conducting the allocated power are in

place.").      Such    a     delegation       would     be    impossible         if    the

executive    were     not    permitted        to   have      at     least    a     quasi-

legislative role in our constitutional structure.
      ¶87   Second, this theory does not account for the text of

the Wisconsin Constitution.            As Kelczka said, we must look first

to the text of the Wisconsin Constitution, not references to

philosophical works, such as Montesquieu's The Spirit of Law.

Kleczka, 82 Wis. 2d at 710 n.3 (explaining how Montesquieu and

the Federalist Papers should impact our understanding of the

partial veto power).          Taxpayers would have us reverse this by

first   considering     philosophical         works     and     then     consider      the
constitutional      text.       Such     an    analysis       would       ignore      that

                                         38
                                                                      No.   2019AP1376-OA.pdr


Wisconsinites         are   free     to    assign       powers    traditional         to   one

branch      of     government       to     another       branch       by    constitutional

amendment.16         I also cannot ignore how the constitutional text

has been understood for nearly a century.

      ¶88     In     addition,      whether      the     Federalist         Papers    support

Taxpayers' position is unclear.                  As we explained in Kleczka, the

Federalist Papers can be read to support an expansive reading of

the        partial      veto        power.               "The     authors            of    The

Federalist . . . repeatedly                 alluded        to     the       tendency,       in

republican forms of government, to the aggrandizement of the

legislative        branch    at     the     expense      of     the    other     branches."

Id. (citing        Federalist       No.    73    (Hamilton);          No.   49   (Madison);

No. 48      (Madison)).            Indeed,       the    legislature's         practice      of

logrolling spawned the need for Article V, Section 10(1)(b).

      ¶89     Moreover,        I      cannot           accept     the        position       of

Legislature's amicus that we should apply the complete, entire

and   workable       law    test     to    the    part     rejected.           The    textual

analysis provided by Governor Evers fits historical practice:
the phrase "shall become law" describes the transformation that

occurs when proposed legislation takes on legally binding force.

It does not indicate that the part rejected must be a complete,

entire and workable law.                  Governors and legislatures have long


       As Judge Posner explained when the partial veto power was
      16

challenged in federal court: "That it is unusual, even quirky,
does not make it unconstitutional.      It violates no federal
constitutional   provision    because   the    [United   States]
Constitution does not fix the balance of power between branches
of state government."   Risser v. Thompson, 930 F.2d 549, 554
(7th Cir. 1991).

                                             39
                                                                  No.   2019AP1376-OA.pdr


understood that the part rejected rejoins the part approved if

the legislature overrides the governor's veto.                          Governor Evers

cites a document by the Legislative Reference Bureau that says

as   much.     Champagne       &    Kasper,      The    Veto    Override     Process    in

Wisconsin.       Also,        our    decisions         are    consistent     with     this

understanding.      Citizens Utility Bd., 194 Wis. 2d at 488.                           If

the governor were to veto "$100,000" and write in "$90,000," all

would understand that a legislative override of the veto would

mean   that    $10,000    is        added   to    the        $90,000    to   return    the

appropriation to its original number.                   See id.

                                    D.   Application

       ¶90    Having broken no new ground, I employ our decisions

and continue the constitutional analysis of "part" in the four

vetoes that were challenged.                Taxpayers do not dispute that the

"part approved" constitutes a complete, entire and workable law.

Rather, the dispute before us is whether Governor Evers' partial

vetoes went too far by altering the topic or subject matter of

the enrolled bills.            Stated otherwise, we have a dispute over
whether the parts approved alter the stated legislative idea for

which the enrolled bill was passed.

                         1.    Topic or Subject Matter

       ¶91    The legislature controls whether an idea will result

in an enrolled bill that will be presented to the governor for

signature.      A veto that does not alter legislative control of

the topic or subject matter of enrolled bills has been referred

to as "germane."          Wis. Senate, 144 Wis. 2d at 437.                          Stated
otherwise, such a veto does not alter the stated legislative

                                            40
                                                                No.    2019AP1376-OA.pdr


idea that initiated the enrolled bill.                     The text of Article V,

§ 10(1)(b), which employs the term, "part," twice in the same

sentence and connects "part" to the "whole" bill states:                          "bills

may be approved in whole or in part by the governor, and the

part   approved      shall       become    law."      A    plain      reading    of    the

constitutional text connects the "part" approved by the governor

to the "whole" bill because it is only a "part" of that "whole"

bill that is vetoed.               When the part approved by the governor

does not alter the topic or subject matter of the whole bill

presented to him for signature, the part approved maintains the

legislature's choice of topic or subject matter that underlies

the "whole" bill.           Stated otherwise, when legislative topic or

subject matter is maintained, the "part" approved and the "part"

that was not approved remain portions of the same "whole" bill,

consistent with the constitutional text of § 10(1)(b).                          Clearly,

the evaluation of "part" and "whole" in § 10(1)(b) depends on

how broadly the topic or subject matter is defined.

       ¶92   For     example,       we     have     previously        concluded        that
$250,000 is a "part" of $350,000, and, therefore, the governor

may veto $350,000 and write in $250,000.                     Citizens Utility Bd.,

194 Wis. 2d at 505-06.             We explained that "$250,000 is 'part' of

$350,000[] because $250,000 is 'something less than' $350,000,

and    $250,000      goes    'to    make    up,     with     others . . . a       larger

number,'     i.e.,    $350,000."           Id.    (quoting    Part,     Webster's       New

Int'l Dictionary 1781 (2d ed.)).

       ¶93   We also rejected an argument that "part" means only
"physical     part[s]       of   the     bill."     Citizens       Utility      Bd.,    194

                                            41
                                                                           No.    2019AP1376-OA.pdr


Wis. 2d at 503–04.                 To explain, "[i]f the governor strikes a

$100 appropriation and writes in $80, the amount the governor

attempts         to   veto    is    $20.         However,          '$20'     does      not    appear

anywhere in the bill.               '$20' is not physically part of the bill.

It    is    part      of    the    bill       only        conceptually."            Id.      at   503.

Nevertheless,          we     have           permitted       write-in        vetoes         because,

conceptually, the amount remaining after the veto is a part of

the bill.         Id. at 510.            Stated otherwise, the idea contemplated

by the legislature in funding an identified entity or described

project remains after the veto.                            If the entity or project is

funded      to    a   lesser       degree       because       of    a   write-in        veto,       the

legislative idea that initiated the enrolled bill remains after

the veto nevertheless.                   Similarly, an enrolled bill's topic or

subject matter is part of its makeup.

       ¶94       When the topic or subject matter of a bill is altered

through veto from that of the whole bill that was presented for

the governor's signature to a topic or subject matter conceived

by    the       governor,         the    veto        is    outside      of       the   governor's
constitutional authority.                    When the veto is used in that manner,

the "part approved" cannot be defined as a "part" of the "whole"

bill passed by the legislature because it is inconsistent with

the   constitutional              meaning       of     "part"      in   Article        V,    Section

10(1)(b).

       ¶95       Secondary sources have discussed the topic and subject

matter limitation on vetoes.                         I note that their understanding,

which      is    referred     to        as    germaneness,         is   consistent           with   my
analysis in this case.                  In particular, Jack Stark in discussing

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vetoes       made   by    Governor    Doyle   that     triggered     the   2008

constitutional amendment, stated:

       The case law has recently produced a significant
       restriction, holding that the material left after a
       veto must be germane to (have the same subject matter
       as) the material from which it was fashioned. If the
       vetoes of the most recent budget bill that got the
       most attention had been challenged, they would most
       likely have been reviewed in light of that principle.
       With two related vetoes the Governor effected a
       transfer of several hundred million dollars from the
       transportation fund to the general fund.     The money
       transferred would ultimately increase school aid.   In
       both of those vetoes, the germaneness requirement
       appears to have been violated.    Most of the material
       that was vetoed was about particular transportation
       projects, and some of it was about the unfunded
       liability of the state's retirement system.
Jack Stark, Symposium, Is the Wisconsin Constitution Obsolete? A

Conference on the Wisconsin Constitution, 90 Marq. L. Rev. 411,

417-18       (2007);     see   also   Champagne   et   al.,    The   Wisconsin

Governor's Partial Veto, at 18–19.

       2.     Application of Topic or Subject Matter Limitation

  a.   School Bus Modernization and Local Road Improvement Funds

       ¶96    Taxpayers argue:

            Sections 55c and 9101(2i) of Act 9 allocated $3
       million of certain settlement funds for modernizing
       school buses, with specific conditions as to how that
       program should operate.    Governor Evers transformed
       this into an open-ended grant "for alternative fuels"
       with no conditions, and then directed by fiat that the
       agency in charge spend up to $10 million "for electric
       vehicle charging stations."   This is so far removed
       from what the Legislature intended to create that
       there is no question that the portions Evers' vetoed
       were non-severable.
       ¶97    As for the local road improvement fund, they state:



                                        43
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              Sections 126, 184s, and 1095m of Act 9 allocated
         $90 million for the improvement of local roads, along
         with   specific   sub-allocations  for   county  trunk
         highways, town roads, and municipal streets. Governor
         Evers used the partial veto to transform this into a
         $75 million allocation "for local grant [sic]." This
         veto entirely eliminated the core purpose of the award
         (local road improvements), instead creating a generic
         slush fund with no meaningful constraints.
         ¶98   Governor Evers has made no response to these points.

Quoting from the dissent in Wis. Senate, he seems to acknowledge

in   a    footnote        of   his    brief    that    "what    remains       [must]   be

germane."          Wis.    Senate,     144     Wis. 2d   at     474    (Bablitch,      J.,

dissenting).         But he does not explain how what he labels as

"parts that remain" are in accord with their originating actions

of the enrolled bill.             Instead, he argues that he can veto "any

part,     no   matter      how    small"     unless    prohibited      by    Article    V,

Section 10(1)(c).

         ¶99   I   agree       with   Taxpayers;      these     vetoes      resulted   in

topics and subject matters that were not found in the enrolled

bill, i.e., they were not a "part" of the enrolled bill.                          Stated

otherwise, the enrolled bill says nothing about an "alternative

fuel fund."         The parts of the enrolled bill that remain after

this veto have nothing to do with school buses; indeed, the

remaining part has nothing to do with schools or even education.

Governor Evers has publically stated he wants to use the fund

for electric charging stations, a use not contemplated by any

part of the enrolled bill and one specifically rejected by the

legislature.

         ¶100 Notably,         Governor       Evers   vetoed     the        entirety   of
§ 9101(2i),        which       "allocate[d]        $3,000,000    for     grants    under

                                              44
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s. 16.047     (4s)     for   the       payment          of   school       buses."       (Emphasis

added.)        Section       9101(2i)             further     demonstrates              that   the

legislative idea of § 16.047(4s) was to replace school buses.

The   legislative      idea       of    § 16.047(4s)           was    not,        for    example,

limiting carbon emissions.

      ¶101 Legislative history confirms that the legislative idea

was to replace school buses.                      Settlement funds in the previous

biennium     were    used    to    replace             "eligible     state      vehicles"      and

"public transit vehicles."17                 Governor Evers sought to "[e]xpand

DOA's authority to use settlement monies to award grants for

replacement of public transit vehicles to also include grants

for   the     installation             of     charging        stations          for      electric

vehicles."18     Governor Evers' proposed expansion was rejected in

favor of one more analogous to previous uses of the settlement

funds.

      ¶102 Similarly,         the       partial          vetoes      of     the    local       road

improvement fund, which created a generic fund, are precisely

the kinds of vetoes commentators have assumed would violate the
topic or subject matter limitation.                           Stark, Is the Wisconsin

Constitution        Obsolete,     at        418    ("With     two     related       vetoes     the

Governor effected a transfer of several hundred million dollars

from the transportation fund to the general fund.                                       The money

transferred would ultimately increase school aid.                                  In both of

those vetoes, the germaneness requirement appears to have been

violated.").

      17   Motion #129.
      18   Paper #505.

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      ¶103 The       legislative     idea       was    to    fund    an     ongoing     road

improvement program.19        Section 1095m, vetoed in its entirety by

Governor Evers, made this clear.                  It allocated specific amounts

to    fund     "county     truck     highway          improvements,"          "town     road

improvements" and "municipal street improvements."                                 A general

undirected fund was not part of a fund created to improve local

roads      because   a   general   fund     can       be    spent    on    virtually       any

subject, i.e., topics and subject matters never considered by

the   legislature.         Indeed,    a     general         fund    could     be    used    to

accomplish goals explicitly rejected by the legislature during

its deliberative process.

      ¶104 I      cannot    uphold        these       vetoes.             Accordingly,       I

partially concur with the per curiam opinion that these vetoes

have no effect on the provisions in the enrolled bills that the

legislature enacted.

             b.   Vehicle Fee Schedule and Vapor Products Tax

      ¶105 Taxpayers have not carried their burden with respect

to    the     remaining     vetoes.          With          regard    to      the     vehicle
registration fees, Taxpayers argue:

           Governor   Evers   accepted the   increases  and
      rejected the decreases, creating a new fee schedule
      that is neither graduated nor equalized.          The
      question, under traditional severability analysis, is
      whether the Legislature would have intended the fee
      increases on lighter trucks without the corresponding
      decreases for heavier trucks. Given that the obvious
      purpose of the statutory change was to equalize the
      fee schedule, the answer is no.




      19   Analysis of Bill 56, at 90.

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This is an inherently different argument than what Taxpayers

raised in regard to the school bus modernization fund and the

local    road   improvement        fund.        The       part    approved        is    clearly

related    to   the    subject     matter       of    vehicle       registration          fees.

These vetoes are consistent with those that we approved in Wis.

Senate and that long have been considered within the governor's

partial veto power.          Burke, The Wisconsin Partial Veto, at 1396.

      ¶106 A similar analysis applies to the veto that altered

the     definition     of    vapor    product.              The    veto        expanded     the

definition of vapor product, thereby expanding what could be

taxed.     But it did not alter the topic or subject matter of the

part approved.         Rather, it would seem all products that would

have been taxed under the enrolled bill will continue to be

taxed.     Furthermore, the liquid used in vaping devices is within

the   scope     of    the    phrase    vapor         product       as    used      in    common

parlance.       Had the legislature left vapor product undefined,

reasonable people may have assumed it encompassed liquid sold

separately.
                                      E.   Remedy

      ¶107 The Legislature's amicus has asked us to consider a

remedy that is purely prospective.                        As it explains, while our

decisions       "'[n]ormally'          apply          'retrospectively,'                purely

prospective     application——which          does       not       apply    a    new     decision

even to the case at hand——is appropriate where retrospective

application     of    a     'new   principle         of    law'     would       'unsettl[e]'

reliance interests."           See State v. Beaver Dam Area Dev. Corp.,
2008 WI 90, ¶¶95–101, 312 Wis. 2d 84, 752 N.W.2d 295.                                    Had I

                                           47
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accepted the Legislature's argument and concluded that the part

rejected by the governor should be a complete, workable law, I

might view its request differently.                     However, I reject this

request    because   I     break      no   new    ground    with    this   decision.

Indeed,    the    topic    and     subject       matter    limitation,     sometimes

referred to as germaneness, has been discussed in three prior

cases.    It is not a new principle of law.                  Risser, 207 Wis. 2d

at 183; Citizens Utility Bd., 194 Wis. 2d at 506; Wis. Senate,

144 Wis. 2d at 451–52.

                                 III.      CONCLUSION

       ¶108 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.

Stated otherwise, such a veto does not alter the legislative

idea    that   initiated    the       enrolled     bill.     Therefore,     Governor

Evers could not use his partial veto power to alter the school

bus modernization fund into an alternative fuel fund.                      Nor could

he use it to alter the local road improvement fund into a fund
for local grants or local supplements, devoid of any requirement

that it be used for local roads.                 These two series of vetoes are

invalid and have no effect on those laws.                      However, Governor

Evers lawfully used his partial veto power to alter the amount

truck    owners   must    pay    to    register     their   vehicles.       He   also

lawfully exercised his partial veto power in regard to vaping

products.      These vetoes stand.




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       ¶109 ANN        WALSH      BRADLEY,             J.        (concurring        in        part,

dissenting in part).            In an important case like this, where the

people   of     Wisconsin      need     clarity,            we    instead     sow    confusion.

Evidence of the lack of clarity is highlighted by the very fact

that this case has generated four separate writings with various

rationales.       And not one of them has garnered a majority vote of

this    court.      Thus,       we    are    left          with    no    clear      controlling

rationale or test for the future.

       ¶110 I agree with that part of the per curiam opinion that

upholds the vehicle fee schedule veto.                             The Governor lawfully

used his partial veto power when he altered the amount truck

owners must pay to register their vehicles.

       ¶111 Employing different rationales or tests, the majority

of justices err, however, by determining that the other three

vetoes at issue are unconstitutional and must be struck down on

the basis of arguments neither argued nor briefed by any party.

In   doing    so,      Chief    Justice          Roggensack's           concurrence/dissent

seeks to create a subjective test that unnecessarily inserts the
court    into     policy       disputes      between             the    other     branches      of

government,      and    is     likely       to       lead    to    more     uncertainty        and

litigation      over    partial       vetoes          by    future      governors        of   this

state.

       ¶112 Not only does Chief Justice Roggensack's opinion base

this decision on a theory that no party has advanced, but it is

also based on a theory that has never been actually applied.

The opinion's proffered "topic or subject matter" test morphs
into an alternative test as the analysis unfolds.                                    That test

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eschews    the    "topic     or      subject        matter"     language      and    instead

focuses on an amorphous concept of what was the "legislative

idea"    behind   the    bill.         Both        iterations    of    the    test      invite

manipulation      and    inject        subjectivity           into    what    was    once    a

clearly    objective       test.         Such        subjective       and     manipulative

determinations        have      no     place       in    addressing         the   important

question of the constitutionality of the use of the governor's

partial veto power.

      ¶113 Justice Kelly's concurrence/dissent suffers from the

same infirmity as does Chief Justice Roggensack's:                                  it, too,

embraces a test neither advanced by any party nor ever applied

in any case.          Advocating for invalidating all four vetoes at

issue,    Justice     Kelly's         writing       would     overrule       or   modify     a

multitude of cases, spanning 85 years of precedent, and would

render two constitutional amendments superfluous.

      ¶114 Likewise, Justice Hagedorn's concurrence relies on a

theory not argued by the parties.                       The opinion would "revisit"

and overrule a number of precedential cases.                               It also injects
subjectivity into the determination of the constitutionality of

an exercise of the partial veto power, ultimately determining

that three of the four vetoes are unconstitutional.

      ¶115 Rather than embrace tests neither previously argued

nor   applied,    I     would     instead      turn      to    and    uphold      our   well-

established precedent.               It recognizes, time and again, that the

Wisconsin governor's veto power is incredibly broad.                                Contrary

to the determinations based on untested theories set forth in
the various separate writings, I conclude that our precedent

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inexorably leads to the determination that all four vetoes at

issue, including the Governor's vetoes related to the school bus

modernization      fund,   local   road    improvement       fund,    and     vapor

products tax are constitutionally permissible exercises of the

partial veto power.

    ¶116 Accordingly, I concur in part and dissent in part to

the per curiam opinion.

                                      I

    ¶117 Petitioners brought this case as an original action

against Governor Tony Evers, seeking to invalidate four partial

vetoes the Governor made to the 2019-21 biennial budget bill.

They asked this court to determine whether under the partial

veto power as granted by the Wisconsin Constitution1 the governor

may permissibly strike portions of a law that are "essential,

integral,    and     interdependent       parts   of    those        which    were

approved."      Additionally, they ask us to address whether the

governor may strike words so as to transform the meaning and

purpose of a law, essentially turning it into a different law.
    ¶118 The argument petitioners made rested on the assertion

that this court should overrule a laundry list of longstanding

precedents    regarding      the    governor's     partial        veto       power.

However,    they   focus   their   discussion     on   two     specific      cases,

State ex rel. Wisconsin Telephone Co. v. Henry, 218 Wis. 302,

260 N.W. 486 (1935), and State ex rel. Kleczka v. Conta, 82


    1  Pursuant to Article V, § 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."

                                      3
                                                                     No.    2019AP1376-OA.awb


Wis. 2d 679,         264     N.W.2d 539         (1978).            Petitioners       readily

acknowledge that without overruling our long-term precedents,

their argument cannot stand.2

       ¶119 Chief          Justice       Roggensack's            opinion      declines      to

overrule      any   of     our    precedents         and   upholds     only    two   of   the

vetoes         at        issue.                 Chief        Justice          Roggensack's

concurrence/dissent,             ¶¶71,    82.        In    contrast,       Justice   Kelly's

concurrence/dissent           would       affect      a    sea    change      in   the    law,

overruling or modifying multiple cases and upholding none of the

four       vetoes   at   issue.          Justice     Hagedorn's      concurrence         would

"revisit" some of our prior cases (although it does not say

which ones), and would strike down three of the vetoes at issue

while upholding one.             I address each opinion in turn.

                                                II

       ¶120 Chief          Justice       Roggensack's            opinion      grounds      its

analysis with a citation to State ex rel. Wisconsin Senate v.

Thompson, 144 Wis. 2d 429, 437, 424 N.W.2d 385 (1988), asserting

that Wisconsin Senate "explained that the consequences of any
partial veto must be a law that remains consistent with the

topic or subject matter of the 'whole' bill."                                Chief Justice

Roggensack's concurrence/dissent, ¶60.                        The actual language of

       At oral argument, counsel for Petitioners acknowledged
       2

that accepting Petitioners' position would require the court to
overrule several cases, which include: State ex rel. Wis. Tel.
Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935); State ex rel.
Martin v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940); State ex
rel. Sundby v. Adamany, 71 Wis. 2d 118, 237 N.W.2d 910 (1976);
State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539
(1978); State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429,
424 N.W.2d 385 (1988); and Citizens Util. Bd. v. Klauser, 194
Wis. 2d 484, 534 N.W.2d 608 (1995).

                                                4
                                                             No.    2019AP1376-OA.awb


Wisconsin   Senate        sets    forth   that      "the   consequences      of    any

partial veto must be a law that is germane to the topic or

subject matter of the vetoed provisions."                     Wis.     Senate, 144

Wis. 2d at 437.

    ¶121 In the opinion's view, the vetoes that "change the

school bus modernization fund into an alternative fuel fund" and

"change the local road improvement fund into a fund for local

grants or local supplements" fail this inquiry.                      Chief Justice

Roggensack's       concurrence/dissent,          ¶11.         The     school       bus

modernization      fund    veto    altered    the    original      law's   topic    or

subject matter because, as the opinion posits, "the enrolled

bill says nothing about an 'alternative fuel fund.'                        The parts

of the enrolled bill that remain after this veto have nothing to

do with school buses; indeed, the remaining part has nothing to

do with schools or even education."              Id., ¶99.

    ¶122 Similarly,         Chief    Justice     Roggensack's       opinion    views

the local road improvement fund veto as altering the topic or

subject matter of the original law as passed by the legislature.
It contends that "[a] general undirected fund was not part of a

fund created to improve local roads because a general fund can

be spent on virtually any subject, i.e., topics and subject

matters    never    considered      by    the    legislature."         Id.,       ¶103.

Consequently, the opinion concludes that these two vetoes are an

unconstitutional use of the governor's partial veto and are thus

invalid.

    ¶123 The first problem with this approach is that no party
advocated for it.         Thus, it has not been tested by the rigors of

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appellate advocacy, i.e., briefing and oral argument.                             Deciding

a case based on a theory not argued by any party not only

blindsides the parties and sidesteps their input, but it also

too often results in an inadequate guidance and ill-conceived

legal analysis.         Yet Chief Justice Roggensack's opinion, on its

own, selects language from the Wisconsin Senate opinion that

never before has been the basis of a partial veto decision,

rewords it, and runs with it.

      ¶124 In Wisconsin Senate, the court wrote:

      We also accept, and for the first time in this case
      give explicit judicial recognition to, the long-
      standing practical and administrative interpretation
      or modus vivendi between governors and legislatures,
      that the consequences of any partial veto must be a
      law that is germane to the topic or subject matter of
      the vetoed provisions.
Wis. Senate, 144 Wis. 2d at 437.

      ¶125 The       opinion    claims        that    it   breaks      no   new     ground.

Chief      Justice    Roggensack's           concurrence/dissent,           ¶107.        But

neither Wisconsin Senate nor any other case has been explicitly

decided based on the "topic or subject matter" limitation the
Wisconsin Senate court referred to as "germaneness."                              In other

words, no veto has ever been struck down because the resulting

law   is    not    related     to    the     topic    or   subject      matter      of   the

original law.

      ¶126 To      support     its     rationale,        the   opinion      cites     three

instances      where     the        topic     or     subject    matter       limitation,

"sometimes referred to as germaneness," has been "discussed" in

prior cases:         Wisconsin Senate, 144 Wis. 2d at 451-52, Risser v.
Klauser,     207     Wis. 2d 176,           183,   558     N.W.2d 108       (1997),      and
                                              6
                                                             No.    2019AP1376-OA.awb


Citizens Utility Board v. Klauser, 194 Wis. 2d 484, 506, 534

N.W.2d 608       (1995).                 Chief      Justice           Roggensack's

concurrence/dissent, ¶107.          However, none of these cases used

topic or subject matter as a reason for striking down a partial

veto.

    ¶127 Although        the    Wisconsin        Senate    court       stated        the

limitation that "the consequences of any partial veto must be a

law that is germane to the topic or subject matter of the vetoed

provisions[,]"      it      ultimately       held     that         "the      governor

may . . . veto individual words, letters and digits, and also

may reduce appropriations by striking digits, as long as what

remains after veto is a complete, entire, and workable law."

Wis. Senate, 144 Wis. 2d at 437.            Wisconsin Senate does not give

any examples of what is "germane to the topic or subject matter

of the vetoed provisions" and what is not.                 See id.        It further

does not provide any guidance in making such a determination.

    ¶128 In Risser, the court merely cites in passing that "the

disapproval of part of an appropriation bill may not result in a
provision which is 'totally new, unrelated or non-germane' to

the original bill."         Risser, 207 Wis. 2d at 183 (citing Wis.

Senate, 144 Wis. 2d at 451-53).            However, it did not include any

analysis of germaneness.

    ¶129 In      Citizens      Utility     Board,    the     court        provided    a

cursory analysis of topic or subject matter ("germaneness"), but

it was limited to the following:

    There also can be no dispute that sec. 15 of 1993
    Senate Bill 44, as partially vetoed by the governor,
    survives the "topicality" or "germaneness" requirement
    as set forth in Wisconsin Senate.    The new provision
                              7
                                                                    No.    2019AP1376-OA.awb

       approved by the governor——"$250,000"——relates to the
       same subject matter as the original legislative
       enactment, viz., a money appropriation to be utilized
       by CUB as a public interest advocacy entity.
Citizens Util. Bd., 194 Wis. 2d at 505.                        Again, little can be

gleaned from this regarding the meaning of Wisconsin Senate's

germaneness        limitation,      which          the    opinion     terms    "topic      or

subject matter."

       ¶130 Far     from    supporting         the       argument   presented        in   the

opinion, these cases serve to demonstrate the novelty of its

theory.      Although Wisconsin Senate articulated the "germaneness"

limitation, no case has rejected a gubernatorial partial veto

for defying it or even truly defined what it means.                           Rather than

"breaking     no    new    ground,"      Chief       Justice    Roggensack's         opinion

thus bases its decision on a scantily referenced limitation,

rewords it, and attempts to transform it into the dispositive

test for a partial veto analysis.                        If this court is to address

the meaning of the "germaneness" language in Wisconsin Senate,

we should wait for a case where the parties present the issue

rather than raise it of our own accord without the benefit of
advocacy.

       ¶131 The second problem with the approach advanced in the

opinion is that it provides no clarity where clarity is sorely

needed.      The proffered "topic or subject matter" test morphs

into    an    alternative         test    as       the     analysis       unfolds.        The

alternative test eschews the "topic or subject matter" language

and instead focuses on an amorphous concept of what was the

"legislative       idea    that    initiated         the    enrolled      bill."      Chief
Justice Roggensack's concurrence/dissent, ¶11.                         But neither test

                                               8
                                                                  No.   2019AP1376-OA.awb


provides any guidance at all.                  Further, such alternatives will

surely breed more litigation regarding what test to apply and

the   meaning    of   such    terms       as       "topic,"    "subject       matter,"   or

"legislative idea" behind an enrolled bill.3

      ¶132 Previous      cases       are       clear      that   in     evaluating       the

constitutionality of a governor's exercise of the partial veto,

we apply an objective test.                 Premised on the language of our

state      constitution,      this         "objective          test     permit[s]        the

affirmative use of the partial veto power as long as the parts

remaining after the veto are a complete and workable law."                            Wis.

Senate, 144 Wis. 2d at 453.

      ¶133 Chief      Justice    Roggensack's            opinion's      approach     moves

away from an objective analysis, and exposes determinations on

the   constitutionality         of    a    partial        veto   to     the    subjective

preferences of judges.               To explain, the "topic" or "subject

matter" of an enrolled bill is subject to manipulation.                           It is a

function of the lens through which the bill is viewed.                             As the

opinion acknowledges, "topic" or "subject matter" can be broadly
or        narrowly     viewed.                 Chief          Justice         Roggensack's

concurrence/dissent, ¶91 ("Clearly, the evaluation of 'part' and

'whole'     in   § 10(1)(b)     depends            on   how   broadly    the     topic   or

subject matter is defined.").

      3To further illustrate the amorphous concept of "the
legislative idea that initiated the enrolled bill," an image
comes to mind:   two legislators, after hours, are sitting at a
local pub across the street from the state capitol.      As one
drinks a beer, he looks at his fellow legislator, announcing,
"Hey, I have an idea."    Who knows whose idea and what kind of
idea will meet this amorphous "legislative idea" test, and the
opinion fails to explain.

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                                                                       No.   2019AP1376-OA.awb


       ¶134 Favoring         a     narrow       interpretation          of    "topic,"         the

opinion states with respect to the school bus modernization fund

veto:     "The parts of the enrolled bill that remain after this

veto have nothing to do with school buses; indeed, the remaining

part has nothing to do with schools or even education."                                     Id.,

¶99.

       ¶135 But       through      a    broad    lens,     the    "topic"         or    "subject

matter" of the bill changes.                 The "topic" or "subject matter" of

the    legislation         could    easily      be   viewed      as    not     school      buses

specifically, but vehicle efficiency generally.                                Through this

lens,     the    remaining          alternative       fuel       provision         is    surely

"germane" to the "topic" or "subject matter" of the legislation.

       ¶136 Similarly,            the   local    road    improvement          fund      veto    is

characterized         by    the    opinion      as   the    creation         of   a     "general

undirected fund" that "was not part of a fund created to improve

local roads because a general fund can be spent on virtually any

subject, i.e., topics and subject matters never considered by

the legislature."            Id., ¶103.          But is the "topic" or "subject
matter"    of    the       original       legislation       local       road      improvement

specifically      or        the     appropriation          of    money       to    localities

generally?       Both are reasonable readings, and deciding between

the two requires a subjective determination.

       ¶137 The approach of Chief Justice Roggensack's opinion has

taken an area of Wisconsin law that has been quite clear and

based on an objective test, and injected it with subjectivity.

Our     case    law    clearly          indicates     that       the     governor        has    a
constitutional partial veto power that is broad, in fact much

                                                10
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broader than that provided by other states.                     Wis. Senate, 144

Wis. 2d at 439-40 (citing Henry, 218 Wis. at 313); see also John

S. Wietzer, The Wisconsin Partial Veto:                  Where Are We and How

Did We Get Here?           The Definition of "Part" and the Test of

Severability, 76 Marq. L. Rev. 625, 645-46 (1993) (referring to

Wisconsin's partial veto power as "uniquely broad"); Anthony S.

Earl, Personal Reflections on the Partial Veto, 77 Marq. L. Rev.

437, 438 (1994) (discussing the governor's "broad power to veto

parts of appropriation bills").

       ¶138 Yet the opinion exposes that broad veto power to the

serendipity of what lens the judge subjectively chooses.                           This

would have the effect of inevitably inserting the court into

policy    disputes   between     the    other     branches      of   government,      a

result this court has previously considered undesirable.                            See

State    ex   rel.   Sundby     v.    Adamany,    71    Wis. 2d 118,        134,    237

N.W.2d 910 (1976) (rejecting the argument that an affirmative

policy change constitutes an unconstitutional use of the partial

veto power).
       ¶139 A commentator has correctly observed three reasons for

steering clear of subjective considerations in the evaluation of

the constitutionality of partial vetoes.                See Wietzer, supra, at

648.     First, "a subjective test for partial veto validity would

foster    uncertainty      in   the    legislative      process . . . ."            Id.

Second,    "subjective     tests      would   place     the   court    between      the

executive     and    the      legislature,       with     the       court   assuming

legislative powers . . . ."             Id.      Finally, "a subjective test



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would    involve       the     courts      every       time     a    partial         veto   dispute

arose."    Id.

       ¶140 These       concerns          ring     true.            Indeed,     the     budgeting

process of this state benefits from certainty.                                  However, Chief

Justice Roggensack's opinion takes us farther from that goal.

It leaves every partial veto subject to challenge by litigation,

where pursuant to the opinion's approach, judges can manipulate

the result by injecting their subjective policy preferences into

the analysis of the constitutionality of a partial veto.

                                                 III

       ¶141 I turn next to address Justice Kelly's opinion, which

invalidates all four vetoes.                      It proposes "that we respect the

constitution's structural limitations on what it means for a

bill      to     be         approved        'in        part.'"             Justice          Kelly's

concurrence/dissent, ¶217.                  Accordingly, Justice Kelly's writing

suggests       that    we    add     to    the     current      "complete,            entire,   and

workable law" test:                 "After exercising the partial veto, the

remaining part of the bill must not only be a 'complete, entire,
and     workable       law,'    it        must    also     be       a    law    on     which    the

legislature       actually          voted;       and    the     part      of    the     bill    not

approved       must    be     one    of     the        proposed         laws    in    the    bill's

collection."          Id.

       ¶142 This        approach          suffers        from        several         infirmities.

First, it embraces a test not argued or briefed by either party.

Thus, it has not had the benefit of being tested by the fires of

advocacy.



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       ¶143 Second,      it    cavalierly       discards       and        overrules       or

modifies multiple cases constituting 85 years of precedent in

derogation of the doctrine of stare decisis.4                    It would abandon

our   partial    veto    precedent      because      Justice     Kelly       deems    our

precedent, in his view, "wrongly decided."                    Id., ¶206.          I would

take a more modest approach.

       ¶144 Stare decisis, the principle that requires courts to

"stand by things decided," is fundamental to the rule of law.

Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108,

¶94, 264 Wis. 2d 60, 665 N.W.2d 257.                   "This court follows the

doctrine of stare decisis scrupulously because of our abiding

respect for the rule of law."            Id.

       ¶145 "Fidelity to precedent ensures that existing law will

not be abandoned lightly.          When existing law is open to revision

in    every   case,     deciding      cases    becomes    a    mere        exercise       of

judicial      will,   with     arbitrary       and     unpredictable             results."

Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶67, 389 Wis. 2d 669, 937

N.W.2d 37 (quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257
Wis. 2d 19, 653 N.W.2d 266).             As a result, any departure from

stare decisis requires "special justification."                            Id.      Simple

disagreement     with    a    prior    court's       rationale       is    not     such   a

"special justification."           Progressive N. Ins. Co. v. Romanshek,

2005 WI 67, ¶46, 281 Wis. 2d 300, 697 N.W.2d 417.


       Justice
       4         Kelly's  opinion  would  overrule   Sundby,   71
Wis. 2d 118; Kleczka, 82 Wis. 2d 679; Wisconsin Senate, 144
Wis. 2d 429; Citizens Utility Board, 194 Wis. 2d 484; and Risser
v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997); and would
modify    Henry,     218   Wis.    302.       Justice     Kelly's
concurrence/dissent, ¶230 n.14.

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       ¶146 Third, the interpretation advanced by Justice Kelly's

opinion     would     render   constitutional        language          superfluous.

Specifically, the language added to the partial veto provision

by constitutional amendments in 1990 and 2008 would have no

effect under the position the opinion takes.

       ¶147 The people of Wisconsin have twice limited the partial

veto power by constitutional amendment.                   Enacted in 1990 and

2008, the sum total of these amendments is provided in Article

V, Section 10(1)(c) of the state constitution:                   "In approving an

appropriation bill in part, the governor 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 of the enrolled bill."

       ¶148 Under the interpretation espoused by Justice Kelly's

opinion,    this    language   has   no    effect.        If,     as   the   opinion

posits, the part of the bill not approved must "be one of the

proposed laws in the bill's collection," then what would be the

need to proscribe the creation of new words or new sentences as
set forth in Article V, Section 10(1)(c)?             If Article V, Section

10(1)(b)    already     prohibits    the    vetoes    described        in    section

10(1)(c), the language of section 10(1)(c) is mere surplusage.

       ¶149 We are to construe constitutional provisions "to give

effect to each and every word, clause and sentence" and to avoid

rendering any language superfluous.              Wagner v. Milwaukee Cty.

Election     Comm'n,    2003   WI    103,    ¶33,    263        Wis. 2d 709,      666

N.W.2d 816    (internal    quotation       and   citation        omitted).        The



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interpretation advanced in the opinion runs directly counter to

this established mode of constitutional interpretation.

       ¶150 Finally, Justice Kelly's opinion posits that the court

has gone astray by "compar[ing] our partial veto to the 'line-

item' vetoes adopted by some of our sister states and, assuming

the different words meant Wisconsin must have done something

very    much   different     from    the     others,     we   consulted         them   no

further."      Justice Kelly's concurrence/dissent, ¶182.                  Yet there

is a difference between a "partial" and an "item" veto, as our

precedent      recognizes.         Wis.    Senate,      144   Wis. 2d at         439-40

(citing Henry, 218 Wis. at 313).                 The opinion does not account

for the difference and would, as a practical matter, result in

an "item" veto in spite of Wisconsin's unique constitutional

language.

                                          IV

       ¶151 Next, I turn to address Justice Hagedorn's opinion,

which     concludes    that    three       of    the    vetoes      at    issue        are

unconstitutional and that one, the vehicle fee schedule veto,
passes    constitutional       muster.          After    disavowing       each     test

proposed by both the parties and members of this court, the

opinion    states     that    "[w]hile     future       litigation       will    surely

provide    opportunities      to    refine      the   analysis,     the    principles

derived from our constitutional text, structure, and early cases

draw sufficient lines to decide this case."                   Justice Hagedorn's

concurrence, ¶264.

       ¶152 Those principles lead Justice Hagedorn's opinion to
this essential inquiry:            "whether the governor vetoed a policy

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the legislature proposed and passed, which is permissible, or

created a new policy the legislature did not propose or pass,

which is not."         Id., ¶263.      "[W]hat the governor may not do is

selectively edit parts of a bill to create a new policy that was

not   proposed    by    the    legislature.          He    may    negate       separable

proposals actually made, but he may not create new proposals not

presented in the bill."             Id., ¶264.      In the opinion's view, all

of the subject vetoes with the exception of the vehicle fee

schedule veto fail this inquiry.

      ¶153 Justice       Hagedorn's       writing         suffers      from      several

analytical      shortcomings.          First,       like    both       Chief    Justice

Roggensack's opinion and Justice Kelly's opinion, it advances a

theory    not   specifically        argued     by   any    party.        Indeed,      the

opinion explicitly disavows each test proposed by the parties in

this case.       Id., ¶¶259-63.          Thus, the parties are deprived of

the opportunity to analyze and offer comment on this proposed

theory.

      ¶154 Second, although the opinion appears reticent to say
so, it would discard a significant amount of our precedent.

Justice Hagedorn's opinion would keep Henry intact, but would

"revisit" our "later cases . . . insofar as they abandoned the

core principles undergirding the way laws are made pursuant to

our constitution."          Id., ¶266.

      ¶155 Which       of     the     court's       "later       cases"        must    be

"revisited?"      In a footnote, the opinion reveals that Kleczka is

one of these cases, and that it must be overruled rather than
merely "revisited."          Id., ¶266 n.11.        But the opinion also calls

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into question the entirety of our partial veto jurisprudence.

It asserts that "[i]nsofar as our later decisions have treated

Kleczka as pronouncing that a veto shall stand simply if it

leaves a complete, entire, and workable law, these statements

too must be withdrawn."            Id.

       ¶156 Yet, our court has never applied any test other than

the "complete, entire, and workable law" test.                           Thus, although

obscured in a footnote, Justice Hagedorn's opinion would tear

down a substantial amount of our precedent.                      As explained above,

such a position disregards the principle of stare decisis, which

is    essential   to      the   rule     of      law.      Johnson        Controls,          264

Wis. 2d 60, ¶94.

       ¶157 Third,       Justice    Hagedorn's          proposed       test    injects       an

element of subjectivity into partial veto decisions.                                In the

opinion's view, the essential inquiry is "whether the governor

vetoed a policy the legislature proposed and passed, which is

permissible, or created a new policy the legislature did not

propose or pass, which is not."                  Justice Hagedorn's concurrence,
¶263.    As with the test proposed in Chief Justice Roggensack's

writing, such an inquiry is susceptible to manipulation and to

the    subjective    preferences         of      judges.         The     "policy"       of    a

proposed bill is just as amorphous as the "topic or subject

matter" of the proposed bill.

       ¶158 For     example,        with         regard    to      the        school     bus

modernization     veto,     Justice      Hagedorn's        opinion        suggests      that

"[t]he     legislature's           budget        bill     did      not        propose        an
appropriation       in    whole     or     in     part     for     alternative         fuels

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generally.      Instead, the legislature proposed an appropriation

for the replacement of school buses."                  Id., ¶271.        Again, what

the "policy proposal" is depends on the lens through which the

bill is viewed.         See supra, ¶¶134-35.

      ¶159 By     asserting      that     "future     litigation         will    surely

provide opportunities to refine the analysis," Justice Hagedorn

acknowledges      the    instability     in     the   rule   of    law    that    these

separate writings generated.                  Justice Hagedorn's concurrence,

¶264.    Without a clear rule, how will future courts know how to

apply this law?         They won't.      How can governors be assured that

the partial veto they are crafting is constitutional?                              They

can't.    What is to happen if money has been paid or contracts

signed based on the statutory language as it currently exists?

Those who would strike down the vetoes provide no guidance.

      ¶160 Indeed, there will be future cases needed to iron out

the wrinkled mess we leave to the people of this state as this

court's partial veto jurisprudence.

                                          V
      ¶161 Instead of Chief Justice Roggensack's approach that

would    inject    subjectivity         into    an    objective     test,       Justice

Kelly's approach that would discard decades of case law, or

Justice Hagedorn's approach that would do both, I would apply

the time-honored test informed by our precedent.                         That is, we

ask   whether     "the    part   of     the    bill   remaining     constitutes       a

'complete, entire, and workable law.'"                  Risser, 207 Wis. 2d at

183 (citing Henry, 218 Wis. at 314; State ex rel. Martin v.



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Zimmerman, 233 Wis. 442, 450, 289 N.W. 662 (1940)); see Wis.

Senate, 144 Wis. 2d at 453.

       ¶162 The resulting law after the school bus modernization

veto       is    clearly       complete,      entire,    and     workable.5        As    Chief

Justice Roggensack's opinion sets forth, the law after the veto

states:              "The department shall establish a program to award

grants          of    settlement      funds    from     the    appropriation       under      s.

20.855(4)(h) for alternative fuels."                         Chief Justice Roggensack's

concurrence/dissent, ¶16.                  This resulting sentence is complete

and    workable          on     its     face,    providing          clear    direction        on

administration of the subject grants.

       ¶163 Likewise, the local road improvement fund veto leaves

a complete, entire, and workable law.                               After the local road

improvement            veto,    § 126   of    the     budget    bill     states:        "Local

supplement . . . 75,000,000."                    Id.,        ¶19.      Relatedly,       § 184s

provides:             "Local    supplement.           From    the    general    fund,    as    a

continuing appropriation, the amounts in the schedule for local

grant."          Id., ¶20.        Although this law does not get high marks
for grammar, that does not mean it is not complete and workable.

"Awkward phrasing, twisted syntax, alleged incomprehensibility

and vagueness are matters to be resolved only on a case-by-case

basis in which specific challenges to discrete applications of

the new provisions are raised in a complete factual setting."

Wis. Senate, 144 Wis. 2d at 463.


       The vehicle fee schedule veto also results in a complete,
       5

entire, and workable law, a premise that Petitioners do not
dispute.    See Chief Justice Roggensack's concurrence/dissent,
¶90.

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      ¶164 Similarly, the vapor products tax veto results in a

complete, entire, and workable law.            After the Governor's veto,

the   definition    of     "vapor      product"    is   set        forth    as     "a

noncombustible     product     that    produces     vapor     or     aerosol     for

inhalation from the application of a heating element, regardless

of whether the liquid or other substance contains nicotine."

Chief Justice Roggensack's concurrence/dissent, ¶24.                   Again, the

veto leaves a coherent sentence that is complete, entire, and

workable on its face.

      ¶165 Rather than embrace the novel and untested approaches

advanced by each of the other separate opinions, this court

should tread lightly and act with restraint.                      Such approaches

foment confusion and inevitably will lead to more litigation.

      ¶166 The   majority      of   the   court    likewise       engenders      more

litigation with the relief it affords.              The petitioners suggest

that if this court finds the vetoes unconstitutional, then we

consider as possible relief "remanding to the Governor to allow

him to reconsider the relevant sections and either approve them
in whole, veto them in whole, or veto them in part consistent

with this Court's opinion."            Such a suggestion for this court,

however, proves to be much too restrained.

      ¶167 Instead,      the   court      grants   an   alternative        relief,

choosing to do an end run around the Governor.                    The per curiam

opinion announces that the school bus modernization fund, local

roads improvement fund, and vapor products tax are "in full

force and effect as drafted by the legislature."                      Per curiam,
¶9.

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      ¶168 Arguably, the constitution requires a remand to the

Governor.    The Wisconsin Constitution provides for only two ways

for a bill to become law:                if the governor approves and signs

the bill, Wis. Const. art. V, § 10(1)(b), or if the legislature

overrides the governor's veto.                  Wis. Const. art. V, § 10(2).

Neither occurred here.

      ¶169 Citing Sundby, 71 Wis. 2d at 125, the per curiam seeks

support for the action it takes.                Specifically, the Sundby court

set forth:        "If, in fact, the partial vetoes are invalid, the

secretary    of    state      has    a   mandatory       duty    to     publish       those

sections of the enactment as if they had not been vetoed."                                Id.

However,    the    statement        in   Sundby   is     not    accompanied         by    any

constitutional analysis and comes in the context of deciding

whether the secretary of state was a proper party.                                 That's a

pretty slim reed to use as support for the constitutionally

questionable relief the majority grants.

      ¶170 The people of this state deserve stability in the law

and   clarity     in    our   opinions.         This   court     should          uphold   and
follow our well-established precedent.                   Based on that precedent

and the test it establishes, I determine that all four vetoes at

issue   should     be    upheld      because      they    result       in    objectively

complete, entire, and workable laws.

      ¶171 For     the    foregoing       reasons,       I     concur       in    part    and

dissent in part.

      ¶172 I am authorized to state that Justice REBECCA FRANK

DALLET joins this concurrence/dissent.



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      ¶173 DANIEL KELLY, J.               (concurring in part, dissenting in

part).         What a vexatious thing the word "part" can be, and

indeed it has vexed us from the day we encountered it in Article

V of our constitution.             When we first considered what it means

for a governor to approve an appropriation bill "in part," we

supposed the people of Wisconsin had adopted something very much

unlike    the        "line-item   veto"       many     of    our    sister       states   have

adopted.        Our supposing caused us to dress up the governor as

the people's legislative agent (with respect to appropriations

bills)    and        the   legislature     as      the      owner   of      an   exceedingly

difficult to deploy veto.                 So now appropriation "bills" may

originate with the governor, and they must surely become law

unless     a     super-majority          of       both      legislative          houses    say

otherwise.           Not because the constitution says this is how an

appropriative law may come to be, but because we have said so.

And this we have done in obeisance to a single word, a word of

merely serviceable merit in the ordinary affairs of life, but on

which we have conferred the gigantic power to swap the governor
for      the     legislature        when          an     appropriation            is      under

consideration.

      ¶174 The balance of my discourse, I trust, will accomplish

three things.           First, I mean to describe the mechanism provided

by the constitution for the enactment of laws.                              Second, I will

recount        how     our   partial-veto          jurisprudence         has      completely

disassembled that mechanism and reconstructed it with the parts

all out of place.              And third, I will propose we retire our
suppositions and instead consult the constitution's actual text

                                              1
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to    learn       what       it     means   for       a     governor     to       approve    an

appropriation bill "in part."

                                    I.   SCHOOLHOUSE ROCK

       ¶175 A law begins as someone's idea.                         Somewhere, for some

often-unknown reason, it strikes someone that something within

the government's purview ought to be required, or prohibited, or

changed.      Through whatever pathways the idea might travel, it

eventually comes to the attention of a legislator.                                  And if the

idea finds there a receptive audience, the legislator engages

the constitutional mechanism for turning the idea into a law.

It    must   be    a    legislator        (as   opposed       to,   say,      the    governor)

because the power to make the law is legislative.                                   Schmidt v.

Dep't of Res. Dev., 39 Wis. 2d 46, 59, 158 N.W.2d 306 (1968)

(The legislative power is the power "'to declare whether or not

there shall be a law; to determine the general purpose or policy

to be achieved by the law; [and] to fix the limits within which

the    law    shall          operate[.]'"       (quoting        State        ex     rel.    Wis.

Inspection Bureau v. Whitman, 196 Wis. 472, 505, 220 N.W. 929
(1928))); see also Wis. Legislature v. Palm, 2020 WI 42, ¶92,

391    Wis. 2d 497,               942    N.W.2d 900        (Kelly,      J.,       concurring)

(describing the legislative power as the ability to determine

and declare what the laws and policy of the state will be).                                  And

according     to       the    unambiguous       and       unqualified    command       of   our

constitution, "[t]he legislative power [is] vested in a senate

and assembly."           Wis. Const. art. IV, § 1.

       ¶176 The legislative process must begin with the drafting
of a bill to contain the championed idea because "[n]o law shall

                                                2
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be enacted except by bill."                     Wis. Const. art. IV, §17(2).                    When

the drafting is done, the bill contains a complete and workable

potential       law,      which     is    then    introduced         to    the     legislature:

"Any      bill        may         originate           in     either        house         of     the

legislature . . . ."                     Wis.     Const.       art.        IV,      § 19        (the

"origination         clause").            There       is,    obviously,          correspondence

between the houses because a bill cannot become a law until

approved       by    both:        "Every    bill       which       shall    have     passed      the

legislature shall, before it becomes a law, be presented to the

governor."          Wis. Const. art. V, § 10(1)(a) (the first clause is

the     "legislative         passage        clause,"         and     the     second        is    the

"presentment clause").                And in that correspondence, each house

may    modify       the   proposed        law    considered         by    the     other.        Wis.

Const. art. IV, § 19 ("[A] bill passed by one house may be

amended by the other.") (the "amendment clause").

       ¶177 Once both houses have agreed upon a bill, it comes

under the governor's scrutiny as it passes from the legislative

branch to the executive branch.                       Wis. Const. art. V, § 10(1)(a).
The bill becomes a law "[i]f the governor approves and signs the

bill . . . ."          Wis. Const. art. V, § 10(1)(b).                       The process for

appropriation bills (which is our particular topic of interest

here)    is,     however,     a     little       different.           Such       bills   "may     be

approved in whole or in part by the governor, and the part

approved shall become law."                 Id.        But the governor's disapproval

of    some   part      of    an    appropriation            bill    does     not    necessarily

identify its terminus.                   Instead, the rejected part returns to
the legislative branch for further consideration.                                 If two-thirds

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of the members of both houses approve, the rejected part becomes

law notwithstanding the governor's disapproval.1

      ¶178 I beg forgiveness for this pedantry, but I find that

our     partial   veto       jurisprudence      requires      recourse         to    these

fundamental principles so that we may recover the law-making

process provided by our constitution.                     We have before us two

potential     understandings          of   what    it     means     to     approve        an

appropriations bill "in part."                 One is extraordinarily broad,

and in consequence of its broadness it rejects almost every

other     piece   of    the    legislative        machinery    described            in   our

constitution.          The    other   is   much    more    modest,       but    has      the

benefit of leaving the pieces of the legislative machinery where

the constitution put them, and in its operation it precisely

answers the problem it was meant to solve.

      ¶179 I believe we should adopt the latter understanding in

no small part because one of the fundamental rules of textual

interpretation is that, when given a choice, we do not read one


      1   Wis. Const. art. V, § 10(2)(b):

            The rejected part of an appropriation bill,
      together with the governor’s objections in writing,
      shall be returned to the house in which the bill
      originated.     The house of origin shall enter the
      objections at large upon the journal and proceed to
      reconsider the rejected part of the appropriation
      bill.    If, after such reconsideration, two−thirds of
      the members present agree to approve the rejected part
      notwithstanding the objections of the governor, it
      shall be sent, together with the objections, to the
      other    house,   by  which  it   shall   likewise  be
      reconsidered, and if approved by two−thirds of the
      members present the rejected part shall become law.


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constitutional provision to conflict with others.                         See Thomas M.

Cooley, A Treatise on the Constitutional Limitations Which Rest

upon the Legislative Power of the States of the American Union,

58 (1868) ("[O]ne part is not to be allowed to defeat, if by any

reasonable       construction     the       two        can    be     made     to    stand

together."); Antonin Scalia & Bryan A. Garner, Reading Law:                            The

Interpretation of Legal Texts 180 (2012) ("The provisions of a

text    should     be   interpreted         in     a    way       that    renders    them

compatible, not contradictory.").                 So we construe constitutional

provisions with the assumption that they are all supposed to

function together in concert.               When faced with two permissible

constructions of the word "part," we must choose the one that

harmonizes with other relevant text.                   A reading that introduces

dissonance is a powerful hint that we're doing it wrong.

       ¶180 The tuning fork by which I will test for harmony and

dissonance     comprises     three      interrelated          propositions          called

forth by our constitution's text.                 The first proposition is that

the    most   elemental    part   of    a       bill   is    an    idea   (that     is,   a
proposal for a complete, entire, and workable law).                          The second

is that the powers of amending and vetoing are different things,

the respective exercise of which our constitution commits to

different branches of government.                And the third is that an idea

may not become law without the legislature having first voted

for it.       It seems remarkable to me that I should be offering

these as propositions rather than as settled descriptions of

constitutional principles, but our partial-veto jurisprudence is
at odds with each of them.              And that means all I can do is

                                            5
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recommend them to the attention of future courts who may be

called upon to consider the meaning of Wis. Const. art. V, § 10.

            II.     ON THE JUMBLING OF THE LEGISLATIVE MECHANISM

       ¶181 Great variances often begin as minor imprecisions, and

such is the case with the path we traveled over the years as we

addressed the partial veto.                 I will detail only enough of that

journey to describe how we disassembled some of the key pieces

of    the    legislative       mechanism     and    then    reassembled       them    into

something that is constitutionally unrecognizable.

                                A.    The Disassembly

       ¶182 We first entertained a claim that the governor had

improperly employed his partial veto power in                            State ex rel.

Wisconsin Tel. Co. v. Henry, 218 Wis. 302, 260 N.W 486 (1935).

Having never encountered such a veto before, we sensibly looked

about for tools to help us understand its telos.                         Our first step

was    to    compare     our    partial      veto   to     the   "line-item"        vetoes

adopted by some of our sister states and, assuming the different

words       meant    Wisconsin       must    have    done    something       very     much
different from the others, we consulted them no further.                            It was

certainly fair to observe that a partial veto must differ in

some measure from a line-item veto——the word-choice suggests as

much.       But it was a mistake to suppose the measure of difference

was so great that other states' experience with vetoes of less

than an entire bill could tell us nothing about their impact on

the overall law-making mechanism.                   So we missed out on what we

might have learned about whether such vetoes have any effect on
the    vesting      of   legislative        authority,      or   the     origination    of

                                              6
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bills, or the difference between amendments and vetoes, or the

need for the legislature to vote on a proposed law.                            Finding no

pedagogical     value       in   the   partial      veto's       cousin,       we   instead

consulted a dictionary wherein, unknowingly, we found mischief.

      ¶183 We learned from Webster's New International Dictionary

that "part" means

      one of the portions, equal or unequal, into which
      anything is divided, or regarded as divided; something
      less than a whole; a number, quantity, mass, or the
      like, regarded as going to make up, with others or
      another, a large number, quantity, mass, etc., whether
      actually separate or not; a piece, fragment, fraction,
      member, or constituent.
Henry, 218 Wis. at 313 (quoting Part Webster's New International

Dictionary 1781       (2d    ed.     1934)).        This     provided      a   reasonably

adequate    etymological         meaning;2        but    what      we     needed     was    a

constitutionally contextualized meaning.                     Antonin Scalia & Bryan

A.   Garner,    supra       at 427     (We   consider        a   word's     meaning        "in

context according to a fair reading.").                      That is, we needed to

discover    the      most    elemental       part       of   a     bill,    the     further

subdivision of which leaves something no longer identifiable as
a part of a bill.           If we had done this work then, it would have

saved us from concluding in subsequent cases (which I address

below) that the most elemental part of a bill is not an idea,

but instead a letter or a digit.

      ¶184 But we did not know then what would be urged upon us

later,    and   so    our    analysis        in   Henry      was    adequate        for    our

      2A common, contemporaneous dictionary may provide a word's
generally understood meaning. State v. Sample, 215 Wis. 2d 487,
499–500, 573 N.W.2d 187 (1998).


                                             7
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immediate needs, if not for future cases.                All we needed to do

there was decide whether the partial veto empowered the governor

to unbundle what the legislature had bundled——a practice then

known as "logrolling."            A case we decided a few years later

neatly summed up the relationship between the problem and the

solution provided by the partial veto:

      Its purpose [the partial veto] was to prevent, if
      possible, the adoption of omnibus appropriation bills,
      log–rolling, the practice of jumbling together in one
      act inconsistent subjects in order to force a passage
      by uniting minorities with different interests when
      the particular provisions could not pass on their
      separate   merits,   with   riders   of   objectionable
      legislation attached to general appropriation bills in
      order to force the governor to veto the entire bill
      and thus stop the wheels of government or approve the
      obnoxious act. Very definite evils were inherent in
      the   law–making    processes   in    connection   with
      appropriation measures. Both the legislature and the
      people deemed it advisable to confer power upon the
      governor to approve appropriation bills in whole or in
      part . . . .
State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447-48, 289

N.W. 662 (1940).       We foreshadowed this conclusion in Henry where

we observed that "there is nothing in that provision [art. V, §

10]   which    warrants     the    inference    or     conclusion       that      the
Governor's    power    of   partial   veto   was   not    intended      to   be    as

coextensive    as     the   Legislature's      power     to    join    and     enact

separable pieces of legislation in an appropriation bill."                        218

Wis. at 315.     The rule we developed in Henry was sufficient to

meet the problem of logrolling.            It required that the parts of

the bill remaining after the partial veto "constitute, in and by
themselves, a complete, entire, and workable law . . . ."                         Id.

at 314.   Applied in this context, it was a workable rule because
                                       8
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its operation reflected the partial veto's purpose——separating

ideas the legislature had joined.                               Unfortunately, embedded in

this rule is an intrinsic deficiency:                             We had neglected to say

that the "complete, entire, and workable law" remaining after

the   veto       must    be   one       on    which       the    legislature     had    actually

voted.       The deficiency was not apparent in Henry because the

parts of the bill remaining after the veto were the same as they

had   been       when    transmitted           to    the    governor.         What     we    didn't

foresee at the time was that a future governor might so employ

the partial veto that the remaining parts would comprise a law

the legislature had never seen.

       ¶185 The         rule's     deficiency             bore   fruit   in     State   ex        rel.

Sundby      v.    Adamany,         71        Wis. 2d 118,         237    N.W.2d 910         (1976).

There, the bill in question gave local taxpayers the option of

calling for a public referendum before a municipality increased

its tax levy.            Id. at 121-22.              But the governor vetoed part of

one sentence in such a way that the remaining language made the

referendum mandatory.               The legislature, of course, had neither
proposed nor approved such a thing.                                The idea had not been

drafted      as    a    bill,      it    did        not    originate     in     the   senate       or

assembly, it was not subject to amendment in the corresponding

legislative house, and no one in the legislature had ever voted

on    it.     And       yet   we    said       the    gubernatorial-authored                law    was

constitutionally permissible.                       Why?     Because, apparently, a veto

has affirmative policy-making powers:

            Some argument is advanced that in the exercise of
       the item veto the governor can negative what the
       legislature   has  done   but  not   bring  about   an
       affirmative change in the result intended by the
                                  9
                                                             No.   2019AP1376-OA.dk

       legislature. We are not impressed by this argued
       distinction. Every veto has both a negative and
       affirmative ring about it.    There is always a change
       of policy involved.      We think the constitutional
       requisites of art. V, sec. 10, fully anticipate that
       the governor's action may alter the policy as written
       in the bill sent to the governor by the legislature.
Sundby, 71 Wis. 2d at 134 (emphasis added).                 Every veto has an

affirmative "ring" about it?              Well, I suppose so, but only in

the sense that declining a marriage proposal has the "ring" of a

wedding about it.        A veto cannot be the genesis of a new policy

any more than telling an amorous suitor "no" means there is a

reception to plan.        Vetoes and "noes" are for stopping things,

not creating them.        See Federalist No. 73, 440-41 (Hamilton) (C.

Rossiter ed. 1961) (The veto power "is the qualified negative of

the [executive] upon the acts or resolutions of the two houses

of the legislature; or, in other words, his power of returning

all bills with objections, to have the effect of preventing

their becoming laws[.]").

       ¶186 To Chief Justice Roggensack, however, a veto is an

invitation to participate in law making rather than just law

stopping.      She says:      "Furthermore, our jurisprudence is not
unique in describing a quasi-legislative role for the governor.

A   veto     power,    regardless     of       its   contours,     is    inherently

legislative."         Chief Justice Roggensack's concurrence/dissent,

¶84.       The second sentence is certainly true, but it has no

connection to what she means by a "quasi-legislative role" in

the first sentence.        The veto is simply one of the instances in

which   our    framers    broke     off    a    small   piece    of     power   that
naturally belongs in one branch and put it in another.                    So, yes,

                                          10
                                                              No.    2019AP1376-OA.dk


it is quite obviously legislative in nature.                   But there are no

penumbras    emanating     from   the   veto       power;    it     authorizes   the

executive to do nothing more than what it says——stop a law from

coming into being.         In the Chief Justice's hands, however, the

veto is a clandestine vehicle for smuggling the legislature's

law-authoring function into the executive branch where, through

the power of the word "part," it turns the governor into a

quasi-legislator (whatever that might be).                    If we are to be

constrained by the words of the constitution, this operation is

simply impossible.        So the first sentence of the quote above is

incorrect.         Our   misguided   jurisprudence          might    describe    the

governor    as   having    a   "quasi-legislative       role"       beyond   merely

stopping a proposed law, but literally no other authority in

these United States does.3

     ¶187 And that brings us back to Henry's unfinished work——

defining the "thing" that a partial veto may stop.                     The rule we

adopted in that case assumed, but never stated, that it was a

bundled    piece    of   legislation.        But    without    a    contextualized


     3 The Chief Justice buttresses the executive's claim to
legislative powers with reference to its rule-making authority
(which it borrows from the legislature).      See Chief Justice
Roggensack's concurrence/dissent, ¶86 ("First, as demonstrated
by rulemaking, and as we have long concluded, the Legislature
may delegate its power to make law to the executive."); Koschkee
v. Taylor, 2019 WI 76, ¶34, 387 Wis. 2d 552, 929 N.W.2d 600
("The source for rulemaking is legislative delegation."). The
nature, scope, effect, and validity of administrative rule-
making are subjects of a continually growing body of literature
that is enormous both in terms of its volume and potential
constitutional implications.   So this probably isn't the best
reference if the goal is to show that executive law-making is a
settled and universally accepted phenomenon.

                                        11
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definitional anchor point for "part," we concluded in Sundby

that the most elemental part of a bill can be something smaller

than one of the proposed laws bundled into an appropriation

bill; we said it could be part of a sentence in one of the

bundled   proposals,   so    long   as    the   resulting     document   still

comprised   a   "complete,    entire,     and   workable    law."        So   we

accepted the veto of a part of a part of an idea even though the

result expressed an idea not contained in the bill presented to

the governor.

     ¶188 But wait, there's more.          We've said the most elemental

part of a bill a veto can stop isn't a sentence, or even part of

a sentence——it's a letter or a digit:

     Thus, in this opinion, we break no new ground except
     as we now, on the facts before us, have the obligation
     to clarify that the governor may, in the exercise of
     his partial veto authority over appropriation bills,
     veto individual words, letters and digits, and also
     may reduce appropriations by striking digits, as long
     as what remains after veto is a complete, entire, and
     workable law.
State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 437, 424

N.W.2d 385 (1988).     In what came to be known as the Vanna White

veto, a governor would strike individual letters or numbers to

create words, sentences, and ideas that appeared nowhere in the

bill passed by the legislature.4




     4 See, e.g., State ex rel. Wisconsin Senate v. Thompson, 144
Wis. 2d 429, 460 n.15, 424 N.W.2d 385 (1988):

                                     12
                                                                     No.    2019AP1376-OA.dk


      ¶189 We approved this practice in large part because we

considered    it     all     part   of    the      governor's       "quasi-legislative"

role.   Id. at 446.           Warming to our theme a few pages later, we

dropped both the "quasi" and any remaining pretense that the

legislature is the exclusive legislative branch of government:

"This   broad      and     expansive      interpretation            of   the   governor's

partial veto authority as mandated by the constitution has, in

effect, impelled this court's rejection of any separation of

powers-type     argument       that      the       governor    cannot       affirmatively

legislate by the use of the partial veto power."                           Id. at 453.

      ¶190 After releasing our Wisconsin Senate opinion in 1988,

the   court-approved         method      of   enacting    appropriation          bills    no

longer bore any resemblance to the mechanism described by our

constitution.         The three propositions I introduced above, and

which   I    now      address,      demonstrate         that    our        experience     in

reconstructing the dismantled legislative process left several

of the key pieces in the wrong place.

                B.    The Reassembled Legislative Mechanism
      ¶191 The       first    proposition          traduced    by    our     partial    veto

jurisprudence is that the irreducible part of a bill is an idea—

—that is, a proposal for a complete, entire, and workable law.

      Governor Lee Sherman Dreyfus used a digit veto to cut
      $8.9 million appropriated for state school aids in the
      1979–81 budget bill. He accomplished this by vetoing
      the decimal point and number 9 from the percentage
      "96.9%", thereby decreasing the percentage used for
      calculating a portion of such school aids. That veto
      was not challenged, and the legislature subsequently
      failed to override it.



                                              13
                                                                        No.   2019AP1376-OA.dk


This     is     the     first       because        it     necessarily          informs     our

understanding of the entire legislative mechanism——specifically,

it   identifies        the    required     entry         point     to    the    legislative

process,      where    and    how    the   idea         may   be   changed,       and    whose

approval is needed before the idea may become a law.                                However,

by treating a bill as a potpourri of letters and digits, rather

than an expression of one or more complete and comprehensible

ideas,        our     reconstruction          of        the   legislative          mechanism

dramatically changed the legislative process.

       ¶192 Our       refutation     of    this     proposition          started    when    we

looked to a dictionary to learn what "part" means.                                      We had

recourse       to   that     venerable     source        because,       surprisingly,       we

didn't think the context in which the constitution used the word

was significant:

       As the meaning of that word, as used in section 10,
       art. 5, Wis. Const., is not . . . rendered doubtful by
       reason of context, or uncertainty as to application to
       a particular subject–matter, or otherwise, there is
       nothing because of which that word, as used in that
       section, is not to be given its usual, customary, and
       accepted meaning . . . .
Henry, 218 Wis. at 313.             But it's one thing to understand that a

"part" is something less than the whole, as the dictionary says;

it's an entirely different thing to understand what a part of a

bill might be.

       ¶193 As we learned in Schoolhouse Rock, a bill encompasses

someone's idea.            The purpose of the bill, of course, is to

introduce the idea it contains to the legislature, where the




                                              14
                                                                      No.       2019AP1376-OA.dk


legislators evaluate its merits as a potential law.5                              The fate of

a   bill   in   each     legislative         house,      therefore,         is     to    be    the

subject    of     debate.        See       Wis.    Const.       art.    IV,        § 16       (Our

constitution anticipates a vigorous debate:                           "No member of the

legislature shall be liable in any civil action, or criminal

prosecution       whatever,          for      words       spoken        in         debate.");

Legislature——Public            Officers——Secretary              of     State——Wisconsin

Statutes, 10 Wis. Op. Att'y Gen. 613 (1921) (Broadly describing

the legislative process as an introduction of a bill in one

house, potential amendment in the other, and ultimate agreement

between    them    before      presentation         to   the    governor).               Debates

(proper ones, at least) involve reasoning——the setting forth of

intelligible        arguments          for        or      against           a      rationally

comprehensible proposal.             Dividing a bill into anything smaller

completely      destroys       its     distinctive            nature——that              is,    the

expression of a proposed law susceptible of debate and adoption.

This is why the basic part of a bill cannot be a letter or a

digit.     Neither the letter "y" nor the number "5" (nor any of
their relations) can be, in isolation, a bill because such a

thing would be incomprehensible in debate or as a law.                                    So the

irreducible       part    of     any       bill,       even     the     simplest,             most

uncomplicated,       inconsequential              bill    one    can        imagine,          must

necessarily be, at a minimum, an idea expressing a potential

      5See, e.g., Follow the Process:    The Legislative Process,
Wisconsin State Legislature (Last Accessed Jun. 13, 2020),
https://legis.wisconsin.gov/about/follow   ("When   a  legislator
gets an idea or is prompted by their constituency to make a
change, they have a drafting lawyer prepare a draft of a bill to
see what laws will need to change.").

                                             15
                                                                   No.   2019AP1376-OA.dk


complete, entire, and workable law.                  This is why Justice Hansen

said the partial veto "is not a power to reduce a bill to its

single phrases, words, letters, digits and punctuation marks."

State      ex    rel.    Kleczka    v.    Conta,     82   Wis. 2d 679,        726,    264

N.W.2d 539 (1978) (Hansen, J., concurring in part, dissenting in

part).

       ¶194 The second proposition is that the powers of amending

and vetoing are different things, the respective exercise of

which      our    constitution        commits       to    different        branches    of

government.           Amending belongs to the legislative houses:                     "[A]

bill passed by one house may be amended by the other."                                Wis.

Const. art. IV, § 19.               The power to amend a bill comprehends

changing its meaning:              "When a change is made in a bill, it is

said       to    be     amended.         There     are    simple     and     substitute

amendments."6           See also Amend, Black's Law Dictionary (11th ed.

2019) ("To change the wording of; specif., to formally alter (a

statute, constitution, motion, etc.) by striking out, inserting,

or substituting words.")             An amendment may accomplish something
as minor as subtracting a penny from an appropriation, as major

as introducing an entirely new idea, or quite literally anything

in between.           Our constitution commits the power to amend to the

assembly or senate; it contains no suggestion that the governor

might be able to partake of it.                  This should have given us pause

as we were developing our theory of partial vetoes, but instead


       How a Bill Becomes Law, Wisconsin State Legislature 14
       6

(available                                                     at
http://legis.wisconsin.gov/assembly/acc/media/1106/howabillbecom
eslaw.pdf) (May 2016).

                                            16
                                                                  No.    2019AP1376-OA.dk


we rejected the idea that "the governor cannot affirmatively

legislate by the use of the partial veto power."                          Wis. Senate,

144 Wis. 2d at 453.            This is patent error because it draws the

amending power into the executive branch in direct and express

contradiction to the constitution.                    If we say the governor's

"veto"     may    change      a     bill's    idea,    then     there's       really     no

cognizable       difference        between   the     concepts    of     amendments      and

partial    vetoes.          Because     we   failed     to    keep      these      concepts

distinct, our reconstructed legislative mechanism now allows for

amendments       in   the    assembly,       the   senate,      and     the   governor's

mansion.     Obviously, we put the power to amend in the wrong

place as we were reconstructing the legislative mechanism.

    ¶195 The third (and perhaps most important) proposition is

that an idea may not become a law without the legislature having

voted for it.         But when we finished reassembling the legislative

mechanism,       this       proposition       was,     disturbingly,          no     longer

categorically true.               If a bill contains an appropriation, our

reconstruction allows a new idea to originate not as a bill but
as a partial veto.            It further allows the idea to originate in

the executive branch instead of the legislative branch.                                And,

finally, it allows this new idea to become law so long as the

legislature does not reject it by a two-thirds vote in both

houses.     So our reconstruction put more legislative pieces in

the wrong place——we made the governor the author of the law

(instead of the legislature), and we reduced the legislature to

wielding a very difficult to deploy veto over the governor's
edict.     The net effect is that the governor may create a law

                                             17
                                                         No.   2019AP1376-OA.dk


without ever having to obtain legislative approval.               In fact, a

majority of both houses' members may affirmatively reject the

governor's law, yet it is law nonetheless unless that majority

is super-sized.

    ¶196 This     reconstructed      mechanism   violates      four   specific

constitutional requirements.         The first is that all bills must

originate in one of the two legislative houses, the second is

that they must be subject to amendment in the corresponding

house.   Wis. Const. art. IV, § 19 ("Any bill may originate in

either house of the legislature, and a bill passed by one house

may be amended by the other.").           The third is that "[n]o law

shall be enacted except by bill," and the fourth is that the

bill must be approved by both houses of the legislature.                  Wis.

Const. art. IV, § 17(2); Wis. Const. art. V, § 10(1)(a) ("Every

bill which shall have passed the legislature shall, before it

becomes a law, be presented to the governor." (emphasis added)).

To the extent a governor's partial veto introduces an idea not

previously present in the bill, its origin is in the executive
branch, not the legislature.         And because the new idea did not

originate in the assembly or senate, it was never subject to

amendment in the corresponding house.            Finally——and this should

definitively    dispose   of   our     partial    veto   jurisprudence——it

allows an idea to become a law even though it has not "passed

the legislature."

    ¶197 Now, to be sure, the judicially-engineered executive

legislative power (how's that for a tri-lateral oxymoron?) is
not as comprehensive as that belonging to the legislature.                  We

                                     18
                                                               No.   2019AP1376-OA.dk


have left some limitations in place, which is encouraging even

if they have nothing to do with the constitution.                      For example,

when the governor addresses himself to a dollar figure, we allow

him to make it smaller, not larger.                    Citizens Util. Bd. v.

Klauser,     194      Wis. 2d 484,      488,     534      N.W.2d 608         (1995).

Presumably, this limit derives from the mathematical principle

that $10 is a part of $100.          But it still allows introduction of

an   idea   different      from   the    one    to     which    the     legislature

assented.      Another      limitation       relates    to     the     letters     the

governor may use in the creation of new words and ideas:                            We

have never said he may add letters not already present in the

bill.      I suppose this is an etymological limit based on the

proposition    that    a   letter    (as     opposed    to     an    idea)   is    the

indivisible part of a bill, and so a new letter cannot be said

to be a part of the existing potpourri.                 Speaking of which, we

have not said (at least not yet) that he may change the order of

letters in the potpourri.           This limit almost certainly survives

because we haven't turned our attention to it.                      If the governor
may create new words and ideas not already present in the bill,

it seems like scrupling at a trifle to insist that the letters

he uses to create them remain in the order presented.                             If a

letter really is the most elemental part of a bill, it is just

as much a "part" if it appears before rather than after any of

the bill's other "parts."           Nothing in the dictionary definition

of "part" suggests that sequencing has anything to do with it.

In any event, aside from these few limitations, our cases say
the governor is free to draft new ideas and we will pretend the

                                        19
                                                            No.   2019AP1376-OA.dk


resulting     document     is   still   a    bill    that   has       "passed   the

legislature" when, quite obviously, it isn't.               As a consequence,

our cases refute the proposition that no idea shall become a law

without legislative approval.

      ¶198 So, as far as the Wisconsin Supreme Court is concerned

(at   least      until    we    were    contradicted        by    a     brace   of

constitutional amendments),7 because the most elemental part of

an appropriations bill is a letter, a bill may originate with

the governor, it is not subject to legislative amendment, and it

may become the law of Wisconsin even if the legislature has not

approved    it   (or,    more   shockingly,    has   actually     affirmatively

voted against it, albeit by less than a supermajority).                         As

Justice Hansen said,

           [i]t appears that we have now arrived at a stage
      where one person can design his own legislation from
      the appropriation bills submitted to him after they
      have been approved by the majority of the legislature.
      The laws thus designed by one person become the law of
      the sovereign State of Wisconsin unless disapproved by
      two-thirds of the legislators. I am not persuaded that

      7The people of Wisconsin amended their constitution in 1990
to prevent a veto from "creat[ing] a new word by rejecting
individual letters in the words of the enrolled bill[.]"     Wis.
Const. art. V, § 10(1)(c). They amended it again in 2008, this
time to prevent a veto from creating "a new sentence by
combining parts of 2 or more sentences of the enrolled bill."
Id.

     The Chief Justice and Justice Ann Walsh Bradley treat these
amendments as though they have something to say about the
meaning of the original partial veto power.         Chief Justice
Roggensack's   concurrence/dissent,   ¶73;   Justice   Ann    Walsh
Bradley's concurrence/dissent, ¶146.        They don't.       These
amendments were directed at us; they were meant to rein in our
jurisprudential   excesses,  not   limit   the  meaning    of   the
constitution's actual text.

                                        20
                                                                  No.   2019AP1376-OA.dk

       art. V, sec. 10, was ever intended to produce such a
       result.
Kleczka,      82    Wis. 2d at    727   (Hansen,     J.,    concurring       in   part,

dissenting in part).             I agree.        All of this upending of the

constitutional order we have done because of the word "part," a

word so meek and mild that it should be entirely incapable of

wreaking such havoc on our constitutional order.                            This case

presents an opportunity to return the disordered pieces of the

law-making machinery to their proper places, and I think we

should take it.           In fact, I think we are required to take it.

       III.    ON THE DUTY TO RETURN TO THE CONSTITUTIONAL TEXT

       ¶199 The       majority     of   the      court's    members       base    their

analyses on two propositions.                 The first is that our decision

here must follow what we have done in our prior cases, even if

we were wrong before.             And the second is that we must respect

the governor and legislature's historical practice of allowing

partial vetoes so long as the resulting legislation is either on

the same topic as the bill passed by the legislature (according

to the Chief Justice), or is a "complete, entire, and workable

law" (according to other members of our court).                             I disagree

because I believe our obligation to the Wisconsin Constitution

supersedes         both   of   them.    I    appreciate     the     Chief    Justice's

opinion because she attempts to cabin in the governor's use of

the partial veto so that the resulting law is at least on the

same topic, and in doing so she moves at least part of the way

back   to   the      constitutional     limitations        on   the     partial   veto.

Other members of the court would not even attempt that much.                         To
the extent my opinion responds to others, it focuses primarily

                                            21
                                                                   No.    2019AP1376-OA.dk


on the Chief Justice's opinion——not because I disagree with her

the   most   (I     don't),       but    because    in    moving     closer          to   the

constitution, her opinion helpfully illustrates the remaining

distance     we     need     to     go    before     we     can      call        ourselves

constitutionally orthodox.

                       A.     What we have done before

      ¶200 "We       cannot        rehash       original         meaning——and             its

interaction with stare decisis——every time a partial veto comes

before     us[,]"     the     Chief       Justice        says.           Chief       Justice

Roggensack's concurrence/dissent, ¶75.                    Maybe.     But if we were

to address ourselves to the original meaning of the relevant

constitutional text in this case, we wouldn't be rehashing it,

we would be analyzing it for the first time.                     In our 85 years of

experience with the partial veto, we have not once asked how it

fits with the origination clause, the amendment clause, or the

legislative passage clause.

      ¶201 Standing between us and the constitution's original

meaning, however, is a string of cases stretching back over
those 85 years.       Stare decisis counsels that we tread carefully

here, and that we not upset what has been settled without a good

reason.      This principle rests on the premise that we do not

begin every analysis ab initio mundi; our work builds on the

accomplishments       of    our     capable     predecessors.              If    a    court

disregards this premise, there is a risk that "deciding cases

becomes a mere exercise of judicial will, with arbitrary and

unpredictable results."             State v. Roberson, 2019 WI 102, ¶49,
389   Wis. 2d 190,     935    N.W.2d 813        (quoting     Schultz       v.     Natwick,

                                           22
                                                                        No.    2019AP1376-OA.dk


2002 WI 125, ¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (citations and

quotations omitted)).                  Embedded within our commitment to stare

decisis is our recognition that "reliance interests are real,

prior    generations         of    judges       did    their     job    with    wisdom,       and

efficiency in dispute resolution is important."                               Daniel R. Suhr

&    Kevin    LeRoy,    The       Past    and    the     Present:       Stare       Decisis   in

Wisconsin Law, 102 Marq. L. Rev. 839, 859 (2019).                                   It is also

conducive to what others legitimately expect of their judicial

servants:         "Litigants        and    the       public    at    large     need    to   know

courts    function      as    neutral          decision       makers,    delivering         equal

justice under law."               Id.     All of this explains why we must be

"'respectful of the doctrine of stare decisis.'"                               Chief Justice

Roggensack's        concurrence/dissent,               ¶66     (quoting       Roberson,       389

Wis. 2d 190, ¶49).

       ¶202 But we mustn't let this principle capture us, for it

contains dangers of its own.                     To err is human, and judges are

nothing      if   not   human——especially              when    the     mellifluousness         of

"your honor" makes the humility necessary to recognize mistakes
harder to maintain.               See generally Marah Stith McLeod, A Humble

Justice, The Yale L.J. Forum (Aug. 2, 2017).                            And the potential

for mistakes is constantly at hand, because it is tempting for a

creative court to reach a decision "by extorting from precedents

something which they do not contain."                          Robert Rantoul, Oration

in    Scituate      (July    4,        1836)    in    Antonin       Scalia,     A    Matter    of

Interpretation 39 (1991).                 Once embarked on this path, it is too

easy    for   the    court        to    "extend       [its]    precedents,          which   were
themselves the extensions of others, till, by this accommodating

                                                23
                                                                   No.    2019AP1376-OA.dk


principle,    a    whole     system       of   law   is    built     up    without     the

authority or interference of the [people]."                      Id.       In this way,

it is possible for us to "'do more damage to the rule of law by

obstinately       refusing    to    admit       errors,       thereby      perpetuating

injustice,     than     by     overturning           an    erroneous        decision.'"

Roberson, 389 Wis. 2d 190, ¶49 (quoting Johnson Controls, Inc.

v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665

N.W.2d 257).

    ¶203 We risk this doctrine becoming a mechanism for error-

perpetuation if we don't respect its purpose:                      To remind us that

those who came before were diligent and capable in their work,

and that in doubtful matters it is best to leave settled things

settled   unless      there    is     a    clear     and    present        need   to    do

otherwise.

    In the matter of reforming things, as distinct from
    deforming them, there is one plain and simple
    principle; a principle which will probably be called a
    paradox.    There exists in such a case a certain
    institution or law; let us say, for the sake of
    simplicity, a fence or gate erected across a road.
    The more modern type of reformer goes [happily] up to
    it and says, "I don't see the use of this; let us
    clear it away." To which the more intelligent type of
    reformer will do well to answer:    "If you don't see
    the use of it, I certainly won't let you clear it
    away.   Go away and think.    Then, when you can come
    back and tell me that you do see the use of it, I may
    allow you to destroy it.
G.K. Chesterton, The Thing:                Why I am Catholic 27 (Dodd, Mead

and Co., Inc. 1930).

    ¶204 Most of the members of this court would turn this

prudential    lesson    into    a     permanent       fence    that       would   deprive
Chesterton's reformer of the ability to bring change even after
                                           24
                                                                    No.   2019AP1376-OA.dk


he had gained the necessary wisdom.                   To fortify this fence, the

Chief Justice turns to Justice Scalia, who once said:

      "In [originalism's] undiluted form, at least, it is
      medicine that seems too strong to swallow. Thus,
      almost every originalist would adulterate it with the
      doctrine stare decisis——so that Marbury v. Madison
      would stand even if [a prominent legal scholar] should
      demonstrate unassailably that it got the meaning of
      the Constitution wrong."
Chief      Justice    Roggensack's      concurrence/dissent,               ¶67    (quoting

Antonin       Scalia,           Originalism:         The       Lesser           Evil,     57

U. Cinn. L. Rev. 849, 861 (1989) (alteration in original)).                              But

if   the    Chief     Justice     believes     Justice       Scalia       thought       stare

decisis should unalterably privilege precedent over text, she is

mistaken.          Both    Chesterton        and     Justice     Scalia         were    both

consciously addressing something that could be described as a

paradox, and this quote captures only one of its sides.                                  The

other is on display in Justice Scalia's many opinions in which

he sets the doctrine aside in favor of the text.                                   So, for

example,      he     disregarded     precedent        when     it    was    "wrong       and

unworkable,"         or   its    rationale     had    no     support       in    "history,
precedent, or common sense."            See, e.g., Witte v. United States,

515 U.S. 389, 406 (1995) (Scalia, J., concurring) ("This is one

of those areas in which I believe our jurisprudence is not only

wrong but unworkable as well, and so persist in my refusal to

give that jurisprudence stare decisis effect."); Dickerson v.

United States, 530 U.S. 428, 450, 461-65 (2000) (Scalia, J.,

dissenting) (urging the Court to disregard                      Miranda v. Arizona,




                                         25
                                                            No.   2019AP1376-OA.dk


384 U.S. 436 (1966), because its underlying rationale had no

support in "history, precedent, or common sense.").8

      ¶205 So when precedent unavoidably collides with the law——

that is, when it is wrong and its rationale has no support in

history,     precedent,   or    common    sense——there     must   be   no    doubt

about which will prevail.         I agree with Justice Clarence Thomas,

who   said    that    "[w]hen   faced     with     a   demonstrably    erroneous

precedent, my rule is simple:             We should not follow it.            This

view of stare decisis follows directly from the Constitution's

supremacy     over     other    sources       of   law——including      our     own

precedents."         Gamble v. United States, 139 S. Ct. 1960, 1984

(2019) (Thomas, J., concurring).              It also follows from the fact

that no amount of judicial error can change the constitution,

for "[t]he meaning of the constitutional provision having been

once firmly established as of the time of its adoption, such

meaning continues forever, unless it is changed or modified by



      8The Chief Justice isn't quite as wed to stare decisis as
her opinion would seem to suggest. For an abbreviated sample of
cases in which she wrote an opinion overturning one or more
precedents, see State v. Roberson, 2019 WI 102, 389 Wis. 2d 190,
935 N.W.2d 813, abrogating State v. Dubose, 2005 WI 126, 285
Wis. 2d 143, 699 N.W.2d 582; Koschkee v. Taylor, 2019 WI 76, ¶1,
387 Wis. 2d 552, 929 N.W.2d 600, overruling Coyne v. Walker,
2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520; Megal v. Green Bay
Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274
Wis. 2d 162, 682 N.W.2d 857, abrogating Balas v. St. Sebastian's
Congregation, 66 Wis.2d 421, 225 N.W.2d 428 (1975) and Lealiou
v. Quatsoe, 15 Wis. 2d 128, 112 N.W.2d 193 (1961); State v.
Ferguson,   2009   WI 50,   317  Wis. 2d 586,  767   N.W.2d 187,
overruling State v. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132,
647 N.W.2d 421; State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695
N.W.2d 277, overruling State v. Hart, 2001 WI App 283, 249
Wis. 2d 329, 639 N.W.2d 213.

                                         26
                                                                    No.    2019AP1376-OA.dk


the Constitution."            State v. Schinz, 194 Wis. 397,                    403, 216

N.W. 509 (1927).

       ¶206 Justice Thomas's formulation also respects the fact

that the judiciary's authority to decide cases is dependent upon

an oath in which we swear to uphold the constitution——an oath

that makes no reference to our precedents.                         "[T]he Constitution

does not mandate that judicial officers swear to uphold judicial

precedents.      And the Court has long recognized the supremacy of

the    Constitution          with     respect     to        executive        action    and

'legislative act[s] repugnant to' it."                       Gamble, 139 S. Ct. at

1985   (Thomas,    J.,       concurring)      (quoted       source    omitted;     second

alteration in original)); see also Mayo v. Wis. Injured Patients

&   Families    Comp.    Fund,      2018   WI 78,      ¶91,    383        Wis. 2d 1,   914

N.W.2d 678     (Rebecca       Grassl    Bradley,       J.,    concurring)        ("'[T]he

Constitution      is    to    be    considered        in    court     as    a   paramount

law[.]'" (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178

(1803)).      This supreme law is the very source of the authority

we exercise.      If we used it in a manner repugnant to its source,
we would break faith with those who are the stewards of the

document from which that authority arises.                         This we must avoid

at all cost, even should it mean abandoning our wrongly decided

cases.     We have been equal to the task when called upon to do so

before, and we must not shrink from it now.

         B.    Of the provenance and operation of "topicality"

       ¶207 Today's decision expressly carries forward our partial

veto   jurisprudence,         along    with     all    of    its    errors,     with   the
unremarkable consequence that, when we finished our work, pieces

                                           27
                                                                   No.    2019AP1376-OA.dk


of the legislative mechanism were still in the wrong place.                             The

Chief Justice says "[h]aving broken no new ground, I employ our

decisions and continue the constitutional analysis of 'part' in

the     four      vetoes    that       were     challenged."             Chief     Justice

Roggensack's concurrence/dissent, ¶90.9                      The undisturbed ground

on    which       the    Chief     Justice         builds    her   analysis       is    the

germaneness test we adopted in Wisconsin Senate:

       [F]or the first time in this case [we] give explicit
       judicial recognition to[] the long-standing practical
       and administrative interpretation or modus vivendi
       between   governors   and   legislatures,   that   the
       consequences of any partial veto must be a law that is
       germane to the topic or subject matter of the vetoed
       provisions.
Wis. Senate, 144 Wis. 2d at 437.                    The Chief Justice's statement

of the rule is almost identical:                     "A veto that does not alter

legislative control of the topic or subject matter of enrolled

bills       has   been   referred       to    as     'germane.'"         Chief     Justice

Roggensack's concurrence/dissent, ¶91.                       Whether we call this a

"germaneness" test (as we did in Wisconsin Senate) or a "topic

or    subject     matter"       test   (as    the    Chief    Justice     does)    it   has
nothing to do with the constitution, as the Wisconsin Senate

quote makes clear.              It is, instead, merely descriptive of how

the        executive      and     legislative          branches     have         conducted

themselves.        As I will explain below, while this may helpfully


       The "continu[ing] constitutional analysis of 'part[,]'"
       9

unfortunately, did not extend beyond reciting the partial veto
language and noting that "part" is something less than the
whole. Neither the Chief Justice nor Justice Ann Walsh Bradley
mention any of the constitutional provisions that must be
ignored to operationalize our historical understanding of
"part."

                                              28
                                                       No.    2019AP1376-OA.dk


guide us to a starting point for our analysis, it can never

authoritatively establish what the judiciary must consider to be

constitutionally      orthodox.    Consequently,     our     analysis   ended

where we should have just been starting, which means we are no

closer to a constitutional understanding of our subject than we

were in Wisconsin Senate.          I'll say a brief word about the

inadequacy of the topicality test first, and then address why we

shouldn't be in the business of blessing the other branches'

modi vivendi, as Wisconsin Senate says.

             1.     Why "topicality" is an inadequate rule

    ¶208 The Chief Justice says a partial veto is appropriate

so long as it does "not alter the topic or subject matter of the

'whole' bill before the veto . . . .          [S]uch a veto does not

alter the stated legislative idea that initiated the enrolled

bill."      Chief    Justice   Roggensack's   concurrence/dissent,        ¶11

(footnote omitted).        It then repeats the proposition at greater

length, but without any additional explanatory power:

    When the part approved by the governor does not alter
    the topic or subject matter of the whole bill
    presented to him for signature, the part approved
    maintains the legislature's choice of topic or subject
    matter that underlies     the   "whole"  bill. Stated
    otherwise, when the legislative topic or subject
    matter is maintained, the "part" approved and the
    "part" that was not approved remain portions of the
    same "whole" bill, consistent with the constitutional
    text of § 10(1)(b).
Id., ¶91.

    ¶209 The problem with the topicality rule is that it does

nothing to repatriate the law-authoring piece of the legislative
mechanism    to      the   legislature.       From    a      constitutional

                                    29
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perspective,         it    really    doesn't         matter       whether             the    remaining

parts of the bill speak to the same topic or subject as the bill

passed     by    the       legislature.              It     matters          whether         they     are

different from what the legislature passed.                                       The legislature

does not pass a topic on which the governor may riff, it passes

one or more proposed laws that he may accept or reject.                                        And, as

the Chief Justice's opinion very capably explains, id., ¶29, we

understand that the partial veto power arose in response to the

legislature's practice of bundling several proposed laws into

one appropriations bill, and that its telos was to give the

governor the option of severally treating each of the proposed

laws.     But a bundle of proposed laws is not an invitation to

bebop.          The        topicality       rule           may        keep        the       governor's

improvisations            attached    to   the       neighborhood                of    the    original

bill,    but    it     still     allows     him       to     change             the   legislatively

proposed    law       into     something        on    which       the           legislature         never

voted.     So the topicality test still leaves law-authoring power

where it does not belong.
  2.    Why we cannot accede to the other branches' modus vivendi

       ¶210 Not only is the topicality rule insufficient to put

the pieces of the legislative mechanism back where they belong,

the     rationale         on   which       it    rests           is        at     odds       with     our

responsibility to ensure the branches of government don't barter

their powers.          Part of the undisturbed ground on which the Chief

Justice    bases       her     analysis     is       the    executive             and    legislative

branches'       "historical         practice,"            which       we    said       in    Wisconsin
Senate was a "modus vivendi" that had "achieved the force of

                                                30
                                                                    No.   2019AP1376-OA.dk


law."     Wis. Senate, 144 Wis. 2d at 453.                    But when it comes to

the allocation of powers amongst the branches, there is no force

of law capable of reallocating them, save only a constitutional

amendment.

       ¶211 I     have     addressed      elsewhere       the    nature         and        rough

contours of how the constitution allocates power amongst the

branches of government, so I won't belabor them here.                                       See,

e.g.,     Wis.    Legislature,        391       Wis. 2d 497,        ¶92    (Kelly,           J.,

concurring) ("Powers constitutionally vested in the legislature

include the powers: "'to declare whether or not there shall be a

law; to determine the general purpose or policy to be achieved

by the law; [and] to fix the limits within which the law shall

operate.'" quoting Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46,

59, 158 N.W.2d 306 (1968) (alterations in original)); State ex

rel. Wisconsin Dev. Auth. v. Dammann, 228 Wis. 147, 159, 277

N.W. 278, on reh'g, 228 Wis. 147, 280 N.W. 698 (1938) ("It is

fundamental        that      under        our     constitutional           system            the

governmental       power     to    execute       the   laws     is    vested          in     the
executive     department      of    the     state[.]");       and    Gabler      v.        Crime

Victims    Rights     Bd.,     2017    WI 67,      ¶37,    376       Wis. 2d 147,            897

N.W.2d 384 ("No aspect of the judicial power is more fundamental

than    the      judiciary's       exclusive       responsibility          to     exercise

judgment in cases and controversies arising under the law.").

       ¶212 The piece of the doctrine that bears some emphasis in

this case is that the location of the boundaries between the

branches is a structural limitation that is beyond the branches'
power to move, no matter the length of their practice to the

                                            31
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contrary.       Even if two coordinate branches of government should

agree that the boundary might lie more comfortably elsewhere,

they     are    powerless          to    affect      its    actual     location.           The

importance of constitutional limitations, Chief Justice Marshall

once said, is that they compel restraint when restraint is not

desired:        "To       what     purpose    are    powers    limited,      and    to    what

purpose is that limitation committed to writing, if these limits

may, at any time, be passed by those intended to be restrained?"

Marbury, 5 U.S. (1 Cranch) at 176.                     This forbids the voluntary

transfer of core powers to another branch just as much as it

protects       one        branch      from    encroachment       by     another.          "It

is . . . fundamental and undeniable that no one of the three

branches       of    government         can   effectively      delegate       any    of   the

powers     which          peculiarly      and     intrinsically        belong       to    that

branch."       Rules of Court Case, 204 Wis. 501, 503, 236 N.W. 717

(1931); see also id. (stating that "'any attempt to abdicate [a

core power] in any particular field, though valid in form, must,

necessarily, be held void'" (quoting State ex rel. Mueller v.
Thompson, 149 Wis. 488, 491, 137 N.W. 20 (1912))).                                  Even the

abandonment         of     a     branch's     own    authority       cannot     justify      a

coordinate branch taking it up and using it as its own.                              "'As to

these    areas       of    authority, . . . any            exercise    of   authority       by

another branch of government is unconstitutional.'"                           Gabler, 376

Wis. 2d 147, ¶31 (quoting State ex rel. Fiedler v. Wis. Senate,

155     Wis. 2d 94,            100,     454   N.W.2d 770       (1990)       (ellipses       in

original)).



                                                32
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       ¶213 The operative principle here is not that the branches

should      not     delegate    their    core     authority,       it    is    that       they

cannot.          This principle is a matter of power, not of prudence:

the     constitution's         progenitors        did    not     grant     the      various

branches         permission    to   shuffle     their     distinct       powers     amongst

themselves.         Justice Neil Gorsuch, commenting on this principle

in    the    federal     context,       consulted       John    Locke    ("one       of    the

thinkers who most influenced the framers' understanding of the

separation of powers") for its animating rationale:

       "The legislative cannot transfer the power of making
       laws to any other hands; for it being but a delegated
       power from the people, they who have it cannot pass it
       over to others. The people alone can appoint the form
       of the commonwealth, which is by constituting the
       legislative, and appointing in whose hands that shall
       be.   And when the people have said we will submit to
       rules, and be governed by laws made by such men, and
       in such forms, nobody else can say other men shall
       make laws for them; nor can the people be bound by any
       laws but such as are enacted by those whom they have
       chosen and authorised to make laws for them."
Gundy       v.     United     States,     139     S. Ct. 2116,          2133–34      (2019)

(Gorsuch,         J.,   dissenting)      (quoting        John    Locke,       The    Second
Treatise of Civil Government and a Letter Concerning Toleration

§ 41, p. 71 (1947)).

       ¶214 It is for that reason that the several branches of

government         cannot     alienate    their    core    powers,       even       if    they

consciously intend that end.              Not because it would be unwise, or

imprudent, but because those who created them gave them no power

to do so.          Therefore, prohibiting the legislature and executive

from swapping their powers "isn't about protecting institutional
prerogatives or governmental turf."                     Gundy, 139 S. Ct. at 2135

                                           33
                                                                          No.    2019AP1376-OA.dk


(Gorsuch, J., dissenting).                Instead, "[i]t's about respecting

the people's sovereign choice to vest the legislative power in

[the    legislature]          alone.      And           it's    about       safeguarding       a

structure designed to protect their liberties, minority rights,

fair notice, and the rule of law."                      Id.    In the constellation of

constitutional         doctrines,      this    serves          as   one     of    the    central

organizing principles.            Without it, our constitution would be an

incomprehensible jumble:               "If [the Legislature] could pass off

its legislative power to the executive branch, the '[v]esting

[c]lauses, and indeed the entire structure of the Constitution,'

would 'make no sense.'"             Id. at 2134-35 (quoted source omitted;

second and third alterations in original).

       ¶215 But        just    because     the          legislative             and    executive

branches shouldn't pass their powers around doesn't mean they

won't    sometimes      try.      Indeed,          Wisconsin        Senate's          recognition

that the legislative and executive branches have arrived at a

"modus vivendi" in the allocation of their powers proves not

only    that    they    are    willing    to       try,       but   that        they   sometimes
succeed.       This would not necessarily come as a surprise to the

constitution's         authors.        They        structured        it     to    prevent    the

shifting of boundaries through its internal system of checks and

balances, and by arraying ambition against ambition, yet they

knew    these    structures       wouldn't         be    sufficient         to    prevent    all

attempted incursions.             "The framers knew . . . that the job of

keeping the legislative power confined to the legislative branch

couldn't be trusted to self-policing by Congress; often enough,
legislators will face rational incentives to pass problems to

                                              34
                                                           No.   2019AP1376-OA.dk


the   executive   branch."     Id.      at     2135.      When   an     attempted

incursion   comes   before   us,   we     do    not    have    the     luxury   of

shrugging off our duty to repulse it.

      [T]he Constitution does not permit judges to look the
      other way; we must call foul when the constitutional
      lines are crossed.    Indeed, the framers afforded us
      independence from the political branches in large part
      to encourage exactly this kind of "fortitude . . . to
      do   [our]   duty  as   faithful   guardians  of   the
      Constitution."
Id. (quoting The Federalist No. 78, at 468-469 (C. Rossiter ed.

1961) (ellipsis in original)).

      ¶216 The Chief Justice may very well be right that the

legislative   and    executive       branches      have       fallen     into    a

comfortable partial veto routine in which the legislature allows

the governor to unilaterally create law so long as it's on the

same topic as the bill he is reviewing.            But basing our analysis

on that practice is quite literally the definition of "begging

the question."      We should not base our analysis on a logical




                                     35
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fallacy,    especially      when       the    assumed      conclusion           is   one    our

constitution so thoroughly rejects.10

                            IV.    WHAT WE SHOULD DO

       ¶217 I     propose     that         we      respect       the      constitution's

structural      limitations       on    what      it    means     for     a     bill   to    be

approved    "in   part."          As   I     explained         above,     the    law-making

mechanism described by our constitution contemplates that the

most elemental part of a bill can be no less than an idea——that

is to say, a proposal for a complete, entire, and workable law.

This, of course, makes perfect sense in light of the partial

veto    power's    purpose,       which      the       Chief    Justice        persuasively

described as answering the legislative practice of bundling many

proposed laws into one bill.11                    Therefore, because the partial




       The Chief Justice finds this constitutional analysis
       10

faulty because it "does not account for the text of the
Wisconsin Constitution," and it "ignore[s] that Wisconsinites
are free to assign powers traditional to one branch of
government to another branch by constitutional amendment."
Chief Justice Roggensack's concurrence/dissent, ¶87.   Well, the
people of Wisconsin certainly are free to reassign the
traditional powers of one branch to another.     But whether the
people did so by making the governor into a one-man legislature
requires accounting for all of the constitutional provisions
relevant to the legislative process.    Might I remind the Chief
Justice that her conclusion that the people of Wisconsin did
this novel and radical thing is based on a single word?      And
that her opinion did not even refer to the constitutional
provisions that define the legislative process even once?    The
word "part" simply isn't powerful enough to countermand all the
constitutional text necessary to make the Chief Justice's
understanding of the partial veto viable.

       We have understood this as the rationale for the partial
       11

veto from the very beginning:

                                             36
                                                         No.   2019AP1376-OA.dk


veto power cannot act against any division less than the most

elemental part, the governor must take the bill as he finds it:

as a collection of proposed laws.            So the smallest part of a

bill    against   which   the   partial   veto   may   act   is   one   of   the

proposed laws in that collection.          Consequently, the applicable

rule guiding the application of the partial veto is as follows:

After exercising the partial veto, the remaining part of the

bill must not only be a "complete, entire, and workable law," it

must also be a law on which the legislature actually voted; and

the part of the bill not approved must be one of the proposed

laws in the bill's collection.12           Nothing less than this will




       [T]he Legislature may, if it pleases, unite as many
       subjects in one bill as it chooses. Therefore, in
       order to check or prevent the evil consequences of
       improper joinder, so far, at least, as appropriation
       bills are concerned, it may well have been deemed
       necessary, in the interest of good government, to
       confer upon the Governor, as was done by the amendment
       in 1930 of section 10, art. 5, Wis. Const., the right
       to pass independently on every separable piece of
       legislation in an appropriation bill.

     State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 315,
260 N.W. 486 (1935).

       This, of course, is very close to the rule stated in
       12

Henry.   Indeed, the rule, in the main, simply makes Henry's
unstated assumption explicit in that it requires the remaining
parts of the bill to contain ideas on which the legislature
actually voted.

                                     37
                                               No.   2019AP1376-OA.dk


restore the pieces of the legislative machinery to their proper

places.13




     13Justice Ann Walsh Bradley says we should not return to
our constitution's structural limitations on the partial veto
because it "embraces a test neither advanced by any party nor
ever applied in any case."        Justice Ann Walsh Bradley's
concurrence/dissent, ¶113. I disagree, of course. But I think
a few words on the nature of this objection would be
appropriate, starting with the latter clause.         It is an
embarrassment, not a source of authority, that our court has
never honored the constitution's limitations on the partial
veto. Perpetuating an embarrassment is not a judicial doctrine
to which I subscribe.      Nor is the novelty of applying the
constitution's terms to this case an argument against doing so.
There is a first time for everything that happens——including the
"topicality/germaneness" test, which had never been applied in
any case in Wisconsin's history until the day it was.    Because
everything has its genesis, a proscription against doing
something for the first time——if we were to take it seriously——
would be a condemnation of everything that has ever been done.
That is not a workable standard.

     But   even  more   interesting   to  me,   because   of  its
curiousness, is the objection that we should not interpret the
law in a manner not advanced by one of the parties.          That
sentiment compasses an understanding of the court that is
entirely foreign to me. The work of the judiciary is not some
glorified form of "baseball arbitration" in which we are
constrained to choosing one of the proposals offered by the
competing parties. The attorneys who appear before us are there
to help us discover what the law requires, not to control us.
It is our job, not theirs, to "say what the law is." Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803).         If we should
discover, in the course of our research, that the parties both
mistook it for something other than it is, it would be an
abdication of our sworn duty to simply adopt whichever argument
seemed   closest  to   what   the   law  actually   says.     Our
responsibility is to determine for ourselves——in every single
case, without exception——what the law requires. And there is no
one to whom we can delegate that responsibility.      So even if
neither of the parties' arguments were correct, our duty would
remain the same——to discover and say what the law says, not what
a party says.

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     ¶218 Justice       Ann      Walsh     Bradley      is   concerned       that    my

analysis    would     collapse      our   constitution's      partial      veto     into

something indistinguishable from other states' line-item vetoes.

"[T]here is a difference," she says, "between a 'partial' and an

'item' veto . . . [;] [Justice Kelly's opinion] does not account

for the difference and would, as a practical matter, result in

an 'item' veto in spite of Wisconsin's unique constitutional

language."       Justice      Ann    Walsh     Bradley's     concurrence/dissent,

¶150.     I do not think that is so.             There is no mandatory, single

definition for what a "line-item veto" might comprise, so its

content    and   operation     could      vary   from    state    to    state.      But

generally speaking, line-item vetoes operate only on the fiscal

elements    of   an    appropriation         bill.      Corpus     Juris     Secundum

contains the following description of such a veto:

     The purposes of an appropriations item or line-item
     veto are to give the executive, who is elected
     statewide rather than from a particular district, the
     power to achieve fiscal constraint and to advance
     statewide rather than parochial fiscal interests by
     excising unneeded "pork barrel" programs or projects
     from an appropriations bill so as to restrain public
     expenditures and to permit the governor to disentangle
     issues so they will be considered on their individual
     merits . . . .

      . . . Specific   allocations   within   a   general
     appropriation are subject to separate veto, either
     leaving the general appropriation intact in its full


     Happily, Justice Ann Walsh Bradley's concern about whether
I grounded my analysis in a party's argument is unwarranted
here.    The petitioner's brief and the legislature's amicus
brief, in combination, either directly or obliquely advance most
of the analysis in my opinion. And if the concern is that part
of the analysis appears in an amicus brief rather than a party
brief, then I wonder why we allow amici at all.

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      and original amount or reduced by a sum less than the
      aggregate of the specific items vetoed.
82 C.J.S. Statutes § 68 (2020) (footnotes omitted).

      ¶219 Currently,            43        states       have     some         form   of     the

item/partial veto.           Most limit the vetoes to the fiscal elements

of an appropriation bill.                  So Wisconsin's partial veto would not

be the same as a line-item veto inasmuch as ours could be used

as    against     any       of   the       legislative         ideas    bundled      into    an

appropriations         bill,     even       if    the    vetoed        part    contained    no

appropriation.

                                      V.    APPLICATION

      ¶220 2019 Assembly Bill 56 (which became 2019 Wis. Act 9,

as amended by the governor's "veto") contained a multitude of

proposed laws, amongst which were a school bus modernization

fund,     a    local    roads      improvement           fund,     a    modified      vehicle

registration fee schedule, and a tax on vapor products.                               Here is

how   a   constitutionally-grounded                   partial     veto        analysis    would

address the governor's actions.

                       A.    School Bus Modernization Fund

      ¶221 The first partial veto at issue in this case changed a

school bus modernization fund into an alternative fuel fund.

Section 55c established a grant for the replacement of school

buses.        And § 9101(2i) identified the monies to be used to fund

the replacement program.                The governor's partial "veto" amended

§ 55c as follows:

      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 shall establish a
                                                 40
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      program to award grants of settlement funds from the
      appropriation under s. 20.855(4)(h) to school boards
      for the replacement of school buses owned and operated
      by the school boards with school buses that are energy
      efficient, including school buses that use alternative
      fuels. Any school board may apply for a grant under
      the program. (c) As a condition of receiving a grant
      under this subsection, the school board shall provide
      matching funds equal to the amount of the grant award.
      (d) A school board may use settlement funds awarded
      under this subsection only for the payment of costs
      incurred by the school board to replace school buses
      in accordance with the settlement guidelines.
The governor entirely struck § 9101(2i):

      (2i) VOLKSWAGEN SETTLEMENT FUNDS. Of the settlement
      funds in s. 20.855(4)(h), during the 2019–21 fiscal
      biennium, the department of administration shall
      allocate $3,000,000 for grants under s. 16.047 (4s)
      for the payment of school buses.

The surviving language reads:             "16.047(4s) of the statutes is

created to read:        16.047 (4s) GRANTS.                The department shall

establish a program to award grants of settlement funds from the

appropriation under s. 20.855(4)(h) for alternative fuels."

      ¶222 The Chief Justice says the result is not on the same

topic as the original bill.               But "topicality" is an elastic
measuring tape, as even the Chief Justice recognizes.                               Chief

Justice    Roggensack's      concurrence/dissent,              ¶91    ("Clearly,       the

evaluation of 'part' and 'whole' in § 10(1)(b) depends on how

broadly you define the topic or subject matter.").                        Both before

and   after   the   veto,   this   part       of   the    bill       created    a    grant

program.      And the funding would still come from the Volkswagen

dispute settlement.         The Chief Justice says the "topic" of the

provision     was   replacement      of       buses,      not        limiting       carbon
emissions.      Actually,     it   was    both.          The    legislature         wanted

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                                                                       No.    2019AP1376-OA.dk


school boards to replace current school buses not with just any

buses,    but      "with    school      buses       that    are     energy          efficient,

including school buses that use alternative fuels."                               So it seems

that     under      the     Chief       Justice's         "topicality"            test,     the

constitutionality of a partial veto depends on which topic we

figure is more important.

       ¶223 The     resolution       called         for    by    the    constitution         is

considerably        more    straightforward.                Here,       the       legislature

bundled the creation of a school bus replacement fund into a

bill    with    many     other   proposed      laws.        As    relevant          here,   the

school bus replacement fund is the proposed law, the legislative

idea.    The governor could approve that part of the bill or he

could reject it.           What he may not do is turn it into something

other than what passed the legislature.                     This partial "veto" was

inappropriate because it violated the origination clause, the

amendment clause, and the legislative passage clause.

                    B.     The Local Road Improvement Fund

       ¶224 In      another      part    of     2019       Assembly          Bill    56,    the
legislature proposed the creation of a local road improvement

fund.        The   governor      amended      the    proposed       law      by     using   his

partial "veto" on §§ 126, 184s, and 1085m:

              Section 126:      "(fc) Local roads improvement
               discretionary supplement . . . 90,000,000 [the
               governor replaced it with 75,000,000]."

              Section 184s:  "20.395(2)(fc) of the statutes is
               created to read: 20.395(2) (fc) Local roads
               improvement discretionary supplement. From the
               general fund, as a continuing appropriation, the
               amounts in the schedule for the local roads


                                           42
                                                                  No.   2019AP1376-OA.dk

               improvement   discretionary   supplemental                   grant
               program under s. 86.31 (3s)."

              Section 1085m:    "86.31 (3s) of the statutes is
               created   to   read:   86.31   (3s)  DISCRETIONARY
               SUPPLEMENT GRANTS. (a) Funds provided under s.
               20.395 (2) (fc) shall be distributed under this
               subsection as discretionary grants to reimburse
               political subdivisions for improvements. The
               department     shall     solicit    and     provide
               discretionary grants under this subsection until
               all funds appropriated under s. 20.395 (2) (fc)
               have been expended. (b) 1. From the appropriation
               under s. 20.395 (2) (fc), the department shall
               allocate $32,003,200 in fiscal year 2019–20, to
               fund county truck highway improvements. 2. From
               the appropriation under s. 20.395 (2) (fc), the
               department shall allocate $35,149,400 in fiscal
               year 2019–20, to fund town road improvements. 3.
               From the appropriation under s. 20.395 (2) (fc),
               the department shall allocate $22,847,000 in
               fiscal year 2019–20, to fund municipal street
               improvement projects. (c) Notwithstanding sub.
               (4), a political subdivision may apply to the
               department     under     this    subsection     for
               reimbursement of not more than 90 percent of
               eligible costs of an improvement."
The surviving language reads:               "20.395(2)(fc) of the statutes is

created       to   read:    20.395(2)   (fc)       Local      supplement.    From    the

general fund, as a continuing appropriation, the amounts in the

schedule for local grant."
      ¶225 These, of course, were amendments just as much as the

partial       "veto"   of    the   school    bus       modernization    fund   was    an

amendment, not a veto.             The result of these amendments is that

the new idea introduced by the amendment passed into law without

the   legislature           ever   voting        for    it.      This     "veto"     was

inappropriate for the same reasons the partial "veto" of the

school bus modernization fund was inappropriate.



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                          C.     Vehicle Fee Schedule

    ¶226 Section         1988b     of    the    bill    would       have    made     the

registration fee for four truck weight classes identical.                            The

governor   amended   this         section      with    his   partial       "veto"    as

follows:

    341.25(2)(a) to (cm) of the statutes are amended to
    read: 341.25 (2)(a) Not more than 4,500 $ 75.00 100.00
    (b) Not more than 6,000 . . . . . . . . . . 84.00
    100.00 (c) Not more than 8,000 . . . . . . . . . .
    106.00 100.00 (cm) Not more than 10,000 . . . . . . .
    . . . 155.00 100.00
Prior to the "veto," all registration fees were $100, but what

remained   afterwards       was     a    graduated      schedule        according    to

vehicle size.     This might be good policy, but it's not a veto.

It's an amendment, and it fails for the same reason as the

others.

                           D.     Vapor Products Tax

    ¶227 Section     1754        addresses      taxation     of    vapor     products.

The governor amended it with his partial "veto" as follows:

    139.75 (14) of the statutes is created to read: 139.75
    (14) "Vapor product" means a noncombustible product
    that produces vapor or aerosol for inhalation from the
    application of a heating element to a liquid or other
    substance that is depleted as the product is used,
    regardless of whether the liquid or other substance
    contains nicotine.
The surviving language reads:               "139.75 (14) of the statutes is

created    to    read:     139.75        (14)    'Vapor      product'        means     a

noncombustible    product         that   produces      vapor       or    aerosol     for

inhalation from the application of a heating element regardless

of whether the liquid or other substance contains nicotine."



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       ¶228 In this part of the bill, the legislature proposed a

law that would tax "vaping" equipment, but not the liquids used

in the equipment.             The governor's partial "veto" expanded the

tax to include the liquids as well, which made it an amendment,

not a veto.       For anyone even vaguely familiar with our country's

history and the revolution that brought it into existence, this

should make you sit up and take notice:                       The governor, all by

himself,       imposed    a    tax    on     a     product      without     legislative

approval.       Taxation without representation was once a powerful

rallying cry.         See Declaration of Independence (U.S. 1776) (One

of our grievances with the King of England was his habit of

"imposing taxes on us without our consent[.]"; John Dickinson,

Letter's From a Farmer in Pennsylvania reprinted in Tracts of

the    American      Revolution      141    (1763-1776)       (Merrill    Jensen      ed.,

Hackett Pub. Co. 2003) (1768) ("That it is inseparably essential

to     the    freedom    of    a   people,        and   the     undoubted     right    of

Englishmen, that NO TAX be imposed on them, but with their own

consent, given personally, or by their representatives.").                             As
with    all    the   other    partial       "vetoes"    in    this   case,    this    one

violated the origination clause, the amendment clause, and the

legislative passage clause.                It also violated the unwritten, but

only    slightly      less    well-known,         "don't   do    revolution-inciting

things" clause.

                                   VI.     CONCLUSION

       ¶229 Because a majority of this court does not favor this

analysis, our partial veto jurisprudence leaves key pieces of
the legislative machinery in places where they do not belong.

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As a direct and unavoidable result, our cases (including this

one) condone violations of the origination clause, the amendment

clause, and the legislative passage clause.

      ¶230 The proper role of the partial veto is to separate the

several      proposed    laws       the      legislature          bundled     into    one

appropriations     bill.        After     exercising        this    veto     power,   the

remaining document must comprise one or more "complete, entire,

and   workable     laws,"      all      of        which    must    have     passed    the

legislature.     The corollary to this is that the part or parts of

the bill the governor did not approve must also comprise one or

more "complete, entire, and workable laws" that had passed the

legislature.      This symmetry guarantees that the partial veto

does nothing but unbundle the proposed laws the legislature had

bundled.14       Because      the    majority         of    this    court     does    not

accurately     apply    the    legislative           mechanism      the     constitution

created, I cannot join it.            However, I concur with that part of

the court's judgment that strikes two of the vetoes at issue in


       I would overrule State ex rel. Sundby v. Adamany, 71
      14

Wis. 2d 118, 237 N.W.2d 910 (1976); State ex rel. Kleczka v.
Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978); Citizens Util. Bd.
v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995); Risser v.
Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997); and State ex
rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, N.W.2d 385
(1988). Each of these decisions depends on the unconstitutional
transfer of law-making power to the governor through the use of
a partial veto.

     I would not, however, overrule State ex rel. Wisconsin Tel.
Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935).      Instead, I
would modify its holding to make its assumption explicit:    The
parts of the bill remaining after exercise of the partial veto
must comprise "a complete, entire, and workable law" that was
actually voted on by the legislature.

                                             46
                                            No.   2019AP1376-OA.dk


this case, and respectfully dissent from the court's judgment

upholding the other two.

    ¶231 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this opinion.




                              47
                                                                   No.    2019AP1376-OA.bh




    ¶232 BRIAN        HAGEDORN,         J.        (concurring).          In    1930,   the

people   of    Wisconsin         amended      our     constitution       and    gave   the

governor      power        to    veto        parts     of   appropriation          bills.

Nonetheless,     the       constitution           retains   the    basic       structural

principle that legislating is the job of the legislature.                              The

question in this case is whether the judiciary will sanction the

former swallowing the latter.

    ¶233 The         partial      veto       power     grants     the     governor     the

authority to disapprove appropriations bills in part——a power

that no doubt allows the governor to alter the legislature's

global policy objectives.               The partial veto power in this sense

is quasi-legislative in nature.                      But a bill presented to the

governor is not sand on a seashore from which a governor can

construct any sandcastle his ingenuity conceives.                         A bill is not

merely a collection of words, letters, and numbers that can be

repurposed; it is a set of legislatively chosen policies.                               A

partial veto is the power to negate some proposed policies and
accept others, not the power to unilaterally create new policies

never passed by the legislature.

    ¶234 While the governor's partial veto power is incredibly

broad, it should not be read to fundamentally upend the overall

structure of our government embedded in our constitution.                              The

constitution's placement of law-creation in the hands of the

legislature means we cannot permit a practice that turns the

governor      into     a        one-person         legislature.           Because      the
constitution contains these substantive limitations, we should

                                              1
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enforce     them,   even    acknowledging        the    potential          difficulty     of

that project.

     ¶235 In this case, the petitioners challenge four sets of

vetoes in the state's 2019-21 biennial budget bill.                           I conclude

that with three of the challenges——the school bus modernization

fund, the local road improvement fund, and the vapor products

tax——the     governor's      vetoes    went      beyond      negating        legislative

policy proposals; they created brand new ones.                             These are in

excess of the governor's constitutional veto authority.                                  The

fourth challenge to the vehicle fee schedule vetoes was properly

within    constitutional         boundaries.       Therefore,          I    respectfully

concur.



                             I.    LEGAL PRINCIPLES

     ¶236 Something         is    amiss     in    our       jurisprudence         when    a

constitutional provision allowing the governor to strike parts

of an appropriation bill has, through creativity and judicial

acquiescence, turned into a license for an enterprising governor
to   create    brand   new       policies     from      a    proposed        package      of

statutory words.           This is a bipartisan affair, of course, as

governors for decades have been working within the Wild West

framework this court has established.                   But no one conducting a

reasonable reading of the partial veto provision in its greater

constitutional context would see it as a fundamental reshaping

of    our     constitutional          order.            See      Justice          Kelly's

concurrence/dissent, ¶198.            We are here because this court has
allowed it to be so.         As one former justice aptly prophesied, "I

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                                                                  No.   2019AP1376-OA.bh


fear that the court may now have painted itself into a corner,

and that a time may come when we regret having done so."                             State

ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 724, 264 N.W.2d 539

(1978) (Hansen, J., dissenting).                 For me, that time is now.

       ¶237 So where do we go from here?                  The petitioners candidly

ask us to start from scratch.              They ask us to overturn or modify

language    in    every      case     that       we've    ever    decided       on    this

significant and repeatedly litigated provision.                          That's a big

ask.    But the petitioners come with the right question:                        What is

the original public meaning of the constitutional text?                                   Our

starting    point    in   constitutional           interpretation        must    be       the

original public meaning of the constitution's language because

this is the law the people have enacted.                     Attorney Gen. ex rel.

Bashford    v.    Barstow,    4     Wis. *567,         *757–58   (1855)    (explaining

that because the people "made this constitution, and adopted it

as their primary law," constitutional interpretation rests not

in generic theories of governance, but on the "true intent and

meaning"    of    the   "authoritative           and     mandatory"     words    of       the
document itself).         But our analysis is informed by, and gives

proper deference to, the reasoned decisions of those who have

come before us.



             A.     Lawmaking in the Wisconsin Constitution

       ¶238 Three types of government power are described in the

Wisconsin    Constitution,           and     each       power    is     vested       in     a

corresponding branch of government.                      Gabler v. Crime Victims
Rights Bd., 2017 WI 67, ¶11, 376 Wis. 2d 147, 897 N.W.2d 384.

                                             3
                                                                 No.     2019AP1376-OA.bh


The senate and assembly are vested with the power to legislate,

the governor is vested with the power to execute the laws, and

the judiciary is vested with the power to decide cases based on

the law.       Wis. Const. art. IV, § 1; id. art. V, § 1; id. art.

VII, § 2.

       ¶239 The mechanism for exercising legislative power under

the constitution is the enactment of laws; the legislature is

the chief lawmaker.             League of Women Voters of Wis. v. Evers,

2019       WI 75,   ¶35,    387    Wis. 2d 511,         929    N.W.2d 209;      Justice

Kelly's concurrence/dissent, ¶175.                  A law begins with a proposed

bill, which can originate in either house of the legislature.

Wis.       Const.    art.        IV,    § 17(2),        § 19;      Justice      Kelly's

concurrence/dissent, ¶176.               Bills may be amended during this

process,      and   when    a    bill   is   passed      by    both    houses   of   the

legislature, it is presented to the governor.                         Wis. Const. art.

IV,        § 19;    id.     art.        V,       § 10(1)(a);      Justice       Kelly's

concurrence/dissent,            ¶¶176-77.         The   governor       then   has    four

potential options:          (1) sign the whole bill into law; (2) do
nothing and allow the bill to become law on its own after six

days (Sundays excluded); (3) veto the whole bill; or (4) if the

bill contains an appropriation, sign the bill into law while

vetoing part of it.1            Wis. Const. art. V, § 10(1)(b), § 10(2)(a),

§ 10(3).



       If rejected in whole or in part, the bill is returned,
       1

with objections, to the originating house, and that which was
rejected may nevertheless become law if it garners approval of
two-thirds of the members of both houses.  Wis. Const. art. V,
§ 10(2).

                                             4
                                                                No.   2019AP1376-OA.bh


    ¶240 The fourth option, the partial veto, was added to the

constitution    in   1930.         The   relevant    constitutional         language

today provides:       "If the governor approves and signs the bill,

the bill shall become law.           Appropriation bills may be approved

in whole or in part by the governor, and the part approved shall

become law."       Id. art. V, § 10(1)(b).2          Appropriation bills are

required to pay money out of the treasury.                     Id. art. VIII, § 2

("No money shall be paid out of the treasury except in pursuance

of an appropriation by law.").

    ¶241 This framework deserves a few reflections.                      First, the

constitutional meaning of a "bill" must be rooted in the concept

of what the legislature is producing when a bill is passed.                         A

bill presented to the governor is not a potpourri of words,

letters, and numbers that the governor may do with as he wishes.

See State ex rel. Wis. Senate v. Thompson, 144 Wis. 2d 429, 473,

424 N.W.2d 385 (1988) (Bablitch, J., dissenting).                        As Justice

Kelly explains, a bill is composed of policy proposals (or as

Justice    Kelly     calls   them,       ideas).         See     Justice     Kelly's
concurrence/dissent,       ¶¶175-76,      180.      It   is    the    legislature's

province   to   exercise     the    legislative     power       to    determine   and

declare what the policies of the state shall be.                        Wis. Const.

art. IV, § 1.      And this is done by passing bills composed of its

policy choices.       Borgnis v. Falk Co., 147 Wis. 327, 351, 133


    2  The    amendment   as    initially   adopted    provided:
"Appropriation bills may be approved in whole or in part by the
governor, and the part approved shall become law, and the part
objected to shall be returned in the same manner as provided for
other bills." 1927 S.J. Res. 35.

                                         5
                                                                 No.    2019AP1376-OA.bh


N.W. 209 (1911) ("When acting within constitutional limitations,

the Legislature settles and declares the public policy of a

state . . . .").

    ¶242 Second, the veto power is a bit of an aberration from

the general distribution of constitutional power.                        That is, the

power to veto, whether in whole or in part, is legislative in

nature; it is a participation in lawmaking.                      Edwards v. United

States,    286     U.S. 482,         490-91       (1932)      (characterizing          the

President's      ability       to     approve         or     disapprove     bills       as

"legislative" in character); Rateree v. Rockett, 852 F.2d 946,

951 (7th Cir. 1988) ("[T]he President acts legislatively when he

approves or vetoes bills passed by Congress."); Chief Justice

Roggensack's concurrence/dissent, ¶84.                     And while a partial veto

places more quasi-legislative power in the hands of the governor

than a whole-bill veto, we cannot lose sight of the nature of a

veto.     A veto is, by definition, the ability to negate, not

create.    This is the plain meaning of the word "veto."                             Veto,

Black's   Law    Dictionary         (11th       ed.   2019)     ("A     power   of     one
governmental branch to prohibit an action by another branch."

(emphasis added)); The Federalist No. 73 (Hamilton) (describing

the veto as "the qualified negative of the President upon the

acts or resolutions of the two houses of the legislature").

    ¶243 Finally, the partial veto power must be read in the

context   of     the   whole        constitutional          structure     and   design.

Namely, any policy proposal that becomes law must be a policy

proposed by the legislature——one that originates as a bill that
eventually passes both houses of the legislature.                         Wis. Const.

                                            6
                                                                              No.    2019AP1376-OA.bh


art. IV, § 17(2), § 19; id. art. V, § 10(1)(a).                                 Partial veto or

not, the legislature is still the constitutional branch charged

with     making      law,     not        the    governor.               See     Justice          Kelly's

concurrence/dissent, ¶175.

       ¶244 We        must        hold     all           of     these     lessons          from      the

constitution together.               A blind focus on the partial veto power

alone at the expense of the rest of constitutional text is not

constitutional faithfulness.                        State v. City of Oak Creek, 2000

WI 9,    ¶18,       232    Wis. 2d 612,             605       N.W.2d 526      (we     discern        the

meaning of the constitutional text based on the context in which

it is used).          This means any reading of the partial veto power

that enables the governor to take the raw materials of a bill

(words, letters, and numbers) and recast them to create a new

policy not proposed and passed by the legislature contradicts

the constitutional design for how a bill becomes a law.                                          And the

core negating, not creating, concept of a veto must be true if

the     legislature          is     still           the       branch     authorized          by      the

constitution to make law and appropriate funds.                                           Wis. Const.
art.     IV,       § 1,    § 17(2),        § 19;          id.     art.     VIII,          § 2.       The

legislature must be the primary policymaker, and the governor

cannot       usurp    that    role        by     creating         new     policies          from     the

reworked language of enacted bills.

       ¶245 With this broader constitutional framework in view, we

turn    to     a   brief     overview          of    how       this     court       has    previously

handled the partial veto power in particular.




                                                     7
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           B.     The Partial Veto and the Wisconsin Supreme Court

       ¶246 Alfred            North    Whitehead           famously    said    that       Western

philosophy consists of a series of footnotes to Plato.3                                   In the

same       way,   this    court's          decisions       interpreting       the    governor's

partial veto power consist largely of a series of footnotes to

our first case on that matter, State ex rel. Wisconsin Telephone

Co. v. Henry, 218 Wis. 302, 260 N.W. 486 (1935).                                    Handed down

just five years after the ratification of the 1930 amendment,

Henry       presented     two       questions:             whether    the     governor     could

"disapprove           parts    of     an    appropriation       bill    that        are   not   an

appropriation" and whether he could "disapprove a proviso or

condition inseparably connected to the appropriation."                                     Id. at

309.            The    court     engaged       in      a     considered       plain       meaning

examination of the text and reached several conclusions that

establish the framework for the partial veto power.

       ¶247 Of        primary       importance,        the    court    reasoned       that      the

choice of constitutional language——using "part" and not "item"——

was intentional and must be given meaning.                            Id. at 313-14.4           The
amendment, the court concluded, was not an item veto, but a part

veto that authorized gubernatorial disapproval of something less

than an entire legislative policy proposal.                             Id.         A governor,

       Alfred North Whitehead, Process and Reality 39 (The Free
       3

Press 1978) (1929).

       The court in Henry surveyed constitutions of other states
       4

that permitted some form of partial veto.    State ex rel. Wis.
Tel. Co. v. Henry, 218 Wis. 302, 310-15, 260 N.W. 486 (1935).
Noting that many states used "items" or "any item or items or
part or parts," the court concluded that our constitution's use
of the word "part" but not the word "item" was significant and
must be given meaning. Id. at 310-11.

                                                 8
                                                                             No.    2019AP1376-OA.bh


then,    could    veto     non-appropriation                   language       in    appropriation

bills.     Id.     He could also strike portions of a broader policy

proposal     that        did     not           constitute         provisos         or     conditions

inseparably connected to the appropriation.                                  Id.         As long as

what remained was a complete, entire, and workable law, vetoing

portions of the proposed law that were not "essential, integral,

and   interdependent            parts          of    those     which      were     approved"        was

consistent with the constitution.                             Id. at 314, 317.              Applying

this to the facts before it, the court concluded that the vetoed

language declaring the purpose for a new appropriation and the

proposed     creation           of        a     new       administrative           apparatus        for

distribution        of     that           appropriation           were       not        provisos    or

conditions inseparably connected to the remainder.                                       Id. at 317.

The   governor's         veto    was           therefore      within        his    constitutional

authority.       Id.

      ¶248 From        this,         we       observe      that      Henry    identified           both

procedural       and     substantive                limitations      on     the     partial        veto

power.     Procedurally, what is left must be a complete, entire,
and workable law.          Id. at 314.                This is obviously correct if the

part approved is actually to become law as the constitution

specifies.       Wis. Const. art. V, § 10(1)(b).                            But the court also

recognized       substantive              limitations,         unsubtly       suggesting           that

provisos    and     conditions                that    could    not     be    separated       from    a

policy proposal could not be stricken.                                Henry, 218 Wis. 2d at

309-10.    The court labelled the veto power coextensive with the

legislature's power to assemble.                          Id. at 315.         But this is just
as much a limitation on the power's reach as it is a recognition

                                                      9
                                                                          No.      2019AP1376-OA.bh


of the power's breadth.                    Id. at 315.        The court also discussed

how severability principles——which include at least some focus

on   legislative          intent——were            relevant    to    an    inquiry        into   the

scope of the partial veto power.                        Id. at 314-15.

       ¶249 The petitioners ask us to overturn Henry.                                  They argue

this court misconstrued the original public meaning from the

beginning, and that the partial veto was intended to be an item

veto.       Some evidence, including newspaper stories reflecting the

sponsor's goals and other public discussion on the proposed 1930

amendment, certainly supports this view.                           But plenty of evidence

goes       the    other     way       too.         See    Chief     Justice          Roggensack's

concurrence/dissent,              ¶¶31-36         (summarizing       the       evidence        which

supports both an item veto and a part veto).                             Notably, one draft

amendment         in     1925        would      have     permitted        the        governor     to

disapprove         "items       or     parts       of     items."5            This     shows     the

legislature understood the difference between "part" and "item,"

and that the choice to use this language is reasonably read to

mean       something.          And    it     is   not    insignificant          that     Henry,    a
decision         close    in    time       to     the    enactment       of     the    amendment,

unanimously rejected the petitioners' view.                          I accept Henry as a

fair,       considered,        and     likely       correct    effort         to      discern   the

original public meaning of our constitutional text.                                   At the very

least, the petitioners have not demonstrated that the original

public meaning is clearly otherwise.



       See 1925 S.J. Res. 23 (proposing to amend Article V,
       5

Section 10 to allow the governor to "disapprove or reduce items
or parts of items in any bill appropriating money").

                                                   10
                                                                  No.    2019AP1376-OA.bh


       ¶250 For the first 45 years of the partial veto power's

history,      the     principles       announced     in     Henry,        including     a

recognition      that    the    broader     constitutional        context      requires

both       procedural         and     substantive        limitations,          remained

substantially in place.               Our veto cases that abided by these

principles are, in my view, unproblematic and consistent with

the    constitution's         meaning.      See    State   ex     rel.    Finnegan     v.

Dammann, 220 Wis. 143, 264 N.W. 622 (1936); State ex rel. Martin

v. Zimmerman, 233 Wis. 442, 289 N.W. 662 (1940).

       ¶251 The broadly accepted legal framework, however, started

to drift in the 1970s.                Around that time, governors began to

take their partial veto power to new artistic heights.6                          Rather

than       maintain     the    twin      pillars    of     both     procedural        and

substantive limitations on that power, this court started to

jettison      its     commitment       to   any    standard       other      than     the

requirement that after a partial veto the part approved must be

a complete, entire, and workable law.

       ¶252 This change was explicitly undertaken in Kleczka, 82
Wis. 2d 679.          There, the legislature had proposed allowing a

taxpayer to effectively increase her tax liability such that $1

would be deposited into the Wisconsin Election Campaign Fund.

Id. at 685.         As partially vetoed by the governor, the published

law enabled the taxpayer to designate that the campaign fund was



       Among other novelties, governors started removing words
       6

such as "not" from sentences to reverse the policy enacted by
the legislature (i.e., an "editing veto").      See Richard A.
Champagne,   Legislative   Reference    Bureau, The   Wisconsin
Governor's Partial Veto, at 14-15 (2019).

                                            11
                                                                        No.     2019AP1376-OA.bh


to receive $1 from the state's general funds.                                 Id.     We upheld

the veto, and expressly dispensed with Henry's discussion of

inseparable        provisos       or     conditions.              Id. at        711-15.          By

sanctioning       this     action,       we    allowed      the     governor         to   take    a

policy proposal from the legislature, edit the words, and create

a     different     policy        that        had    not     been       proposed          by   the

legislature.

       ¶253 Justice        Hansen      vigorously          dissented       on       the   grounds

that abandoning any substantive limitations on the partial veto

authority      could        not        possibly       be        consistent           with      the

constitutional design.              "It appears," Justice Hansen observed,

"that we have now arrived at a stage where one person can design

his own legislation from the appropriation bills submitted to

him    after   they      have     been        approved     by     the    majority         of   the

legislature."       Id. at 727 (Hansen, J., dissenting).                            Indeed.      As

Justice Hansen explained:

       Only the limitations on one's imagination fix the
       outer limits of the exercise of the partial veto power
       by incision or deletion by a creative person. At some
       point this creative negative constitutes the enacting
       of legislation by one person, and at precisely that
       point the governor invades the exclusive power of the
       legislature to make laws.

Id. at 720.

       ¶254 Justice Hansen's prescience did not stop this court

from proceeding further down this path, but we have continued to

wrestle     with     the     implications            of    our     jurisprudence.                In

Wisconsin Senate, while upholding the most creative uses yet of
the partial veto power, we recognized as having obtained the

                                                12
                                                                  No.    2019AP1376-OA.bh


"force of law" the notion that vetoes cannot change a policy

proposal's    topic    or     subject     matter    into       something       unrelated.

144   Wis. 2d at     452-53.         This    "germaneness"        limitation         was   a

clear     attempt     to     acknowledge         that    the     constitution         must

countenance     some        kind    of      substantive        limitation        of    the

governor's    partial       veto    power.        Id.      While        we    have    since

reaffirmed    the    germaneness         requirement,      this    court       has    never

fleshed out what it means or how it operates in practice.                               See

Citizens     Util.    Bd.     v.    Klauser,      194    Wis. 2d 484,          505,    534

N.W.2d 608 (1995); Risser v. Klauser, 207 Wis. 2d 176, 183, 558

N.W.2d 108 (1997).

      ¶255 Finally, it is worth noting that in direct response to

gubernatorial       practice       and   the     outer   reaches        of     our    later

decisions, the people have twice amended the partial veto power

to prevent the governor from using a partial veto to combine

sentences or strike letters to make new words.                     Wis. Const. art.

V, § 10(1)(c).7        These amendments should be given substantive

effect, but they should not be read as green-lighting everything
less than the limitations they impose.                     While the amendments

represent the people's effort to rein in certain excesses, these

constitutionally           prescribed       procedural         limitations           aren't

particularly     instructive         regarding      whether       the        constitution

still contains other substantive limitations on the partial veto

power.

      7"In approving an appropriation bill in part, the governor
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 of the enrolled bill."
Wis. Const. art. V, § 10(1)(c).
                                            13
                                                                    No.    2019AP1376-OA.bh




                            C.    Implementing Doctrine

       ¶256 The core question presented in this case is whether

and how this court will enforce substantive limitations on the

scope of the governor's partial veto power moving forward.                                   As

reflected in the multiplicity of writings in today's decision

and in the tests put forward by the litigants, it is not always

easy to discern the line between negating some proposed policies

in a bill and a veto that strategically edits statutory language

to create a policy that was not in the legislatively passed

bill.

       ¶257 One response to this dilemma could be to declare that

line-drawing        is   too     difficult      and     to   surrender         that    project

altogether.           Our     more     recent       cases    have    trended          in   this

direction, enforcing only procedural limitations and offering at

best       a    tip-of-the-cap        to    future     enforcement        of    substantive

limitations.         In effect, this leaves the policing of substantive

limitations to politics rather than constitutional law.                                Such an
approach is not without merit.                  Not all constitutional questions

need a judicial referee.                   We must acknowledge that increased

judicial         patrolling      of    these        constitutional     borderlands           is

fraught with some danger.8                   Engaging in this line-drawing may

lead       to   uncertainty      for       political     actors     and    entangle         the



       See, e.g., State ex rel. Friedrich v. Circuit Court for
       8

Dane Cty., 192 Wis. 2d 1, 14, 531 N.W.2d 32 (1995) (per curiam)
("In these borderlands it is neither possible nor practical to
categorize governmental action as exclusively legislative,
executive or judicial.").

                                               14
                                                                    No.    2019AP1376-OA.bh


judiciary in more political and policy fights.                        And sometimes we

make       things    worse,      not   better,     when       we    attempt      to   make

distinctions        that    are——let's     be   honest        here——awfully      hard    to

delineate with precision from the constitutional text.

       ¶258 That         said,   giving    up     on     judicial      enforcement       of

constitutional limits poses greater dangers, especially in an

area so central to our constitutional design for how law is

made.       We swear an oath to uphold the constitution, and it is

incumbent on us to defend the separation of powers, even if it

involves getting a little dirt under our nails.

       ¶259 If we are to retain judicially enforceable substantive

limitations         on    the    partial   veto        power,      there    remains     the

difficult task of identifying an implementing doctrine, or legal

test,9 that gets us to the heart of the constitution's meaning.

Several options are presented in this case.

       ¶260 The petitioners propose a standard severability test.

Under this test, the inquiry is whether the legislature intended

for provisions to be severable.                 Burlington N., Inc. v. City of
Superior,       131       Wis. 2d 564,      580,        388     N.W.2d 916        (1986).



       See Ezell v. City of Chicago, 651 F.3d 684, 700-04 (7th
       9

Cir. 2011) (devising an implementing doctrine for Second
Amendment litigation based on the Supreme Court's original
public meaning interpretation of that constitutional provision
in District of Columbia v. Heller, 554 U.S. 570 (2008)).   See
generally Lawrence B. Solum, The Interpretation-Construction
Distinction, 27 Const. Comment. 95 (2010) (explaining how
authoritative legal texts are applied in two stages:  one, the
text is interpreted to discern its linguistic meaning and
semantic context, and two, the text is given legal effect by
translating that meaning and context into implementable legal
doctrine).

                                           15
                                                                      No.    2019AP1376-OA.bh


Essentially,      we'd     have    to     determine         whether       the    legislature

would still have wanted the provisions as vetoed to become law.

This has the virtue of being grounded in some of the discussion

in    Henry,     and    theoretically          works       within    existing         judicial

competence.        But    it     seems    difficult,          if    not     impossible,      to

determine      the      legislature's           intent        and     preferences         when

reviewing      discrete    proposals       in     omnibus        bills      reflecting       the

whole of state government operations.                      This test also depends on

the petitioners' request that we overrule Henry, which I do not

believe is warranted.

       ¶261 The      legislature        proposes       a    separate        test     based   on

Justice Hansen's dissent in Kleczka:                       the part rejected, as well

as the part remaining, must be a complete, entire, and workable

law   on   its    own.         Kleczka,    82     Wis. 2d at         726     (Hansen,        J.,

dissenting).       The petitioners also support this as an acceptable

approach.        This    test     has    the     virtue      of     being       an   objective

inquiry that does not entangle the judiciary in subjectively

evaluating policy proposals.                But as the Chief Justice points
out, there is no basis in the constitutional text to suggest

that the rejected part must stand on its own as though it were

itself     enacted        law.           See      Chief          Justice        Roggensack's

concurrence/dissent, ¶89.               Justice Hansen's test is at best an

indirect    way    of    getting     at    the    core       constitutional           line   of

demarcation:           allowing    the    governor          to   create      something       the

legislature has not proposed, rather than just approve or veto

separable proposals.              In addition, the legislature's proposal
appears to be a backdoor way to turn the part veto into an item

                                            16
                                                            No.   2019AP1376-OA.bh


veto, or very close to it.           And this too does not square with

the proposition announced in Henry that the constitutional text

allows governors to strike portions of proposals smaller than an

item.

       ¶262 The Chief Justice adopts and attempts to breathe life

into the germaneness requirement discussed in Wisconsin Senate.

See    Chief    Justice   Roggensack's       concurrence/dissent,       ¶¶91-94.

This test has the virtue of being grounded in our precedent.

Moreover,      the   Wisconsin   Senate     court    adopted   the   germaneness

requirement, which focuses on the topic or subject matter of a

provision, as a nod to the need for some substantive limitation

on    unadulterated    gubernatorial      creation     of   legislation.      See

Wis. Senate, 144 Wis. 2d at 451-52.                 But this standard suffers

from some flaws as well.         As to its foundation, the germaneness

requirement has not been firmly rooted in the constitutional

text, but instead in the historical practice of the legislative

and executive branches.           Id. at 437, 452-53.             Second, while

cited, none of our cases have done much to explain what this
requirement actually means or how it would guide legal analysis

going forward.         See Citizens Util. Bd., 194 Wis. 2d at 505;

Risser, 207 Wis. 2d at 183.         Finally, it does not seem to get to

the core issue of policy creation by the governor.                    It is far

too underinclusive.        A topicality approach would presumably let

the governor rewrite laws to create new policy based on the same

topic    as    the   legislature's     proposal,       thereby    allowing    the

governor to usurp the role of the legislature in violation of
the structural separation of powers.                  In other words, as an

                                       17
                                                                  No.   2019AP1376-OA.bh


implementing doctrine, it does not do well in doing what any

good legal test should do:             allowing the original public meaning

of the constitutional text to come to life when applied to a new

set of facts.

       ¶263 Justice Kelly proposes yet another way.                       His writing

does     an    excellent       job     outlining     the        separation-of-powers

problems with our current approach.                  Justice Kelly frames his

proposed legal test as whether the legislature voted on the

policy proposal.           At a high level, I agree the question is

whether the governor vetoed a policy the legislature proposed

and passed, which is permissible, or created a new policy the

legislature did not propose or pass, which is not.                              But in

application,      Justice      Kelly's     opinion     would     appear    to   require

sweeping away much if not all of our cases, including Henry.                          I

do     not    believe    the    constitutional       standard       we    agree    upon

requires      going     this    far.       I    accept     Henry's       holding   that

something less than a separate item may be vetoed, and this will

necessarily      involve       some    modification        of    the     legislature's
policy choice.          So while I agree with Justice Kelly on the core

constitutional limits, I do not agree with his application of

that standard.

       ¶264 While        future        litigation        will      surely       provide

opportunities      to    refine      the   analysis,     the     principles     derived

from our constitutional text, structure, and early cases draw

sufficient lines to decide this case.                The partial veto power is

broad and expansive.           When presented with an appropriation bill
containing various legislative proposals, the governor can——as a

                                           18
                                                                         No.    2019AP1376-OA.bh


general matter——negate some proposals and accept others.                                    This

will necessarily effect a partial change in the policy soup

reflected in the proposed bill.                      But what the governor may not

do is selectively edit parts of a bill to create a new policy

that    was       not    proposed       by    the    legislature.              He   may    negate

separable proposals actually made, but he may not create new

proposals not presented in the bill.

       ¶265 By          way   of   a    hypothetical,       imagine       the       legislature

proposes that $500,000 be appropriated for the building of a

house, which may be painted white or blue or brown.                                  Under the

principles derived from the constitutional text and our early

cases, the governor could strike the word "brown" so that the

house may only be white or blue.                       But the governor could not

strike words to create a law that simply appropriates $500,000

to   the      general         fund.10        While   some       policy    modification         is

inherent in striking parts of a proposal, a governor may not

usurp       the   legislature's         lawmaking      role      by   creating        a    policy

proposal that was not previously there.
       ¶266 Putting             this     together,          I     conclude          that      the

petitioners' request that we overturn Henry and our early cases

should be rejected based on the arguments presented in this

case.       But I agree that later cases must be revisited insofar as

they abandoned the core principles undergirding the way laws are




       As discussed further below, this type of gubernatorial
       10

creation is similar to the local road improvement fund vetoes,
which were an effective rewriting of specific provisions to
create a generic appropriation for an undefined local grant.

                                                19
                                                                  No.    2019AP1376-OA.bh


made    pursuant    to     our     constitution.11          Rather        than     simply

approving or disapproving of proposed policies, the governor's

partial veto power cannot be converted into a tool for wholesale

policy creation.           By turning the governor into a one-person

legislature      subject    only    to    a    two-thirds    override        vote,    our

basic constitutional structure is turned on its head.



                                  II.    APPLICATION

       ¶267 Applying those principles to this case, three of the

four sets of partial vetoes challenged by the petitioners go

beyond what the constitution permits.

       ¶268 We begin with the sole veto challenge that survives in

light of our constitutional framework.                     In 2019 Wis. Act 9,

§ 1988b, the legislature sought to amend the registration fees

assessed    to     truck    owners       based    on    vehicle         weight.      The

preexisting      fees    for    vehicles       weighing    not    more     than     4,500

pounds,     6,000       pounds,     8,000       pounds,     and         10,000     pounds

respectively     were    $75,     $84,    $106,   and     $155.         § 1988b.      The
legislature proposed modifications to make each of them $100.

Id.     The governor accepted the increased fee for the lighter

weight classifications, but rejected the reduction of the fee

for the heavier vehicles. Id.                 This rejection of the proposed

       Accordingly, I agree with petitioners that State ex rel.
       11

Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978) is
"unsound in principle" and must be overruled. Johnson Controls,
Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶99, 264 Wis. 2d 60,
665 N.W.2d 257.    Insofar as our later decisions have treated
Kleczka as pronouncing that a veto shall stand simply if it
leaves a complete, entire, and workable law, these statements
too must be withdrawn.

                                          20
                                                                    No.    2019AP1376-OA.bh


decreases in two registration fees may not reflect the uniform

schedule        the    legislature       was   apparently     intending.              But    the

governor        here     chose    a      partially       uniform    fee        schedule       by

accepting part of the proposed fee schedule and rejecting part

of the new fee schedule.                 These partial vetoes served to negate

parts      of    the    broader       policy    proposal.          In    rejecting          this

proposal in part, the governor did not cobble together words or

phrases to create a new policy or fee.                      Rather, he declined to

adopt part of a policy change advanced by the legislature.                                   See

Wis. Stat. § 341.25(2)(a)-(cm) (2017-18).12

      ¶269 The         other     three    sets      of   partial        vetoes,       however,

cannot      be        upheld.          All     three      exceed         the     governor's

constitutional power to partially veto appropriation bills.

      ¶270 First, faced with an appropriation for the replacement

of school buses, the governor used multiple vetoes to create an

appropriation for alternative fuels.                     Wisconsin is a beneficiary

of   the    Environmental         Mitigation        Trust    created       by     a   partial

consent decree in In re Volkswagen, 2016 WL 6442227 (N.D. Cal.
2016).          In Act 9, the legislature enacted two provisions to

address the allocation of these funds, §§ 55c and 9101(2i).                                  The

governor partially vetoed § 55c as follows:

      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).

       All subsequent references to the Wisconsin Statutes are
      12

to the 2017-18 version.

                                               21
                                                                  No.   2019AP1376-OA.bh

     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 [Wis. Stat. §] 20.855(4)(h) to
     school boards for the replacement of school buses
     owned and operated by the school boards with school
     buses that are energy efficient, including school
     buses that use alternative fuels. Any school board may
     apply for a grant under the program.

     (c) As a condition of receiving a grant under this
     subsection, the school board shall provide matching
     funds equal to the amount of the grant award.

     (d) A school board may use settlement funds awarded
     under this subsection only for the payment of costs
     incurred by the school board to replace school buses
     in accordance with the settlement guidelines.
2019 Wis. Act 9, § 55c.            Removing the vetoed words, Wis. Stat.

§ 16.047(4s)    now      reads:       "The      department    shall       establish   a

program   to       award     grants       of    settlement        funds     from     the

appropriation under [Wis. Stat. §] 20.855(4)(h) for alternative

fuels."      The    governor       also    vetoed      in   full    a     nonstatutory

provision regarding the allocations of these funds.                         2019 Wis.

Act 9, § 9101(2i).13

     ¶271 The      legislature's          budget    bill    did    not     propose    an

appropriation       in     whole   or     in    part    for   alternative          fuels

generally.     Instead, the legislature proposed an appropriation




     13The legislature's proposal stated:    "Of the settlement
funds in [Wis. Stat. §] 20.855(4)(h), during the 2019-21 fiscal
biennium, the department of administration shall allocate
$3,000,000 for grants under [Wis. Stat. §] 16.047(4s) for the
replacement of school buses."

                                           22
                                                                        No.    2019AP1376-OA.bh


for the replacement of school buses.14                       While both proposals may

have similar green energy goals, the governor's partial vetoes

created an entirely new policy proposal that spends money in

ways        not    proposed        in     the         legislature's           bill.       This

gubernatorial-created              policy       sidestepped       the    constitutionally

mandated procedures governing how a bill becomes a law.

       ¶272 Second, the governor used a trio of vetoes to rewrite

an appropriation for local road funding into an appropriation

for some other undefined local grant.                       The governor began with a

partial       veto    of    Act     9,        § 126     (schedule       item     Wis.   Stat.

§ 20.395(2)(fc))           as    follows:           "(fc)   Local       roads    improvement

discretionary                             supplement . . . 90,000,000[inserting

75,000,000]."         Next, the governor partially vetoed Act 9, § 184s

as follows:          "20.395(2)(fc) of the statutes is created to read:

20.395(2)(fc) Local roads improvement discretionary supplement.

From    the       general       fund,    as    a     continuing     appropriation,         the

amounts       in     the    schedule          for     the   local   roads        improvement

discretionary supplemental grant program under s. 86.31 (3s)."
Wisconsin Stat. § 20.395(2)(fc) now reads:                          "Local supplement.

From    the       general       fund,    as    a     continuing     appropriation,         the

amounts in the schedule for local grant."                       Finally, the governor

vetoed in full Act 9, § 1095m, which detailed how the Department


       The governor's budget had proposed utilizing these funds
       14

to allow for "the installation of charging stations for vehicles
with an electric motor," which the legislature rejected in favor
of creating a school bus modernization fund. See Chief Justice
Roggensack's concurrence/dissent, ¶14 & n.6-7.    In effect, the
governor's vetoes could allow for something the legislature
considered but rejected in enacting its own policy proposal.

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of   Transportation    was    to     structure      and       allocate     the

discretionary grants for local road improvements.15

     ¶273 The   legislature   did   not   propose   a     broad    and   vague

appropriation for local grants in whole or in part.               Rather, the

legislature detailed a grant program for the express purpose of

improving local roads.    By clever editing, the governor created

a new appropriation out of thin air.        But again, appropriations



     15Prior to the governor's veto of this provision in full,
it provided:

     86.31(3s) of the statutes is created to read:

     86.31(3s) DISCRETIONARY SUPPLEMENTAL GRANTS. (a) Funds
     provided under [Wis. Stat. §] 20.395(2)(fc) shall be
     distributed under this subsection as discretionary
     grants   to   reimburse  political    subdivisions for
     improvements.     The department [of transportation]
     shall solicit and provide discretionary grants under
     this subsection until all funds appropriated under
     [§] 20.395(2)(fc) have been expended.

     (b)1. From the appropriation under [§] 20.395(2)(fc),
     the department shall allocate $32,003,200 in fiscal
     year   2019−20,  to   fund   county   trunk   highway
     improvements.

     2. From the appropriation under [§] 20.395(2)(fc), the
     department shall allocate $35,149,400 in fiscal year
     2019−20, to fund town road improvements.

     3. From the appropriation under [§] 20.395(2)(fc), the
     department shall allocate $22,847,400 in fiscal year
     2019−20,   to   fund   municipal  street   improvement
     projects.

     (c) Notwithstanding sub. (4), a political subdivision
     may apply to the department under this subsection for
     reimbursement of not more than 90 percent of eligible
     costs of an improvement.

2019 Wis. Act 9, § 1095m.

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must originate in the legislature, which has the power to enact

such laws in the first instance.           Wis. Const. art. IV, § 17(2),

§ 19; id. art. VIII, § 2.           While the governor may generally

accept    or   reject   appropriations     proposed   to     him,    he   cannot

through    creative     editing   author    a   new   appropriation        never

proposed to him.

    ¶274 Finally, the governor created a new vaping-related tax

not proposed by the legislature.          The vetoed provision reads:

    139.75 (14) of the statutes is created to read:

    139.75 (14) "Vapor product" means a noncombustible
    product that produces vapor or aerosol for inhalation
    from the application of a heating element to a liquid
    or other substance that is depleted as the product is
    used, regardless of whether the liquid or other
    substance contains nicotine.
2019 Wis. Act 9, § 1754.          As enacted by the legislature, this

section taxed the hardware that produces vapor as a result of

applying the heating element to the liquid.            Through his vetoes

the governor created a new tax on the liquid which goes inside

the device, often sold separately.

    ¶275 Once more, a tax on the liquid inside a vaping device
was not proposed to the governor.          His veto went beyond negating

a proposal; he created a new tax on a product.                      Because the

legislature did not propose this new tax, the governor did not

have the power to rewrite language to create it.                 This kind of

editing exceeds the governor's partial veto power.




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                               III.    CONCLUSION

      ¶276 Faithfulness        to     the      whole     constitution        and    the

structure it establishes means our partial veto jurisprudence

needs a partial reset.         We cannot myopically focus our attention

on the words of the partial veto provisions in our constitution

at the expense of the rest of the document's text.                       Early cases

established principles outlining a broad and expansive partial

veto power that is no doubt legislative in nature.                           I accept

those cases and the basic framework they outlined.                           But more

recent cases, in combination with gubernatorial creativity, have

upset the constitutional order and allowed governors to invade

the   lawmaking     powers     of   the     legislature.          It    is   time    to

reestablish these core constitutional principles.                         I conclude

that three sets of vetoes challenged here go beyond what the

constitution      permits.16        For     these      reasons,    I    respectfully

concur.

      ¶277 I   am     authorized       to      state     that     Justice     ANNETTE

KINGSLAND ZIEGLER joins this concurrence.




       A
      16   compelling   case  can   be   made   that  prospective
application of the new rule announced in this case is warranted
here.   See State v. Beaver Dam Area Dev. Corp., 2008 WI 90,
¶¶95-96, 312 Wis. 2d 84, 752 N.W.2d 295 (explaining when
prospective application is warranted).        However, under the
circumstances, I join the court's mandate that grants the relief
requested for all vetoes we determine are unconstitutional.

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