                                                             2020 WI 69

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:              2019AP2054-OA


COMPLETE TITLE:        Wisconsin Small Business United, Inc., Amy
                       Dailey, Larry Gierach, Doug Hustedt, Sandi
                       Vandervest and Tom Vandervest,
                                 Petitioners,
                            v.
                       Joel Brennan, in his official capacity as
                       Secretary of the Department of Administration,
                       Peter Barca, in his official capacity as
                       Secretary of the Department of Revenue and
                       Carolyn Standford Taylor, in her official
                       capacity as Acting Wisconsin Superintendent of
                       Public Instruction,
                                 Respondents.

                                        ORIGINAL ACTION

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

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which KELLY, J., joined.
NOT PARTICIPATING:



ATTORNEYS:

       For the petitioners, there were briefs filed by Mike B.
Wittenwyler, Kendall W. Harrison, Zachary P. Bemis, and Godfrey
& Kahn, S.C., Madison. There was an oral argument by Kendall W.
Harrison.
    For the respondents there was a brief filed by Colin Roth,
assistant   attorney   general,   and   Hannah   S.   Jurss,   assistant
attorney general; with whom on the brief was Joshua L. Kaul,
attorney general. There was an oral argument by Colin Roth.




                                   2
                                                                     2020 WI 69


                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2019AP2054-OA

STATE OF WISCONSIN                         :              IN SUPREME COURT

Wisconsin Small Businesses United, Inc., Amy
Dailey, Larry Gierach, Doug Hustedt, Sandi
Vandervest and Tom Vandervest,

           Petitioners,

      v.
                                                                  FILED
Joel Brennan, in his official capacity as
Secretary of the Department of Administration,               JUL 10, 2020
Peter Barca, in his official capacity as
Secretary of the Department of Revenue and                      Sheila T. Reiff
Carolyn Standford Taylor, in her official                    Clerk of Supreme Court
capacity as Acting Wisconsin Superintendent of
Public Instruction,

           Respondents,




HAGEDORN, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and DALLET,
JJ., joined.    REBECCA GRASSL BRADLEY, J., filed a dissenting
opinion, in which KELLY, J., joined.




      ORIGINAL ACTION for declaratory judgment.            Relief denied.



      ¶1   BRIAN   HAGEDORN,   J.   This       is    an    original        action

challenging whether two partial vetoes in the 2017-19 biennial
budget exceeded the governor's constitutional authority.                    While
                                                                No.     2019AP2054-OA



the respondents defend the vetoes on their merits, they also

contend this challenge is too late and should be barred by the

equitable doctrine of laches.             We agree that laches should be

applied here.         The respondents have proved the three elements of

a laches claim——unreasonable delay, lack of knowledge a claim

would       be   brought,   and   prejudice.        And     given     the   reliance

interests at stake and the need for stability and certainty in

the enactment of state budget bills, we exercise our discretion

to apply laches based on the facts of this case.                      Accordingly,

we dismiss the original action.



                                  I.   BACKGROUND

        ¶2       Wisconsin's practice of funding the state's operations

and programs through biennial budget bills is nearly a century

old.1       As points of reference, the state's fiscal year begins on

July 1 and ends on the following June 30, and a new biennium

commences        every   odd-numbered    year.       Wis.    Stat.     § 20.002(1)

(2017-18).2
        ¶3       Each new biennial budget is a complex collaboration

and negotiation between the executive and legislative branches.3

       See ch. 97, Laws of 1929; see also Richard A. Champagne,
        1

Legislative Reference Bureau, Wisconsin Executive Budget Bills,
1931-2019, at 1 (2020) (describing the biennial budget bill as
"easily the most significant piece of legislation that is
enacted during the entire legislative session").

       All subsequent references to the Wisconsin Statutes are to
        2

the 2017-18 version unless otherwise indicated.

       See Champagne, supra, at 1-6 (outlining
        3                                                             the   biennial
budget process and its core principles).

                                         2
                                                                         No.    2019AP2054-OA



Relying on fiscal estimates and projections from the various

branches and agencies making up state government, the governor

creates a budget bill and submits it to the legislature.                                 See

Wis. Stat. §§ 16.45, 16.46, 16.47.                      Once received, the bill is

referred       to    the   Joint    Committee        on   Finance,        which    reviews,

amends, and ultimately votes to recommend the revised bill for

legislative passage.              See § 16.47(1m); Wis. Stat. § 13.093 to

§ 13.102.           Like any other bill, the biennial budget is then

debated and may be amended by the two houses of the legislature.

After    passage      by   both    houses,        the   bill   is    presented      to   the

governor.       Wis. Const. art. V, § 10(1)(a).

    ¶4         At this point, Article V, Section 10 of the Wisconsin

Constitution gives the governor three options:                            sign the whole

bill into law, veto the whole bill, or sign the bill into law

while vetoing parts of it.              Upon presentment, a bill becomes law

if it receives the governor's approval and signature (or if he

does not sign or veto it within six days (Sundays excepted)).

Id. art. V, § 10(1)(b), § 10(3).                    When vetoed in whole, a bill
returns to the legislature and may still become law if approved

by two-thirds of both houses.                 Id. art. V, § 10(2)(a).               A third

option    is    unique     to     appropriation         bills,      including      biennial

budget bills.          Namely, the governor may approve such bills in

whole or in part.          Id. art. V, § 10(1)(b).

    ¶5         This power to partially veto appropriations bills was

added    as    an    amendment     to   the       constitution      in    1930,    but   the

people of Wisconsin have since modified it twice.                              The governor
may not exercise his partial veto authority to create a new word
                                              3
                                                                   No.    2019AP2054-OA



by rejecting individual letters in words, nor may he create a

new sentence by combining parts of two or more sentences.                           Id.

art V, § 10(1)(c).             After any partial veto, the governor must

return      the    rejected    part    with    objections   in     writing    to    the

legislature for its reconsideration.                    Id. art. V, § 10(2)(b).

The legislature can override the veto if two-thirds of both

houses agree to approve the rejected part.                    Id.        Absent that,

the enacted law remains; only parts approved by the governor

become law.         Id. art. V, § 10(1)(b).

       ¶6        Governor Scott Walker penned the partial vetoes at the

heart       of    this   dispute      within   Wisconsin's        2017-19    biennial

budget.          The governor signed that budget, with partial vetoes,

and it went into effect as 2017 Wis. Act 59 on September 23,

2017.       Two of Governor Walker's vetoes struck individual digits

from       dates     written     in    numeral     form.          The     petitioners

(collectively WSBU)4 contend that these digit vetoes violated the

constitutional           prohibition     against    creating        new     words    by

striking         individual    letters   in    words.      Wis.    Const.    art.    V,
§ 10(1)(c).




       The petition for original action was filed by Wisconsin
       4

Small Businesses United, Inc., Amy Dailey, Larry Gierach, Doug
Hustedt, and Sandi and Tom Vandervest.

     The named respondents were Secretary of the Department of
Administration   Joel  Brennan,  Secretary  of   the  Wisconsin
Department of Revenue Peter Barca, and Acting Wisconsin
Superintendent of Public Instruction Carolyn Standford Taylor,
each in his or her official capacity and all represented by the
attorney general.

                                           4
                                                                       No.     2019AP2054-OA



       ¶7      The first disputed provision of Act 59 is § 1641m.

When    presented      to    the    governor,       § 1641m       imposed      a    one-year

moratorium on an existing law that enabled school districts to

increase their revenue limits by adopting a resolution based on

energy      efficiency       efforts.        2017       A.B.    64,    § 1641m.            See

generally Wis. Stat. § 121.91(4)(o).                       To accomplish this, the

text    sent    to    the    governor's     desk     proposed        the     revenue-limit

adjustment      be    effective     "only     to    a     resolution       adopted     after

December 31, 2018."             Exercising a partial veto, the governor

struck the "1, 2" from "December 31, 2018" (December 31, 2018),

thereby changing the date to "December 3018."                              In effect, the

proposed one-year moratorium was transformed into a one-thousand

and one-year moratorium.            2017 Wis. Act 59, § 1641m (codified at

§ 121.91(4)(o)4.).

       ¶8      When    the     governor      received          the    second        disputed

provision of Act 59, § 2265, it would have imposed a year-long

delay for the implementation of 2013 Wis. Act 229.                                 As signed

into law in 2013, Act 229 authorized third-party lenders that
provide credit by way of retailer-lender credit cards to take

tax    deductions      for    bad   debts.         2017    A.B.      64,    § 2265.        See

generally 2013 Wis. Act 229.                Act 229 was originally scheduled

to go into effect on July 1, 2015, but the 2015-17 budget moved

the effective date to July 1, 2017.                      2015 Wis. Act 55, § 4750.

In its 2017-19 budget bill, the legislature twice used the date

"July 1, 2017 2018" to authorize another new effective date for

Act 229.       2017 A.B. 64, § 2265.              In other words, the law on the
books    when    the    bill    arrived      at    the     governor's        desk    had   an
                                             5
                                                                  No.     2019AP2054-OA



effective date of July 1, 2017, and the legislature sought to

delete "2017" and add the year "2018."                   In exercising his veto

pen, the governor rejected the legislature's effort to strike

"20" and "7" and accepted the legislature's insertion of "8,"

creating a veto that looked like this:                   July 1, 2017 2018.         In

effect, each use of July 1, 2018 was changed to July 1, 2078,

and a one-year implementation delay was turned into a sixty-one-

year delay.        2017 Wis. Act 59, § 2265.

      ¶9     The 2017-19 biennial budget, as modified by these and

other partial vetoes, became law on September 23, 2017.                             No

vetoes were overridden by the legislature, and the biennium came

and   went.    In     2019,   another     biennial       budget     was     proposed,

negotiated, passed, and signed into law.                   The 2019-21 biennial

budget went into effect as 2019 Wis. Act 9 on July 4, 2019.                         It

wasn't until October 28, 2019, nearly four months after the old

biennium had passed and the new biennial budget had been in

effect,     that    WSBU   filed   this       petition    for   original      action.

Having      already    granted     a   separate      petition      reviewing       the
governor's partial veto powers,5 we granted WSBU's petition as

well and heard arguments in both cases on the same day.



                                 II.   DISCUSSION

      ¶10    While the respondents defend the constitutionality of

the challenged vetoes, they also urge us not to reach the merits

      5Bartlett v. Evers, No. 2019AP1376-OA, slip op. (Wis. S.
Ct. July 10, 2020) (amended petition for original action granted
on October 16, 2019).

                                          6
                                                                  No.     2019AP2054-OA



and   instead   bar    WSBU's    action     pursuant      to   the      doctrine    of

laches.      Before     this    term,     this    court     has     addressed      the

governor's      constitutional       authority         to      veto       parts     of

appropriations        bills     in   eight       decisions;        none      involved

consideration of a laches defense.               All but one of these cases

were filed within a few months of the vetoes going into effect.6




      6See State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302,
260 N.W 486 (1935) (vetoes of emergency relief budget bill, ch.
15, Laws of 1935, published on March 27, 1935, challenge filed
on April 2, 1935); State ex rel. Finnegan v. Dammann, 220
Wis. 143, 264 N.W 622 (1936) (vetoes of provisions regulating
motor carriers, ch. 546, Laws of 1935, published on October 4,
1935, challenge decided by court on January 7, 1936); State ex
rel. Martin v. Zimmerman, 233 Wis. 442, 289 N.W 662 (1940)
(vetoes of public welfare appropriations bill, ch. 533, Laws of
1939, published on November 18, 1939, challenge filed on
December 2, 1939); State ex rel. Sundby v. Adamany, 71
Wis. 2d 118, 237 N.W.2d 910 (1976) (vetoes of 1975-77 biennial
budget bill, ch. 39, Laws of 1975, published on July 30, 1975,
oral argument held on December 2, 1975); State ex rel. Kleczka
v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978) (vetoes of
provisions regarding public financing of election campaigns, ch.
107, Laws of 1977, published on October 20, 1977, challenge
filed on December 2, 1977); State ex rel. Wis. Senate v.
Thompson, 144 Wis. 2d 429, 424 N.W.2d 385 (1988) (vetoes of
1987-89 biennial budget bill, 1987 Wis. Act 27, published on
July 31, 1987, oral argument held on October 20, 1987); Citizens
Util. Bd. v. Klauser (CUB), 194 Wis. 2d 484, 534 N.W.2d 608
(1995) (veto of 1993-95 biennial budget bill, 1993 Wis. Act 16,
published on August 11, 1993, challenge filed on June 13, 1994);
Risser v. Klauser, 207 Wis. 2d 176, 558 N.W.2d 108 (1997)
(vetoes of transportation budget bill, 1995 Wis. Act 113,
published on December 20, 1995, challenge filed on January 4,
1996).

                                        7
                                                               No.   2019AP2054-OA



And the lone outlier was filed within a year, well before a new

budget bill was even proposed.7



                            A.    Laches Generally

     ¶11    Laches is an affirmative, equitable defense designed

to bar relief when a claimant's failure to promptly bring a

claim causes prejudice to the party having to defend against

that claim.       Sawyer v. Midelfort, 227 Wis. 2d 124, 159, 595

N.W.2d 423 (1999).          While formulated differently across cases

and jurisdictions, the laches doctrine is broadly understood to

ask whether a party delayed without good reason in raising a

claim, and whether that delay prejudiced the party seeking to

defend     against   that    claim.        See    State   ex    rel.    Wren    v.

Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587

(explaining that laches "is founded on the notion that equity

aids the vigilant, and not those who sleep on their rights to

the detriment of the opposing party" (quoted source omitted)).

     ¶12    In   Wisconsin,      application     of   laches   is    premised   on
proof of three elements:            (1) a party unreasonably delays in

bringing a claim; (2) a second party lacks knowledge that the

     7 The partial veto challenge in CUB was filed ten months
after the vetoed biennial budget bill went into effect. See 194
Wis. 2d at 487-89.    While initiated later than the other veto
cases, this original action was still filed more than eight
months before a new biennial budget was proposed by the governor
and more than thirteen months before a new biennial budget bill
was published.     See S. Journal, 92d. Reg. Sess., at 73-79
(governor's 1995-97 biennial budget message delivered to the
legislature on February 14, 1995); 1995 Wis. Act 27 (published
on July 28, 1995).

                                       8
                                                                             No.     2019AP2054-OA



first party would raise that claim; and (3) the second party is

prejudiced     by     the    delay.           Id., ¶15.                The    party        seeking

application of laches bears the burden of proving each element.

Id.     Whether      that   burden       is   carried        is    a     question          of   law.

Id., ¶16.     Even if all three elements are satisfied, application

of laches is left to the sound discretion of the court asked to

apply this equitable bar.            Id., ¶15.



                             B.    Laches Applied Here

       ¶13   The parties dispute all three elements, and contend

that   we    should   exercise       our      discretion          in    their       favor.       We

consider each of these matters in turn.



                             1.     Unreasonable Delay

       ¶14   The first element requires the respondents to prove

WSBU    unreasonably        delayed        in     bringing             the     suit.            What

constitutes a reasonable time will vary and depends on the facts

of a particular case.             Foote v. Harrison, 137 Wis. 588, 590, 119
N.W. 291 (1909) (quoting Rogers v. Van Nortwick, 87 Wis. 414,

429, 58 N.W. 762 (1894)); see also Wren, 389 Wis. 2d 516, ¶18

("Whether a delay is reasonable is case specific; we look at the

totality of circumstances." (citation omitted)).

       ¶15   There    can    be     no   dispute        that       WSBU's          claim    became

actionable on September 23, 2017, the day 2017 Wis. Act 59 went

into   effect.        At    that     point,       the    underlying            facts       of    the

original     action    were       set.        This      is   true        even        though      the
legislature      could      have    subsequently         overridden                the   disputed
                                              9
                                                                    No.     2019AP2054-OA



vetoes.       It is the governor's procedural use of the vetoes, not

the substance of the underlying laws, that is at the heart of

WSBU's    challenge.          Notwithstanding,        WSBU    did     not     file     its

original       action   until     October       28,   2019,     well        after      the

applicable biennium had closed and nearly four months after the

new biennial budget had gone into effect.

       ¶16    WSBU does not contest these basic facts.                    Instead, it

observes that other types of actions are governed by statutes of

limitation longer than the time period at issue here, and argues

the effect of these partial vetoes will be with us for years

(decades in one instance, and a millennium in the other).                            This

is true, but does not demonstrate that its delay was reasonable.

Laches is an equitable doctrine, and therefore can and regularly

does apply even before a statute of limitation has expired.                            See

Wren,        389   Wis. 2d 516,       ¶13       n.8    (explaining            Wisconsin

jurisprudence has long recognized laches as an equitable defense

that    operates     "independently       of    any   statute       of    limitations"

(quoting      Sheldon   v.    Rockwell,     9   Wis. 158     (*166),        162   (*181)
(1859))); Zizzo v. Lakeside Steel & Mfg. Co., 2008 WI App 69,

¶7, 312 Wis. 2d 463, 752 N.W.2d 889 ("Laches is distinct from a

statute of limitations and may be found where the statute of

limitations has not yet run.").                 Moreover, it would be quite

normal for partial vetoes to have a dramatic effect.                              Many a

legislative        proposal     has   been      irrevocably         altered       by     a

governor's partial veto pen.

       ¶17    Where a litigant challenges the process by which a
bill becomes a lawindeed whether it should even be treated as a
                                          10
                                                                            No.     2019AP2054-OA



law at alla reasonably prompt lawsuit is and should be the

norm.      See,      e.g.,        State    ex   rel.     Ozanne     v.      Fitzgerald,       2011

WI 43, ¶¶29, 36, 334 Wis. 2d 70, 798 N.W.2d 436 (Prosser, J.,

concurring) (bill signed by the governor on March 11, 2011,

constitutional            challenge       to    the     bill's      procedural        enactment

filed     on    March       16,    2011).        This     is     far       different       than    a

challenge       to    the       substantive      validity      of      a    law,    where     such

lawsuits       may    not       even    ripen    until     enforcement           begins.       See

Schaeffer v. Anne Arundel Cty., 656 A.2d 751, 753-55 (Md. 1995)

(distinguishing substantive objections to statutes from belated

challenges       to       their        procedural       enactment          for     purposes       of

laches);       Stilp       v.     Hafer,       718     A.2d 290,       293-94       (Pa.    1998)

(finding lack of due diligence in pursuing procedural challenge

given relevant legislative record and constitutional provisions

publicly available at the time of the law's enactment).8                                    Here,

as we discuss more fully below, money has been spent, revenues

have come in, and the books have already been closed on the

operation of the 2017-19 biennial budget.                           Cf. Schulz v. State,
615   N.E.2d 953,           957    (N.Y.       1993)    (finding       an    11-month       delay

unreasonable         in     constitutional           challenge      brought        against     the

      8WSBU's reliance on a case rejecting a laches defense
against a constitutional challenge to the substance of a law is
misplaced given it is attacking the process by which Act 59,
§§ 1641m and 2265 were enacted, not the substance of those
provisions. Cf. Cathcart v. Meyer, 88 P.3d 1050, 1058-59 (Wyo.
2004) (rejecting laches defense against a challenge to a term-
limit   initiative  based   on  the   constitutionality of  its
substance, explaining there was no showing of particularized
prejudice and contrasting with a case based on a procedural
constitutional attack, not a substantive one).

                                                 11
                                                                  No.     2019AP2054-OA



procedural enactment of public financing laws).                         Waiting years

after a budget bill has gone into effect to challenge whether it

was constitutionally enacted in the first place is too long.

See id. ("[F]iscal year 1990-1991 has come and gone and its

financial books in this respect have been closed.                           Equitable

considerations of time, in the laches sense, may justifiably

keep       them    closed . . . .").        Giving    a   stamp    of    approval    to

delayed litigation raising procedural challenges like the proper

exercise of a partial veto would invite lawsuits over budgets of

yesteryear and disrupt the status quo.                 There must be a limit to

when       a   lawsuit   like    this    may    be   filed.       We    conclude    the

challenge here, brought well after the previous biennium had

passed, and after a new budget based on current law and future

projections had taken effect, constitutes unreasonable delay.9



                                2.   Lack of Knowledge

       ¶18        We also determine the respondents lacked knowledge of

WSBU's forthcoming claim.               The respondents assert they remained
unaware of any potential claim until this original action was

filed, an assertion WSBU does not deny or further dispute.                         WSBU

still contends, however, that the respondents "certainly could

have anticipated that someone might challenge vetoes with such

prolonged consequences."             That's possible, but only in the sense


       The respondents argue for a firm cutoff at the end of the
       9

biennium for these kinds of challenges.       However, laches is
always case-specific, and we need not establish such a rule to
conclude that the delay under these circumstances was too long.

                                           12
                                                                      No.    2019AP2054-OA



that every partial veto could one day become a litigated matter.

Based on the undisputed record before us, the respondents here

had no advance knowledge or warning of this particular claim.

That is sufficient to satisfy this element of a laches defense.10



                                     3.    Prejudice

     ¶19     The     final       element     of    laches      requires       proof       of

prejudice     resulting       from    the    claimant's        unreasonable         delay.

"What     amounts    to     prejudice . . . depends            upon    the    facts      and

circumstances       of    each    case,    but    it    is   generally       held   to    be

anything that places the party in a less favorable position."

Wren, 389 Wis. 2d 516, ¶32.

     ¶20     The respondents argue that, given their roles in the

state budget-making process, WSBU's delay places them in a less

favorable position with regard to the planning and management of

state     receipts    and    expenditures.             The   respondents'      claim      is

specifically grounded in a prejudicial change to their position

regarding the 2019-21 budget (i.e., the state's current budget).
Collectively, this describes a form of prejudice that we have

called economic prejudice.                See id., ¶33 & n.26 (distinguishing

economic     and    evidentiary       prejudice);        27A   Am.    Jur.    2d    Equity

     10See   Schafer  v.   Wegner,   78  Wis. 2d 127,  133,   254
N.W.2d 193 (1977) (concluding party asserting laches defense
lacked knowledge of claim given that claim had not been raised
in a reasonable time); cf. Watkins v. Milwaukee Cty. Civil Serv.
Comm'n, 88 Wis. 2d 411, 422-23, 276 N.W.2d 775 (1979) (noting
the petitioner informed the respondent at the time of his
resignation   that   litigation    would  be   commenced   if   a
corresponding hearing was not held).

                                            13
                                                                     No.   2019AP2054-OA



§ 144       (discussing       types    of         prejudice     including        economic

prejudice caused by a change in a responding party's position).

       ¶21     Broadly    speaking,        every    new   budget   bill     is    created

with    an     understanding      that       earlier      budgets,    including      any

provisions      bearing      marks    of    former     vetoes,     will    serve    as    a

foundation.          At the direction of the governor, the respondents

and other executive branch officers hold this understanding when

they create department budgets and ready all of the other fiscal

information that must be included in a biennial budget report.11

The governor then carries the same understanding when creating

his proposed budget and when signing the legislature's proposed

budget into law.             See Champagne, supra, at 1 (describing the

state       budget    bill   as   Wisconsin's        most     significant    piece       of

legislation in part because "it contains most of the governor's

public policy agenda for the entire legislative session").

       ¶22     Turning to the making of the 2019-21 budget, if the

challenged vetoes from the outgoing budget are removed from the

picture, as WSBU now pleads, there would have been cascading


       The
       11    respondents,   while   acting  in  their   official
capacities, each direct and supervise a department within the
executive branch structure.   See Wis. Stat. § 15.10 (department
of administration); Wis. Stat. § 15.37 (department of public
instruction); Wis. Stat. § 15.43 (department of revenue).     In
these roles, they all have various duties related to the state
budget-making process.     See, e.g., Wis. Stat. § 15.04(1)(b)
(requiring from each department a biennial compilation of a
comprehensive program budget); Wis. Stat. §§ 16.43 and 16.46
(requiring the secretary of administration to prepare the
biennial state budget report); Wis. Stat. § 16.46(8) (requiring
the department of revenue to report on estimated state revenues
for inclusion in the budget report).

                                             14
                                                                        No.    2019AP2054-OA



effects      on     the     state's      global     policy       calculus      and     budget

outlook, as well as options available to policymakers.                                    For

instance,         eliminating      the     moratorium      on     the   school       district

revenue-limit adjustment in Act 59, § 1641m could have led to

property tax increases in school districts across the state.

Even a change like this adjusts how the state's policy puzzle

fits    together.           With   potentially          higher    property      taxes,    the

respondents         could     have    chosen       to    offer     various      offsetting

property tax relief measures.                     Maybe different revenue limits

would    have       been    proposed.         Maybe       school     district        spending

priorities would have been altered by the incentive in a way

that would have changed their funding requests during the new

biennium.         Likewise, according to the respondents' calculations,

putting 2013 Wis. Act 229 into effect by undoing the partial

veto in Act 59, § 2265 could have caused an annual decline of

more than $10 million in sales-and-use tax revenue.                              This is a

significant         adjustment        to    the    state         balance      sheet.      To

compensate, policymakers could have enacted a tax increase to
make up for lost revenue.                  Or maybe they would have chosen to

spend $10 million less per year on some other state program or

priority.

       ¶23    WSBU responds that the financial footprint of these

budgetary programs was a "microscopic fraction" of the total

appropriations for the 2019-21 biennium.                          We disagree that $20

million      is    mere    change     in   the    state's        coffers.       While    this

amount of specific tax revenue seems small in comparison to the
state's total revenues over the course of a biennium, it is
                                             15
                                                                        No.   2019AP2054-OA



still a significant sum.               The state's budget reserve provides a

clear example of why this is so.                    The reserve, which is premised

on projections of revenues and expenditures, acts as a budget

stabilization mechanism in times of fiscal uncertainty.12                                    In

fact, state law imposes a mandatory reserve floor.                              Wis. Stat.

§ 20.003(4).       For the 2019-21 budget, the state was required to

maintain a reserve of at least $80 million and $85 million in

the two fiscal years.                See § 20.003(4)(L).               Two years of $10

million    in    tax    revenue       is     almost    a    quarter     of    the     reserve

required for the entire biennium.

    ¶24     Even       so,    the    point     of    this    discussion       is    not    the

specific    amount       of    revenue       loss     or    a    definitive        statement

regarding       what    would        have    happened.           The    point       is    that

unreasonable      delay       cost     the    respondents         the    opportunity         to

account for those changes in the development and passage of the

2019-21     biennial         budget.         The     alternatives       are     not      "pure

speculation" as WSBU alleges.                       These examples show that the

2019-21 budget paid for and relied upon decisions the partial
vetoes solidified into law more than two years earlier.

    ¶25     In    short,       the     provisions      of    a   biennial      budget       are

hardly something that can be examined in isolation.                                      Budget

bills are complex and dynamic creatures, and each individual

figure and measure incorporated within the enacted law plays a


    12 See generally Christa Pugh, Legislative Fiscal Bureau,
Budget Stabilization Fund and General Reserve Fund Requirements
(2019) (outlining the design and purposes of Wisconsin's budget
reserve).

                                              16
                                                                 No.    2019AP2054-OA



part    in   an    interconnected        network       of   complementary    policy

choices.     WSBU's delay in seeking to reverse decisions from the

2017-19 biennium deprived the respondents of the opportunity to

take an altered policy foundation into account in subsequent

choices.     For this, the respondents are surely placed "in a less

favorable position."            Wren, 389 Wis. 2d 516, ¶32.               And that

constitutes prejudice.13



                                 4.    Discretion

       ¶26   The   respondents        have    proved     all   three   elements   of

laches are met in this case.             Even so, application of laches is

within our equitable discretion.                 See id., ¶15 (explaining a

court may choose not to apply laches "if it determines that

application of the defense is not appropriate and equitable").

We conclude equity weighs strongly in favor of applying laches

here.

       ¶27   We    have    already     covered     the      specific   prejudicial

effect to the respondents.             This by itself is weighty.            But in
addition,     every       new   budget       generates      substantial     reliance


        As part of their prejudice argument, the respondents
       13

emphasize that the challenged vetoes were made by a previous
gubernatorial administration.  All of the respondents have been
sued in their official capacity, which means the individual
occupant of any given position is irrelevant to the broader
prejudice argument. The prejudice to the official functions of
the named respondents is the same regardless of whether their
priorities or policy views may be different. In any event, the
respondents have shown they will be prejudiced regardless of
whether there was an intervening change in the governor's
office.

                                         17
                                                                           No.     2019AP2054-OA



interests on behalf of both public and private parties across

the state.        The same cascading effects of even modest changes to

a broader policy framework are true not just within the biennial

budget itself, but for the budgets and outlook of counties,

municipalities,          school      districts,          nonprofit           organizations,

colleges, road contractors, health care systems, and innumerable

other public and private actors.14

     ¶28       Part    of     this   is     the     reasonable            presumption        that

enacted laws, especially budget bills, can be relied upon to

order     one's      affairs.        The       respondents         make     this     point    in

reference to our recent decision in Winebow, Inc. v. Capitol-

Husting    Co.,       which   turned      in    part    on   the     effect        of   partial

vetoes    in    the     1999-2001      budget.          2018       WI 60,        ¶¶12–22,     381

Wis. 2d 732, 914 N.W.2d 631 (discussing 1999 Wis. Act 9, § 2166m

and § 2166s).          There, on a certified question from the Seventh

Circuit,        we     determined          whether       a         wine      grantor-dealer

relationship satisfied the definition of a dealership in the

Wisconsin      Fair     Dealership         Law.        Id., ¶1.            Underlying        that
question,      the     parties    each     pointed      to     a    different        statutory

provision as containing the dispositive answer.                             See id., ¶¶23,

     14See also 30A C.J.S. Equity § 155 ("The defense of laches
is applied with even greater force when delay in attacking the
legality of the collection and spending of public moneys will
result in grave public injury were the relief sought to be
granted."); 27A Am. Jur. 2d Equity § 145 ("The court may look at
the disruptive effect a plaintiff's relief would have on other
parties in determining whether laches applies to the claim.
Thus, laches is particularly justified where the plaintiff's
delay in pursuing a claim would have a catastrophic effect on
the rights of many third parties." (footnote omitted)).

                                               18
                                                                   No.     2019AP2054-OA



25 (citing Wis. Stat. §§ 135.02(3)(b), 135.066 (2015-16)).                           To

provide      background,         we   unpacked     the       provisions'      relevant

statutory history, which included partial vetoes from nearly two

decades      earlier.       Id., ¶¶12-22.         In    answering    the     certified

question,      we   did    not   address    the   constitutionality          of   those

vetoes.      But if we had done so and ruled that they were beyond

the governor's constitutional authority, Wisconsin's commercial

wine industry could have been radically upended given statewide

reliance interests on a 19-year-old partial veto that was newly

determined invalid.

       ¶29    Other     jurisdictions      have    similarly       barred     untimely

challenges to alleged procedural deficiencies in the enactment

of a law.      In so doing, these courts acknowledge the broader and

more    pervasive       prejudicial     effects        resulting    from     belatedly

undoing statutory enactments.              See, e.g., Schaeffer, 656 A.2d at

753, 755 (emphasizing prejudice that would be caused to hundreds

of county employees who relied on pension plan modifications

effected      by      an   ordinance       subject      to    belated       procedural
challenge); Cole v. State ex rel. Brown, 42 P.3d 760, 764 (Mont.

2002)     (identifying       prejudice       of    former      officeholders        and

potential       candidates        who   relied         on    presumptively        valid




                                           19
                                                 No.    2019AP2054-OA



constitutional   term-limit   initiative   subject     to   belated

procedural challenge).15




     15The New York Court of Appeals decision in Schulz v. State
appears to provide a particularly fitting comparison to this
case.   There, the court held laches should apply against a
procedural challenge to various public financing laws that had
been enacted 11 months earlier.    615 N.E.2d 953, 957-58 (N.Y.
1993).     In the intervening period, significant financial
activity was conducted in reliance on the statues.    Id.  Thus,
amongst the "profound destabilizing and prejudicial effects from
delay" that could affect the state in its "operation and
maintenance  of   orderly  government,"   the  New   York  court
explained:

     Appellants' demand for relief on the merits of their
     constitutional challenge would have the bonds recalled
     and refunded and the nonbond transactions nullified.
     Metaphorically, the impossibility of putting genies
     back in their bottles springs to the imagination.
     Realistically, constitutional challenges to public
     financing of such massive and profound dimension,
     possibly causing traumatic disturbance to settled
     matters of public finances and governance, should be
     undertaken reasonably promptly.        To relax this
     procedural safeguard could disproportionately incur or
     threaten a greater harm to the public weal than the
     alleged constitutional transgression itself.   Undoing
     such closed financial transactions would also add
     hundreds   of   millions  of   dollars   of  unplanned
     expenditures to the taxpayers' burdens.       In sum,
     fiscal year 1990–1991 has come and gone and its
     financial books in this respect have been closed.
     Equitable considerations of time, in the laches sense,
     may justifiably keep them closed and do not warrant,
     in the circumstances presented here, a piecemeal
     invalidation challenge as suggested . . . .

Id. (citation omitted).

                               20
                                                                     No.       2019AP2054-OA



       ¶30    Orderly state governance is premised in no small part

on the stability and certainty of state finances.                           Nowhere are

those    principles       needed      more    than      in   the   state's        biennial

budget.      Each budget bill is a massive undertaking that is meant

to fully encapsulate the financing of the state's operations and

programs over the next two years.                  Our state is, to a very large

degree, publicly and privately ordered around that single piece

of legislation.          Judicial disturbance of biennial budgets past

would be incredibly disruptive to the public and private affairs

of many whose livelihoods are tied to public policy (which is to

say, almost everyone).

       ¶31    It    is   true    that   the       proper     interpretation        of    the

governor's partial veto powers is an important question.                                 But

that alone, in our view, does not counsel undoing the current

policy framework that was crafted in reliance on the policy

choices      settled     in     the   previous      biennium.        This       court    has

considered      cases     arising      from   the       governor's      veto     authority

before; we will surely do so again.                        But it is crucial that
claims of this sort are brought in a timely manner.                                Because

this    claim      was   not,    application       of    laches    in    this     case    is

equitable and appropriate.


     WSBU's citation to another New York case that distinguished
itself from Schulz simply shows that laches is a fact-specific
defense. Cf. Saratoga Cty. Chamber of Commerce, Inc. v. Pataki,
798 N.E.2d 1047, 1056-57 (N.Y. 2003) (rejecting laches defense
against a challenge to a gaming compact because, in contrast to
Schulz, there was no showing that delay caused economic
prejudice   given  the  casino's   operations  had  never   been
interrupted).

                                             21
                                                             No.    2019AP2054-OA




                               III.    CONCLUSION

    ¶32    WSBU   challenges     two    partial     vetoes   in    the   biennial

budget enacted in September 2017.           But WSBU waited until October

2019 to file this action.         The 2017-19 biennium has closed, and

a new biennial budget has since been enacted relying in part on

the law enacted in 2017.          The respondents have established the

elements   of   laches   and    demonstrated      that   application      of   the

equitable doctrine is appropriate here.             Accordingly, we dismiss

WSBU's original action.

    By the Court.-Relief denied.




                                       22
                                                                          No.    2019AP2054-OA.rgb


       ¶33     REBECCA          GRASSL     BRADLEY,             J.     (dissenting).             In

resolving this dispute over the scope of the governor's veto

power, the Wisconsin Supreme Court should have consulted the

Wisconsin      Constitution,             under      which       "all      governmental        power

derives       'from       the    consent       of       the    governed'        and    government

officials may act only within the confines of the authority the

people give them.               Wis. Const. art. I, § 1."                   Wis. Legislature

v.    Palm,    2020       WI     42,   ¶66,      391      Wis. 2d 497,          942    N.W.2d 900

(Rebecca Grassl Bradley, J., concurring).                            Instead, the majority

latches on to laches, an equitable doctrine that operates not as

a jurisprudential command, but merely as a discretionary option

for    avoiding       a    decision       on     the      merits.          The    text    of    the

constitution      does          not    support          the    exercise     of     either      veto

challenged in this case and the court should have so declared.

"Whenever any branch of government exceeds the boundaries of

authority      conferred          by   the     people,          it   is    the    duty    of   the

judicial branch to say so."                  Id.

       ¶34     Under       the    Wisconsin             Constitution,       all       bills    must
originate in the legislature, and only the legislature may amend

them.      Wis. Const. art. IV, § 19.1                        In the exercise of his veto

power, the governor may approve or reject an appropriation bill,

in whole or in part, and the approved part then becomes law.




       1   Wisconsin Constitution, Article IV, Section 19 provides:

       Any bill may originate in either house of the
       legislature, and a bill passed by one house may be
       amended by the other.

                                                    1
                                                                     No.    2019AP2054-OA.rgb


Wis. Const. art. V, § 10(1)(b).2                      With respect to each of the

bills      at     issue   in    this       case,     the   legislature        delayed      the

effective date of a law, not a bill, by one year; in exercising

his "veto," the governor delayed their effective dates by 1000

years and 60 years, respectively, effectively nullifying each

law.       The     constitution        does    not    confer    on    the    governor     any

authority to amend or otherwise rewrite a bill in this manner,

much less abolish laws altogether.

       ¶35      The governor's vetoes invaded the exclusive province

of   the     legislature        by    amending       the   effective       dates     of   laws

previously         passed      by    the     legislature       and    approved       by   the

governor, effectively erasing these laws from the books.                                   The

people       of    Wisconsin         never    gave     the     governor       this     power.

Nonetheless, it is not at all surprising that many governors

have exceeded the veto authority the constitution accords them,

because this court has repeatedly "dress[ed] up the governor as

the people's legislative agent (with respect to appropriations

bills)" in utter disregard for what the constitution actually
says.      Bartlett v. Evers, 2019AP1376-OA, slip op., ¶173 (Wis. S.

Ct. July 10, 2020) (Kelly, J., concurring in part; dissenting in




       Wisconsin Constitution,
       2                                           Article     V,     Section        10(1)(b)
provides, in relevant part:

       Appropriation bills may be approved in whole or in
       part by the governor, and the part approved shall
       become law.

                                               2
                                                              No.   2019AP2054-OA.rgb


part).3     Although this court's repeated and erroneous broadening

of the veto authority invariably contravenes the constitution's

separation of powers, even this court's atextual interpretations

of the veto power have never permitted a governor's repeal of

duly enacted law.            Nor has this court ever ducked the merits

altogether after granting an original action petition to decide

whether a governor's veto violated the constitution.                     Until now.

      ¶36    Without any precedent to support its sidestepping, the

court     declines   to   answer        the   constitutional    question     it   had

agreed to decide.         Instead, it makes the unprecedented move of

disposing of this case under the doctrine of laches, declaring

the petitioners filed this action a couple months too late to

warrant a substantive analysis, under a new rule the majority

just made up.        The majority shirks its responsibility to decide

a   fundamental      issue    of   constitutional      law.         I   respectfully

dissent.

                                   I.    BACKGROUND

      ¶37    This case arises from Governor Scott Walker's vetoes
within the 2017-19 budget bill, namely Section 1641m and Section

2265.       Section 1641m affected Wis. Stat. § 121.91(4)(o), the


      3Justice Daniel Kelly's concurrence/dissent in Bartlett v.
Evers, 2019AP1376-OA, slip op. (Wis. S. Ct. July 10, 2020),
thoroughly explores this court's partial veto jurisprudence and
how it conflicts with the text of the constitution.      In that
opinion, Justice Kelly also explains the mechanism provided by
the Wisconsin Constitution for the enactment of laws, as well as
the original meaning of the provisions permitting a governor to
approve an appropriation bill "in part."    See id. (Kelly, J.,
concurring in part; dissenting in part). I will not repeat that
analysis in this opinion, but refer the reader to Justice
Kelly's opinion in Bartlett.

                                              3
                                                                      No.    2019AP2054-OA.rgb


statute allowing a school district to exceed revenue limits if

it   "implement[s]        energy       efficiency        measures      or"     "purchase[s]

energy efficiency products."                  Id.     This has been the law since

2009.     See Wis. Stat. § 121.91(4)(o) (2009-10).                          The legislature

decided to impose a moratorium on the "Energy Efficiency Revenue

Limit Adjustment" for the calendar year 2018.                          The legislature's

one-year      moratorium       was     drafted      by    adding      subdivision          4    to

already-existing          Wis.       Stat.     § 121.91(4)(o).               Subdivision         4

provided:      "Unless the resolution is adopted before January 1,

2018,    subd.      1.   applies       only    to    a    resolution         adopted      after

December      31,    2018."          The     governor     struck       "1,    2"    from       the

"December 31, 2018" date to change the one-year pause of the

Energy Efficiency Adjustment into a millennium moratorium (1,000

years) extending until December 3018.

       ¶38    Section 2265 modified Wis. Stat. § 77.585, a statute

affording retailers the ability to obtain a refund of sales tax

paid    to   the    State      for    the     uncollectible         amount     of    customer

purchases made using retailer-issued credit cards that become
"bad debt" as defined in the statute.                         In 2013, the legislature

amended      § 77.585     to   allow       refunds       of   sales    taxes       paid    by    a

retailer      for   the     uncollectible           amount     of     purchases      made       by

customers using credit cards (like Visa or Mastercard) issued by

third party lenders who partner with the retailer.                                  When this

bill was enacted into law, the legislature initially delayed the

effective date to July 1, 2015, subsequently to July 1, 2017,

and later to July 1, 2018.                   The "Private Label Credit Card Bad
Debt Deduction" amendments would have taken effect on July 1,

                                               4
                                                                No.    2019AP2054-OA.rgb


2018, but for the governor's use of his veto power to change the

effective     date      to    July    1,        2078,     thereby      delaying      the

implementation of the statute for 60 years.

      ¶39    After executing his vetoes, the governor approved the

2017-19 budget bill, which became 2017 Wisconsin Act 59 and was

published on September 22, 2017.                  The partial veto review was

placed on the Assembly calendar for May 8, 2018 as part of the

veto review session pursuant to Joint Rule 82(2)(a),4 but the

Assembly did not act to override the governor's vetoes.                              See

State of Wis. Assemb. J., May 8, 2018, at 943.

      ¶40    On July 4, 2019, the 2019-21 biennial budget went into

effect.     On October 28, 2019, WSBU filed a petition with this

court seeking to initiate an original action challenging two of

the governor's vetoes within the 2017-19 budget.                       WSBU asked the

court to answer the following question:                         "May the Governor,

pursuant to his constitutional authority under art. V, sec. 10

of   the    Wisconsin      Constitution,        as    amended     in    1990,    reject

individual parts of a date contained in an enrolled bill so as
to   create    a     new     date    that       was     never    approved       by   the

Legislature?"        The court issued an order requiring the named

respondents    to    file     a   response       to     the   petition,     which    the

Attorney General subsequently submitted to the court on December

6, 2019 on behalf of the respondents.

      ¶41    The Attorney General's response raised concerns with

the timing of WSBU's petition and requested the court deny the


      4See Wis. Jt. Rules of Senate and Assembly § 82 ("Veto
review session, even numbered year.").

                                            5
                                                                No.    2019AP2054-OA.rgb


petition     on    that    basis.     Emphasizing         that    WSBU     filed    the

petition after the 2017-19 biennium ended, the Attorney General

asserted that "Petitioners have not acted promptly" and "[t]heir

petition comes two years after Act 59 was published . . . and

more than three months after the successive biennial budget bill

was signed into law."           The Attorney General advised the court

that the "timing of Petitioners' petition is in stark contrast

to   prior        lawsuits     challenging         governors'          partial      veto

authority"——noting other lawsuits contesting budget vetoes "were

challenged promptly, within the same budget biennium."

     ¶42     Despite      knowing   WSBU       filed    its    petition     after   the

2017-19 budget time period, this court granted the petitioners'

request    for     this    original   action       on    the    issue     of   whether

Governor Walker exceeded his authority when he used his veto

power to change the effective dates of two laws in the 2017-19

biennial budget bill.          The court's order asked the parties to

file briefs, and the court held oral argument in April 2020.

              II.    ORIGINAL ACTIONS & CRITERIA FOR REVIEW
     ¶43     Article VII, Section 3 of the Wisconsin Constitution

confers jurisdiction on this court to hear "original actions and

proceedings."       Wis. Const. art. VII, § 3(2).                     Original action

petitions are relatively rare and the court grants one only if

four or more justices vote to take the case.                      Wis. S. Ct. IOP

III (Sept. 13, 2019).           Even before the vote, the respondents

file a response brief, as they did in this case.                          Wis. S. Ct.

IOP III (Sept. 13, 2019).             The court then decides whether to
grant the petition, having had the benefit of hearing from both

                                           6
                                                       No.    2019AP2054-OA.rgb


sides.    "When a matter is brought to the Supreme Court for

review, the court's principal criterion in granting or denying

review   is    not   whether   the   matter   was   correctly    decided      or

justice done in the lower court, but whether the matter is one

that should trigger the institutional responsibilities of the

Supreme Court."        Wis. S. Ct. IOP III (Sept. 13, 2019).                 "The

same determination governs the exercise of the court's original

jurisdiction."       Wis. S. Ct. IOP III (Sept. 13, 2019).

    ¶44       Wisconsin Stat. § 809.62(1r) enumerates "criteria for

granting review" and provides in pertinent part:

    Supreme   court  review   is a   matter  of   judicial
    discretion, not of right, and will be granted only
    when special and important reasons are presented. The
    following,   while   neither controlling   nor   fully
    measuring the court's discretion, indicate criteria
    that will be considered:

    (a) A real and significant question               of     federal   or
    state constitutional law is presented.

    (b) The petition for review demonstrates a need for
    the   supreme   court    to consider    establishing,
    implementing  or   changing a   policy   within   its
    authority.

    (c) A decision by the supreme court will help develop,
    clarify or harmonize the law, and

    1. The case calls for the application of a new
    doctrine rather than merely the application of well-
    settled principles to the factual situation; or

    2. The question presented is a novel one,                          the
    resolution of which will have statewide impact; or

    3. The question presented is not factual in nature but
    rather is a question of law of the type that is likely
    to recur unless resolved by the supreme court.



                                      7
                                                           No.    2019AP2054-OA.rgb


Determining whether a governor exceeded his constitutional veto

authority    in    effectively       repealing    laws     by    changing    their

effective    dates       unquestionably      triggers      the     institutional

responsibility of this court.           At least four justices agreed and

voted to grant the petitioners' original action petition.

         III.     THE MAJORITY'S REFUSAL TO DECIDE THE MERITS

    ¶45     The majority declines to decide the constitutionality

of Governor Walker's vetoes, a significant issue of statewide

importance   that       at   least   four   members   of   this    court    agreed

should be resolved.          Instead, the majority denies relief based

on the equitable doctrine of laches, which by its very nature

rests   within    the    discretion    of   the   court    to    apply——or    not.

Although in a footnote the majority denies it,5 the majority's

opinion establishes a rule barring challenges to a governor's

vetoes unless filed within the biennium in which the vetoes

occurred.    The majority concludes that because WSBU brought its


    5  Majority op., ¶17 n.9.    The majority's opinion focuses
entirely on the untimeliness of WSBU's action based on its
filing after the relevant biennium had passed and a new biennium
was underway.    Nevertheless, the majority denies establishing
any laches rule with respect to veto challenges, emphasizing it
is merely concluding WSBU waited "too long" "under these
circumstances." Id. In other words, the majority knows it when
it sees it, but it's not disclosing "it." If the majority isn't
establishing a laches rule (which would be helpful) and isn't
resolving the substantive issue it said it would decide (which
leaves an important question unanswered), then why did the court
take this case?    If the court is declaring merely that under
these specific facts, laches applies, then the court could have
(and should have) simply denied the petition.       Instead, the
majority releases an opinion providing no answer to the question
granted and establishing no precedent.    Future litigants will
have no idea how late is "too late" because the majority offers
nothing to guide them. So much for the rule of law.

                                        8
                                                                    No.   2019AP2054-OA.rgb


challenge a few months after the 2017-19 biennium ended, the

action is too late.              The majority embraces this novel laches

argument (to which the Attorney General devoted a mere 6 pages

of   his     47-page    brief)       even    though     laches      was   not   an    issue

presented in the petition.

       ¶46    The majority denies WSBU relief based on the laches

doctrine even though this court has never applied laches in an

original       action     challenging           the     constitutionality            of     a

governor's veto——giving WSBU no notice or warning that its veto

challenge      would    be     denied       without    answering      the    substantive

question upon which this court granted WSBU's petition.                                   The

court      employs     laches    as     a     mechanism       to    avoid    deciding      a

fundamental      question       of    constitutional         law    and     leaves    these

petitioners in the dark.                The people of Wisconsin will never

know       whether     these     vetoes       comport        with    or     violate       the

constitution.           Nor     will        current     or    future      governors       or

legislatures, unless and until the court decides to resolve this

issue——perhaps in 60 or 1,000 years.
       ¶47    The    majority        concludes        that    the    Attorney     General

satisfied his burden of proving all of the elements of laches.

I disagree.6         Even if the elements of laches were satisfied, I

       The
       6    majority's  questionable   analysis   of   laches  is
unprecedented in resolving an original action challenging a
governor's veto. First, the majority concludes that WSBU could
have challenged these vetoes as early as September 23, 2017——the
effective date of the 2017-19 budget bill.       Its presumption
ignores the time period allowed for a legislative override,
which did not expire until May 8, 2018. The Joint Rules of the
Wisconsin Senate and Assembly provide that "[t]he biennial
session schedule shall provide for a veto review session"
between April 1 and June 30 of even-numbered years that would
include gubernatorial vetoes or partial vetoes.      See State of
                                9
                                                No.   2019AP2054-OA.rgb




Wis. Jt. Rules of Senate and Assembly § 82(1) & (1m)(a).      The
partial vetoes in this case were calendared and then sustained
on May 8, 2018, because the legislature did not act to override
them.         See    Adverse     Disposal,   State     of    Wis.
Assemb. J., May 8, 2018, at 943,
https://docs.legis.wisconsin.gov/2017/related/journals/assembly/
20180508.pdf.      Citing   nothing   but  cases   from   foreign
jurisdictions, the majority perfunctorily concludes WSBU waited
"too long" and "[t]here must be a limit to when a lawsuit like
this may be filed," although it refuses to announce what that
limit is.    Majority op., ¶17.     Of course, no Wisconsin law
specifies a limit, and the one the majority invents apparently
applies only under the circumstances in this particular case.
Worse yet, the majority imposes its amorphous time limit
retroactively on WSBU, who could not have foreseen its action
would be time-barred.

     Second, "[w]hether the doctrine of laches applies is fact
specific."    Riegleman v. Krieg, 2004 WI App 85, ¶22, 271
Wis. 2d 798, 679 N.W.2d 857.    The existence of disputed facts
would preclude the application of laches, but the majority
pretends none exist.      The majority summarily concludes the
respondents lacked knowledge of WSBU's forthcoming claim based
solely on the respondents saying so and "[b]ased on the
undisputed record before us."     Majority op., ¶18.     WSBU was
never afforded the opportunity to refute the assertion and there
is no "record" before us because this is an original action in
which no factual development occurred.         Nevertheless, the
majority   concludes  the   respondents  proved   the   "lack  of
knowledge" element of laches despite the absence of any
evidentiary or testimonial evidence to support it.

     Finally,   the  majority's   analysis of the doctrine's
prejudice prong details a number of speculative, alternative
actions the State might have taken if the claim against the
budget vetoes were brought earlier:

       "Maybe   different   revenue   limits   would     have    been
        proposed."

       "Maybe school district spending priorities would have
        been altered by the incentive in a way that would have
        changed their funding requests during the new biennium."

       "[M]aybe they would have chosen to spend $10 million less
        per year on some other state program or priority."

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would not apply the doctrine.                    A constitutional challenge to the

power     of    the     governor,         particularly          as     it        implicates          the

separation        of     powers,          takes        precedence           over        all     other

considerations,              including          the     economic            consequences             of

invalidating       a     governor's         veto      (which        relate        to    the    remedy

rather than the merits).                   The powers constitutionally assigned

to the legislative branch "must be kept forever separate" from

those assigned to the executive branch "because, as Madison once

observed, '[t]here can be no liberty where the legislative and

executive       powers       are    united      in    the     same    person,           or    body   of

magistrates.'          The    Federalist        No.     47,    at     299        (James      Madison)

(Clinton       Rossiter       ed.,       1961)."        Palm,        391    Wis. 2d 497,             ¶92

(Kelly, J., concurring).                 "[O]ur duty to ensure the lines do not

cross is mandatory and non-discretionary."                            Id.        Regardless, the

reasoning       underlying         the    majority's        application            of     laches      is

fundamentally          unsound.           The    same       economic        consequences             the

majority       invokes       to    justify      its    application           of    laches       would

exist if WSBU had filed this action on July 3, 2019——one day
before    the    2019-21           biennium      began,       and    therefore           presumably

timely    under        the    majority's         new     case-specific             laches       rule.

Given the importance of the issue presented in this original

action and this court's choice to take the case, the majority

should have addressed the merits.                      See Zizzo v. Lakeside Steel &

Mfg.     Co.,    2008        WI    App    69,     ¶6    n.3,        312     Wis. 2d 463,             752

N.W.2d 889 (Even if a court "find[s] all the elements of laches

Majority op., ¶22.     However likely those actions would have
been, the court cannot cite anything to prove any form of
prejudice actually occurred.

                                                 11
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present, [it] may nevertheless exercise its discretion not to

apply the doctrine.").

    ¶48      In     applying     laches,       the    majority          credits      the

respondents' reliance on the budget but ignores WSBU's reliance

on the state of the law when the court granted its single-issue

petition.     WSBU could not possibly have known that a challenge

on October 28, 2019 to the 2017-19 budget was too late, given

these circumstances:

       The court granted WSBU's petition solely on the issue

        requested:             "May    the     Governor,         pursuant       to   his

        constitutional authority under art. V, sec. 10 of the

        Wisconsin       Constitution,         as   amended        in    1990,    reject

        individual parts of a date contained in an enrolled bill

        so as to create a new date that was never approved by the

        Legislature?"

       The court granted WSBU's original action petition knowing

        it    was     filed    after    the    2017-19      budget      biennium     had

        passed.
       The court has never granted an original action petition

        challenging       a    governor's      veto       and    then    declined    to

        address the merits.

       There is no prior Wisconsin case declaring that laches

        will bar a veto challenge if the petition is filed four

        months       beyond     the    biennium      to    which       the    challenge

        applies.

       The       petitioner    challenges     "vetoes"         that    set   effective
        dates 1,000 and 60 years into the future.

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       ¶49    The court could have established its new laches rule

barring post-biennium actions challenging gubernatorial vetoes

at the same time it addressed the merits of the constitutional

issue it agreed to decide in this case.                        The laches rule could

have been applied prospectively and all future litigants would

have fair warning that a veto challenge must be filed before the

biennium expires.            Instead, the court chose to blindside WSBU.

Despite granting the petition, well-aware of its post-biennium

timing,      the    court     refuses    to        analyze    whether     the    governor

violated      the    constitution        by    employing        his     veto    power   to

eliminate previously enacted law.                     The court reasons that the

political branches relied on the 2017-19 budget in developing

the 2019-21 budget bill and if the governor had known about the

veto challenge before the enactment of the 2019-21 budget, he

may have acted differently.              This is an unjustifiable excuse to

avoid deciding the fundamental question of constitutional law

the court announced it would decide.                       Any impact on the 2019-21

budget could have been rectified through a budget repair bill
under Wis. Stat. § 16.50(7) to address the effects of the court

declaring the vetoes unconstitutional.                         The majority took an

unprecedented and unwarranted "pass" on the issue it said it

would decide, leaving WSBU, the people, and current and future

governors and legislatures with a question that may never be

answered.           Even     more     troubling,       the      court    leaves     these

unconstitutional           vetoes    unchecked       and     uncorrected——threatening

the "tripartite separation of independent governmental power"
that   constitutes         "the     bedrock    of    the     structure    by    which   we

                                              13
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secure liberty."             Gabler v. Crime Victims Rights Bd., 2017 WI

67, ¶3, 376 Wis. 2d 147, 897 N.W.2d 384.

       IV.     THE WISCONSIN CONSTITUTION, SEPARATION OF POWERS,
                         AND APPROPRIATION VETOES
       ¶50     Under        Article     IV,     Section 1          of      the        Wisconsin

Constitution, the people vested the legislative power in the

senate and assembly:              "The legislative power shall be vested in

a   senate     and     assembly."        Wis.       Const.    art.      IV,     § 1.      Under

Article      V,    Section       10   (1)(a),       "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).

With       respect    to    a    non-appropriation           bill,   the       governor       may

approve and sign the bill, which then becomes a law.                                   See Wis.

Const. art. V,             § 10(1)(b).7        Alternatively,           the governor may

reject       the     bill       and   return        it,   along      with       his     written

objections, to the house in which the bill originated.                                 See Wis.

Const. art. V, § 10(2)(a).8               The governor may approve "in whole

       7   Wisconsin Constitution, Article V, Section 10(1) provides:

       (a) Every bill which shall have passed the legislature
       shall, before it becomes a law, be presented to the
       governor.

       (b) 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.

       (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 new sentence by combining parts
       of 2 or more sentences of the enrolled bill.
       8   Wisconsin Constitution, Article V, Section 10(2) provides:

                                               14
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or in part" any appropriation bill, "and the part approved shall

become law."    See Wis. Const. art. V, § 10(1)(b).            Only a super

majority of the legislature (two-thirds of the members present)

may override the governor's veto of any bill.               See Wis. Const.

art. V, § 10(2)(a)-(b).

      ¶51   Under   the   Wisconsin   Constitution,   the     governor    may

veto an appropriation bill, but only the legislature may amend

it.   The "powers of amending and vetoing are different things,

      (a) If the governor rejects the bill, the governor
      shall return the bill, together with the objections in
      writing, 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
      bill. If, after such reconsideration, two-thirds of
      the   members   present   agree  to   pass   the   bill
      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 it shall become law.

      (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.

      (c) In all such cases the votes of both houses shall
      be determined by ayes and noes, and the names of the
      members voting for or against passage of the bill or
      the rejected part of the bill notwithstanding the
      objections of the governor shall be entered on the
      journal of each house respectively.

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the respective exercise of which our constitution commits to

different         branches       of    government."                 Bartlett,         2019AP1376-OA,

slip op., ¶180 (Kelly, J., concurring in part; dissenting in

part).        The       only    clause        in       the     constitution           providing         for

amendment of a bill appears in Article IV, Section 19, which

states:           "Any    bill        may    originate             in    either       house       of    the

legislature, and a bill passed by one house may be amended by

the   other."            Wis.    Const.       art.        IV,       § 19.        Accordingly,           the

governor can veto, but he cannot amend the law or create law.

Bartlett,         2019AP1376-OA,             slip        op.,        ¶¶193-195             (Kelly,      J.,

concurring         in    part;        dissenting          in       part)    ("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.").                The constitution vests these powers in the

legislature alone.

       ¶52    In     establishing            the       Wisconsin           Constitution,           "[t]he

people    bestowed         much       power       on    the        legislature,            comprised     of

their representatives whom the people elect to make the laws."
Gabler,       376        Wis. 2d 147,              ¶60.             As      reflected            in     the

constitutional text, "[t]he separation of powers 'operates in a

general way to confine legislative powers to the legislature.'"

League       of    Women        Voters       v.     Evers,          2019        WI    75,       ¶35,    387

Wis. 2d 511, 929 N.W.2d 209 (citing Goodland [v. Zimmerman], 243

Wis. [459] at 467, 10 N.W.2d 180).                                 Accordingly, "an idea may

not become a law without the legislature having voted for it."

Bartlett, 2019AP1376-OA, slip op., ¶195 (Kelly, J., concurring
in    part;       dissenting          in    part).            Acting       as    a    check       on    the

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legislature, the governor may veto only the part of a presented

bill that represents "an idea expressing a potential complete,

entire, and workable law"——something on which the legislature

voted and thereby approved.                    See id., ¶¶193, 195 (Kelly, J.,

concurring in part; dissenting in part).                          The constitution does

not, however, give the governor the power to create an entirely

different idea, and the constitution decidedly does not give the

governor the ability to unilaterally enact a law of his own

creation    on    which       the     legislature         never    voted        and   which    it

therefore never approved.                 See id., ¶195 (Kelly, J., concurring

in part; dissenting in part).

      ¶53   Precluding one branch of government from intruding on

the   exclusive         powers      of     another        branch    is        fundamental      to

preserving       the        balance       of   governmental             power,        which    is

ultimately designed to protect the interests of the people the

government was formed to serve.                     "To the Framers of the United

States   Constitution,             the    concentration       of        governmental       power

presented an extraordinary threat to individual liberty:                                      'The
accumulation          of     all     powers,        legislative,              executive,       and

judiciary,       in    the     same       hands,    whether        of    one,     a    few,    or

many, . . . may            justly    be    pronounced       the     very       definition       of

tyranny.' The Federalist No. 47, at 298 (James Madison) (Clinton

Rossiter     ed.,          1961) . . . .            As      Madison           explained       when

advocating       for        the     Constitution's           adoption,           neither       the

legislature       nor       the     executive       nor     the    judiciary          'ought to

possess, directly or indirectly, an overruling influence over
the others in the administration of their respective powers.'

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Federalist No. 48, id. at 305 (James Madison)."                             Gabler, 376

Wis. 2d 147, ¶4.             Joseph Story "'deemed [it] a maxim of vital

importance'"           that        "'the         three         great       powers         of

government . . . should for ever be kept separate and distinct.'

2 Joseph Story, Commentaries on the Constitution of the United

States § 519, at 2-3 (Boston, Hilliard, Gray, & Co., 1833)."

Gabler, 376 Wis. 2d 147, ¶3.

       ¶54     Although these legal principles are pertinent to the

vetoes challenged in this case, it is important to recognize how

this    case    differs       from      Bartlett    and    all    other     veto    cases

previously decided by this court.                  This case involves two unique

factors.       First, the governor used his veto to change provisions

of laws already on the books——the vetoes were not confined to

bills waiting to become laws, but instead disturbed previously

enacted laws.          Second, the vetoes effectively eliminated the

laws entirely by extending their effective dates 1,000 years on

one    and   60      years    on   the     other.        The    constitution's          text

restricts      the    governor's        ability     to   reject    the    work     of    the
legislature to bills and nowhere gives the governor the ability

to repeal laws.

       ¶55     The    veto    power      "furnishes       an    additional       security

against      the     enaction      of    improper    laws.        It     establishes       a

salutary check upon the legislative body, calculated to guard

the community against the effects of faction, precipitancy, or

of any impulse unfriendly to the public good, which may happen

to influence a majority of that body."                         Federalist No. 73, at
443 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis

                                            18
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added).       As a general matter, the executive veto power may only

prevent      a    bill    from    becoming       a     law;    therefore,         it   may    be

exercised         only    against       bills.         Nothing        in    the     Wisconsin

Constitution grants the governor the power to veto a law passed

years earlier.            Even setting aside the effects of these vetoes

on previously enacted laws, the vetoes nevertheless exceeded the

governor's        authority.           Under   the     Wisconsin      Constitution,          the

governor's veto empowers him to negate, not create.

                     V.    BOTH VETOES ARE UNCONSTITUTIONAL

       ¶56       WSBU challenges two vetoes executed by Governor Walker

with    respect      to    the    2017-19       biennium       budget.        Both     vetoes

changed       effective        dates    of     laws    that    had     been       enacted     in

earlier, non-appropriation legislation.                         Both vetoes involved

bills previously passed by the legislature and signed by the

governor into law.              At the time of their passage, the governor

could     have      vetoed      either       bill.       He    did     not.        When      the

legislature later decided to delay the effective dates for each

law, the governor struck digits in dates and a comma, merging
what    was      left     to   create     new       dates     never    approved        by    the

legislature and set so far into the future that the governor's

actions       essentially        repealed        two     duly-enacted         laws.           As

explained below, neither veto "approved in whole or in part"

something that became law, both vetoes struck something smaller

than what constitutes a "part," and both vetoes left something

on which the legislature never voted and which it therefore

never approved.           Neither veto comported with the constitutional
boundaries of the governor's authority.

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                              A.   The First Veto

    ¶57     The first veto involves Wisconsin's school district

revenue limit law, see Wis. Stat. § 121.91, and the increases to

the revenue limits for school districts that spend money to

implement    energy    efficiency     measures    or   to   purchase   energy

efficiency products, see Wis. Stat. § 121.91(4)(o).               Before the

2017-19     budget    bill,    Wis.    Stat.     § 121.91(4)(o)     (2015-16)

provided:

    1. Except as provided in subd. 1m., if a school board
    adopts a resolution to do so, the limit otherwise
    applicable to a school district under sub. (2m) in any
    school year is increased by the amount spent by the
    school district in that school year on a project to
    implement energy efficiency measures or to purchase
    energy efficiency products, including the payment of
    debt service on a bond or note issued, or a state
    trust fund loan obtained, to finance the project, if
    the project results in the avoidance of, or reduction
    in, energy costs or operational costs, the project is
    governed by a performance contract entered into under
    s. 66.0133, and the bond or note issued or state trust
    fund loan obtained to finance the project is issued
    for a term not exceeding 20 years. If a school board
    issues a bond or note or obtains a state trust fund
    loan   to  finance   a   project   described  in  this
    subdivision, a resolution adopted by a school board
    under this subdivision is valid for each school year
    in which the school board pays debt service on the
    bond, note, or state trust fund loan.

    1m. If a school district issues a bond or note or
    obtains a state trust fund loan to finance a project
    described in subd. 1., the amount of debt service
    included in the amount spent by the school district
    under subd. 1. is the amount paid in the calendar year
    that begins on January 1 of the school year in which
    the school district's revenue limit is increased under
    this paragraph.

    2. Any additional revenue received by a school
    district under this paragraph shall not be included in

                                      20
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    the base for determining the school district's limit
    under sub. (2m) for the following school year.

    3. If a school district issues a bond or note or
    obtains a state trust fund loan to finance a project
    described in subd. 1. and the school district's
    utility costs are measurably reduced as a result of
    the project, the school board shall use the savings to
    retire the bond, note, or state trust fund loan.
This law had been in effect since 2009.                  Section 1641m of the

2017-19 budget bill added subdivision 4 to this statute, which

placed a one-year moratorium on the energy efficiency increase

to the revenue limits, prohibiting the increase for the 2018
calendar year.         Section 1641m provided:          "Unless the resolution

is adopted before January 1, 2018, subd. 1. applies only to a

resolution adopted after December 31, 2018."

    ¶58       Governor Walker deleted the "1" in "31" and the "2" in

"2018"   as     well   as   the   comma   and   space    between     them   so   the

moratorium would not lift until December 3018:                       "Unless the

resolution is adopted before January 1, 2018, subd. 1. applies

only to a resolution adopted after December 31, 2018."                           The

legislature       passed     a    one-year      moratorium     on     the   Energy

Efficiency Revenue Limit Adjustment, and Governor Walker's veto

changed one year to 1,000 years.                The side-by-side chart below

shows    what    the    legislature       approved   compared       to   what    the

governor wrote in its place:




                                          21
                                                            No.   2019AP2054-OA.rgb


    Legislative Language                         Governor's Final Language

    121.91 (4) (o) 4.                            121.91 (4) (o) 4.
    Unless            the                        Unless            the
    resolution         is                        resolution         is
    adopted        before                        adopted        before
    January    1,   2018,                        January    1,   2018,
    subd.   1.    applies                        subd.   1.    applies
    only to a resolution                         only to a resolution
    adopted         after                        adopted         after
    December 31, 2018.                           December 3018.


    ¶59     The governor did not actually "approve" or "reject"
any idea passed by the legislature, either in whole or in part,

when presented with Section 1641m of the 2017-19 budget bill.

Instead, the governor amended a sentence by striking two digits,

a comma, and a space to drastically change what the legislature

wrote——effectively        vetoing     the        entirety    of     Wis.     Stat.

§ 121.91(4)(o)1 (which had been law since 2009).                  Nothing in the

Wisconsin    Constitution      authorizes        the   governor    to    amend   or

create law, and nothing in the Wisconsin Constitution authorizes

the governor to unilaterally repeal laws (via his veto power or

otherwise).       Despite      this   court's      jurisprudence        repeatedly

inventing veto powers not conferred under the constitution, the

court has never empowered the governor to change the effective

date of a bill, much less an existing law.                  See State ex rel.

Wis. Senate v. Thompson, 144 Wis. 2d 429, 434, 424 N.W.2d 385

(1988) (allowing the so-called "digit" veto, which permits a

governor    to   "veto"   an   appropriation       amount   by    reducing    it);

Citizens Utility Bd. v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608
(1995)     (allowing      a    governor     to     write    in     a    different


                                      22
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appropriation amount, provided it is an amount lower than the

amount proposed by the legislature).

    ¶60     The governor's "veto" cannot withstand constitutional

scrutiny.     The 2017-19 budget bill imposed a one-year moratorium

on the Energy Efficiency Revenue Limit Adjustment available to

Wisconsin school districts under previously enacted law.                                  By

excising individual digits within the date in the bill (along

with a comma and a space), the governor imposed a 1,000-year

moratorium    on    the       Adjustment.          In    doing     so,    he   effectively

repealed the law, an action the people never approved as an

executive    power       under    the      constitution       but    instead         reserved

solely for the legislature.9                  The governor changed the one-year

moratorium approved by both houses of the legislature to 1,000

years,    creating        a    law      the     legislature         never      considered,

approved, or presented.              In doing so, the governor effectively

nullified     a    law    that       had      been      on   the    books      for     years,

singlehandedly eliminating the Energy Efficiency Revenue Limit

Adjustment.       This veto encroached on the exclusive province of

    9  "The constitutional authority to repeal statute law
resides exclusively with legislatures."       1A Norman Singer
Sutherland Statutory Construction § 32:3 (7th ed. Oct. 2019)
("Power to repeal") (quoted sources omitted; emphasis added).
See also Wisconsin Legislature v. Palm, 2020 WI 42, ¶¶91-92, 391
Wis. 2d 497, 942 N.W.2d 900 (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.'      See,
e.g., Schmidt v. Dep't of Res. Dev., 39 Wis. 2d 46, 59, 158
N.W.2d 306 (1968) (quoting State ex rel. Wis. Inspection Bureau
v. Whitman, 196 Wis. 472, 505, 220 N.W. 929 (1928)).    Koschkee
v. Taylor, 2019 WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600
(alteration in original).").

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the   legislature,    thereby      violating     the    separation      of    powers

reflected in the constitution, and this court should have so

declared in order to confine current and future governors to the

exercise of executive power as delineated in the text of the

constitution.

                            B.    The Second Veto

      ¶61     The second veto involves the Private Label Credit Card

Bad Debt Deduction.        Wisconsin law allows retailers who issue

credit cards to customers to claim a refund of state sales taxes

the   retailers    paid   if     the   retailers     are   unable      to    collect

payments    from   customers     who   charged     purchases     on    the    credit

cards issued by the retailers, but then failed to pay the credit

card bills.      Because retailers began partnering with third-party

lenders using payment processors such as Visa or Mastercard,

instead of using retailer-brand credit cards, the legislature

passed a law in 2013 Wisconsin Act 229, amending the definition

of "bad debt" in Wis. Stat. § 77.585 to include "dual purpose

credit debts and private label credit debts."                         See   § 77.585
(2013-14).      This allowed the retailer to take a tax deduction on

bad   debts    arising    from    credit     cards     issued    by    third-party

lenders.

      ¶62     Governor Walker could have vetoed this bad debt bill

when the legislature presented it to him in 2013.                      He did not.

He instead signed the bill into law, which was scheduled to take

effect on July 1, 2015.           The legislature decided to delay the

effective date until July 1, 2017, amending § 77.585's effective
date in the 2015-17 budget bill.              In the 2017-19 budget bill,

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the    legislature   decided     to    delay     the    effective    date     for    an

additional year.        The legislature approved July 1, 2018 as the

effective date for the bad debt deduction law, and included the

following language in Section 2265 of the 2017-19 budget bill:

       Section 6(1) This act takes effect on July 1, 2017
       2018, and first applies to bad debts resulting from
       sales completed beginning on July 1, 2017 2018.
The governor rejected the legislature's deletion of the "20" in

"2017"; approved the deletion of the "1" in "2017"; rejected the

legislature's deletion of the "7" in "2017"; deleted the "201"

in "2018"; and deleted the space between the "2017" and "2018"

to create a new effective date of "July 1, 2078."                       A side-by-

side    chart   shows    the    legislative       language      compared    to      the

governor's amended language:



       Legislative Language                       Governor's Final Language

       [2013 Wisconsin Act                        [2013 Wisconsin Act
       229] Section 6 (1)                         229] Section 6 (1)
       This    act     takes                      This    act     takes
       effect on July 1,                          effect on July 1,
       2017 2018 and first                        2078    and     first
       applies to bad debts                       applies to bad debts
       resulting from sales                       resulting from sales
       completed   beginning                      completed   beginning
       on   July   1,   2017                      on July 1, 2078.
       2018.


Like the other veto, the governor never approved anything passed

by the legislature, in whole or in part.                     Instead, he amended

the    legislature's    language      by    rejecting     the   deletion      of    six
digits, striking six digits, deleting two spaces, and merging

what    was   left   into   a   date       60   years   in   the    future.         The
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legislature never presented a 60-years-later effective date to

the governor and the legislature never voted on or approved a

60-year delay.

     ¶63    Similar    to    the   other       veto,    the   governor's     actions

effectively repealed a law previously enacted and signed by the

governor.     Unlike the 1,000 year delay created by the other

veto, the people will have to wait only 60 years for the law

enacted by the legislature to take effect.                     As a result, the

current statutes contain (and every subsequently printed statute

book for the next 60 years will contain) both the current Wis.

Stat. § 77.585 as well as the law enacted by the legislature

(albeit    with   an   effective        date    unilaterally        chosen   by    the

governor),    which    appears     in    a     "Note"   following      the   current

statute    offering    the    following        explanation:          "Sub.   (1)    is

renumbered, in part, amended, in part, and created, in part,

eff. 7-1-2078 . . . to read:"; the text of the enacted statute

follows, as amended by the governor.10

     10   On July 2, 2078, Wis. Stat. § 77.585 will provide:

     (1) (a) In this subsection:

     1. "Bad debt" means the portion of the sales price or
     purchase price that the seller has previously reported
     as taxable under this subchapter, and for which the
     seller has paid the tax, and that the seller or lender
     may claim as a deduction under section 166 of the
     Internal Revenue Code. "Bad debt" does not include
     financing charges or interest, sales or use taxes
     imposed on the sales price or purchase price,
     uncollectible amounts on tangible personal property or
     items, property, or goods under s. 77.52 (1) (b), (c),
     or (d) that remain in the seller's possession until
     the full sales price or purchase price is paid,
     expenses incurred in attempting to collect any debt,
     debts sold or assigned to 3rd parties for collection,
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not including dual purpose credit debts and private
label credit debts, and repossessed property or items.

2. "Dual purpose credit card" means a credit card that
may be used as a private label credit card or to make
purchases from persons other than the seller whose
name or logo appears on the card or the seller's
affiliates or franchisees, if the credit card issuer
is able to determine the sales receipts of the seller
and the seller's affiliates or franchisees apart from
any sales receipts of unrelated persons.

3. "Dual purpose credit debt" means accounts and
receivables that result from credit sale transactions
using a dual purpose credit card, but only to the
extent the account or receivable balance resulted from
purchases made from the seller whose name or logo
appears on the card.

4. a. "Lender" means any person who owns a private
label credit debt, an interest in a private label
credit debt, a dual purpose credit debt, or an
interest in a dual purpose credit debt, if the person
purchased the debt or interest directly from a seller
who remitted the tax imposed under this subchapter or
from a third party or if the person originated the
debt or interest pursuant to the person's contract
with the seller who remitted the tax imposed under
this subchapter or with a third party.

b. "Lender" includes any person who is a member of the
same affiliated group, as defined under section 1504
of the Internal Revenue Code, as a lender or is an
assignee or other transferee of a lender.

5. "Private label credit card" means any charge card
or credit card that identifies a seller's name or logo
on the card and that may be used only for purchases
from that seller or from any of the seller's
affiliates or franchisees.

6. "Private label credit debt" means accounts and
receivables that result from credit sale transactions
using a private label credit card, but only to the
extent the account or receivable balance resulted from
purchases made from the seller whose name or logo
appears on the card.

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(b) A seller may claim as a deduction on a return
under s. 77.58 the amount of any bad debt that the
seller or lender writes off as uncollectible in the
seller's or lender's books and records and that is
eligible to be deducted as a bad debt for federal
income tax purposes, regardless of whether the seller
or lender is required to file a federal income tax
return. A seller who claims a deduction under this
paragraph shall claim the deduction on the return
under s. 77.58 that is submitted for the period in
which the seller or lender writes off the amount of
the deduction as uncollectible in the seller's or
lender's books and records and in which such amount is
eligible to be deducted as bad debt for federal income
tax purposes. If the seller or lender subsequently
collects in whole or in part any bad debt for which a
deduction is claimed under this paragraph, the seller
shall include the amount collected in the return filed
for the period in which the amount is collected and
shall pay the tax with the return.

(bm) For purposes of par. (b), a seller may compute
the seller's bad debt deduction using an estimate, if
the department approves the method for computing the
estimate. The department may audit the seller's books
and records to review the estimate and adjust the
estimate as necessary to reflect the actual allowable
bad debt amount.

(c) For purposes of computing a bad debt deduction or
reporting a payment received on a previously claimed
bad debt, any payment made on a debt or on an account
is applied first to the price of the tangible personal
property, or items, property, or goods under s. 77.52
(1) (b), (c), or (d), or service sold, and the
proportionate share of the sales tax on that property,
or items, property, or goods under s. 77.52 (1) (b),
(c), or (d), or service, and then to interest, service
charges, and other charges related to the sale. If
payment is received on an account for which the
balance reflects multiple sales transactions, the
payment is applied to the sales transactions in the
same order in which the sales transactions occurred.

(d) A seller may obtain a refund of the tax reported
for any bad debt amount deducted under par. (b) that
exceeds the amount of the seller's taxable sales as
provided under s. 77.59 (4), except that the period
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      ¶64    The    governor       used     his   veto     power     to     modify    the

effective date of a law passed years before the 2017-19 budget

bill and set to go into effect on July 1, 2018.                           The governor

did   not    veto   a     complete    idea    voted   on    and    approved     by    the

legislature and presented to the governor as a bill.                          His veto

prevented     existing       law     from    taking   effect       for    another     six

decades.      Like the other "veto," this veto also invaded the

province     of     the    legislature       by   amending——to        the     point    of

nullifying——an enacted law, previously passed by the legislature

and approved by the governor.

      ¶65    The people of Wisconsin never gave the governor this

power.      It is the responsibility of this court to guard against


      for making a claim as determined under s. 77.59 (4)
      begins on the date on which the return on which the
      bad debt could be claimed would have been required to
      be submitted to the department under s. 77.58.

      (e) If a seller is using a certified service provider,
      the certified service provider may claim a bad debt
      deduction under this subsection on the seller's behalf
      if the seller has not claimed and will not claim the
      same deduction. A certified service provider who
      receives a bad debt deduction under this subsection
      shall credit that deduction to the seller and a
      certified service provider who receives a refund under
      this subsection shall submit that refund to the
      seller.

      (f) If a bad debt relates to the retail sales of
      tangible personal property, or items, property, or
      goods under s. 77.52 (1) (b), (c), or (d), or taxable
      services that were sourced to this state and to one or
      more other states, as determined under s. 77.522, the
      total amount of such bad debt shall be apportioned
      among the states to which the underlying sales were
      sourced in a manner prescribed by the department to
      arrive at the amount of the deduction under par. (b).

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the   encroachment        of     the    executive      branch       upon    the    people's

representatives in the legislative branch.                        "The significance of

preserving       clear    boundaries           between     the     branches       has    been

understood since the founding of our nation[.]"                                 Gabler, 376

Wis. 2d 147, ¶60.            It is the duty of this court to be "ever

vigilant in averting the accumulation of power by one body——a

grave threat to liberty[.]"                   Id.    When this court hears a case

involving such encroachment by the governor via the exercise of

veto power not authorized by the constitution, it is the duty of

this court to check it.

      ¶66   In    exercising           each    of    these       vetoes,    the    governor

violated the separation of powers by assuming the authority to

legislate, a power the constitution confers on the legislature

alone.      Under      the      Wisconsin       Constitution,        the    governor      may

approve or reject a bill presented by the legislature and may

approve "in whole or in part" an appropriation bill.                             The vetoed

part as well as the approved part must each represent a complete

idea on which the legislature voted.                     The veto cannot be used to
change what the legislature presented; the veto cannot be used

to create new law the legislature never approved; and the veto

cannot be used to unilaterally erase laws enacted in previous

years.

      ¶67   These      vetoes      were       unconstitutional,           and   this    court

should   have     so     declared.        Instead,         the    majority      leaves    the

petitioners, the governor, the legislature, and the people of

Wisconsin    without       an    answer       to    this   important       constitutional
question the court told them we would resolve.

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                                      VI.     CONCLUSION

      ¶68   The governor's vetoes challenged by WSBU transgressed

the   boundaries        of    executive        power    in    unilaterally       repealing

existing laws by extending their effective dates 1,000 years and

60    years,      respectively.                 Rather       than     approving         these

appropriation bills "in whole or in part," as permitted under

the   Wisconsin         Constitution,          the    governor      deleted     digits    in

dates, a punctuation mark, and spaces in order to create new

effective dates set far in the future.                       When a governor replaces

a law's legislatively-written effective date with his preferred

effective      date——one          never       approved       or     presented      by    the

legislature——he assumes a power to create law, which only the

legislature       may    constitutionally             exercise.       Both      vetoes   are

patently unconstitutional because nothing in the constitution

authorizes a governor to unilaterally repeal existing law or

amend   a      law's      effective           date,    actions       reserved      to    the

legislature alone.

      ¶69   The majority refuses to consider the merits despite
having granted this original action on the sole and significant

issue of the constitutional scope of the governor's veto power

as exercised in the two instances presented for our review.

Instead,    the    majority           takes   the     unprecedented       and   completely

discretionary step of declining to declare rights in an original

action presenting an issue of first impression regarding the

constitutionality            of   a    governor's       vetoes,      electing     to     deny

relief under the doctrine of laches.                     In doing so, the majority
shirks its duty to preserve the constitutional balance of power

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between   the     political   branches,    abandoning      the    judiciary's

pivotal   role    in   protecting   the   bedrock   of   our     structure   of

government.      I respectfully dissent.

    ¶70    I am authorized to state that Justice DANIEL KELLY

joins this dissent.




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