No. 2024AP1713
Supreme Court of Wisconsin
June 25, 2025
2025 WI 27
APPEAL from a judgment and order of the Dane County Circuit Court (Stephen E. Ehlke, J.) No. 2024CV1127
REBECCA GRASSL BRADLEY, J., delivered the majority opinion for a unanimous Court.
¶1 REBECCA GRASSL BRADLEY, J. “[P]ower is of an encroaching nature, and . . . it ought to be effectually restrained from passing the limits assigned to it.”
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶2 The state’s biennial budget bill for the 2023–25 biennium, 2023 Wis. Act 19,
¶3 Two weeks after Act 19 became law, 2023 Wis. Act 20 was enacted and published. Act 20 created an “Office of Literacy” and established two new literacy programs. The first program authorizes the newly created Office of Literacy to contract with and train literacy coaches for placement in schools. 2023 Wis. Act 20, § 8. The second program requires DPI to use grants for reimbursing schools that implement approved literacy curricula. Id., § 12. This grant program provides grants to “school boards, operators of charter schools, and governing bodies of private schools participating in” certain programs in “an amount equal to one-half of the costs of purchasing the literacy curriculum and instructional materials” from a list of approved programs. 2023 Wis. Act 20, § 12. Act 20 did not appropriate funds for either program.
¶4 Just over six months later on January 26, 2024, the senate introduced 2023 S.B. 971 and the assembly introduced 2023 A.B. 1017 (collectively, S.B. 971), which were published as 2023 Wis. Act 100 on March 1, 2024. Senate Bill 971 created an account for each of the two literacy programs established under Act 20. It did not, however, appropriate or transfer any money to those accounts. Although S.B. 971 passed in both houses, neither the senate nor assembly put the matter to “yeas and nays” and no such record was entered in the Journal for either house. The governor partially vetoed and then signed S.B. 971, which became 2023 Wis. Act 100.
¶5 The partially vetoed version consolidated thе two funding accounts into one account that could be used by DPI to fund broad literacy initiatives, without specifying the literacy coaching program or the grant program.4 To accomplish this policy change, the governor first struck portions of § 1:
20.005(3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: 2023–24 2024-25
20.255 Public instruction, department of
(1) EDUCATIONAL LEADERSHIP
(fc) Office of literacy; literacy
coachingprogram GPR C -0- -0-(2) AIDS FOR LOCAL EDUCATIONAL PROGRAMMING
(fc) Early literacy initiatives; support GPR B -0- -0-
2023 Wis. Act 100, § 1. Next, the governor struck references to the literacy coaching program from § 2:
20.55(1)(fc) Office of literacy; literacy
coachingprogram. As a continuing appropriation, the amounts in the schedule for the office of literacyand the literacy coaching program under s. 115.39.
2023 Wis. Act 100, § 2. The governor also struck § 4 in full:
20.255(2)(fc) Early literacy initiatives; support. Biennially, the amounts in the scheduled for grants under s. 118.015(1m)(c) and for financial assistance paid to school boards and charter schools for compliance with 2023 Wisconsin Act 20, section 27(2)(a).
2023 Wis. Act. 100, § 4. Finally, the governor struck § 3 and § 5, which sunset the spending authority for § 2 on July 1, 2028. In sum, under the partially vetoed version, DPI is not required to use funds the legislature allocated for literacy programs created by Act 20 on those particular programs. Instead, DPI may spend funds allocated for its Office of Literacy on any “literacy program,” with no sunset provision.
¶6 Shortly after Act 19 became law and at DPI’s request, JCF supplemented DPI’s own appropriation with $327,400 of the $50 million earmarked for literacy programs. DPI later asked JCF for the remainder of the funds set aside in the Act 19 biennial budget—$49,672,600—in accordance with Act 100. JCF denied that request because it considered the governor’s veto of Act 100 unconstitutional and therefore invalid.
¶7 The legislature filed suit in circuit cоurt, seeking a declaration that the governor’s partial veto of S.B. 971 was unconstitutional because it was not an appropriation bill. The legislature argued S.B. 971, as passed by the legislature, should be in full force and effect. Alternatively, the legislature argued that even if S.B. 971 were an appropriation bill when presented to the governor for signature, the governor exceeded his partial veto authority by changing the bill into something other than what passed the legislature.
¶8 DPI and the governor counterclaimed, asserting JCF improperly withheld the remainder of the $50 million from DPI. According to DPI and the governor, JCF has discretion only over money intended to supplement agency appropriations due to “unforeseen emergencies” or similar circumstances and not mоney set aside in the biennial budget for a specific purpose the legislature plainly foresaw. In the alternative, DPI and the governor argued
¶9 Both sides filed cross motions for summary judgment. The circuit court granted and denied each motion in part. Addressing the legislature’s claims, the court held S.B. 971 was an appropriation bill subject to the governor’s partial veto authority. It reasoned that Acts 19, 20, and 100 “although passed sequentially, were really part of one piece of legislation.” The court explained, when viewing “Act 19 and Act 100 in tandem . . . [S.B. 971] is an ‘appropriation bill’ because it allows for the transfer of money to DPI to fund various programs created under Act 20.” In essence, the court considered the creation of the literacy program (Act 20) funded by money appropriated to JCF (Act 19) to be transferred by JCF into accounts (Act 100) as a unitary enactment.
¶10 The circuit court also rejected the legislature’s alternative argument that even if S.B. 971 were an appropriation bill, the governor exceeded his partial veto authority. It reasoned that this court’s per curiam opinion in Bartlett v. Evers, 2020 WI 68, 393 Wis. 2d 172, 945 N.W.2d 685 (per curiam), was non-precedential and, quoting State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 316, 260 N.W. 486 (1935), determined that the governor’s partial veto passed constitutional muster because it left behind “a complete, consistent, and workable scheme and law.”
¶11 In response to the counterclaim of the governor and DPI that DPI should receive the $50 million appropriated to JCF, the circuit court held that Act 19 “plain[ly] on its face . . . appropriate[d] over $250 million to JCF’s supplemental-funding account for the purpose of JCF’s providing supplemental funding to governmental units under [WIS. STAT.] § 13.101(3).” The court further noted that “[f]or whatever reason, the Governor chose to approve Act 19 as submitted to him for approval.” Because the legislature appropriated the money to JCF and not DPI, the court denied the governor and DPI relief.
¶12 The circuit court rejected the executive branch’s contention that giving JCF the discretion to disburse the $50 million was an unconstitutional delegation of legislative power. Understanding the executive branch’s argument to be a facial сhallenge to the constitutionality of
¶13 Based on its conclusion that S.B. 971 was an appropriation bill subject to the governor’s partial veto, the circuit court granted summary judgment in favor of the governor and DPI on the legislature’s claim. With respect to the executive branch’s counterclaim, the court granted summary judgment in favor of the legislature, concluding DPI is not entitled to the $50 million because the legislature properly appropriated the money to JCF for disbursement under
¶14 Both sides appealed. The governor and DPI filed a petition for bypass with this court, which we granted. We hold S.B. 971 was not an appropriation bill subject to
II. STANDARD OF REVIEW
¶15 This case comes before us after the circuit court granted summary judgment, and presents issues of constitutional and statutory interpretation, which we review de novo. Evers v. Marklein, 2024 WI 31, ¶8, 412 Wis. 2d 525, 8 N.W.3d 395. This court “independently reviews a grant of summary judgment using the same methodology as the circuit court.” Wis. Prop. Taxpayers, Inc. v. Town of Buchanan, 2023 WI 58, ¶8, 408 Wis. 2d 287, 992 N.W.2d 100 (quoting Kemper Indep. Ins. Co. v. Islami, 2021 WI 53, ¶13, 397 Wis. 2d 394, 959 N.W.2d 912). “Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Id., ¶8 (quoting Islami, 397 Wis. 2d 394, ¶13).
III. ANALYSIS
A. THE PARTIAL VETO OF ACT 100
¶16 The governor partially vetoed S.B. 971 and modified substantive portions of its policies. The governor and DPI maintain S.B. 971 was an “appropriation bill” and was therefore subject to the governor’s partial veto authority. The circuit court agreed with the executive branch. We disagree and hold that S.B. 971 was not an appropriation bill.
¶17 The Wisconsin Constitution originally provided the governor with the authority to sign or veto bills in their entirety.
Every bill which shall have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it; but if not, he shall return it, with his objections, to thаt house in which it shall have originated, who shall enter the objections at large upon the journal, and proceed to reconsider it . . . . If any bill shall not be returned by the governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law . . . .
¶19 The court considered several definitions before reaching that conclusion. One contemporaneous dictionary defined an appropriation bill as “[a] measure before a legislative body authorizing the expenditure of public moneys and stipulating the amount, manner, and purpose of the various items of expenditure.” Id. at 148 (citing WEBSTER’S NEW INTERNATIONAL DICTIONARY (1934)). We also considered definitions adopted by courts in other states. For example, in State v. La Grave, 23 Nev. 25, 41 P. 1075 (1895), the Nevada Supreme Court concluded, “[a]n appropriation in the sense of the constitution means thе setting apart a portion of the public funds for a public purpose.” Finnegan, 220 Wis. at 148 (citing La Grave, 41 P. at 1076). In Hunt v. Callaghan, 32 Ariz. 235, 257 P. 648 (1927), the Arizona Supreme Court determined “[a]n appropriation is ‘the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.’” Finnegan, 220 Wis. at 148 (citing Hunt, 257 P. at 649).
¶20 Applying these definitions, the court determined “the constitutional amendment deals with appropriation bills” so “the bill itself must satisfy the constitutional requisites.” Finnegan, 220 Wis. at 148. A bill having merely “an indirect bearing upon the appropriation of public moneys” does not qualify as an appropriation bill within the original meaning of
¶21 To classify bills that only indirectly affect appropriations as appropriation bills would “extend the scope of the constitutional amendment far beyond the evils it was designed to correct.” Id. at 148. We later described “[t]he evil” the constitutional amendment was designed to fix as “the practice of jumbling together in one act inconsistent subjects in
¶22 We addressed the same question in State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 264 N.W.2d 539 (1978), in which the challenged bill allowed individuals to designate on their tax returns an increase of $1 in their tax liability for deposit into the Wisconsin Election Campaign Fund. Id. at 688–89. The governor partially vetoed the bill to give taxpayers the option to designate the sum of $1 from the state general fund instead. Id. Applying Finnegan, we concluded the bill was an appropriation bill becаuse it “authorized the expenditure of public moneys. The bill set apart a portion of the public funds for a public purpose—the financing of election campaigns.” Id. Kleczka reaffirmed Finnegan’s interpretation that an appropriation bill must, within its four corners, set aside public funds for a public purpose.
¶23 The court had another opportunity to clarify the meaning of “appropriation” in Risser, 207 Wis. 2d 176. In that case, the governor struck certain dollar amounts and wrote in lower figures in two separate sentences. The first dealt with the building commission’s authority to contract for the sale of revenue obligations, and the second raised the cumulative limit on revenue obligations subject to sale under the statute. Although the parties conceded the partially vetoed bill was an “appropriation bill,” they disagreed on whether the amount modified by the governor was an “appropriation.” Applying this court’s holding in Citizens Utility Board v. Klauser, 194 Wis. 2d 484, 534 N.W.2d 608 (1995), the Risser court concluded the “write-in veto” exercised by the governor “may be exercised only on a monetary figure which is an appropriation amount.” 207 Wis. 2d at 180–81. Affirming the four corners rule from Finnegan, the court held the portion the governor struck was not an appropriation and therefore not subject to his write-in veto. Id. at 182, 202–03.
¶24 The Risser court concluded the section struck did not meet the definition of “appropriation” as “an expenditure or setting aside of public funds for a particular purpose.” Id. at 192–93. The statute governed the “level of funds that the state is authorized to generate by the sale of bonds and limits the purpose for which the revenue raised may be expended.” Id. at 193. The court observed thаt the sale of bonds is “revenue raising; revenue raising and appropriation are more nearly antonyms than synonyms.” Id. (citations omitted). The court also emphasized the benefit of a “bright line rule” governing disputes between the political branches “to preclude continuing judicial involvement in and the need for frequent judicial resolution of inter-branch disputes.” Id. at 202. Ultimately, the court rejected the governor’s more “expansive reading” of the partial veto power because “much, if not all, legislation can affect and be interrelated with the appropriation of money”
¶25 Precedent has consistently held that a bill’s interaction with, interplay between, or indirect bearing on an apрropriation bill cannot transform a non-appropriation bill into an appropriation bill. To qualify as an appropriation bill, a bill must set aside public funds for a public purpose within its four corners. In exercising the partial veto power, the governor uses a “small piece of power that naturally belongs in one branch [that the framers] put [] in another,” Bartlett, 393 Wis. 2d 172, ¶186 (Kelly, J., concurring in part and dissenting in part). This court’s longstanding definition of “appropriation bill” confines the executive branch’s exercise of that limited power to its constitutional boundaries. See Flynn v. Dep’t of Admin., 216 Wis. 2d 521, 542, 576 N.W.2d 245 (1998) (“The definition of ‘appropriation’ in Finnegan . . . do[es] not constrain the legislative, but rather the executive branch.”).
¶26 Turning to the bill at issue in this case, the text of S.B. 971 did not set aside public funds for a public purpose; therefore, S.B. 971 was not an appropriation bill. Instead, S.B. 971 created accounts into which money could be transferred to fund the programs established under Act 19 and Act 20, and it changed other aspects of the “literacy coaching program.” The bill, however, does not set aside any public funds; in fact, it expressly states that “$0” was appropriated.
¶27 The circuit court erred in concluding otherwise. It viewed Act 19, Act 20, and Act 100 as “one piece of legislation,” reasoning that “the legislature impose[d] an artificial construct on these three pieces of legislation by treating them as distinct.” It observed the interrelated nature of these bills: Act 20 created a statewide literacy program, Act 19 allocated money for the literacy coaching program by appropriating $250 million to JCF, and Act 100 created the accounts and set a sunset date for the program. In the circuit court’s view, applying Finnegan’s four corners rule would allow the legislature to “balkanize (or hide) the appropriation bill” and “vastly circumscribe the governor’s partial veto power granted under the state constitution.”
¶28 Neither the circuit court’s analysis nor its conclusions can be squared with the original meaning of the governor’s partial veto authority under
¶29 The circuit court’s conclusion also does not account for this court’s suggestion
¶30 DPI and the governor deviate from the circuit court’s rationale in their arguments before this court. The executive branch argues that our post-Finnegan precedent established a two-part definition of “appropriation,” and a bill satisfying either part is sufficient to qualify. Specifically, DPI and the governor contend Kleczka and Risser established a two-part “in and out” test: (1) setting aside money for a specific object (the “in”); and (2) authorizing executive officers of the state to spend it (the “out”). They rely on Kleczka’s description of an appropriation as “setting aside from the public revenue a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.’” 82 Wis. 2d at 689 (quoting Hunt, 257 P. at 649). The executive branch then reads Risser to create two independent parts of an appropriation in describing an appropriation bill as either “authoriz[ing] an expenditure or the setting aside of public funds for a particular purpose.” Risser, 207 Wis. 2d at 193 (emphasis added). DPI and the governor highlight Risser’s use of “or,” which they claim is disjunctive. Under this argument, the executive branch says the spending authorization in S.B. 971 satisfies the “out” portion of its definition by authorizing the executive to spend funds allocated by the corresponding “in” portion of Act 19.
¶31 Neither the constitution nor our cases support the bifurcated definition the executive branch constructs by isolating particular sentences from each decision. DPI and the governor pull those sentences from Kleczka’s recitation of the definitions on which Finnegan relied in ascertaining the meaning of an appropriation bill under
¶32 Risser repeated the same analysis as Kleczka. After reciting the same definitions from Finnegan, Risser reiterated that “[u]nder each definition, an appropriation involves an expenditure or setting aside of public funds for a particular purpose.” Risser, 207 Wis. 2d at 193. Contrary to the argumеnt advanced by the governor and DPI, the authorization of an expenditure is not separable from the setting aside of money for purposes of a bill qualifying as an appropriation. Their insupportable reading would revamp the well-established meaning of an appropriation bill. As we have repeatedly held, in order to qualify as an appropriation bill, the bill must contain within its four corners a setting aside of public money for a public purpose. See Kleczka, 82 Wis. 2d at 688–89.
¶33 Because S.B. 971 was not an appropriation bill, the governor had no constitutional authority to partially veto it. We therefore do not address the legislature’s alternative argument that the governor improperly exercised his partial veto authority to create a new law that never рassed the legislature. See Walworth State Bank v. Abbey Springs Condo. Ass‘n, Inc., 2016 WI 30, ¶13 n.7, 368 Wis. 2d 72, 878 N.W.2d 170 (quoting Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 (“Typically, an appellate court should decide cases on the narrowest possible grounds. Issues that are not dispositive need not be addressed.”)). The legislature made that argument in case this court concluded S.B. 971 was an appropriation bill. Our holding that S.B. 971 was not an appropriation bill disposes of the legislature’s alternative challenge to the governor’s exercise of the partial veto power.
¶34 Because the governor’s partial veto was unconstitutional, S.B. 971 as passed by the legislature is the law. Upon declaring the governor’s veto invalid, we have repeatedly affirmed the general rule that a bill the legislature passed and presented to the governor is in force as if the governor never vetоed it. See
B. JCF’S DISPOSITION OF DPI’S SUPPLEMENTAL FUNDING REQUESTS.
¶35 DPI and the governor contend JCF improperly denied DPI’s request for the remainder of the $50 million earmarked for literacy programs. The executive branch argues, “[w]hether under
¶36 DPI and the governor do not identify any legal authority permitting this court to unilaterally change an appropriation to JCF into an appropriation to DPI. Even if they were correct that appropriating money to JCF is unlawful, no remedy under law entitles DPI to receive it instead. We affirm the circuit court’s holding that JCF did not improperly withhold funds from DPI.
¶37 The executive branch acknowledges the legislature appropriated $50 million to JCF’s supplemental account under
¶38 Fatal to the executive branch’s argument, none of the materials cited by DPI and the governor constitute the law, and each reflect only what the legislature may have intended. The motion “capture[s] the intentions of the governor and the legislature in budget delibеrations”7 but was not enacted into law—nor was the LFB summary. “Ours is ‘a government of laws not men,’ and ‘it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.’” State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶52, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting ANTONIN SCALIA, A MATTER OF INTERPRETATION 17 (1997)). “It is the law that governs, not the intent of the lawgiver . . . . Men may intend what they will; but it is only the laws that they enact which bind us.” Id. (quoting SCALIA, supra, at 17).
¶39 Turning to statutory law, DPI and the governor argue JCF cannot satisfy the prerequisites of
¶40 The executive branch contends JCF cannot satisfy the statutory conditions, so JCF must transfer the funds to DPI. This argument, however, presupposes DPI’s entitlement to the funds based on sources extrinsic to the law itself ostensibly showing legislative “intent,” such as the earmarking motion and the LFB report noting that earmark. Because the legislature appropriated the funds to JCF, however, only JCF possesses a legal claim to the money. The executive branch fails to identify any actual law entitling DPI to money appropriated to another entity.
¶41 Even if, as DPI and the governor argue, the legislature improperly manufactured “unforeseen emergencies” by failing to fund the literacy programs in order to give JCF discretion under
¶42 Relying on
¶43 Alternatively, DPI and the governor challenge the constitutionality of
¶44 Finally, the executive branch urges this court to apply “equitable remedial principles” and exercise its inherent authority to declare the governor may order JCF to give the money to DPI. Neither equitable principles nor our inherent authority empower this court to override the legislature’s policy choices in appropriating money to JCF. The people of Wisconsin vested the legislature with the exclusive power to appropriate.
IV. CONCLUSION
¶45 The Wisconsin Constitution controls the resolution of this dispute between the political branches of government. Under
By the Court.—The judgment and order of the circuit court is affirmed in part and reversed in part.