A Perpetuities Problem Strikes In Wisconsin

The rule against perpetuities was created for two reasons: (1) to torture bar exam applicants and (2) to establish that the long dead ought not have the right to intervene in the affairs of the living. Because, however benevolent seeming at the time, dead hand control is a no-no. While the rule against perpetuities only applies in property law, Wisconsin’s idiosyncratic approach to gubernatorial veto power moves that “in perpetuity” problem into statutory interpretation. And given the Wisconsin Supreme Court’s recent opinion, that problem may be here to stay for a while.

From WTOP:

The Democratic governor of Wisconsin’s creative use of his uniquely powerful veto to lock in a school funding increase for 400 years may be “attention grabbing,” but it was constitutional, the state Supreme Court ruled Friday.

The 4-3 ruling from the liberal-controlled court affirms the partial veto power of Wisconsin governors, which is the broadest of any state and has been used by both Republicans and Democrats to reshape spending bills passed by the Legislature.

…

[Tony] Evers told lawmakers at the time that his partial veto was intended to give school districts increases in funding “in perpetuity.”

There is a state constitutional amendment from 1990 that prevents Wisconsin governors from vetoing individual letters to stitch together Frankenstein sentences, but there’s no similar restriction on striking through numbers or punctuation marks. That set the ground for Evers to yank out a 20 and a hyphen, transforming the intended 2024-2025 per student funding limit into a compounding enterprise with a 2425 end date. That’s great on the raising money for kids to go to school front, but this draws attention to the door being open for more nefarious re-writings of the law. Say there’s a funding increase for police departments in the range of 15-20k depending on certain deliverables. Editor governor swoops in and changes the funding to increments of $1520k ($1.5m) dependent on the criteria set. That’s a difference better measured in orders of magnitude, even if the different is only a hyphen away.

Thankfully this is just an anomaly power granted to Wisconsin governors. Let’s not give the Trump administration any ideas about how to turn the veto power in to some excuse justifying an Executive review that trumps the Judicial one.

Wisconsin Governor Can Lock In 400-Year School Funding Increase Using A Veto, Court Says [WTOP]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who is learning to swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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