MN Unallotment A10 64_Gov,AmicusBriefs

TPaw's unallotment legal team weighs in

By Eric Black | Published Wed, Feb 10 2010 12:47 am

In three briefs submitted to the state Supreme Court yesterday, Gov.

Pawlenty’s legal team, plus a group of Republican legislators and a trio of

law professors, essentially accuse Ramsey County District Chief Judge

Kathleen Gearin of legislating from the bench when she ruled Jan. 8 that

Pawlenty’s 2009 unallotments were improper.

In urging the Supremes to overrule Gearin and reinstate Pawlenty’s

unallotments, the briefs made several strong arguments about the

interpretation of unallotment and the balance of power in the state

Constitution. Many of the arguments resembled those Team Pawlenty

had made to Gearin. Now they argue that Gearin got the case wrong by

imagining or imposing provisions into the unallotment statute that just

ain’t there.

(I’ll summarize the arguments after this brief refresher course. Skip down

to the subhead “OK, back to the present” if you know how we got from

last May to today.)

At the end of the 2009 legislative session, Pawlenty signed all the

appropriation bills the Legislature had passed, then vetoed the revenue

bill that would have raised the taxes necessary to pay for some of the

appropriations. (He had made clear in advance that he wouldn’t sign a

tax increase. The Legislature called his bluff. He wasn’t bluffing.)

To balance the budget, Pawlenty used his line-item veto powers up to a

point (and his use of that power has been uncontroversial as a matter of

law). To close the last $2.7 billion gap between the spending bills and the

state’s projected revenue, Pawlenty used a seldom-used power of

Minnesota governors to “unallot,” or simply spend less than was

appropriated within categories of his choice.

Unallotment has been used before, has been challenged and ruled

constitutional (although never by the Supreme Court, the cases never

made it past the state Court of Appeals). But it had never been used on

anywhere near so large a scale (this one is almost 10 times bigger than

the previous biggest), nor under these circumstances where the governor

Page 1 of 6MinnPost - TPaw's unallotment legal team weighs in

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had arguably created the shortfall by vetoing the revenue bill.

Although many functions of state government lost funding under the

unallotment, this case derives from a relatively small program (Minnesota

Supplemental Aid-Special Diet) that subsidizes very poor, very sick

people who have special health-related dietary needs. In his unallotment

orders, Pawlenty zeroed out that program, effective last Nov. 1, saving

the state a mere $5.3 million.

Judge Gearin, who heard the challenge, ruled that using unallotment in

this manner unilaterally and unconstitutionally revised the intended

balance of powers between the branches. If he wasn’t willing to sign the

revenue bill, Pawlenty could have continued working with the Legislature,

calling a special session if necessary, to work out a compromise. Instead,

he seized power normally belonging to the Legislature of deciding which

state programs would be funded and which not.

"The authority of the Governor to unallot is an authority intended to save

the state in times of a previously unforeseen budget crisis,” Gearin wrote.

“it is not meant to be used as a weapon by the executive branch to

break a stalemate in budget negotiations with the Legislature or to

rewrite the appropriations bill."

Pawlenty immediately announced that he would appeal. He requested

and received permission to skip over the state Court of Appeals and go

directly to the Minnesota Supremes so the state government can get a

quicker answer to the questions raised by the case, while the state

budget problems are still building.

OK back to the present

Tuesday was the deadline for Pawlenty and his legal allies to file their

appellate briefs. The other side (the plaintiffs in the original case, now

called the respondents) have until Feb. 23 to respond. So this piece,

based on three pro-Pawlenty briefs, will be one-sided. Oral arguments

are scheduled for March 15. Then it’s up to the Supremes to decide, on

no particular timetable. The current legislative session ends May 17.

Pawlenty’s brief, written by the governor’s counsel Patrick Robben and

Solicitor General Alan Gilbert (the fact that the attorney general’s office is

representing Pawlenty is awkward at best, given the partisan political

background of the case), argues that Gearin did not respect the language



of the statute.

The statute (see subdivision 4) says that unallotment power kicks in “If

the commissioner [of management and budget] determines that probable

receipts for the general fund will be less than anticipated, and that the

amount available for the remainder of the biennium will be less than

needed.”

Pawlenty’s commissioner, Tom Hanson, did indeed make that

determination, which Pawlenty’s side says properly kicked off the

unallotment process. The plaintiffs in the case argue that unallotment is

not meant to occur at the beginning of the biennium or while the

Legislature readily available to address the potential deficit.

But Pawlenty’s brief (and a second brief filed yesterday, a friend of the

court brief by several Republican legislators including Tom Emmer and

Marty Seifert, the top two current Repub candidates for governor) argue

that there is no language in the statute to suggest that unallotment is a

power that occurs at some particular time during the biennium. (Perhaps

the other side will make something of the language that refers to “the

remainder of the biennium.”)

Pawlenty’s brief (this has been a theme of Republican criticism ever

since Gearin’s ruling) argues that Gearin didn’t even discuss the specific

language of the statute, and points out that Minnesota actually has a law

instructing those who are charged with interpreting Minnesota laws that

“the letter of the law shall not be disregarded under the pretext of

pursuing the spirit.”

This is a big phrase for the unallotment defenders, and I can see why.

But when they cite it (including in the Pawlenty brief), they tend to leave

off the beginning of the sentence. The full sentence reads: “When the

words of a law in their application to an existing situation are clear

and free from all ambiguity, the letter of the law shall not be

disregarded under the pretext of pursuing the spirit.” Presumably, the

other side will explore the issue of whether the application of the

unallotment law to these circumstances is ambiguity-free.

But the Emmer-Seifert amicus brief essentially accuses Gearin of making

up language and imagining it into the statute. If the Legislature that

created unallotment had wanted to, it could have said that the governor’s

power kicks in only late in the biennium. But the unallotment authors did

not write that. It is not Gearin’s role, as a judge, to amend the statute so



that it seems optimal to her, the Emmer-Seifert brief argues.

Likewise, Emmer-Seifert et al argue that Gearin seems to think that when

there is a disagreement between the governor and the Legislature about

taxes and spending, the governor’s unallotment power should not be

used until the governor has exhausted all other means of reaching

agreement with the Legislature, such as calling a special session or

compromising on their differences. This might be Gearin’s view of the

best way to proceed, but it isn’t her job to impose her preferences.

On the contrary, the Emmer-Seifert brief argues, the dispute between

Pawlenty and the DFL majority of the Legislature (over whether to

balance the budget by raising taxes or by further cuts) is a classic

political dispute — the kind of dispute in which the courts are supposed

to stand back and let the political branches work it out or duke it out.

In fact, it seemed to me that the main, official Pawlenty brief seems to

want to remind the justices that unless they are willing to take over all

three branches of government, there is no appropriate way for the courts

to resolve this dispute except by letting the unallotments stand.

If the Supremes uphold Gearin and strike down the unallotments,

making the unallotted appropriations reappear in the budget, there

is no money to pay for them. Since the unallotment, state tax

collections have continued to fall. The DFL tax increases that would have

paid for some of this spending were vetoed. Certainly, vetoing a tax bill is

a power the governor possesses. Is the court going to tell governors

which bills they must sign and which they must veto? Is the court going to

write its own tax bill and order the Legislature to pass it? Of course not. (I

emphasize that the argument in this paragraph is made only by

implication and not explicitly.)

But the brief took several steps down that path in this portion of the

argument:

“Under the [Gearin ruling], the $2.7 bilion deficit would have to be

eliminated by agreement of the Legislature and Governor or not at alI...

The district court's interpretation of [the unallotment statute] produces

obvious adverse consequences for the operation of State government.

"The Minnesota Constitution does not permit the State's biennial budget

to remain in deficit... The Governor and Legislature were previously

unable to reach agreement on how to resolve the $2.7 bilion budget



deficit. Under the district court's reasoning, in the absence of such an

agreement, spending pursuant to the biennium's appropriation bills will

continue until such time as the State simply runs out of money before the

biennium ends, resulting in a government shutdown, at least as to non-

core functions.

"In contrast, the Commissioner's interpretation [that the governor has the

power to unallot] allows an alternative mechanism to resolve the deficit in

the State's general fund and avoid a government shutdown. Thus,

Appellants submit that the consequence of the competing interpretations

before the Court, i.e., the ability of State government to operate, weighs

in favor of the Commissioner's interpretation.”

A third, shorter brief was filed yesterday. Two prominent Minnesota

conservative legal scholars — David Stras of the University of the

Minnesota Law School and Michael Stokes Paulsen of University of St.

Thomas, plus Ryan Scott of Indiana University (a former Minnesotan) —

filed under the moniker “professors of Constitution Law and Separation of

Powers.” They concentrated on one narrow issue: Does Pawlenty’s use

of unallotment create a constitutional problem because it allows the

governor to perform a function that is fundamentally legislative? The

professors say no.

If unallotment allow the executive to spend state money that the

Legislature had never appropriated, that would be a problem. The power

to authorize and appropriate public money is a legislative function. The

power to spend money is an executive function. But unallotment is simply

spending less than the Legislature appropriated. The professors say that

38 states empower governors to spend less than was appropriated, and

these arrangements have been tested and found not to cause separation

of powers problems.

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MN Unallotment A10 64_Gov,AmicusBriefs