In her strong, occasionally snide dissent, Justice Lori Gildea accuses the court's majority opinion of the sin of judicial activism.

If the Legislature, when it created the governor's unallotment power, had meant to create a power that applied only in the middle of the biennium, after the adoption of a balanced state budget, it could have and should have said so, Gildea argued. But it didn't. So it is not the role of the judiciary to change the law. A key summary, in which quotes Chief Justice Eric Magnuson's own words against him, goes like this:

Gildea: "The judiciary‘s 'duty' is simply 'to apply the law as written by the legislature.' (Int’l Bhd. of Elec. Workers, Local No. 292 v. City of St. Cloud, 765 N.W.2d 64, 68 (Minn. 2009) (Magnuson, C.J., for a unanimous court).

The majority is unable to do so because the language the Legislature used in the unallotment statute leaves the majority with uncertainty and ambiguity. The majority therefore rewrites the statute to insert additional conditions, and then finds that the Commissioner of Minnesota Management and Budget (Commissioner) violated the statute because he did not comply with the conditions the majority has added.

Unlike the majority, I do not find the language the Legislature used uncertain or ambiguous as applied to the unallotment at issue in this case. I would not rewrite the statute; I would apply the language as written. Because I would hold that the executive branch complied with the plain language of the statute, and that respondents have not met their burden to prove that the statute is unconstitutional, I respectfully dissent."

The condition that Gildea says the majority has added is that in order for the unallotment power to be used, there has to first be a balanced state budget, which is then thrown out of a balance by an unanticipated revenue shortfall.

Proper judicial modesty, Gildea writes, requires that the courts interpret a statute according to its plain meaning. She goes over the unallotment statute phrase by phrase, and concludes that its requirements are clear and that all of them have been met by Gov. Pawlenty and his finance commissioner.

In his majority opinion, Magnuson had spelled out the different interpretations the parties in the case had attached to provisions of the statute, and had concluded that both were at least somewhat reasonable, and therefore the court must use the techniques of statutory construction to ascertain the Legislature's intent when it wrote the law. Gildea mocks that step, thus:

"The parties each contend that the plain language of the statute supports their position, and, they argue in the alternative, that if we were to determine that the statute is ambiguous, principles of statutory construction counsel that we construe the statute in their favor. The majority concludes that the parties' different readings of the statute are reasonable and that therefore the statute is ambiguous. The majority uses its determination of ambiguity as an invitation to rewrite the statute to include the condition precedent of a balanced budget. Specifically, the majority divines [divines?!] that what the Legislature meant to say was that once a balanced budget has been enacted into law and a deficit thereafter occurs, the Commissioner may unallot to make up that deficit.

The obvious problem with this rewrite is that it is a rewrite. The Legislature chose not to include the condition precedent the majority finds necessary, and we cannot, under the guise of statutory construction, add it. See Minn. Stat. § 645.16 (2008) ('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.'").

Gildea's dissent was written with the concurrence of the other two most conservative justices, Christopher Dietzen and G. Barry Anderson. All three are Pawlenty appointees.

The second half of Gildea's 22-page opinion is not really a dissent from Magnuson's majority ruling but more of a shadow argument with the court's two most liberal members, Justices Alan Page and Paul Anderson, who, in their concurrence with Magnuson added that although the case could be decided on a statutory rather than constitutional basis, they both harbored concerns about the constitutionality of the underlying unallotment statute. One suspects that if there had been two more justices who felt that way, the whole unallotment statute, and therefore the unallotment power of Minnesota's governors, would have been struck down as unconstitutional.

(The Minnesota Court of Appeals has previously ruled that the unallotment statute is constitutional, but the MN Supremes have never ruled on its constitutionality. Magnuson invoked another tenet of judicial modesty, that if a case can be decided on statutory grounds, the court shouldn't escalate to constitutionality.)

Anyway, Gildea devoted several pages to an argument that the statute is constitutional. The key issue on constitutionality is whether the unallotment power transfers to the governor power that is fundamentally legislative in character. In their concurrences, Page and Paul Anderson worried that it does by giving the governor such free rein to change legislative spending priorities that it amounts to the power to make a new law. Making a law is the province of the Legislature.

Gildea replies that the problem goes away if one understands what the unallotment statute is for. The unallotment power is a tool to help balance the state budget. Balancing the budget is a function that is shared by the governor and the Legislature, rather than a purely legislative function.