A lawsuit challenging Gov. Tim Pawlenty's use of his unallotment powers is heading to an important court hearing Monday morning and there are at least two interesting developments in advance.

• Attorney General Lori Swanson's office will be handling the case in defense of Pawlenty's unallotment powers.
• The Minnesota House is moving toward joining the case (and not on Pawlenty's side).

Quick background

Minnesota law gives the governor the power to "unallot" funds that have been appropriated when that is necessary to deal with unexpected shortfalls in government revenue. The power has been used occasionally in the past and has withstood court challenges. At the end of the 2009 session, Pawlenty did use those powers to balance the budget without raising taxes.

The first challenge to this action is a lawsuit on behalf of six very poor, sick Minnesotans who have special dietary needs for health reasons and who have received state-paid benefits to afford the food necessary to meet those needs under the Minnesota Supplement Aid-Special Diet (MSA-SD) program. That program was eliminated for the current biennium under the unallotment. The six are suing, I believe on behalf of all recipients of MSA-SD, to challenge that cutoff and they are seeking a temporary restraining order to prevent the state from cutting off their benefits until the issue can be fully litigated. On Monday, the first court arguments will occur, in Ramsey County District Court, on the issue of whether the temporary restraining should be granted.

There has long been speculation in legal circles about whether Attorney General Swanson would handle the case for the governor's side. Normally, the AG defends state laws against challenges, and normally the AG serves as the governor's lawyer.

This case is awkward on both partisan political and on separation of powers arguments. Swanson is a DFLer and the DFL Party and its elected legislators in general are virtually united in opposition to what Pawlenty has done with unallotment. And, as I mentioned above, the Legislature is preparing to get involved in the case. The AG is the lawyer for the state government, and this case may soon be one in which the executive and legislative branches of that government are on opposite sides. Does Swanson have any option other than to handle Pawlenty's side of the case?

Awkward case

I asked that question of federal Judge John Tunheim because he spent many years as Deputy AG under Skip Humphrey, including during a period when Republican Arne Carlson was governor.

Tunheim said that there were a few cases in which the elements of partisan politics were near the core, making it awkward for the Republican governor to be represented by the DFLer AG. In such cases, he would approach the governor to inquire if he would be comfortable being represented by someone else. In such cases, the AG's office would arrange for and pay for an outside lawyer.

"In most cases, most governors want the imprimatur of the attorney general representing him in something like this, and it is the attorney general's responsibility," Tunheim said. "It was our position that we were committed to representing governor in all cases, regardless of whether the attorney general had different views. But in highly charged cases with political and partisan elements, we would tell the governor that that we would be glad to stand aside and procure representation. We did represent Governor Carlson in some cases that, from the outside, looked political. But in some we didn’t."

According to the brief filed by the defense, all of the defendants (Pawlenty plus the commissioners of Human Services, Revenue and Management and Budget) are all represented by the AG's office (a team of three lawyers fromo the office, led by
Solicitor General alan Gilbert) and, in addition, the general counsel of the governor's office, Patrick Robben, is on the legal team to specifically represent defendant Pawlenty).

The unallotment case is doubly awkward because of the obvious difference on the issue between the governor and the majority party in the Legislature and because arguments over the proper division of power between the two branches is near the heart of the case.

That awkwardness will increase if the House Rules Committee votes Monday to join the case, on an amicus basis, on the plaintiff's side. State Rep. Ryan Winkler, who has taken the lead on this matter in the rules committee, said he was confident that the resolution would pass. He didn't know whether the Senate was going to join the case.

UPDATE: The earlier version of this post indicated that I had solicited comment from the AG's office on the decision to take the case. Swanson's spokester Ben Wogsland replied by pointing out that twice before, when the governor's unallotment powers have been challenged in court, the attorney general has represented the governor On both occasions, the governor was a Republican and the AG was a DFLer. (The first challenge occurred in 1981, when Republican Al Quie was governor and DFLer Warren Spannaus was AG. The second was in 2004 when Pawlenty was guv and DFLer Mike Hatch was AG. In the latter case, the lead plaintiff was DFL legislator Tom Rukavina. )

Wogsland said that in the current case the governor did not "request" private counsel. He didn't say whether there had been any discussion between Swanson and Pawlenty over the matter. But he did write that: "State law provides that the Attorney General is the lawyer for the Governor, his Commissioners, and his Administration, regardless of politics."