In a letter to the judge in the unallotment case, Gov. Pawlenty's counsel disputes that the finding of a shortfall in state revenues was made prematurely.

Patrick Robben, general counsel to the governor who is part of the legal team defending TPaw's unallotments, sent a letter to Judge Kathleen Gearin replying to the amicus brief filed Friday by the state House of Representatives. The attorney general's office, which is also defending the unallotment, informs me that they will not file an actual brief in reply, but that the Robben letter will be the only reply.

I believe that means that Gearin now has everything before her that she needs to decide whether to issue a temporary restraining against a portion of the unallotment (the part affecting plaintiffs who have lost their special dietary supplments) or, on the other hand, to grant the defense's request that the case be dismissed. That ruling could come any day.

The state statute that authorizes a Minnesota governor to unilaterally cancel allotments of funds from appropriations bills says that he may do so "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."

The legal argument revolves substantially around the meaning of "less than anticipated" and "remainder of the biennium."

The plaintiffs in the case, and the House in its recent amicus brief, said that the statute clearly envisions a situation in which a balanced budget has been passed and signed by the governor and then, later in the biennium, a shortfall in revenues occurs forcing to the governor to "unallot" in order to avoid an unbalanced budget.

Gov. Pawlenty announced in May of 2009 that he would unallot before the new biennium had begun and that he was vetoing a bill that would have raised taxes in order to balance the budget.

In its amicus brief, the House argued that Pawlenty had decided to unallot based on the same revenue forecasts that the Legislature had relied on when it passed a balanced budget. Therefore there was nothing "unanticipated" about the shortfall in May, when Pawlenty caused the shortfall by veoting the revenue bill.

In his letter replying to that brief on behalf of the governor, Robben argues that it wasn't until June that the commissioner issued his official finding that there would be a budget shortfall, and that by that time there was fresh evidence that state revenues would be "less than anticipated" earlier.

Robben also repeats an earlier argument about the issue of whether the unallotment power can be used before the new biennium has begun. It is not for the plaintiffs, nor the House nor even for the courts to attempt to infer the intent of the authors of the unallotment law, Robben asserts (the law was passed in 1939 at the request of then-Gov. Harold Stassen). Everyone must be bound by the plain language of the statute, which does not specify the earliest date at which the determination of a revenue shortfall can be made.