In the last brief in the unallotment-case appeal to the Minnesota Supreme Court, the pro-Pawlenty, pro-unallotment side argued that in unallotting $2.7 billion from appropriations that the 2009 Legislature had passed, Gov. Tim Pawlenty complied with every word and every syllable of the 1939 law that created the unallotment power of Minnesota governors.

The brief [PDF] returns to the argument that Pawlenty has been making since the legal challenge to unallotment began last year before Chief Ramsey County District Court Judge Kathleen Gearin. Gearin didn't buy it, and ruled that Pawlenty had acted improperly.

Now, on appeal to the Minnesota Supreme Court, Pawlenty's legal team (Solicitor General Alan Gilbert, Pawlenty counsel Patrick Robben, and two assistant attorneys general) asks the court to overturn Gearin. With apologies if I'm mangling the translation from legalese (what follows just below are not quotes from the brief but my summary of them), the final argument goes like this:

Read the statute. (Full text of statute here: see Subdivisions 4a and b.) It says the commissioner of management and budget must determine that probable receipts will be less than anticipated. It says the commissioner must also determine that the amount available for the remainder of the biennium will be less than needed. Commissioner of Management and Budget Tom Hanson made both of those determinations in June 2009, because both of those conditions were true. Once those determinations are made, and once the state budget reserves have been used, the commissioner and the governor are empowered to defer or suspend spending from within any appropriation.

Read the statute and note what it doesn't say. It doesn't comment on whether the deficit that needs to be eliminated may have been caused by the governor's use of his veto power on a bill that would have raised additional revenues. It doesn't establish a particular point in time when the commissioner is or is not authorized to make the determinations. It does not require the governor to call a special session of the Legislature to seek input on how to balance the budget. It does not put limits on which appropriations should be reduced or which should be spared. The respondents in this case (the anti-unallotment side) seems to think that some of these limitations on the governor's unallotment power exist, but they can't find it in the statute that creates and describes the power. Because it isn't there.

In effect, the other side in this case asks the court to invent these limitations and read them into the statute. They ask the court to substitute a philosophical approach to the proper balance of powers between the legislative and executive branches of government for the plain language of a statute that the Legislature itself created and retained. Don't go there, Supreme Court.

This is also a case about a difference of philosophy and opinion between the governor and the Legislature over the best way to eliminate a deficit. Both sides brought their constitutional and statutory powers into that argument, but one side didn't like the way it turned out. Now the Legislature asks the court to weigh in on its side of the argument. Don't go there. This is a non-justiciable political question that should ultimately be decided by political means, not by the courts.

If my paraphrase is a little too dramatic, here is how the Pawlenty legal team summarized the argument:

"Respondents and amici make several arguments claiming that [the unallotment statute] does not unambiguously allow the Commissioner to make the challenged unallotments or that the statute should be construed to preclude the Commissioner from making the unallotments. At their core, these arguments attempt to impose requirements — such as the statute only applies to small, unanticipated deficits arising late in the biennium — found nowhere in [the unallotment statute]. Respondents and amici rely on purported conditions in the statute that simply do not exist. They also ask the Court to resolve a political dispute. Their contentions are not supported by the statutory language and are without merit."

The anti-unallotment side has argued that Pawlenty could have taken many more normal actions to deal with the budget deficit. He could have signed the revenue bill that would have balanced the budget. He could have used his much more ordinary veto powers to eliminate whole appropriation bills or line items within appropriation bills to balance the budget without the additonal revenue. He could have called a special session to continue seeking a balanced budget that was acceptable to himself and the Legislature. Replies the final Pawlenty brief:

"These arguments are not even justiciable by the Court since they present political questions over which the Court lacks jurisdiction ... See, e.g., In re McConaughy, (observing that the judiciary has no power to determine whether the Governor should have vetoed a bill or whether the Legislature should have passed a bill) ... To make such determinations would require the Court to act as the referee of a political dispute. See Baker v. Carr, recognizing that an issue presents a nonjusticiable political question when there is "a lack of judicially discoverable and manageable standards for resolving it."

"Such political questions are for the voters to resolve through elections."

'Anticipation' and 'remainder'
The anti-unallotment side has focused on two words in the statute to argue that Pawlenty exceeded the powers granted him by the statute. The words are "anticipated" and "remainder." Here's the key phrase from the statute that triggers the power to unallot.

"If the commissioner 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 anti-unallotment briefs (including the amicus briefs) have argued that the $2.7 billion was not "less than anticipated." The shortfall was projected in February of 2009, before the governor had even submitted his budget to the Legislature. He proposed cuts that would have balanced the budget. The Legislature instead passed a combination of cuts and new revenues to balance the budget. By signing all of the spending bills, then vetoing the revenue bill, Pawlenty essentially created the shortfall, then his commissioner declared that it was unanticipated.

The Pawlenty brief says no, the finding that receipts would be less than anticipated wasn't the February forecast. In June, after the Legislative session, Commissioner Hanson gave Pawlenty a letter stating that state revenue was coming in even below the level projected in February. In that letter, Hanson said that receipts up to that point in 2009 were "down $70.3 million compared to the Febuary forecast." It was this finding that met the requirement in the statute of receipts that were "less than anticipated."

If you're following this — and I don't blame you if you're having a tough time, I've been struggling with it myself (see the footnote on page 2 of the brief) — you may wonder how an unaticipated shortfall of $70 million could justify an unallotment of $2.7 billion. The brief replies: Read the statute, syllable by syllable. It says there has to be a determination that revenues will be less than anticipated. There was such a determination. That triggers the power to use unallotment to balance the budget. But it doesn't say that the unallotment is limited to the amount by which the revenues were "less than anticipated." In fact, Team Pawlenty argues, the statute authorizes the guv to unallot until the amount of spending still scheduled equals "the amount [of revenue] available for the remainder of the biennium" — in other words, until the entire projected deficit is eliminated, which in this case was $2.7 billion. And that's what Pawlenty did.

So yes, the amount Pawlenty unallotted was 40 times greater than the amount by which revenues were less than anticipated. The brief doesn't specify that this leap was necessitated by the governor's veto of the revenue bill. But it was.

The anti-unallotment briefs also like the phrase "remainder of the biennium," because, they argue, it implies that this unallotment power is intended to be used late in the biennium, to make up for an unanticipated shortfall. In 2009, Pawlenty announced the unallotment before the biennium had even begun.

The Pawlenty brief replies to that point thusly:

"The term 'remainder' literally refers to whatever 'remains or is left' of the designated period, which can be the entirety of the period. Accordingly, the plain language of the statute, including the reference to 'remainder,' allows the Commissioner to determne that the amount available for the entire biennium "will be less than needed" and therefore unallot to correct a deficit for all of the 2010-2011 biennium."

Oral arguments in the case are scheduled for March 15. There is, of course, no schedule for when the court will rule, but the timing is awkward because the Legislature is in session and is trying to deal with a roughly $1 billion deficit projected for the remainder of the biennium.

In the very last words of the brief, Pawlenty's legal team asserts that not only were all of the unallotments of 2009 proper but the governor and his commissioner are "authorized to similarly unallot to correct the remaining $1.2 billion biennial deficit" (the figure is closer to $1 billion based on the very latest projection).

To translate that last, if the governor and the Legislature cannot agree on some combination of $1.1 billion of cuts or new revenues, the governor is prepared to act unilaterally.