Attorney David Lillehaug backs unallotment lawsuit, urges Legislature to challenge Pawlenty's actions, too

Former U.S. Attorney David Lillehaug says he agrees with those who believe Gov. Tim Pawlenty acted unconstitutionally when he unilaterally used the unallotment process last spring to cut or shift more than $2 billion in state programs and funding.

The DFLer, who helped handle Sen. Al Franken's recount and is now working as a litigation lawyer, said he applauds the six Minnesotans who last week filed a lawsuit challenging the governor's unallotment process. The plaintiffs will be affected by cutbacks in two state programs, a supplemental food program and the renter's credit.

Lillehaug told a liberal lunch group in St. Paul on Friday that the Legislature, too, is a major victim of the governor's action, because power over the state budget was effectively stripped from the legislative branch.

He called the budget takeover a violation of the separation of powers clause in the state Constitution.

"The governor hit the Legislature in the head with a 2-by-4 and the Legislature hasn't hit back, yet," he said. "I appreciate that six poor people and Legal Aid [Mid-Minnesota Legal Assistance] are stepping forward, but will the Legislature step up, too, and stand up for its rights?"

Lillehaug said this could become a historic state case on the separation of powers but shouldn't be considered a partisan issue, even though it's widely viewed that way because of the standoff between a Republican governor and DFL-controlled Legislature.

"That's what we have now, but consider what could happen in the future with a DFL governor and a Republican Legislature," he said. Lots of pet GOP projects might be sacrificed unilaterally in the name of the budget crisis.
 
He said the unallotment plan — which followed the governor's May veto of the legislative budget-balancing plan  — violated the state law because it was put in place even before the new biennium started. The law, Lillehaug said, allows unallotment when there is an unanticipated budget shortage, not when the financial problem had long been known.

The unallotment statute requires that the money not be available before state programs can be cut, but he noted that the governor did not continue negotiations with the Legislature or call for a special session in an effort to find the needed funds. So, he wondered: Was the money really unavailable?

Pawlenty's version of unallotment, Lillehaug argued, would mean that a governor has unlimited power in budget matters whenever a deficit is anticipated.

And it gave Pawlenty in effect two chances to veto projects. "These items were already passed and he signed the bills. Now he goes back again and gets another chance to cut them," Lillehaug said.

Taking it further, he suggested that, in theory, the governor could veto a bill, have the veto  overridden by the Legislature and then unallot the funding — in effect, overriding the override.

A 2004  lawsuit challenging an earlier unallotment — Rukavina v. Pawlenty — was unsuccessful and is being used by some as a reason not to challenge this unallotment, Lillehaug said, but that case was very different. For one thing, he said, it came at the end of a biennium.

And there are other precedents: Unallotment challenges in Alaska and Florida did succeed on constitutional grounds, while one in Massachusetts did not, he said.

The new Minnesota lawsuit puts a human face on the suffering the unallotment is causing and appears to be carefully crafted and worded, "hitting all the main issues," Lillehaug said.

He said he hopes the suit succeeds, because "the governor has been extremely irresponsible" in dealing with the budget crisis this way.

If the plaintiffs win, the governor and Legislature will still have to find some way to balance the budget before the end of the biennium in 2011, Lillehaug said.

If the governor wins, Lillehaug suggested that the Legislature should change the unallotment statute or try to amend the state Constitution to limit the governor's powers.

Joe Kimball writes about politics, St. Paul and other subjects. He can be reached at jkimball [at] minnpost [dot] com.