Judge in unallotment hearing notes need to ‘tread lightly’

It lasted barely an hour and was fairly uneventful, if you had already read the briefs.

Ramsey County Chief Judge Kathleen Gearin announced right away that she wouldn’t be ruling today on the request for a temporary restraining order. She indicated that in cases like this, involving constitutional and balance of power issues, judges need to tread lightly. And she acknowledged that whatever she decides about the underlying unallotment question will just be a way station on the road to the Minnesota Supreme Court. True enough.

Plaintiffs’ attorney Galen Robinson reiterated the chief statutory and constitutional claims, which I described in my post earlier this morning. He made one argument I hadn’t heard before. Minnesota gives the governor a line item veto, but he has to veto an entire appropriation. The money for the special health-related diet subsidies that the plaintiffs have been receiving could not be reached through the line-item veto because that program does not have its own separate appropriation. In some states, there is an “item reduction veto” that allows the governor to zero out a smaller item within an appropriation. But the Minnesota Constitution does not give that power to the governor. In fact (historical trivia alert) in 1915 Minnesota had a constitutional amendment on the ballot that would have given the governor that power, but it failed.

When Gov. Pawlenty zeroed out the diet subsidy, he effectively committed an item reduction veto, only it was even a greater enhancement of his power because he did it in a way that could not be overridden by the Legislature. The unallotment power of Minnesota governors was created in 1939 by statute, not by constitutional amendment. If, as used by Pawlenty this year, unallotment is equal to “item reduction veto,” the Legislature cannot have given such an extra-constitutional power by mere statute.

Speaking for the governor, his legal counsel Patrick Robben also reiterated the main arguments made in the defense brief (see my post of this a.m.) He added that the state’s revenue picture continues to decline and warned that “we may be unalloting yet again” during the current biennium. He may not have said so explicitly, but the implication clearly was that any money that the courts force the state to spend as a result of this action will just have to be taken out of some other part of the budget.

He also warned Gearin that if she grants the temporary restraining order that the plaintiffs are seeking — forcing the state to reinstate the special diet program — recipients of other benefit programs that have been unallotted will be right behind the current plaintiffs, asking that their lost benefits be reinstated and “the end result is that your honor is going to be running the state budget out of this courtroom.” (I saw Gearin make a note of that argument.)

Robben also said out loud an argument that is usually unspoken: DFLers believe that Gov. Pawlenty should have signed the revenue bill they passed, which would have made the unallotments unnecessary. That is a public policy disagreement between the parties and between the branches, but there is no question that the veto was within the governor’s power and “this courtroom is not the place to take up those kinds of public policy issues.”

Solicitor General Alan Gilbert, also representing the defense, spoke briefly and made no new arguments that I could hear. he reiterated that the only question for the court whether Pawlenty complied with the unallotment statute when he exercised that power. Gilbert says he did, and the plaintiffs’ case should be dismissed.

Gearin did not indicate when she would rule on the restraining order or the underlying issues.

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Comments (4)

  1. Submitted by Jeremy Powers on 11/16/2009 - 05:36 pm.

    Tread lightly?

    That’s an inherent problem in the world. Pawlenty stomps all over the constitution with big, heavy muddy boots and the courts are going to tiptoe over to the Capital to see if it’s OK to interfere.

  2. Submitted by Thomas Edman on 11/17/2009 - 07:27 am.

    Eric, Could you explain that new argument again? I’m not sure I follow. It seems to have something to do with how things are packaged legislatively, and how surgical the governor’s powers must be exercised.

    But it sounded fairly fundamental.

  3. Submitted by Christopher Moseng on 11/17/2009 - 08:28 am.

    The argument (veiled threat) that the governor might have to unallot in the next budget begs the question. If the governor were inclined to negotiate in good faith with the legislature, the governor would be less likely to be given a budget that “requires” him to exercise the power. And if his power of unallotment were contstrained, he might coincidentally become more inclined to negotiate in good faith in the budgeting process.

    The argument that the only question before the court is whether the governor complied with the statute is also pretty weaksauce. If the statute must be constrained by the constitution, so must the governor’s exercise of statutory authority.

  4. Submitted by John E Iacono on 11/17/2009 - 03:43 pm.

    When “negotiate with the legislature” is code for “let’s tax ’em, tax ’em, and tax ’em some more” even though he said in January he would not go that route, it seems more like having a fit that he stood his ground.

    If “negotiate with the legislature” meant “All right — you won’t raise taxes, let’s see how we can come to agreement on what to cut” I suspect there would have been heavy and successful negotiations.

    “Good faith negotiations” require each side to respect what is non-negotiable for the other side. But that didn’t happen.

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