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Unallotment suit against Pawlenty: Some interesting — and awkward — developments

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.”

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Comments (13)

  1. Submitted by Annalise Cudahy on 11/13/2009 - 11:20 am.

    Pawlenty would not want Swanson to represent him, but Swanson shouldn’t want it, either. I can’t see the AG taking this up simply because whatever the outcome, it will appear tainted. It is simply not ethical to take a case when there is such an obvious conflict of interest, IMHO.

  2. Submitted by Jeremy Powers on 11/13/2009 - 12:48 pm.

    It would be real easy for Attorney General Swanson to do a crummy job defending the governor. I mean, what the governor did is basically indefensible anyway. So if her office just went out there with a half-assed defense, they could lose the case and it would be a win-win situation for everyone but Pawlenty.

    A loss would protect the sanctity and constitutionality of the legislative budgeting process. It means that we – the whole state we – would have to face the mess that has been created by both politicians and the changing world. It means we would have to live within our means, even if that meant that some dentists wouldn’t be able to buy two ATVs for their children and maybe not every program would be funded. It would force the governor to actually govern, which would interfere with his incessant campaigning.

  3. Submitted by April Smith on 11/13/2009 - 01:28 pm.

    Eric, I’m surprised that you of all people missed the connection. Months ago, before Pawlenty unalloted, he pulled Swanson aside and explained that she was politically weak because of her penchance for union busting and running her office in a less-than-ethical manner. He informed her that he had not yet capitalized on this weakness, but that if she did not vigorously defend him on the inevitable unallotment suit, he would destroy her.

    There’s no question that what Pawlenty did was unconstitutional, and that Swanson’s act of defending Pawlenty seriously conflicts with her duty to represent other state agencies and the people of Minnesota. Are you really surprised that she is once again acting to ensure her own political survival?

    This is what the DFL gets for circling its wagons around someone as corrupt as Lori Swanson. Are we really surprised that someone who would bust a union in her own office would do absolutely anything to stay in power?

  4. Submitted by Jeff Kline on 11/13/2009 - 02:44 pm.

    Interesting…. Based on what sounds like a very “entitlement” mentality here in the state, I guess we can start using the phrase; “Welcome to the Peoples Socialist Republic of Minnesota”; soon.

    Apparently these folks also don’t have a sense of basic accounting or accountability. If the money isn’t there, you can’t keep borrowing on the kids futures and further generations out; just to pay for your whims now.

  5. Submitted by Bernice Vetsch on 11/13/2009 - 04:11 pm.

    Jeff K: Much of the reason the “money is not there” is that the governor deliberately reduced state revenue by his billion dollars per year in tax cuts for the wealthy.

    As a devoted disciple of Grover Norquist, it is part of his crusade to cripple any effort on the part of government to help meet the needs of those who cannot work (age, physical or emotional or intellectual disability, mental or physical illness, et cetera).

    I hope AG Swanson will insist on having another attorney appointed.

  6. Submitted by Annalise Cudahy on 11/13/2009 - 04:56 pm.

    > If the money isn’t there, you can’t keep borrowing on the kids futures

    This reader simply does not understand the issue, which is a terrible shame.

    The question is not how much there is to spend, it is by whose authority that the levels of spending are set. It is not the Governor’s exclusive decision. The DFL controlled legislature could have done MUCH more to prevent it from getting this far, but the point remains that we live in a Democratic Republic with a distinct separation of powers. If you worry about our children’s futures, I would suggest that the real issue at hand is much more chilling than mere money.

  7. Submitted by Peder DeFor on 11/13/2009 - 06:29 pm.

    Bernice, we went through some of this a few days ago in the post about using legal fees to raise revenues. Minnesota receipts have stayed constant for at least the last ten years with about a 5% annual bump that matches the state’s GDP. There has been no Norquistian drowning or crippling of the state government. None.

  8. Submitted by Peter Nickitas on 11/14/2009 - 06:30 am.

    An ethical complaint against either Pawlenty or Swanson in the midst of this struggle would make this a radioactive controversy.

  9. Submitted by John E Iacono on 11/14/2009 - 12:46 pm.

    It seems to me that most attorneys are familiar with the idea of competently defending a client with whom they may disagree, and if she chooses to defend the gov I would expect the same of her.

    If she does, it will be interesting to see how her dem “friends” race to the gallows.

    And if she does, it seems to me that — all political ballyhoo aside — the court will find that Pawlenty acted within his authority under the statute.

  10. Submitted by Bernice Vetsch on 11/15/2009 - 02:37 pm.

    Peder D: No “Norquistian drowning or crippling of government?” Look around at the tens of thousands of people kicked off health care, at the teachers buying classroom supplies, at bonding to pay current expenses, at cities and counties struggling to maintain essential services — especially to the poor, disabled and elderly, and such as street maintenance.

    Also, in a December 2008 article in MinnPost, Dane Smith of Growth & Justice (describes “three points about Minnesota’s budget plight.” Mr. Smith’s first point is that “The budgets of state and local governments and schools already have been significantly downsized and they are not ‘the problem.’

    “The most comprehensive bottom-line measure of government size and scope is Minnesota’s Price of Government (POG). The POG shows that total state-local revenues as a percentage of income stood at about 16 percent in 2008. That’s a full percentage point lower than the typical POG that prevailed for much of the last three decades and all through the 1990s.

    “One percentage-point difference amounts to more than $2 billion less per year, which would account for much of the projected latest shortfall of $4 to $6 billion over two years.”

  11. Submitted by Peder DeFor on 11/15/2009 - 07:41 pm.

    Bernice, it’s been steady for the last decade. I haven’t checked back for three decades so I’ll grant the figures you’re citing. But that still doesn’t mean that Minnesota state and local government is being starved out of existence.
    You point out teachers being forced to buy their own supplies. I’ll point to the ridiculously expensive superintendent searches that have gone on this decade.
    You mention towns that have had to cut critical services. How many of those same towns spent money on pretty new bike paths? How much of the road repair budget was spent on our new artistic bridges?
    Remember the controversy over the new signs and for the Twin Cities airports? The cost of dealing with a non-problem never seemed to occur to the people in charge. That was about $2 million, iirc. Wanna bet there are more examples like that?
    You seem to assume that critical (and high profile) cuts are made first because city and state gov’ts can’t afford to cut anything else. I think that their reasons are a bit more political.

  12. Submitted by Bernice Vetsch on 11/16/2009 - 03:28 pm.

    I’m assuming, because I’ve watched him at work, that Tim Pawlenty cuts tens of thousands of poor people off health care at a crack. GMA covers people who make under $9,000 per year, but Pawlenty thinks cutting taxes for the well-to-do is more important than meeting the needs of these people who did not ask to become physically or mentally ill or jobless or homeless, but who have received some of life’s very hardest knocks.

    I also hear huge cries of financial pain from people all over the state whose local governmental units have had to raise property taxes every year to cover the services LGA was set up to help pay for as a way to reduce property taxes.

  13. Submitted by Peder DeFor on 11/16/2009 - 06:09 pm.

    Bernice, can you point out the taxes that Pawlenty, as governor, has cut for rich folks?

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