Bulletin: Judge grants order temporarily restraining Pawlenty’s use of unallotment

The order has just been published. Here.

Judge Kathleen Gearin, chief judge of the Ramsey County District, has granted a temporary restraining order, retroactive to Nov. 1, preventing one piece of Gov. Tim Pawlenty’s use of his unallotment powers. Specifically, she is restoring the funds unallotted from a state program that subsidizes Minnesotans with special health-related dietary needs. Pawlenty unalloted that program in its entirety. The judge’s order un-unallots it. But the logic of her order affects the entire $2.7 billion unallotment that Pawlenty ordered at the end of the 2009 legislative session and seems to invite other plaintiffs to come forward seeking reinstatement of all of the appropriations that Pawlenty unallotted.

This is only a temporary restraining order (TRO). The case will continue with a hearing already scheduled for March.

But the law on a TRO requires the judge to take into account whether the plaintiffs have a reasonable likelihood of prevailing in the end, which means that Gearin thinks it’s reasonably likely that she will ultimately overturn Pawlenty’s unallotment on a permanent basis. And in fact the order reads very much as if Gearin has concluded that what Pawlenty did violated the balance of powers between the executive and legislative branches of the state government.

Gearin notes that the state doesn’t have the funds to restore all the unallotments, and in fact an additional shortfall of at least another $1.2 billion has developed as state revenues continue to underperform projections. Measures will have to be taken — presumably when the Legislature comes back into session in a few weeks — to deal with the shortfalls. Gearin says it’s not for the judicial branch to make budgeting decisions for state agencies.

Pawlenty put out this statement within minutes of the decision:

“We are disappointed in the judge’s decision.  We are weighing all of our options including appeal, reestablishing unallotments under the current forecast, potential legislative action, and other options.”

Appealing the ruling or trying to work out a new budget with the Legislature are fairly clear options. But if by “reestablishing unallotment under the current forecast” Pawlenty means simply issuing a new version of the old unallotment, the attorney for the plaintiffs in the current case says that would violate at least the spirit of Gearin’s order.

Galen Robinson of Mid Minnesota Legal Assistance said:

“We’re enormously pleased that the court agreed with our position and relieved that our clients will be able to afford the food they need to stay healthy. We recognize that both the Legislature and the governor have a difficult burden to find a resolution to the budget shortfall.”

Gearin has embraced Robinson’s argument that Pawlenty does not have the power to unallot unless forced to do so by an unanticipated revenue shortfall. “This shortfall was neither unknown nor unanticipated,” Robinson said.

In fact it was caused by Pawlenty’s decision to veto the revenue bill that the Legislature had passed. The new $1.2 billion shortfall in forecast revenues might now qualify as unanticipated, Robinson said, and might be subject to an unallotment. But the original $2.7 billion shortfall cannot be made unanticipated after the fact. The fact remains that it was caused by Pawlenty’s decision to veto the revenue bill, to announce his plans after it was too late for the Legislature to react, and to refuse to call a special session to work with the Legislature for a solution.

In a key passage of her ruling, Gearin seemed to reflect that logic, writing:

“The authority of the Governor to unallot is an authority intended to save the state in times of a previously unforeseen budget crisis, it is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiatons with the Legislature or to rewrite the appropriations bill.”

Speaker of the House Margaret Anderson Kelliher (also a current candidate for governor) issued this statement:

“Today’s ruling represents a victory for all Minnesotans concerned about the overreach of executive authority. I applaud Judge Gearin’s order and look forward to a full hearing on this case early next year.  As I said earlier, this is an important case about the separation of powers in state government.  The legislative and executive branches of government need to be equal partners in addressing Minnesota’s budget crisis.”

DFL gubernatorial candidate Matt Entenza issued this statement:

“Today’s decision restraining Tim Pawlenty’s use of unallotment is a major victory. Those of us who have challenged this governor’s hatchet tactics in the past know there are better ways to fix our fiscal problems than by taking from those who have the least. Solving Minnesota’s budget crisis requires a vision for growing our state’s economy.”

Former U.S. Attorney and prominent DFL lawyer David Lillehaug, who has written about the unallotment power, called the lawsuit “one of the most important in Minnesota history” and added:

“It’s difficult to overstate the magnitude of the legal and political defeat for the governor by this decision. It essentially holds that the governor abused his power.”

Related video: Atty David Lillehaug: Court ruling huge political setback for Gov. Pawlenty

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Comments (27)

  1. Submitted by Kassie Church on 12/30/2009 - 04:42 pm.

    Wonderful, wonderful, wonderful.

  2. Submitted by Eric Ferguson on 12/31/2009 - 12:33 am.

    Could even Pawlenty have been so arrogant as to not see this coming? Maybe he was blinded by his joy at angering the DFL, just as he was blind to the suffering he was ready to cause.

    What’s the difference between a GAMC recipient and a wounded deer? One is wounded and abandoned by Pawlenty, and the other is a deer.

  3. Submitted by Duke Powell on 12/31/2009 - 07:59 am.

    Well, now. The Judge has thrown us in quite the quandry.Let’s look at some facts that are not in dispute.

    The Governor vetoed a budget that he could sign with a clear conscience.

    The Legislature could not muster the votes to over ride his veto.

    The Legislature was forced to adjourn by a date certain.

    Only the Governor can call them back into special session and he had said he would not do so.

    Now those are facts. I suppose that it could be argued that the Governor SHOULD have called a special session, but no where does it say that he MUST.

    So where does that leave us? The Governor and Legislature did not come to agreement on a budget and both have their feet set in concrete. The use of the unallotment statute (passed by the Legislature by the way) seems to have been the only way out IF one thinks it important that the government have the resources to provide services. Otherwise July would have come with no money to run government.

    Now the Judge says the Governor cannot unallot. This means that in this situation government would have to shut down completely.

    I really am confused on how we would have gotten out of this mess without unallotment and stand open for suggestions.

  4. Submitted by Joe Johnson on 12/31/2009 - 08:00 am.

    How does a TRO equate to political defeat? It is a temporary ruling from a lower court judge. We can start talking defeat after an appellate court ruling. I’m already sick of Minnpost being in the bag for big MAC, they are worse than McDonald’s.

  5. Submitted by Paul Udstrand on 12/31/2009 - 09:12 am.

    //I really am confused on how we would have gotten out of this mess without unallotment and stand open for suggestions.

    Duke, it’s really very simple. Our separation of powers design requires the two branches work together when creating a budget, that means it’s not an either/or situation. The executive is not King, like it or not a Governor who won an election with less than 50% of the vote doesn’t get to shove his twisted theory of non-government down everyone’s throat, he has to compromise. Obviously, as the serial budget crises that have characterized Pawlenty’s administration clearly demonstrate, a balanced budget requires revenue as well as savings. The legislature sent Pawlenty a balanced budget that contained revenue and savings, instead of abusing executive authority he could have just signed it. By the way, even with his unilateral and unconstitutional action he still FAILED to balance the budget, even before this ruling the deficit was at record levels. The guy has not once in his entire time in office actually produced a balanced budget. He claimed to have surplus in 2006 but that turned out to be a lie. The guy has done an enormous amount of damage with his Enron accounting, and we’ll be paying the price for years to come.

  6. Submitted by Douglas Shambo II on 12/31/2009 - 09:19 am.

    Sorry, Mr. Powell, but the facts as you state them in your comment are not entirely correct. There is one in particular you may want to revisit.

    If you care to read Judge Guerin’s opinion posted in Mr. Black’s article, you would see that the legislature passed and Gov. Pawlenty actually signed the disputed appropriation bill into law, and then afterward proceeded to “unallot” the entire appropriation.

    This gets to the nub of the case: Is the unallotment in this case a legitimate use of the power granted to the governor? I’m only an average citizen of this state, and certainly no attorney, but to me the governor’s action looks like a very clever, legalistic mind-game.

    I’d like to see a balanced budget as much as anyone, but I also believe, as Judge Guerin states in her opinion, that the unallotment power of the governor does not allow him to circumvent the process of negotiating with the legislature to arrive at a budget. If I’m wrong here, someone please correct me. The actions of the governor in this situation don’t pass the “smell test.”

  7. Submitted by Jeremy Powers on 12/31/2009 - 09:34 am.

    Duke,

    Your first fact isn’t much of a fact. I believe it has a typo, and what does “in all good conscience” mean from a man who doesn’t even like this state and has been spending the last decade trying to get his family to Washington, D.C. Pawlenty would need a conscience to function in the capacity of “in all good conscience.”

    This ruling is the ONLY sensible ruling ANY judge could have made. Watching this unallotment and the practically begged-for law suits is like watching a train crash in a stalled vehicle on the tracks in slow motion. You know what’s going to happen and the only person who can do anything about it is too stupid to get out of the car.

  8. Submitted by Erik Granse on 12/31/2009 - 09:43 am.

    Duke –

    The answer is that the governor would’ve had to call a special session and eventually compromise or take a government shutdown as the price of his political stance. That’s the way the system is supposed to work and it’s the way it’s always worked.

    The ruling here suggests that the judge will eventually find that the governor is using the unallotment powers in a way not intended, i.e., rather than unalloting when the budget forecast turned out to be optimistic, he used it to write his own budget rather than compromise with the legislature.

  9. Submitted by Mark Gisleson on 12/31/2009 - 10:09 am.

    Bottom line: Republicans do not have to participate in the process, and need not make any good faith effort to negotiate.

    If they hold the executive branch, they simply rewrite legislation to meet their needs, reimagining the law until it meets their needs.

    If they hold the legislative branch, they hold every appointment and bill hostage until their demands have been met, trash talking the opposition party every inch of the way.

    If they don’t get to impose their will, they shut the process down. This is the politics of insufferable righteousness, of pugnacious certainty unencumbered by facts.

    Democracy requires two factions working together for the common good, not one party behaving in a consistently unilateral, my-way-or-the-highway mode.

    The legislature begged Pawlenty to participate in the process, but he was too busy traipsing around the country running for the Republican nomination for President.

    Pawlenty will prevail upon appeal, of that I’m certain. That’s the price we pay for having 4 out of 7 state supreme court justices who are Pawlenty cronies. But in the meantime we’re at least getting a reminder of how things are supposed to work.

    And damn the DFL if they can’t win back the governorship next year. This should be their last shot at the ring, and if they can’t deliver, maybe it’s time the Greens became Minnesota’s “other” party.

  10. Submitted by Paul Brandon on 12/31/2009 - 10:40 am.

    The first legal test of unallotment as used in the current situation (a foreseeable shortfall) has been ruled illegal.
    Other rulings may differ, and this case involved individual suitors who were able to demonstrate personal harm, but it’s an indication of what will happen in future cases.

  11. Submitted by Bernice Vetsch on 12/31/2009 - 10:53 am.

    It would seem to me that if unalotting this one program is unconstitutional use of unalottment, the entire roster of unalottments are also unconstitutional.

    Pawlenty should (must? can be forced to by the courts?) reinstate all his illegal cuts AND sign both of the revenue bills.

    The legislature should (must?) amend the Constitution to allow special sessions to be called by it when the governor refuses to do so. Members might also talk about additional good reasons to remove by impeachment a sitting governor (such as his/her causing great hardship for lower units of government and even greater suffering – even unto death – for Minnesota’s poorest).

  12. Submitted by Holly Cairns on 12/31/2009 - 11:29 am.

    Holy Cow!

    I like this line:

    Measures will have to be taken — presumably when the Legislature comes back into session in a few weeks — to deal with the shortfalls. Gearin says it’s not for the judicial branch to make budgeting decisions for state agencies.

    I notice she said *judicial* branch. No one was asking for that… were they? I thought we were questioning an abuse of power and a total dismissal of our system. I’m glad the legislature will be brought back into the process. It will be painful for them, but at least it will be a collective voice.

    This isn’t so good, and those GMAC funding cuts may still happen:

    Appealing the ruling or trying to work out a new budget with the Legislature are fairly clear options. But if by “reestablishing unallotment under the current forecast” Pawlenty means simply issuing a new version of the old unallotment, the attorney for the plaintiffs in the current case says that would violate at least the spirit of Gearin’s order.

  13. Submitted by Paul Udstrand on 12/31/2009 - 11:29 am.

    Bernice,

    When you have a Governor who’s ignoring the constitution and refusing to problem solve in good faith a legislative special session doesn’t really get you anywhere. Whatever they pass he’ll just veto it, and I think there are still enough Republicans to prevent an overide.

  14. Submitted by Paul Udstrand on 12/31/2009 - 11:35 am.

    I hope real conservatives are taking note here by the way. It appears the Republican party has been captured by a group of people who rally don’t believe in our constitutions, and would just as soon tear them up and replace them with theocracy or some other totalitarian system. True conservatives wouldn’t have so much trouble interpreting a constitution.

  15. Submitted by Peter Swanson on 12/31/2009 - 11:36 am.

    Here is a comment (not from me) about the ruling on the Minnesota Lawyer blog. I provide this quote as a public service so that Eric Black will not suffer from “confirmation bias” after reading a district court opinion with which he agrees.

    1.
    Law Lacky

    What is curious about the order is that Judge Gearin never actually discusses the language of Minn. Stat. s 16A.152, subd. 4(b). She cites a Minnesota Court of Appeals case to state that it is constitutional and then writes an ode to “separation of powers.” Writing an order without discussing “the law” undermines the credibility of the judiciary and in the present case, suggests result-oriented jurisprudence.

    Judge Gearin states in her opinion, “The Court is aware that the actual revenues received by the State since the beginning of the 2010/2011 biennium are even less than predicted in the February 2009 dismal forecast.” So, the Court acknowledges that although, in her mind, the Governor acted unconstitutionally at the time of the unallotment, he would act constitutionally if he decided to utilize his unallotment power today. I think that the TRO should have been denied as moot. To do anything more offends the separation of powers principle that Judge Gearin holds so dear. If Judge Gearin truly respected the separation of powers then she would let the legislature attempt to fix Minn. Stat. s 16A.152, subd. 4(b).

  16. Submitted by Holly Cairns on 12/31/2009 - 11:37 am.

    Great points Doug and Mark. I love your style.

    Paul said: The first legal test of unallotment as used in the current situation (a foreseeable shortfall) has been ruled illegal.

    Tell me more. The restraining order is only temporary, suggesting no *illegal* ruling ? Or can you tell me more? Not a lawyer, here, so anyone coming through with a piece by piece analysis = great!

    It would seem to me that if unalotting this one program is unconstitutional use of unalottment, the entire roster of unalottments are also unconstitutional.

    I worry that will take YEARS to determine. Meanwhile, I guess a restraining order on ALL Tim Pawlenty unallotment activity would be appreciated. I mean, we’re talking people’s lives, here. In the end the legislature and the executive branch would have to work together to make the painful cuts or the increased revenue (which isn’t a huge increase, by the way).

  17. Submitted by Duke Powell on 12/31/2009 - 11:57 am.

    I have read the comments in response to my initial post. Douglas Shambo offers, in my mind, the best response when he says:

    “If you care to read Judge Guerin’s opinion posted in Mr. Black’s article, you would see that the legislature passed and Gov. Pawlenty actually signed the disputed appropriation bill into law, and then afterward proceeded to “unallot” the entire appropriation.”

    Good point. However, he did not sign the tax bill, which was crafted to pay for the new spending that would have been required to pay for the appropriation bills. He vetoed it.

    So, he can’t be forced to sign a bill. He can’t be forced to call a special session. The judge says he can’t unallot. What is allowed – other than government shutdown?

  18. Submitted by Rod Loper on 12/31/2009 - 01:02 pm.

    I wish the democrats had the will to stick it to
    Pawlenty the way he sticks it to them. His smirking contempt for anybody but his ideological
    ilk is remarkable.

  19. Submitted by Joe Johnson on 12/31/2009 - 01:42 pm.

    Duke – Great point, what is the next step if the unallotments are deemed illegal. What do you think will happen next? I don’t think the court can force the Governor to sign a tax bill, so would all of the spending bills enacted last secession be repelled to the extent that funding has yet to occur. At any rate, the Governor will not sign a tax bill so we will get the most line item vetoed bill in the history of government. At that point what is the difference, except education and state employees will be hammered.

  20. Submitted by Peter Swanson on 12/31/2009 - 01:54 pm.

    Holly,

    As I recall, the standard for a temporary restraining order is 1) irreparable harm, and 2) likelihood of success on the merits.

    The judge is determining whether waiting to go through the trial will put the plaintiffs in a position that they cannot fix later. On the one hand, a nutrition program for the poor would seem to satisfy this prong because they might starve. On the other hand, the defendant could say that there are other programs and other monies that could be used temporarily, so the alleged harm to the plaintiffs (or the government agency) could be reversed with money later.

    The second prong is where the judge is determining whether the plaintiffs are going to lose anyway. If the case looks like a loser, it is unfair to the defendants to make delay the inevitable.

    So the answer to your question is that a district court judge in St. Paul thinks that the plaintiffs have a likelihood of prevailing in their lawsuit on state constitutional grounds. This is the same judge who will be ruling on questions of law in the trial (the jury would find questions of fact, but no one really disputes the facts here). So the writing is on the wall as to how this judge will rule in the case in chief.

    That said, there is a court of appeals and a supreme court in this state, both stocked with Pawlenty appointees. Stay tuned.

  21. Submitted by Michael Zalar on 12/31/2009 - 02:52 pm.

    Taxation without representation is Tyranny.

    We the people elect representitives from throughout the state, to come together to decide on the proper amount and distribution of our tax dollars. It is not, and should not be left in the hands of the governor alone.

    Should Pawlent’s use of unallotment stand as a valid interpetation of the law, which appears to have been created only for special emergencies, stands, then the power of the purse is simply stripped away from the legislative branch entirely, at the whim of the sitting governor. Any governer at any time could simply veto any bugetary bill at any time and use unrestrected the unallotment power to eliminate any programs, no matter of what importance to the people as a whole, created through thier representitive government.

    In essence, Pawlenty is attempting to use his powers in a fashion that brought rebellion to the 13 Colonies in 1776.

    Pawlenty is a Tyrant.

  22. Submitted by John E Iacono on 12/31/2009 - 03:51 pm.

    #3-Duke: I agree.

    #4-Joe: I agree, it’s a TRO. But I suspect it will be moot before a hearing. TP can certainly use his unallotment powers NOW to adjust for the current shortfall and the now newly discovered shortfall from last June. He can appeal. And if he chooses neither, the legislature will be in session before the hearing and COULD act to pass a funding bill that would get an override majority. In any event, the eventual resolution will be on the legislature’s back, in an election year no less, and we’ll see if they have the stomach to raise taxes in the current economic situation.

    #5-Paul: I disagree. You never HAVE to raise taxes. The shortfall is way short of 10% of the entire state budget. A 10% cut in spending would NOT bring the state to ruin. Please don’t claim that 10% CANNOT be cut.

    #6-Douglas: You may be correct, but it seems to me that you forget that the obligation to negotiate binds BOTH the governor and the legislature. It’s not just the governor that failed to reach a negotiated settlement. Now they will have to try again.

    My take: A TRO is not a decision on the merits, though it can point to it, as this one seems to. But she may have been most concerned about the possible harm to the appellants without it.

    In the real world, in the big picture, the governor has not been intransigent about the budget: he has had one, and only one, sticking point which he has made clear for years. The legislature was clearly warned about this in January, but chose to ignore it. Pawlenty would not be bullied into new taxes.

    The only way in which the balance of powers is maintained is if the legislature crafts a funding bill that, if it includes new taxes, will be vetoed by the governor, and then overridden by the legislature. Any other solution fatally crushes the balance carefully installed in the Constitution.

    In my view, TP has called an arrogant legislature to account. We will see if they got the message when they come back into session. They, not he, are the ones now in a box deliciously crafted for them by a shrewd governor and their own blindness.

    I remember when another governor (Jesse) set up a special account into which volunary contributions could be made by those clamoring for additional taxes. As I recall, not much if any funds came in, suggesting those who demand more taxes expect the OTHER guy to actually pay them. And I note nothing prohibits those now crying for new taxes from sending in their contributions to back up their words with actions. It would make a good news story.

  23. Submitted by John E Iacono on 12/31/2009 - 04:34 pm.

    I’ve been trying to do some math. Are there two million dems who think taxes should be increased out there? If each would send in just $5,000.00 we would have our 10 billion dollars. No problem.

  24. Submitted by Bernice Vetsch on 12/31/2009 - 04:45 pm.

    John Iacono — “You NEVER have to raise taxes.”

    Sorry, but I believe you do. Especially in this case, since the 1999-2000 cuts to our wealthiest citizens have cost Minnesota A BILLION DOLLARS A YEAR IN REVENUE. Interestingly enough, this could have prevented this entire shortfall.

    The governor’s “one sticking point” is his belief in failed economic ideas (Friedman-exaggerated-to-ridiculousness and trickle-down). He has no right to be upset when members of the CO-EQUAL legislative branch (and most of the people)do not feel obligated to agree with him.

  25. Submitted by John E Iacono on 01/01/2010 - 01:45 pm.

    Bernice:
    “He has no right to be upset when members of the CO-EQUAL legislative branch (and most of the people)do not feel obligated to agree with him.”

    Nor does he have any obligation to go along with them.

    BOTH sides have the obligation to listen to the other, and to reach an agreement that preserves their basic principles.

    But if one side insists on new taxes, and the other insists on none, I’m for the side that leaves me a nickel in my pocket, because I KNOW the pro-tax side will hit me as well as “the wealthy” just to buy themselves a vote or two. They always do.

  26. Submitted by Richard Schulze on 01/01/2010 - 10:04 pm.

    A bit off topic but….

    I have to wonder how the “co-equal branches” will manage during this upcoming biennium?

    The one time money is spent. The 2 billion and change that was the economic stimulus is a but a distant memory and tax revenues are down for the foreseeable future.

    With the campaign for a new governor just around the corner, this should make for some real popcorn eating entertainment as far as politics goes…..

  27. Submitted by Hiram Foster on 01/02/2010 - 02:17 pm.

    “With the campaign for a new governor just around the corner, this should make for some real popcorn eating entertainment as far as politics goes….”

    Maybe when viewed from the outside. This could be a nightmare, with a prolonged stalemate between the governor and the legislature stretching through special session after special session.

    I always wondered whether the DFL leadership was secretly glad with the governor’s unallotment. The immediate budget crisis was solved, with the governor taking the political heat, to the extent there was any. But now, with at least the possibility that the governor’s unallotment policy might unravel, all the unresolved issues, in particular the possibility of tax increases, are returning to the legislature, this time during an election year.

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