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.”