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TPaw's unallotment legal team weighs in

In three briefs submitted to the state Supreme Court yesterday, Gov. Pawlenty’s legal team, plus a group of Republican legislators and a trio of law professors, essentially accuse Ramsey County District Chief Judge Kathleen Gearin of legislating from the bench when she ruled Jan. 8 that Pawlenty’s 2009 unallotments were improper.

In urging the Supremes to overrule Gearin and reinstate Pawlenty’s unallotments, the briefs made several strong arguments about the interpretation of unallotment and the balance of power in the state Constitution. Many of the arguments resembled those Team Pawlenty had made to Gearin. Now they argue that Gearin got the case wrong by imagining or imposing provisions into the unallotment statute that just ain’t there.

(I’ll summarize the arguments after this brief refresher course. Skip down to the subhead “OK, back to the present” if you know how we got from last May to today.)

At the end of the 2009 legislative session, Pawlenty signed all the appropriation bills the Legislature had passed, then vetoed the revenue bill that would have raised the taxes necessary to pay for some of the appropriations. (He had made clear in advance that he wouldn’t sign a tax increase. The Legislature called his bluff. He wasn’t bluffing.)

To balance the budget, Pawlenty used his line-item veto powers up to a point (and his use of that power has been uncontroversial as a matter of law). To close the last $2.7 billion gap between the spending bills and the state’s projected revenue, Pawlenty used a seldom-used power of Minnesota governors to “unallot,” or simply spend less than was appropriated within categories of his choice.

Unallotment has been used before, has been challenged and ruled constitutional (although never by the Supreme Court, the cases never made it past the state Court of Appeals). But it had never been used on anywhere near so large a scale (this one is almost 10 times bigger than the previous biggest), nor under these circumstances where the governor had arguably created the shortfall by vetoing the revenue bill.

Although many functions of state government lost funding under the unallotment, this case derives from a relatively small program (Minnesota Supplemental Aid-Special Diet) that subsidizes very poor, very sick people who have special health-related dietary needs. In his unallotment orders, Pawlenty zeroed out that program, effective last Nov. 1, saving the state a mere $5.3 million.

Judge Gearin, who heard the challenge, ruled that using unallotment in this manner unilaterally and unconstitutionally revised the intended balance of powers between the branches. If he wasn’t willing to sign the revenue bill, Pawlenty could have continued working with the Legislature, calling a special session if necessary, to work out a compromise. Instead, he seized power normally belonging to the Legislature of deciding which state programs would be funded and which not.

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

Pawlenty immediately announced that he would appeal. He requested and received permission to skip over the state Court of Appeals and go directly to the Minnesota Supremes so the state government can get a quicker answer to the questions raised by the case, while the state budget problems are still building.

OK back to the present

Tuesday was the deadline for Pawlenty and his legal allies to file their appellate briefs. The other side (the plaintiffs in the original case, now called the respondents) have until Feb. 23 to respond. So this piece, based on three pro-Pawlenty briefs, will be one-sided. Oral arguments are scheduled for March 15. Then it’s up to the Supremes to decide, on no particular timetable. The current legislative session ends May 17.

Pawlenty’s brief, written by the governor’s counsel Patrick Robben and Solicitor General Alan Gilbert (the fact that the attorney general’s office is representing Pawlenty is awkward at best, given the partisan political background of the case), argues that Gearin did not respect the language of the statute.

The statute (see subdivision 4) says that unallotment power kicks in “If the commissioner [of management and budget] determines that probable receipts for the general fund will be less than anticipated, and that the amount available for the remainder of the biennium will be less than needed.”

Pawlenty’s commissioner, Tom Hanson, did indeed make that determination, which Pawlenty’s side says properly kicked off the unallotment process. The plaintiffs in the case argue that unallotment is not meant to occur at the beginning of the biennium or while the Legislature readily available to address the potential deficit.

But Pawlenty’s brief (and a second brief filed yesterday, a friend of the court brief by several Republican legislators including Tom Emmer and Marty Seifert, the top two current Repub candidates for governor) argue that there is no language in the statute to suggest that unallotment is a power that occurs at some particular time during the biennium. (Perhaps the other side will make something of the language that refers to “the remainder of the biennium.”)

Pawlenty’s brief (this has been a theme of Republican criticism ever since Gearin’s ruling) argues that Gearin didn’t even discuss the specific language of the statute, and points out that Minnesota actually has a law instructing those who are charged with interpreting Minnesota laws that “the letter of the law shall not be disregarded under the pretext of pursuing the spirit.”

This is a big phrase for the unallotment defenders, and I can see why. But when they cite it (including in the Pawlenty brief), they tend to leave off the beginning of the sentence. The full sentence reads: “When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit.” Presumably, the other side will explore the issue of whether the application of the unallotment law to these circumstances is ambiguity-free.

But the Emmer-Seifert amicus brief essentially accuses Gearin of making up language and imagining it into the statute. If the Legislature that created unallotment had wanted to, it could have said that the governor’s power kicks in only late in the biennium. But the unallotment authors did not write that. It is not Gearin’s role, as a judge, to amend the statute so that it seems optimal to her, the Emmer-Seifert brief argues.

Likewise, Emmer-Seifert et al argue that Gearin seems to think that when there is a disagreement between the governor and the Legislature about taxes and spending, the governor’s unallotment power should not be used until the governor has exhausted all other means of reaching agreement with the Legislature, such as calling a special session or compromising on their differences. This might be Gearin’s view of the best way to proceed, but it isn’t her job to impose her preferences.

On the contrary, the Emmer-Seifert brief argues, the dispute between Pawlenty and the DFL majority of the Legislature (over whether to balance the budget by raising taxes or by further cuts) is a classic political dispute — the kind of dispute in which the courts are supposed to stand back and let the political branches work it out or duke it out.

In fact, it seemed to me that the main, official Pawlenty brief seems to want to remind the justices that unless they are willing to take over all three branches of government, there is no appropriate way for the courts to resolve this dispute except by letting the unallotments stand.

If the Supremes uphold Gearin and strike down the unallotments, making the unallotted appropriations reappear in the budget, there is no money to pay for them. Since the unallotment, state tax collections have continued to fall. The DFL tax increases that would have paid for some of this spending were vetoed. Certainly, vetoing a tax bill is a power the governor possesses. Is the court going to tell governors which bills they must sign and which they must veto? Is the court going to write its own tax bill and order the Legislature to pass it? Of course not. (I emphasize that the argument in this paragraph is made only by implication and not explicitly.)

But the brief took several steps down that path in this portion of the argument:

“Under the [Gearin ruling], the $2.7 bilion deficit would have to be eliminated by agreement of the Legislature and Governor or not at alI... The district court's interpretation of [the unallotment statute] produces obvious adverse consequences for the operation of State government.

"The Minnesota Constitution does not permit the State's biennial budget to remain in deficit... The Governor and Legislature were previously unable to reach agreement on how to resolve the $2.7 bilion budget deficit. Under the district court's reasoning, in the absence of such an agreement, spending pursuant to the biennium's appropriation bills will continue until such time as the State simply runs out of money before the biennium ends, resulting in a government shutdown, at least as to non-core functions.

"In contrast, the Commissioner's interpretation [that the governor has the power to unallot] allows an alternative mechanism to resolve the deficit in the State's general fund and avoid a government shutdown. Thus, Appellants submit that the consequence of the competing interpretations before the Court, i.e., the ability of State government to operate, weighs in favor of the Commissioner's interpretation.”

A third, shorter brief was filed yesterday. Two prominent Minnesota conservative legal scholars — David Stras of the University of the Minnesota Law School and Michael Stokes Paulsen of University of St. Thomas, plus Ryan Scott of Indiana University (a former Minnesotan) — filed under the moniker “professors of Constitution Law and Separation of Powers.” They concentrated on one narrow issue: Does Pawlenty’s use of unallotment create a constitutional problem because it allows the governor to perform a function that is fundamentally legislative? The professors say no.

If unallotment allow the executive to spend state money that the Legislature had never appropriated, that would be a problem. The power to authorize and appropriate public money is a legislative function. The power to spend money is an executive function. But unallotment is simply spending less than the Legislature appropriated. The professors say that 38 states empower governors to spend less than was appropriated, and these arrangements have been tested and found not to cause separation of powers problems.

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Comments (4)

Classic pot/kettle case:
a judge finds a politician guilty of exceeding his powers, so he in turn accuses her of exceeding HER powers.

How does the constitutionality of unallotment stand against the requirement for a balanced budget? How does the law define the balanced budget requirement (a constitutional requirement, if I'm not mistaken)? If the governor vetoes revenue legislation, thus producing the unbalanced budget that (s)he attempts to balance via unallotment, that does seem to create a separation of powers problem.

It seems that if unallotment itself hasn't yet appeared before the Supremes, there is no guarantee they won't just ban the practice entirely, given the creative interpretation of the statute by the current governor. Seems like they could very well go back to the Lege and say "the current law doesn't pass constitutional muster, write something better."

Where are the Republican legislators brave enough to help override Pawlenty's likely vetos of the bonding bill and the law limiting unalottment powers?

Where are their constituents -- hurting as they must be by the Pawlenty cuts and watching as others who are disabled or sick and homeless and jobless are hurt even more -- when they should be calling, visiting, writing those legislators promising they would not lose their votes if they vote against Pawlenty?

Separation of Powers must also extend to Licensed Lawyers as Judges,Legislators
Thanks for the Briefs transposed at