Court battles between branches of Minnesota government are nothing new. Why this one is different.

MinnPost photo by Briana Bierschbach
The state’s executive branch and legislative branch are likely heading for court.

Gov. Mark Dayton’s decision to defund the Minnesota Legislature was an unprecedented political maneuver. But where it takes lawmakers next is definitely not.

The state’s executive branch and legislative branch are likely heading for court, where they have clashed about a half dozen times over the last two decades, usually over the question of the separation of powers between the branches of government.

In 2011, lawmakers went to court over whether it was the executive branch or legislative branch that had the authority to continue government services in the midst of a 20-day shutdown. In 2010, the courts ruled that former Gov. Tim Pawlenty overstepped his executive authority when he unilaterally reduced funding to balance the state budget a year earlier over the objections of the DFL-controlled Legislature. In 2001, a Ramsey County district judge ordered the executive branch to fund core services of state government if the Legislature failed to approve a budget by its deadline, which it eventually did.

This year, the question is whether Dayton violated the separation between the executive, legislative and judicial branches by completely defunding just one branch of government. On Tuesday, Dayton said his move was a result of a “sneak attack” from the Republican-controlled Legislature to force his signature on a $650 million tax cut bill in order to fund the entire Department of Revenue. He wanted to re-open the conversation on the tax bill and a few other provisions and said he was defunding about $130 million for the Legislature to do that.

Republicans immediately fired back, saying it was a clear violation of the separation of powers clause, which states: “The powers of government shall be divided into three distinct departments: legislative, executive, and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this Constitution.”

Republican House Speaker Kurt Daudt said the Senate has 67 members who each represent nearly 80,000 residents and the House has 134 members who each represent nearly 40,000 people. “Ultimately, I believe the governor is acting unconstitutionally by defunding a separate branch of government that represents the voice of the people at the Capitol,” he said.

Dayton said the Constitution gives him the power to line-item veto individual appropriations inside budget bills. “The Constitution gives me the authority to line item appropriation measures,” he said. “It doesn’t qualify if I can veto these measures but not others.”

“The courts will ultimately have to resolve it,” he added. “There isn’t case law directly applicable to this.”

Unprecedented political move

Dayton’s right about one thing, said David Schultz, an attorney and professor at Hamline University: There’s never been a case quite like this one. “When it comes to the governor’s actions, this is completely unique,” Schultz said. “We’ve seen political standoffs where we’ve seen the Legislature wanting to fund something or not fund something, but those are a different kind of battle.”

There is one oft-cited case — at least in political and legal circles — that could come close. In 1985, legislators passed a law that transferred most of the responsibilities of the state treasurer, then a constitutional officer, to the commissioner of finance. Minnesota’s treasurer at the time, Robert Mattson, challenged the law as unconstitutional because it effectively abolished the duties of his office. The Minnesota Supreme Court sided with Mattson in that case.

“With the exception of Mattson, this is the first time there’s been an effort to take a swipe at an entire branch of government,” Schultz said.

As far as Schultz is concerned, Dayton’s actions put the legislative branch of government in jeopardy, making it a clear violation of the separation of powers clause in the Constitution. “That clearly is going after a constitutionally explicit branch of the government,” he said.

Less clear is whether Republicans actions that threatened to defund the Department of Revenue was a constitutional violation of the powers of the executive branch. Schultz could see an argument made where the state cannot function without the department, which collects the revenue that pays for all state services, but it’s less clearly defined in the Constitution.

“I would feel more confident saying what the governor did violates the Constitution than what the Legislature did,” he said.

What’s next?

Republicans said they’re uninterested in going back into a special session to negotiate their funding along with the other provisions Dayton objected to. Late Wednesday, Daudt said Republican leaders scheduled a Friday meeting to look into retaining counsel for the case.

“Yesterday, the governor took an unconstitutional step to defund the Legislature, attempting to silence both the House and Senate for the next four years,” Daudt said. “The governor has left the Legislature no choice but to seek outside counsel in an effort to defend the people’s voice at the Capitol.”

Benjamin Wogsland, a spokesman for DFL Minnesota Attorney General Lori Swanson, said the office often represents officials like the governor when they are sued, but they would need to review any possible litigation before commenting.

If a court case is filed by the Legislature, it will likely be expedited up to the Minnesota Supreme Court, Schultz said, bypassing the Court of Appeals and holding only a preliminary hearing in Ramsey County Court, where most legislative court battles start.

There’s a lot at stake, especially since new funding for the Legislature’s operations is supposed to start flowing on July 1.

In 2011, an order from the court during a 20-day government shutdown ruled that funding for the House and Senate was a core function of government that must continue.

“We don’t have a shutdown, so it’s a different situation,” Dayton said, suggesting “tongue in cheek” that funding for the Legislature isn’t essential when they are not in session. “These are the sort of questions that will have to be answered over time.”

Minnesota legislators do have a so-called carry-forward fund that they could tap to pay legislators and staff, but that wouldn’t last long. The courts could also issue a temporary injunction to fund the Legislature until the court case concludes.

Former Minnesota Supreme Court Associate Justice Paul Anderson said he expected the court to treat the case with the “utmost seriousness.”

“This is the interpretation of fundamental law,” Anderson said. “This is about the Constitution, which originates from the people. The courts can be reluctant to rule against one branch or another, but the court knows it has a duty to act if the Constitution has been violated.”

Whatever happens, it was another messy end to a political year in Minnesota. Gridlock between Republicans in the Legislature and Dayton didn’t manage to shut down state government again, but it still wound up in the courts.

For Schultz, the latest episode just shows that chaos is the new normal in St. Paul: “Not only is it becoming common to blow past regular session, not only is it common for us to blow into shutdown; we are now making it common to solve our budget disputes in the courtroom.”

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Comments (20)

  1. Submitted by Frank Phelan on 06/01/2017 - 09:52 am.

    What Constitution?

    So now Daudt is an expert on the constitution?

    Is he aware the citizens passed an amendment to establish a commission on legislative pay? Maybe he should read the entire document.

    And to think conservatives are always telling us how they are strict constitutionalists. What a phony!

    • Submitted by Bill Willy on 06/01/2017 - 04:06 pm.

      In case he needs help finding it

      It’s in Article IV — Legislative Department

      “Section 9. Compensation. The salary of senators and representatives shall be prescribed by a council consisting of the following members . . . The council must prescribe salaries by March 31 of each odd-numbered year, taking into account any other legislative compensation provided to legislators by the state of Minnesota, with any changes in salary to take effect on July 1 of that year.”

      And, while he’s at it, he might want to take a look at the item that comes just before that one:

      “Section 8. Oath of office. Each member and officer of the legislature before entering upon his duties shall take an oath or affirmation to support the Constitution of the United States, the constitution of this state, and to discharge faithfully the duties of his office to the best of his judgment and ability.”

      http://www.revisor.mn.gov/constitution

  2. Submitted by Nathaniel Finch on 06/01/2017 - 10:26 am.

    Apparently only the governor has to be constitutional

    The MN constitution also says that a bill has to have a single subject. The Republicans inserted some kind of unrelated poison pill into virtually every bill the governor had to sign – including the provision defunding the Dept. of Revenue if the governor didn’t sign the tax cut bill. That is definitely unconstitutional. Daudt is the kind of used-car dealer who gives used-car dealers a bad name. Unfortunately it’s the people of Minnesota who are being sold the lemon.

  3. Submitted by Hiram Foster on 06/01/2017 - 10:29 am.

    Political Question

    This is a dispute between the legislative and executive branches of the sort we have elections to resolve. I have no opinion as to the legal merits at issue except to say they are the sort of thing we ordinarily consult the entrails of sacrificial animals to resolve. I am sure even now, folks are searching for some on the capitol grounds, and any goats or lambs wandering about should be urged to seek shelter.

    Before we get to that point, I think it’s important for the various parties to the disputes to be told in no uncertain terms, that they really need to grow up. Inserting poison pills in important bills in hopes they aren’t discovered is an obscene practice violative of fundamental principles of our democracy. Defunding an equal and collateral branch of government is an act of childishness for which I find no provision in any constitution I am familiar with. It is frequently explained to me that ours is a republican form of government, and one of the downsides of that is that the participants in it sometimes have to make tough decisions.

  4. Submitted by Joel Stegner on 06/01/2017 - 11:51 am.

    What is a government shutdown?

    At the minimum, an attack by the legislative on the executive branch, by cutting off its funding. How is that any different from what Dayton did? And isn’t the threat to defund the Department of Revenue similar, as another way to cut of the state’s funding source?

    That a professor would call something “completely unique” (when the word unique cannot be partial) when Dayton’s gambit is just another version of political gaming shows that people have lost perspective on the significance of this.

  5. Submitted by Tom Cytron-Hysom on 06/01/2017 - 12:00 pm.

    Tom Cytron-Hysom

    The outrage from legislative leaders over potential lack of pay is fascinating – given how recklessly they deny pay to all state employees when there is a shutdown. And the last time there was a shutdown, state employees were never made ‘whole’ for weeks of lost pay. As always, seems to depend on whose ox is being gored.

  6. Submitted by Paul Udstrand on 06/01/2017 - 01:44 pm.

    This was an attack on the executive branch

    When you send up a bill that violates previously negotiated principles, and build in an “anti-veto insurance” amendment that effectively shuts the whole government down (without the department that collects the states revenue, the government cannot exist), you’re basically nullifying the executive branch. The power of veto is given to the Governor by the Constitution, the legislature cannot unilaterally nullify that power with tricky legislation. The MN Constitution actually requires that the legislature send up clean bills that the executive can either sign or veto.

    I’m not a lawyer but it seems to me the only possible legal remedy for this is for the court to declare the entire bill null and void. That would force the parties into another special session.

  7. Submitted by Bob Petersen on 06/01/2017 - 01:45 pm.

    It’s not just Republicans here

    It’s amazing to see the ‘experts’ here continue to lambast the Republicans when Dayton is no angel in this himself. He declared he was not going to talk about the budget until the Republicans passed their bills, even when he was approached months ago. Then he vetoed them after rebuffing the Republicans several more times in the last few weeks.
    Now he signs things into law but childishly wants to get back at the Legislature by defunding the whole branch. Say what you want about not funding parts of government, but that’s not nearly the same as an entire Constitutional branch. The Legislature is responsible for holding the purse strings. The governor can line item veto items that he does not want so he effectively can veto out those extra items that some say is not Constitutional. That’s covered. But Dayton’s actions are saying he does not want the entire Legislature.
    If anything, Dayton is being beyond petulant here. He has had a long track record of wanting things his way or he goes off on more press conferences whining about others, even in his own party.

    • Submitted by Paul Udstrand on 06/01/2017 - 02:38 pm.

      Bad history

      Dayton’s door was open and he said so many times. Republicans weren’t actually working on the budgets for most of the session, they had all kinds of other priorities, which is why they ended up needing a special session to get their work done. Dayton didn’t refuse to talk with the legislature, they just didn’t give him anything to talk about, they wrote their budgets behind closed doors, passed them, and sent them up knowing they would be vetoed. In the final week or two of the session Dayton and Republicans were meeting almost every day.

      As for shutting down entire branches, that’s what Republicans have effectively been doing with their government shut downs for years, they just haven’t had anyone do it to them.

    • Submitted by Gene Nelson on 06/04/2017 - 09:36 am.

      amazing seeing repubs lambast Dayton

      He’s not eliminating a branch of govt…he’s defunding it…similar to their attempts to force him to sign the bill…or to have the Dept of Revenue defunded.
      They had an agreement, which Daudt and the repubs broke by inserting this poison into the bill.
      Not sure why anyone reasonable would try to justify what the repubs did with their bill.

  8. Submitted by Ron Gotzman on 06/01/2017 - 03:19 pm.

    If the GOP had done this…

    It is humorous watching the DFL trying to justify this crazy action by their governor.

  9. Submitted by RB Holbrook on 06/01/2017 - 04:46 pm.

    Basic Question

    If the Governor cannot veto an appropriation to the Legislature, why are legislative appropriations submitted for his signature? Shouldn’t they become law automatically when passed by both houses?

    Is there an exemption from the line-item veto for legislative appropriations? I couldn’t find one, but I was reading the Constitution of Minnesota, so maybe I missed it.

    • Submitted by Paul Udstrand on 06/02/2017 - 08:38 am.

      That’s exactly the issue

      The Constitution requires a governors signature, or veto (or pocket veto) on legislation. The Constitutional remedy for a vetoed bill is a veto override, but you need the votes to do that. If the Legislators try to circumvent that requirement by writing tricky legislation which branch is attacking whom and violating the Constitution? Republicans are basically trying to end-run the fact that they can’t override veto.

      Look, if the Republicans had sent up this bill during the normal session in a timely fashion like they’re Constitutionally required to do, Dayton could just veto it, and they’d have to renegotiate. You’re supposed to negotiate, not just keep re-passing the same bill that’s already been vetoed, unless you can override the veto. And this isn’t just any legislation, these budget bills are REQUIRED legislation. And these bills are supposed to be clean bills that can be signed or vetoed. Republicans openly admit they were trying to end-run a veto they don’t have the votes to override, which in effect nullify’s the Governors role in enacting legislation.

      And why? For what are Republicans trying to re-write the Constitution? More tax cuts than Dayton has already agreed to? Keeping wages down for thousands of Minnesotans? We have a healthy revenue stream and a solid financial outlook. The economy has recovered and it’s time to address long overdue deficiencies that are harming the State’s ability to compete and attract new business and residents. Instead of addressing these statewide issues in an intelligent and coherent fashion Republicans have manufactured another crises that paralyzes our ability to govern in any intelligent or rational way.

  10. Submitted by Bruce Pomerantz on 06/01/2017 - 06:02 pm.

    Gooses and Ganders

    The Republicans passed legislation, which the Court of Appeals ruled two to one as legal, that permits county governments to hire private auditors to analyze their accounts. This prevents the State Auditor, an executive branch of government, from charging the counties to do its constitutional job of reviewing county goverment bookkeeping.

    Governor Dayton has, similarly reduced funding of the legeslature, tbus reducing its ability to conduct its constitutional responsibilities.

    What say you Court of Appeals? Is what’s good for the goose good for the gander?

  11. Submitted by Connie Sullivan on 06/01/2017 - 06:32 pm.

    Dayton called the GOP bluff on this one.

    A bullying tactic that forced the Governor to sign a multiple-issue bill if he wanted the entire Minnesota government to continue to function (the Dept. of Revenue funds the whole shebang, not just the Legislature) started this whole fracas. Many of us who are appalled at the Republicans’ game-playing with our lives, just for flexing their power and not for The Common Good, are pleased that Dayton has stood up to them.

    And, a question: Who has standing to sue the legislative majority when they pass this, that, and the other bill that contradicts our Constitution’s mandate that each bill address only one topic, and that topic must be stated in the bill’s title? They’re acting unconstitutionally, but nobody does anything about it! Like any unpunished bad action, this sort of legislative “gotcha” game of including many different policy issues in one bill that has to be passed “whole” gets more prevalent, and none of us benefits from it at all. How do we address this illegal legislative activity?

  12. Submitted by Bill Willy on 06/02/2017 - 10:30 am.

    From the Gov’s letter to Daudt and Gazelka

    “I am signing into law the nine so-called ‘Budget Bills,’ in order to forestall a bitter June showdown over a State Government shutdown. I have strong disagreements with cetiain provisions in every one of those bills. However, having been through twenty tumultuous days in July 2011, I understand the enormous uncertainties and disruptions that even the threat of another shutdown would cause for many thousands of Minnesotans. I also know from prior experience that it is extremely unrealistic for any of us to imagine we would achieve any better results from protracted budget negotiations well into June.

    “I will allow the tax bill to become law without my signature. I will not sign it, because of very major objections I have with ce1iain provisions in it. However, I cannot veto it, because of the ‘poison pill’ provision you snuck into the State Government bill, which attempts to eliminate all funding for the Minnesota Department of Revenue in Fiscal Years 2018 and 2019, if the tax bill were not enacted.

    “I consider this provision, snuck into the State Government bill without my knowledge, to be a reprehensible sneak attack, which shatters whatever trust we achieved during the Session. Now I understand why you made it almost impossible for my staff and me to obtain drafts of your bills’ language, sometimes not until minutes before they were brought to the floor for passage.

    “I will not risk a legal challenge to the Depatiment of Revenue’s budget and cause uncertainty for its over 1,300 employees. Because of your action, which attempts to restrict my executive power, I am left with only the following means to raise my strong objections to your tax bill, which favors wealthy individuals, large corporations; and moneyed special interests at the expense of the State of Minnesota’s fiscal stability in the years ahead.

    “Thus, I am line-item vetoing the appropriations for the House and Senate in FY 18/19
    and FY 20/21. Your job has not been satisfactorily completed, so I am calling on you to finish
    your work.”

    http://mn.gov/gov-stat/pdf/2017_05_30_Letter_To_Leaders.pdf

    The Governor said, “The Constitution gives me the authority to line item appropriation measures. It doesn’t qualify if I can veto these measures but not others.”

    Here’s the part of the Constitution he’s talking about:

    “If a bill presented to the governor contains several items of appropriation of money, he may veto one or more of the items while approving the bill. At the time he signs the bill the governor shall append to it a statement of the items he vetoes and the vetoed items shall not take effect. If the legislature is in session, he shall transmit to the house in which the bill originated a copy of the statement, and the items vetoed shall be separately reconsidered. If on reconsideration any item is approved by two-thirds of the members elected to each house, it is a part of the law notwithstanding the objections of the governor.”

    http://www.revisor.mn.gov/constitution

  13. Submitted by William Holm on 06/05/2017 - 06:32 pm.

    Check and Checkmate

    RE: Court Battles Nothing New-

    Both Governor Dayton and Speaker Daudt’s attempts to defund parts of state government serve no useful purpose. These misguided efforts aimed at challenging the authority of the Executive and Legislative branches to conduct their normal business are personal attacks on the de facto heads of both branches and do not represent the will of the people. Hence, these most recent underhanded moves are not in the best interest of the State of Minnesota. If anything these moves are yet more instances of grandstanding,ego testing, and dirty tricks designed to create more outrage at state government.

    Therefore, we recommend that both individuals be stripped of their positions and instructed to find real work in the real world.

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