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.
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.”