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Where the Legislature’s lawsuit against Gov. Mark Dayton goes from here

The suit could settle a long-simmering question about Minnesota government — and the separation of powers between the governor and the legislative branch.

Attorneys for Gov. Mark Dayton and Republican lawmakers argued before Ramsey County Chief Judge John Guthmann on Monday.
MinnPost photo by Peter Callaghan

Inside a cramped, tiny Ramsey County courtroom Monday morning, two attorneys and a judge had one of the most extensive debates in Minnesota history about the separation of powers between the governor’s office and the legislative branch.

The question at the center of the case: Can one branch of government defund another?

On May 30, DFL Gov. Mark Dayton signed a handful of bills to fund state government and avoid a shutdown, but he also vetoed funding for the operations of the Legislature. The reason, Dayton said, was to compel lawmakers back to the negotiating table on various “harmful” provisions in those budget bills, as well as a $650 million package of tax cuts. Republicans in control of the Legislature pushed back on that option, saying the governor stopped the discussion when he signed them into law.

They filed a lawsuit in June, and now both sides are prepared for a protracted legal battle to decide the outcome.

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“Make no mistake about it, your honor, we are at an impasse,” said attorney Doug Kelley, who is representing Republican lawmakers in the case. “The governor has said, ‘I will call a special session only if you agree to concede on the following five items.’ My client has said we are not going to negotiate while we have a gun to our head.” 

It’s an unusual situation — no Minnesota governor has ever vetoed the entire budget of the legislative branch before — and any ruling in the case could set legal precedent for governors and legislatures for decades to come. That fact was not lost on Ramsey County Chief Judge John Guthmann, who has taken the case under advisement. A ruling could come as early as later this week. 

“Anything is possible, and we’ve seen that play out in real life,” said Guthmann, who grilled attorneys from both sides during the hearing. “Where is the governing legal principle that I could use to draw this line?”

Obliterating the Legislature?

Attorneys attempted to draw that line on Monday, with arguments that centered mostly around two clauses in the Minnesota Constitution. 

In one, the Constitution gives the governor the authority to line-item veto individual budget appropriations. But another clause requires a “separation of powers,” meaning there must be three equal branches of government without interference from the other branches.

Dayton crossed the line of the second clause, Kelley argued, when he used the line-item veto power to undo funding for an entire branch of government, effectively eliminating the Legislature.

“The separation of powers clause expressly prohibits each branch from usurping or diminishing the role of another branch,” Kelley said. “Since the governor has essentially obliterated the Legislature for the next biennium, you don’t have to go any further … we could stop right here.”

But of course, Kelley didn’t stop there. He also argued the governor must actually “object” to the funding he’s vetoing. That was the word used in the Constitution when the line-item veto authority was added in 1876. The language was subsequently changed from “object” to “veto” in 1974, when voters approved a ballot initiative to modernize and streamline the Constitution. But that initiative also said it didn’t want to change the intent of the original document.

But Dayton didn’t actually disagree with the $130 million appropriated to run the House and Senate over the next two years — in fact, he proposed the same level of funding in his budget. In his veto letter, Dayton said he vetoed that funding because he objected to several provisions in two budget bills, as well as specific tax breaks in the tax bill.

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“He’s saying, basically, I’m doing this for leverage over you,” Kelley said. 

“Isn’t that one of the purposes of a line-item veto?” Guthmann asked. “I’ve been trying to think about why you would veto something. I thought about two categories: There’s the, ‘Over my dead body veto,’ which I’m not going to sign this no matter what form you put it in. And then there’s the, ‘I want you to do what I want you to do’ veto. … Aren’t those both legal uses of the veto?” 

In some cases, Kelley said it would be constitutional for the governor to use his line-item power to try to bring lawmakers back to the table, but not in the situation where an entire branch of government is eliminated. “It can’t be if you’re holding a gun to the head of the Legislature and threatening to obliterate a branch of government,” he said.

The line-item veto as an ‘exception’?

Dayton’s attorney, Sam Hanson, a former Minnesota Supreme Court justice, also brought up the separation of powers, but he focused on the last line of the clause: “Except as otherwise provided in this Constitution,” he said, reading it aloud. “The veto power, including a line-item veto power, has to be looked at as an exception.”

He said the line-item veto was added to the Constitution for balance: Only the Legislature has the power to create budget bills and appropriate money, but the governor has the option to line-item veto individual appropriations inside the budget if he disagrees with legislators. The Constitution doesn’t spell out what appropriations the governor can or cannot veto, he said.

Gov. Mark Dayton
MinnPost photo by Briana Bierschbach
Gov. Mark Dayton

“So the governor could abolish the Legislature?” Guthmann asked. 

Not exactly, Hanson said. The Legislature and other branches of government are constitutionally entitled to funding for their core functions, but they are not constitutionally promised an appropriation of a certain level. In past budget showdowns, the branches of government asked the courts to fund their critical core functions. Lawmakers have come to the courts in three cases since 2001 to fund core functions of government while budget battles played out politically. That could be the next step, Hanson said, if Guthmann follows their request and dismisses the Legislature’s claim.

Nor were the courts excluded from the separation of powers argument on Monday. Hanson said it would inappropriate for the judicial branch to question the motives for Dayton’s veto, an act itself that would violate the separation of powers.  

“The court cannot exercise executive power; the court cannot exercise legislative power; and so if you inquire into the motive and the intent of the governor in the exercise of a veto … you in effect are exercising executive power.”

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He added that it was “hypocritical” for the Legislature to suggest the governor can’t veto their funding in order to change things in the tax bill. They included a provision in the state government bill that made funding for the 1,300-employee Department of Revenue contingent on Dayton signing the tax bill

“Was that unconstitutional?” Guthmann asked. 

“We thought it was a breach of trust,” Hanson said. “But we did not think it was illegal for them to do it.”

A constitutional laughingstock? 

Like it or not, attorneys from both sides said a ruling is likely the only way out of this mess. As part of the case, Guthmann agreed to grant a stipulation that was agreed to by the governor and the Legislature late last week. The stipulation will provide funding for the Legislature for 90 days — until Oct. 1 — to allow any court battles to play out. Without the stipulation, the Legislature would have run out of new funding starting July 1. Both the governor and legislative leaders expect the case to head all the way up to the Minnesota Supreme Court, a process that could be expedited.

The stipulation also stalls a potential shutdown of the Legislature, which was detailed in court filings late last week. The Senate would shut down starting July 28, with the House laying off most staff starting Sept. 1. The legislative budgets pay the salaries of all 201 representatives and senators, as well as more than 400 staffers. 

Legislative salaries were the subject of another case in front of Guthmann on Monday. A lawsuit filed by the Association for Government Accountability argues that it’s unconstitutional to not pay lawmakers after voters approved an amendment last fall to create an independent council to recommend legislative salaries. In March, that council recommended a $45,000 salary for lawmakers, an increase of nearly $15,000. 

Dayton vetoed the funding for the Legislature, so those constitutionally mandated salaries are not being paid, said Erick Kaardal, the attorney for ACA. Even before Dayton’s veto, the Legislature didn’t include extra funding in their budget for the pay increase. 

Both cases show that Minnesota is becoming a “constitutional laughingstock” because so many budget battles wind up in the courts, said Kaardal, who often sues state government over constitutional issues. “Our government is basically shutting down every two or four years.”