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

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

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.

“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.

“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.”

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.”

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Comments (17)

  1. Submitted by Paul Udstrand on 06/27/2017 - 11:22 am.

    Who’s abolishing whom?

    Republicans have been trying to abolish the executive or parts of it in one way or another for decades now. They seem to think it’s great fun to eliminate departments and cut everyone else’s funding, and shut down the government while they pursue they’re goal of putting the guvmint in a tub so they can drown it to death. Obviously the Republican mission was never a sustainable program and now they’ve taken to extreme lengths with an attempt to write veto-proof legislation that attacks entire department within the executive branch. Republican have been using a gun to the head tactic for decades, you have to go back to the 90’s to find legislative sessions where Republican haven’t threatened to shut down the government in one way or another if they didn’t they’re way and they shut it down several times. So Republicans find themselves on the barrel end of the gun for a change… whatever.

    I’m not a lawyer but I think there are three things to keep in mind.

    1) The legislative process is laid out very clearly in our Constitution, and no sitting MN legislature has EVER gone to such lengths in an attempt to circumvent our Constitution. A provision that shuts down the Department of Revenue essentially abolishes the Government regardless of how that provision comes into effect.

    2) The Constitution clearly gives the Governor the power of veto, and line item veto. The legislative remedy for veto’s it to override them with a two thirds majority vote. THAT vote is the ONLY remedy to a veto the Constitution allows. Legislators don’t get to circumvent the Constitution by writing “veto-proof” legislation, if they can’t override a veto, the bill (or those vetoed parts of it) doesn’t not become law.

    3) Given the clearly defined legislative process in the Constitution, it’s no surprise to find that the Constitution also requires that the legislature write “clean” bills that can be vetoed. This requirement is routinely ignored, but an amendment that shuts down the government as matter of legislation is way way way beyond even the dysfunctional norm.

    I don’t know why Hansen doesn’t see the defunding amendment as actually illegal. I think it’s a clear violation of both the clean bill requirement, and the separation of powers clause. That amendment seeks to nullify the Governors veto, hence even the requirement of a Governor’s signature. Republicans have explicitly described that amendment as a end run around the Governor, and it’s an unconstitutional end-run, THAT’S a violation of the separation clause on TWO counts.

    There’s really no reason for the courts to get involved. If the Republicans don’t like Dayton’s line item veto, the remedy is to override it. The fact that they ran out the clock and would need a special session to override that veto isn’t anyone else’s fault or responsibility. This is what happens when you try to circumvent the Constitution. Likewise, securing funding for their own operations is their responsibility. The Constitutional remedy is a special session wherein they either write Constitutional legislation that they can either pass despite a veto, or that the Governor will sign into law.

    I think the separation of powers design is actually working, it forces both sides back into their corners as long as the courts don’t get involved. Sure, it’s a bizarre situation but we’ve been in bizarre territory for over a decade. When voters keep electing people who don’t believe in government to run the government it’s just a matter of time before things go pear shaped in a serious way. We’re here because Republicans have neither the interest nor the inclination to govern, they just want to “win”. If the courts stay out of this, Republicans will forced to govern for a change, which is what the Constitution actually expects them to do.

    • Submitted by Michael Hess on 06/27/2017 - 11:38 am.

      So if……

      A Reublican governor, mad about big tax increases, signed them into law but then vetoed funding of the DFL controlled legislature to force them to come back and renegotiate the bill he/she just signed, You’d be fine with that?

      Because that is a perfectly symmetrical situation which could develop.

      Issues of what is it is not constitutional shouldn’t be judged by a partisan lens. The fact you don’t like GOP policies doesn’t legitimize an unconstitutional action against them.

      Likewise the ‘clean bill’ issue that has plagued St. Paul for many sessions, and the house ignoring the recommended legislative salaries are valid constitutional issues that should be challenged in court if necessary.

      • Submitted by Paul Udstrand on 06/27/2017 - 01:03 pm.

        Two things

        1st, you’re not describing a perfectly symmetrical situation unless the DFL re-passed previously vetoed legislation, in the last hours of the session, with additional amendments that are supposed to make the legislation veto-proof. No legislature DFL or otherwise gets to have veto-proof legislation, if they can’t override the veto, they come back with something the Governor will sign, or walk away.

        To answer your question: Yes, if the DFL pulled a stunt like this, I’d support the line item veto, and expect the DFL to come back to the table in a special session. More importantly however, I expect the DFL to negotiate in good faith, get their work done on time during the normal legislative session, follow the Constitution rather than try to circumvent it, and deal with vetoes intelligently and appropriately rather than trying to be clever and turning their job over to the courts. If the DFL were to fail to do that, as the Republicans have, sure, veto their budget and see how they like it.

        • Submitted by Michael Hess on 06/27/2017 - 01:56 pm.

          What Dayton should have done then….

          If Dayton’s pique was because he was unable to veto legislation that he had previously agreed to (as it has been widely reported he had agreed to the changes before the legislature was sent to him, minus the insurance policy put in by the GOP), then he had another option.

          He could have vetoed the tax bill, citing the unacceptable co-mingling of the funding for the revenue department, and then he could have sued the house for defunding a critical part of the executive branch. He could have gone to court demanding acceptable funding to keep the department operating while the court ruled if the house bill was legal.

          He would have had a sympathetic position against the house and could have focused on this constitutional issue of clean bills.

          Instead he has invited a constitutional crisis with his line item veto of essentially an unrelated item to generate leverage having signed the bill – and then for good measure he’s thrown other completely different items in the mix that were in other bills he signed, demanding they too be fixed to his satisfaction after he had already agreed.

          I think it’s absurd that the legislature year after year runs the clock down and needs special session to do their job. However Dayton has demonstrated himself to be an unreliable negotiator and also he’s said publically he doesn’t want to be involved with negotiations until the bills have been been reconciled between house and senate which invites more late-night-hour work. So while you would like to pin this all on the GOP it’s really a bipartisan failure, the most egregious of which is the Dayton veto of the legislature.

          • Submitted by Paul Udstrand on 06/27/2017 - 10:22 pm.

            Just a clarification…

            Dayton did NOT previously agree to this legislation, in fact he vetoed it, Republicans then passed the bills again with what they thought was an amendment that made it technically veto proof. The legislature writes the bills they pass, not the Governor. The Governor cannot sue the Legislature to make them pass bills he’s willing to sign. The constitutional crises was triggered by they legislative attempt to create a clever double bind rather pass clean legislation Dayton would sign into law. The fact that Republicans tried to write legislation Dayton could not veto rather than change the legislation so he would sign it, tells us that it was Republicans, not Dayton who was not negotiating in good faith. Deliberately building a mechanism of any kind that shuts the government down into legislation is the antithesis of good faith, and is completely unprecedented. Unlike the Republicans, Dayton seems to understand that each branch of the government is supposed to do their own work, not try to pass it off to someone else, you don’t pass or sign irresponsible legislation and assume the courts will sort it out. Republicans are simply trying to find a way to get legislation the governor won’t sign into law despite not having the votes to override a veto. The Constitution simply doesn’t allow that.

            • Submitted by Michael Hess on 06/28/2017 - 10:47 am.

              Not accurate

              The star tribune reported that Dayton had already agreed to all the conditions that were in the tax bill sans the ‘insurance policy’ before they were sent to him.

              This hasn’t been disputed by the Governors office.

              He changed his mind, which is his right, but it’s clear the GOP put the budget provision in because they knew, correctly he was an unreliable negotiator.

              I was not suggesting he sue them to get them to pass a bill I said he could sue to keep the revenue dept funded despite him vetoing this bill, which would have been what he desired when he changed his mind on the bill and decided he wanted to veto the tax provisions he had previously supported.

              His other flip flops on teacher licencure and drivers licences bills he signed but now want to renegotiate support a pattern of behavior which is a willingness to go back on his commitments made during negotiations.

              • Submitted by Paul Udstrand on 06/28/2017 - 11:20 am.


                The Strib reported that Republicans CLAIM Dayton agreed to all the components. Dayton has never confirmed that claim, and in his press conference after the veto he accused Republicans of inserting poison pills post negotiation. Obviously Dayton’s claim is more credible because if he’d promised to sign the legislation the Republicans wouldn’t have felt compelled to try to make their bill veto-proof. Why would you do that if Dayton had agreed to sign it? Clearly Republicans knew Dayton didn’t want to sign it, and they knew they didn’t have the votes to override a second veto, hence the veto insurance.

                • Submitted by Michael Hess on 06/28/2017 - 04:59 pm.

                  Your facts are wrong again

                  From the June 6 Star Trib

                  “Dayton initially agreed to the changes he now wants to revisit, and signed a series of budget bills last week knowing those elements were included. But Dayton contends that lawmakers forced his hand on the tax-cut package by including operating money for the state Department of Revenue inside the tax bill; Dayton later said he signed that, and the other budget bills, in order to avoid the state government shutdown that would have ensued without a new budget in place.”

                  Nowhere do you see this is just a GOP claim.

  2. Submitted by Mike Schumann on 06/27/2017 - 12:15 pm.

    Lay Everyone Off

    I’m totally fed up with this BS. Let’s quit paying anyone for being an elected official, including legislators and the governor. That will put a quick end to these games when the professional politicians flee for the exits and we get normal people back into office who want to get the necessary work done in the minimum amount of time possible so they can get back to their regular jobs.

    • Submitted by Paul Udstrand on 06/27/2017 - 01:08 pm.

      A volunteer government would be prone to corruption.

      We know from hundreds of years of experience that the less you pay politicians, the more prone they are to bribery and corruption. Second, our politicians deal with extremely complex issues that require a great of amount of time and understand, and “regular” people can’t afford to take that kind of time off work without pay. So unless you want nothing but millionaire’s or corrupt “normal” people running the government, we should pay them.

      • Submitted by Howard Miller on 06/29/2017 - 03:34 pm.

        I’d agree ….. but ….

        …. members of the US Senate get 174,000 per year, and it seems to me people still shower them with cash in every form and fashion. Most of them are already millionaires, do not need the pay or “in-kind” bribes.

        Expertise is needed to govern well. A mix of expertise among legislators, along with reliance on professional experts in every important field, is required. So … paying for experts to be on the state payroll or consult, and having legislators with diverse social/economic experience seems the better path. Money has to be involved. Not enough talent can afford to do it gratis.

  3. Submitted by John Ferman on 06/27/2017 - 01:32 pm.

    Who pays how much

    One news factoid that is absent is the base and hourky rate for the private lawyers. Their pay will come frrom some budget which is another way of saying sales and incime tax payers. I fault Dayton fior not being specific about what he wants out of those bills. The Lege is infamous for larding policy items into money bills, which would be unconstitutional under the “one subject” provision. Why didn’t Dayton ‘line item’ veto those parts or did the Lege write them in cleverly to block line item vetoing.

    If there is something worth suing over it is the Leges writing multi subject bills which are clearly uncobstitutional. Unless there are public spirited lawyers out there, who could afford the cost. Maybe we need a state ombudesman who has the power to keep things constitutional.

  4. Submitted by Howard Salute on 06/27/2017 - 02:03 pm.

    Common Sense Anyone?

    Sit back and think for a moment. Does it seem rational and fair that one branch of government can exert undue control over another branch of government? Most common sense people (and most lawyers alike) agree this lawsuit will be settled in the Legislatures favor. Speculate and justify all you want, the governor can not “defund” a branch of government. I think the governor tries to do the right thing. This will be a slight tarnish on his legacy.

    • Submitted by Paul Udstrand on 06/27/2017 - 10:29 pm.


      So you don’t think end-runs that nullify the executive veto exert undue control over the executive branch? All the Republicans had to do was negotiate in good faith and accept the fact that they don’t have the votes to override Dayton’s veto. A ruling in the Republicans favor would effectively dismantle the Governor’s role in passing legislation, how does THAT preserve check and balances?

      • Submitted by Howard Salute on 06/28/2017 - 11:59 am.

        Off topic

        Mr.Udstrand, I was simply opining why I feel the Legislature will prevail with their lawsuit. Are you predicting a different outcome?

        • Submitted by Paul Udstrand on 06/28/2017 - 02:45 pm.


          I think it’s possible the courts will decide to stay out of it. As far as I know they’re not actually required to issue a ruling. There is a perfectly good non-judicial option available which preserves check and balances and enforces the Constitution, i.e. a special session wherein good faith negotiations produce a bill Dayton will sign instead of a veto the Republicans can’t override. This is what should have happened during the normal session. Basically Republicans are just saying they don’t want to that, they want to make law without the Governor or despite the Governor, but they may not have a choice. The courts can say: “you guys have to work this out, it’s not our job to fix your legislation. You don’t have to ‘like’ the process but you do have to follow it, so call a special session and work this out.” Republicans are complaining that they don’t want to do this under duress, but why is duress bad for them but good for everyone else? It’s OK for them to put guns to everyone else’s head but it’s outrage to find themselves on the wrong of the barrel? It’s a wash, work it out. They created this problem, they can work it out.

  5. Submitted by richard owens on 06/29/2017 - 08:53 am.

    According to Mike Hatch,

    …the court will want to know how much money the Legislature has on hand.

    Unlike other state budgets, the legislature does not return unspent cash at the end of the budget year, but instead continues the funding year over year, thus building a “reserve” of sorts.

    When asked about how the lawsuit would be funded, Daudt said that it would be done from the Legislature’s budget (implying there are reserves to be had).

    The argument that justifies de-funding of the MN dept of Revenue is an acknowledgement of brinkmanship and unforced intentional crisis as a kind of blackmail mostly seen in D.C. to force the-president Obama to sign bills he would not otherwise want, so the GOP could get leverage against keeping the government open.

    I hope the courts will instruct Daudt to accept the fact that he cannot de-fund the Dept of Revenue as blackmail or “leverage”.

    The good-faith compromise and cooperation governing requires is damaged by the cheap tactical games.

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