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What we learned from the Supreme Court hearing on the Legislature's case against Dayton

Gov. Mark Dayton
Pool/Leila Navidi/Star Tribune
Gov. Mark Dayton leaving the chambers following Monday’s hearing of oral arguments.

Location, location, location.

Despite having perfectly good and oft-used chambers down the street, the Minnesota Supreme Court opted to hold Monday’s hearing of oral arguments in the case pitting Gov. Mark Dayton against the Legislature in its historic chambers in the Minnesota Capitol. The freshly restored digs are just down the hall from the House and Senate chambers, and one floor above the governor’s office.

It was an appropriate venue for the issue at hand: how to continue the state’s history of balancing those three co-equal and distinct branches government — the governor, the Legislature and the courts — in the wake of a move by Dayton to defund the House and Senate. 

In May, after a messy session and special session concluded, Dayton surprised everyone when he signed a series of budget bills and a $650 million tax cut bill — but then used his line-item veto power to eliminate the entire budget for the Legislature's operations. He said he did it to compel lawmakers back to the negotiation table to discuss some specific budget and tax cut provisions he didn’t like. Legislators responded by declaring the move unconstitutional and suing Dayton. A district court agreed with their assessment, ruling the governor's veto “null and void.” 

Dayton appealed all the way to the Supreme Court, and Monday’s hearing was full of heavy questions about the separation of powers provisions of the state constitution. Can one branch of government actually defund another branch? Do the courts have any power to allocate money to the other branches of government, even in an emergency? And just how far does the gubernatorial veto power go?

As Dayton said outside of the court chambers after the hearing concluded: “The core question here, which the court I hope will answer is: Is my veto constitutional? I believe it clearly is.”

No governor has ever vetoed funding for the House and Senate, and the court’s ruling could have long-lasting implications for all three branches.

“This is historic,” Republican Senate Majority Leader Paul Gazelka said after the hearing. “If the courts did rule in the governor’s favor, that could potentially ripple across the whole country, moving more power to the governor’s branch and the executive branch. I wanted to witness this.”

‘Can we just get to it?’

The case has already stretched on for months and cost tens of thousands of dollars. In June, Ramsey County District Judge John Guthmann approved temporary funding for the Minnesota Legislature as the court case played out, and the following month he struck down Dayton’s veto entirely.

The Supreme Court is the final stop, and the justices wasted little time at Monday’s hearing. “Counsel, can we just get to it?” Chief Justice Lorie Skjerven Gildea said in the first two minutes of the hearing, interrupting Dayton’s attorney, Sam Hanson, a former Supreme Court Justice himself, as he was making the governor’s legal case.

“If it’s constitutional, as you suggest, for the governor to take away funding for the Legislature,” she asked, “why is it constitutional for the judiciary to give the money back to the Legislature?”

The question cut right to the complicated issue at the heart of the case. The governor argues the state Constitution gives him explicit authority to line-item veto any individual budget item from a larger bill or any bill in its entirety. But while Dayton has the power to veto or sign budget bills, according to the Constitution, only the Legislature has the power to craft budget bills and appropriate money.

When those two sides can't agree on what to fund, Hanson argued, the courts can come in and provide temporary funding to the Legislature or executive branch for core functions while political disputes are resolved.

Chief Justice Lorie Skjerven Gildea
Pool/Leila Navidi/Star Tribune
Chief Justice Lorie Skjerven Gildea: “If it’s constitutional, as you suggest, for the governor to take away funding for the Legislature, why is it constitutional for the judiciary to give the money back to the Legislature?”

But that argument didn’t sit well with Gildea, who fired back: “The Constitution already tells us who has the power to appropriate money, and it’s not the judiciary.”

Supreme Court justices said they felt uncomfortable with the notion that the courts can come in and appropriate money whenever there’s political gridlock, which has happened several times over the last two decades.

“We have put in place a mechanism that allows on some regular basis potential parties and the branches to come back to the judiciary to solve these problems,” Justice Natalie Hudson said. “That concerns me.”

Did the Legislature ‘coerce’ the executive branch?

But the attorney for legislative leaders also faced tough questions — also about the separation of powers, including whether the Legislature attempted to overstep its constitutional authority and force the hand of the governor to sign the tax bill. 

Specifically, justices pointed out that part of the reason the governor ultimately signed the tax bill instead of vetoing it is because a provision in a bill funding state government would have eliminated money for the entire Department of Revenue if he didn’t. 

While the Legislature argues Dayton is trying to “coerce” them back to the budget debate by vetoing their funding, weren’t they doing something similar when they inserted a poison pill into the process, forcing the governor to sign the tax bill? asked Justice G. Barry Anderson.

Doug Kelley, the attorney hired by Republican legislative leaders, said that “sharp elbows” are common in politics these days, but that what lawmakers did was not unconstitutional since the Department of Revenue isn’t an entire other branch of government.

Justice Natalie Hudson
Pool/Leila Navidi/Star Tribune
Justice Natalie Hudson: “We have put in place a mechanism that allows on some regular basis potential parties and the branches to come back to the judiciary to solve these problems.”

Kelley also said the governor “rendered one branch inoperative and unable to defend itself” by vetoing its budget after the Legislature adjourned a special session, which meant legislators didn’t have the opportunity to come back in and try to override his veto, which is also prescribed in the Constitution. Only governors have the power to call lawmakers back into session after they’ve gone home. 

But justices noted that only the Legislature can adjourn a session or special session, which it did promptly after passing all the budget bills.

“They could have either overridden that veto, assuming they had the votes to do so, or sent him a new bill [if they hadn’t adjourned],” Hudson said. “They negotiated away, in essence, their right to exercise the mechanism the Constitution gives them.”

Kelley responded that adjourning after they finished the budget work was just honoring the agreement legislative leaders made in negotiations with the governor. To which Justice David Lillehaug asked: “Is there anything in the agreement where the governor committed not to veto anything?” 

A ruling ‘in due course’

Adding intensity to the whole situation was the fact that the hearing was streamed live, the first time in state history the court’s oral arguments were broadcast. The Supreme Court justices were punchy, often speaking over one another and attorneys to ask questions in the 90-minute hearing. The justices have taken the case under advisement and will issue a ruling “in due course.” 

Technically, the July ruling from Ramsey County District Court restored the full $130 million of funding to the Legislature vetoed by Dayton. If the Supreme Court overturns that ruling, the Legislature is still funded until Oct. 1 under a separate ruling in district court. After that, the Legislature would have to dip into several million dollars in reserve funds, which could keep them operating for several months. The next legislative session doesn’t start until Feb. 20, 2018. Their other option is to go back into budget negotiations with Dayton, as he’s requested, but they’ve pushed back hard on that idea.

Justice David Lillehaug
Pool/Leila Navidi/Star Tribune
Justice David Lillehaug: “Is there anything in the agreement where the governor committed not to veto anything?”

Whatever happens, the whole ordeal put on display — again — the messy state of Minnesota politics. The case represents the fourth time budget disputes have gone before the courts since 2001. And now Dayton, who is heading into his last year in office, is facing another session negotiating with a Republican-controlled Legislature, with the case putting even more strain on an already-bumpy relationship.

“Someone once said, 'Democracy is the worst form of government except for every other one that’s been tried,' ” Hanson, Dayton’s attorney, said in his final rebuttal before the court. “This is a beautiful process. It works, it works especially in Minnesota, it’s worked for hundreds of years and it’s working now, even though there are bitter disputes.” 

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Comments (13)

Beauty is in the eye of the beholder

“This is a beautiful process. It works, it works especially in Minnesota, it’s worked for hundreds of years and it’s working now, even though there are bitter disputes.”

In the current instance, it might be useful to define what "it works" means. Efficiency is obviously not the goal of democracy, and messiness is hard-wired into the process, but I'm inclined to think that gridlock and/or stalemate is also not the goal of democracy. There are no societies worthy of the name that have no government, but in order to be of use to the citizens who put it in place, government has to have some minimal level of functionality. We're not seeing much of that lately, despite statements from several parties that "divided government" is somehow a good thing.

There are plentiful drawbacks to a "united" government as well, but a "united" government is typically able to at least begin to put a governing plan into motion, and the voting public in a society that claims to be democratic expects that to happen.

My sympathies, for what little they're worth, are with the Governor. The legislature's elimination of funding for the Department of Revenue was—to put a very positive spin on it—an exercise in spitefulness. More accurately, it reflects the childish bullying that has characterized far too much of Republican behavior since I arrived in Minnesota. That said, however, and despite where my sympathies may lie, I'm also inclined to think the Governor is on very shaky constitutional ground. As anyone who pays attention to politics knows, to deprive a government entity of funding, whether it's the Department of Revenue or the legislature, is to render it powerless and, in effect, useless. There's nothing noble about the Republican-controlled legislature depriving the fund-raising arm of state government of the money necessary to do its job, nor is there anything noble about Dayton's line-item veto defunding the legislature in response.

This assigns the courts the role of arbitrator in what amounts to a playground argument, though obviously one with serious consequences for us all. I won't be surprised if the state's Supreme Court sides, at least to a significant degree, with the legislature in this dispute. My own bias, not at all helpful in this instance, is that both sides are wrong. I don't think the Governor can—or should—defund the legislature, nor do I think the legislature should—even if it can do so constitutionally—defund the state's fundraising mechanism. Maybe the courts can insist that both children grow up a bit an negotiate a settlement that both can live with. I'll be interested to see the reasoning of the justices when their decision is finally reached.

In the current situation, I think you have to squint a bit to see beauty.

Unified/Divided Government Preferences

1) Government unified with my party in control
2) Divided government,
3) Government unified, with my party in the minority

Are there any Republicans in Wisconsin lamenting the lack of divided government these days? Speaker Daudt has expressed an interest in running for governor. Will he throttle back GOP efforts to hold the MN House in 2018, so as to avoid divided government?

Was Monday's Livestream Sponsored...

...by FitBit? I see one on the wrist of all three justices pictured in this article.

I anxiously await to hear the court's decision on this matter. The impact will be far-reaching.

Shutting down government

I am glad your coverage discusses both sides of the story. Republican defunding of the Department of Revenue eventually would shut down not just the Legislature, but all three branches of government because without revenue collection, people would not get paychecks. That means that Republicans do not hold the moral high ground they pretend to occupy.

Dayton's line item veto was a direct response to the Republican game playing. Republicans certainly didn't expect it and refused to be reasonable. Do a special session, throw Dayton a couple bones (e.g. Restoring the sin tax increese) and move on. No, they chose to turn Dayton's action into a way to gain politically.

Of course, had they not delayed meaningful action to the last week of session and then immediately adjourned, but legislate when you can electioneer, something Dayton isn't going to do in his last term.

QUESTIONS?

Exactly why are these "justices" asking so many questions that have pretty obvious answers? It's their job to provide answers, i.e. what the Constitution actually means. That's what interpretation is for petes' sake. Get some guts and say what you actually mean and what you think the Constitution and law means. Life is more than an effete debate society. It's impossible to have a separation of powers when each branch of government does not exercise the power they do have.

That's What They Do

They need to ask questions to help clarify what is being argued. It's not simply one side states why they think they are right and then the other side thinks they are right. As what this article and articles from other publications on this have shown is the follow up to questions on the arguments being brought forward. The more the lawyers have to answer, the more clear it is on what has happened and why the events have happened.
The governor's position is that on the face of the wording in the Constitution, he is entitled to line-item veto. He is right on that. But what the Legislature is saying is that he did it incorrectly and that the line-item veto is not entirely a universal right put forth in the Constitution. They are also correct. The justices then ask follow up questions to determine who is more correct on the events that have taken place.

The larger question

The larger question, and it is relevant in all fifty states and the federal government, is whether you can have any sort of real government with a Republican majority in the legislative branch, in the judiciary, or a Republican leader in the executive branch. I don't think so.

Governor seems to be right

"Kelley also said the governor “rendered one branch inoperative and unable to defend itself” by vetoing its budget after the Legislature adjourned a special session, . . . "

No, the Governor did not render one branch inoperative. The GOP majority of the Legislature did this all on their own and precipitated the "crisis" by overreaching their majority position. At least Justice Hudson and maybe some of the other Justices nailed the GOP on this point. Of course, the GOP legislators who engineered this "crisis" knew they'd never the 2/3 of the "Legislature" to override the veto. What the Governor did was call them on their overreach and the GOP found itself painted into a corner. If this doesn't get decided along partisan lines, I'm predicting the Supreme Court will reverse and sustain the Governor's veto.

I'm curious

"Specifically, justices pointed out that part of the reason the governor ultimately signed the tax bill instead of vetoing it is because a provision in a bill funding state government would have eliminated money for the entire Department of Revenue if he didn’t."

I thought the question before the Court was whether the Governor's line-item veto is constitutional. Why he signed the original bill would seem to be a separate issue and doesn't really matter unless we are going to bring "intent" into the proceedings. The Governor could have line-item vetoed part of the bill because the Twins lost the night before but would that make his decision less constitutional?

It will be a scary precedent if the Governor can cut off funding for the Legislature at will in all future years, no matter what the reason (if any).

Scary is as Scary Does

Is that any more scary than a GOP legislature threatening to de-fund the entire state government? Or what else do you call the poison pill
of de-funding the ability of the state to collect revenue? If the legislature can do that, they can get anything they want from the governor, including future GOP governors. Of course, there is only one party that is willing to show government does not work by shutting down government

A REAL equivalence!

Mr. Phelan says, "If the legislature can do that, they can get anything they want from the governor, including future GOP governors."

The Governor finally dished out the same blackmail method Republicans have been clubbing us with since the 2008 elections.

Crisis and chaos is the trademark of GOP governance methods. They have learned to create economic environments that make their rash proposals look reasonable.. It is a cynical poisonous trust-killing tactic responsible for much of our legislative angst here and in D.C.

Why would anyone who cares about their government's fiscal health handicap their own Department of Revenue?

To force what they cannot pass with compromise and reason. Trust a Republican legislator at your own peril.

Talk to your legislator

Anyone who has ever had a legal position described to them by a police officer and responded with disbelief has heard the phrase "if you don't like the law talk to your legislator ". Constitution gives the governor line item veto power and if the legislature doesn't like it they know how to put an amendment on the ballot.

The Legislature

Could not defund anything without the Governor's signature but the Governor wishes to defund the Legislature by himself.

And, contrary to views stated above, it was Governor Dayton's vetoes that shut down the State government before. His signature could have kept the government running but he chose not to sign. The Legislature doesn't have the last word in those situations.

"To force what they cannot pass with compromise and reason" perfectly describes the passage of the ACA which passed with no Republican votes.