MinnPost - TPaw's unallotment legal team weighs in Page 1 of 6
TPaw's unallotment legal team weighs in
By Eric Black | Published Wed, Feb 10 2010 12:47 am
In three briefs submitted to the state Supreme Court yesterday, Gov.
Pawlenty’s legal team, plus a group of Republican legislators and a trio of
law professors, essentially accuse Ramsey County District Chief Judge
Kathleen Gearin of legislating from the bench when she ruled Jan. 8 that
Pawlenty’s 2009 unallotments were improper.
In urging the Supremes to overrule Gearin and reinstate Pawlenty’s
unallotments, the briefs made several strong arguments about the
interpretation of unallotment and the balance of power in the state
Constitution. Many of the arguments resembled those Team Pawlenty
had made to Gearin. Now they argue that Gearin got the case wrong by
imagining or imposing provisions into the unallotment statute that just
(I’ll summarize the arguments after this brief refresher course. Skip down
to the subhead “OK, back to the present” if you know how we got from
last May to today.)
At the end of the 2009 legislative session, Pawlenty signed all the
appropriation bills the Legislature had passed, then vetoed the revenue
bill that would have raised the taxes necessary to pay for some of the
appropriations. (He had made clear in advance that he wouldn’t sign a
tax increase. The Legislature called his bluff. He wasn’t bluffing.)
To balance the budget, Pawlenty used his line-item veto powers up to a
point (and his use of that power has been uncontroversial as a matter of
law). To close the last $2.7 billion gap between the spending bills and the
state’s projected revenue, Pawlenty used a seldom-used power of
Minnesota governors to “unallot,” or simply spend less than was
appropriated within categories of his choice.
Unallotment has been used before, has been challenged and ruled
constitutional (although never by the Supreme Court, the cases never
made it past the state Court of Appeals). But it had never been used on
anywhere near so large a scale (this one is almost 10 times bigger than
the previous biggest), nor under these circumstances where the governor
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had arguably created the shortfall by vetoing the revenue bill.
Although many functions of state government lost funding under the
unallotment, this case derives from a relatively small program (Minnesota
Supplemental Aid-Special Diet) that subsidizes very poor, very sick
people who have special health-related dietary needs. In his unallotment
orders, Pawlenty zeroed out that program, effective last Nov. 1, saving
the state a mere $5.3 million.
Judge Gearin, who heard the challenge, ruled that using unallotment in
this manner unilaterally and unconstitutionally revised the intended
balance of powers between the branches. If he wasn’t willing to sign the
revenue bill, Pawlenty could have continued working with the Legislature,
calling a special session if necessary, to work out a compromise. Instead,
he seized power normally belonging to the Legislature of deciding which
state programs would be funded and which not.
"The authority of the Governor to unallot is an authority intended to save
the state in times of a previously unforeseen budget crisis,” Gearin wrote.
“it is not meant to be used as a weapon by the executive branch to
break a stalemate in budget negotiations with the Legislature or to
rewrite the appropriations bill."
Pawlenty immediately announced that he would appeal. He requested
and received permission to skip over the state Court of Appeals and go
directly to the Minnesota Supremes so the state government can get a
quicker answer to the questions raised by the case, while the state
budget problems are still building.
OK back to the present
Tuesday was the deadline for Pawlenty and his legal allies to file their
appellate briefs. The other side (the plaintiffs in the original case, now
called the respondents) have until Feb. 23 to respond. So this piece,
based on three pro-Pawlenty briefs, will be one-sided. Oral arguments
are scheduled for March 15. Then it’s up to the Supremes to decide, on
no particular timetable. The current legislative session ends May 17.
Pawlenty’s brief, written by the governor’s counsel Patrick Robben and
Solicitor General Alan Gilbert (the fact that the attorney general’s office is
representing Pawlenty is awkward at best, given the partisan political
background of the case), argues that Gearin did not respect the language
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of the statute.
The statute (see subdivision 4) says that unallotment power kicks in “If
the commissioner [of management and budget] determines that probable
receipts for the general fund will be less than anticipated, and that the
amount available for the remainder of the biennium will be less than
Pawlenty’s commissioner, Tom Hanson, did indeed make that
determination, which Pawlenty’s side says properly kicked off the
unallotment process. The plaintiffs in the case argue that unallotment is
not meant to occur at the beginning of the biennium or while the
Legislature readily available to address the potential deficit.
But Pawlenty’s brief (and a second brief filed yesterday, a friend of the
court brief by several Republican legislators including Tom Emmer and
Marty Seifert, the top two current Repub candidates for governor) argue
that there is no language in the statute to suggest that unallotment is a
power that occurs at some particular time during the biennium. (Perhaps
the other side will make something of the language that refers to “the
remainder of the biennium.”)
Pawlenty’s brief (this has been a theme of Republican criticism ever
since Gearin’s ruling) argues that Gearin didn’t even discuss the specific
language of the statute, and points out that Minnesota actually has a law
instructing those who are charged with interpreting Minnesota laws that
“the letter of the law shall not be disregarded under the pretext of
pursuing the spirit.”
This is a big phrase for the unallotment defenders, and I can see why.
But when they cite it (including in the Pawlenty brief), they tend to leave
off the beginning of the sentence. The full sentence reads: “When the
words of a law in their application to an existing situation are clear
and free from all ambiguity, the letter of the law shall not be
disregarded under the pretext of pursuing the spirit.” Presumably, the
other side will explore the issue of whether the application of the
unallotment law to these circumstances is ambiguity-free.
But the Emmer-Seifert amicus brief essentially accuses Gearin of making
up language and imagining it into the statute. If the Legislature that
created unallotment had wanted to, it could have said that the governor’s
power kicks in only late in the biennium. But the unallotment authors did
not write that. It is not Gearin’s role, as a judge, to amend the statute so
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that it seems optimal to her, the Emmer-Seifert brief argues.
Likewise, Emmer-Seifert et al argue that Gearin seems to think that when
there is a disagreement between the governor and the Legislature about
taxes and spending, the governor’s unallotment power should not be
used until the governor has exhausted all other means of reaching
agreement with the Legislature, such as calling a special session or
compromising on their differences. This might be Gearin’s view of the
best way to proceed, but it isn’t her job to impose her preferences.
On the contrary, the Emmer-Seifert brief argues, the dispute between
Pawlenty and the DFL majority of the Legislature (over whether to
balance the budget by raising taxes or by further cuts) is a classic
political dispute — the kind of dispute in which the courts are supposed
to stand back and let the political branches work it out or duke it out.
In fact, it seemed to me that the main, official Pawlenty brief seems to
want to remind the justices that unless they are willing to take over all
three branches of government, there is no appropriate way for the courts
to resolve this dispute except by letting the unallotments stand.
If the Supremes uphold Gearin and strike down the unallotments,
making the unallotted appropriations reappear in the budget, there
is no money to pay for them. Since the unallotment, state tax
collections have continued to fall. The DFL tax increases that would have
paid for some of this spending were vetoed. Certainly, vetoing a tax bill is
a power the governor possesses. Is the court going to tell governors
which bills they must sign and which they must veto? Is the court going to
write its own tax bill and order the Legislature to pass it? Of course not. (I
emphasize that the argument in this paragraph is made only by
implication and not explicitly.)
But the brief took several steps down that path in this portion of the
“Under the [Gearin ruling], the $2.7 bilion deficit would have to be
eliminated by agreement of the Legislature and Governor or not at alI...
The district court's interpretation of [the unallotment statute] produces
obvious adverse consequences for the operation of State government.
"The Minnesota Constitution does not permit the State's biennial budget
to remain in deficit... The Governor and Legislature were previously
unable to reach agreement on how to resolve the $2.7 bilion budget
MinnPost - TPaw's unallotment legal team weighs in Page 5 of 6
deficit. Under the district court's reasoning, in the absence of such an
agreement, spending pursuant to the biennium's appropriation bills will
continue until such time as the State simply runs out of money before the
biennium ends, resulting in a government shutdown, at least as to non-
"In contrast, the Commissioner's interpretation [that the governor has the
power to unallot] allows an alternative mechanism to resolve the deficit in
the State's general fund and avoid a government shutdown. Thus,
Appellants submit that the consequence of the competing interpretations
before the Court, i.e., the ability of State government to operate, weighs
in favor of the Commissioner's interpretation.”
A third, shorter brief was filed yesterday. Two prominent Minnesota
conservative legal scholars — David Stras of the University of the
Minnesota Law School and Michael Stokes Paulsen of University of St.
Thomas, plus Ryan Scott of Indiana University (a former Minnesotan) —
filed under the moniker “professors of Constitution Law and Separation of
Powers.” They concentrated on one narrow issue: Does Pawlenty’s use
of unallotment create a constitutional problem because it allows the
governor to perform a function that is fundamentally legislative? The
professors say no.
If unallotment allow the executive to spend state money that the
Legislature had never appropriated, that would be a problem. The power
to authorize and appropriate public money is a legislative function. The
power to spend money is an executive function. But unallotment is simply
spending less than the Legislature appropriated. The professors say that
38 states empower governors to spend less than was appropriated, and
these arrangements have been tested and found not to cause separation
of powers problems.
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