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Oral arguments on Gov. Mark Dayton’s appeal took place Aug. 28 in the Supreme Court’s Capitol courtroom. (Staff photo: Kevin Featherly)
Oral arguments on Gov. Mark Dayton’s appeal took place Aug. 28 in the Supreme Court’s Capitol courtroom. (Staff photo: Kevin Featherly)

Veto case could shift power balance

Regardless of its outcome, Gov. Mark Dayton’s Supreme Court appeal of a District Court ruling overturning his line-item vetoes likely will alter Minnesota’s political landscape, experts said this week.

The Supreme Court could overturn Ramsey County District Court Chief Judge John H. Guthmann’s ruling and hand Dayton virtually unfettered line-item veto power over appropriations, legal and political experts say.

Conversely, several said, the justices could uphold Guthmann’s July 19 ruling and shift the balance of power toward the Legislature, particularly during end-of-session impasses.

A third possibility — one some consider unlikely — is a determination that the court lacks jurisdiction. It then could overturn Guthmann’s ruling and send the matter back to the Capitol for a political solution.

However it shakes out, former Supreme Court Justice Paul Anderson is among those who believe Minnesota likely will emerge in a different place politically than where it was before Dayton issued his vetoes and lawmakers sued.

The only question, he said, is how far the ground will shift.

“How broad or narrow that change will be is really the question before the court,” Anderson said.

Oral arguments on Dayton’s appeal are scheduled for Aug. 28 in the Supreme Court’s Capitol courtroom.

Case background

The controversy arose on May 30, when Dayton vetoed the Legislature’s funding and called for a second 2017 special session. Before it could convene, however, Dayton told legislative leaders they had to kill three high-priority tax breaks and two controversial policy provisions in bills that he had already signed.

The move came in retaliation against a “poison pill” provision in one of those bills, which would have defunded the state revenue department — a move that infuriated the governor. The Legislature refused his special-session terms and instead sued.

In District Court, legislative counsel Doug Kelley argued that Dayton’s veto violated the Minnesota Constitution’s separation-of-powers clause by effectively abolishing one branch of government. Dayton also failed to properly “object” to the appropriation, the lawyer argued, citing an 1876 constitutional amendment establishing the line-item veto.

Dayton’s attorney, former state Supreme Court Justice Sam Hanson, argued that the constitution sets no limits on a governor’s line-item veto authority. Under questioning from Guthmann, he said that would hold true even if a governor vetoed judiciary funding to pressure judges to overturn a disfavored ruling.

However, Hanson said, the two non-executive branches are protected from separation-of-powers abuses because they can always appeal to the courts for emergency core funding. Therefore, the governor is incapable of “abolishing” either the Legislature or the judiciary, Hanson said.

In a strongly worded opinion, Guthmann sided with the Legislature, declaring the vetoes invalid. Dayton quickly appealed.

Kim Crockett is general counsel for the conservative Center of the American Experiment think tank, the only organization to file an amicus brief in the Dayton appeal. She called the separation of powers doctrine a “bedrock framework” that gives all three branches bright lines by which to avoid intruding on one another.

“It’s really the bedrock of our constitutional system and how we avoid chaos,” she said. “I hate to speculate on what would happen if the court goes outside those lines.”

Lasting impact

Steven Schier, a Carleton College political science professor, thinks that the case will have far-reaching effects. “It will become a precedent and an assumption on which future behavior is based,” he said.

David Schultz, who teaches political science at Hamline University, agrees. In effect, the court is being asked to choose whether the governor’s line-item veto power is unlimited with respect to appropriations, or whether that constitutional power should — for the first time ever — be curbed by the courts.

“It clearly realigns separation of powers in Minnesota,” he said.

Schier predicts that if the lower court is upheld, legislators will have newfound confidence to assert themselves confrontationally in disputes like the impasse that played out at the end of the last session.

“I think the decision would make clear and explicit what the Legislature’s power is in confrontations with the governor,” he said.

Should Dayton prevail, on the other hand, the effect would be equally dramatic. “If that happens,” Schier said, “I think you ain’t seen nothin’ yet in the way he jacks around the Legislature.”

However, both Schier and Schultz expect Dayton to lose. While Guthmann preserved the line-item veto as a gubernatorial cudgel, he ruled that it cannot “nullify or effectively eliminate a branch of government or a constitutional office.” Dayton’s veto did that, the judge ruled, and therefore was unconstitutional.

“It was not ‘on the one hand/on the other hand,’” Schier said. “It was a pretty emphatic slam dunk against the governor.” Overturning his decision, Schier said, would be “a stunning reversal.”

If Dayton loses, his power and that of all future governors would take a significant hit, Schultz said. That is especially true, he added, in light of the 2010 Brayton v. Pawlenty decision, which determined that Minnesota’s governor lacks authority to use executive unallotment power to fix unresolved deficits.

Combined as twin contrary rulings, Minnesota governors would be left with diminished powers, the professor said. “That’s because the governor — I would say in both those cases — overreached,” Schultz said.

Mary Jane Morrison, a retired Mitchell Hamline School of Law professor and a leading Minnesota Constitution expert, holds out hope for a third option. The court could overturn Guthmann’s ruling and send the parties back to the Capitol to work out their political differences, she said.

“I sincerely hope that the Minnesota Supreme Court finds a way to split the baby by leaving them — the Legislature and the governor — to their own devices,” she said.

Schultz doubts that will happen. The sides have staked out “all-or-nothing positions” that leave the court almost no space to forge a compromise. “That is what has made it such a high-stakes case,” he said. “I don’t see how you split this one down the middle.”

Yet if the justices don’t find a way, Morrison said, courts could find themselves refereeing disputes between the executive and legislative branches year after year. “That’s because politicians in this state — as elsewhere — won’t do their darned job,” she said.

Anderson has long been a critic of the Legislature’s cavalier attitude toward the constitution’s single-subject clause, which is supposed limit lawmakers’ ability to shoehorn controversial provisions into giant, omnibus “garbage bills.” He sees little chance that the Dayton appeal will resolve that issue.

Nonetheless, unlike Schultz and Schier, the former justice spies a path for a Dayton victory in the case — in the court of public opinion, at least — even if the Supreme Court rules against him. His reasons relate to the single-subject clause.

“What the governor has done, in his leadership position, is bring the people’s attention to that greater issue,” he said.

Anderson declines to predict how his former colleagues will rule. But he doesn’t mind predicting how they will behave — with restraint.

“My experience as a justice is that the court is very cautious, it moves in small increments,” he said. “So yes, the landscape will change. But maybe not as much as some people want or expect.”

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