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Sam Hanson and Douglas A. Kelley
Sam Hanson and Douglas A. Kelley

Attorney’s briefs in Legislature v. Dayton

The Legislature and the governor are in a jurisprudential stand-off over a line-item veto of the Legislature’s budget, which resulted in a lawsuit by the Legislature. The Supreme Court has expressed some reluctance to get involved, ordering mediation and briefing on the constitutionality of the judicial branch ordering funding to the Legislature. The mediation is scheduled for Sept. 28 and 29. The parties agree on one issue — the Association for Government Accountability should not be allowed to intervene.

A look at the briefs follows.

Gov. Mark Dayton by attorney Sam Hanson:

Judicial remedies exist to vindicate the people’s right to three functioning branches of government

Case law and the Minnesota Constitution say that core functions of each branch must be funded even in the absence of an appropriation. The judiciary serves as a safety net for enforcing this right even when the appropriations process has failed. The power to do so is implied in Article I and III and the court must “construe the Constitution to ascertain the framers’ intent and to harmonize competing constitutional provisions…

“States cannot abridge or ignore the constitutional rights of their citizens simply because funding has not been appropriated to meet those constitutional obligations.”

In the past, the judicial branch itself has relied on the core funding mechanism to ensure continued operations in the absence of appropriations, and the District Court has ordered core funding of the executive and legislative branches. Clerk of Court’s Comp. for Lyon Cty. v. Lyon Cty.  Comm’rs establishes a precedent and process for determining court-ordered funding for critical, core functions, including the exhaustion of approximately $16 million in carry-over funds and the appointment of a special master.

The court need not rule now on the propriety of the temporary injunction that provided interim funding because the Legislature may retroactively ratify the spending. The temporary injunction does not violate the separation of powers because the injunction is based on a stipulation under which no spending occurs except that which is approved both by the Legislature and the governor.

The court could determine core functions employing a special master. Alternatively, the judiciary could direct the executive branch to determine the critical, core functions of the Legislature under the authority of Article V, Sec. 3 which says that the executive branch shall take care that the laws be faithfully executed. “The Governor has constitutional authority to ensure that the Legislature receives sufficient core funding to protect the rights of Minnesota’s citizens to a functioning Legislature.”

Minnesota Legislature by attorney Douglas A. Kelley:

The Legislature is currently funded by valid appropriations

There has been no court-ordered funding of the Legislature because the District Court’s July 19 order restored the Legislature’s appropriations. The issue of court-ordered funding in the absence of an appropriation is not before the Supreme Court because it was never decided by the District Court.

“The issue of emergency court-ordered funding for core functioning will not ripen for adjudication unless this Court vacates the district court’s judgment and remands this case …”

If the Supreme Court does not agree that the appropriations to the Legislature were restored, in granting the temporary injunction the court found a likelihood that a legislative appropriation had been passed into law because the line-item vetoes were null and void.

Although court-ordered funding is not at issue, pursuant to the court’s request for briefing, the Legislature argues that the separation of powers clause forbids the judiciary from exercising the power of the purse.

“The Judiciary may have inherent authority to fund itself in the absence of an appropriation, but the Judiciary’s powers of self-preservation cannot logically extend to funding legislative operations.” Article XI and the separation of powers clause prohibit the judiciary from ordering expenditures to support the Legislature.

Since court-ordered funding is not constitutionally permitted, the governor’s line-item vetoes effectively prevent the Legislature from functioning and deprive the people of Minnesota of their constitutional right to a functioning Legislature. As a result, the vetoes violate the separation of powers clause and are unconstitutional. “This Court must override the Governor’s line-item vetoes to vindicate the people’s right to a functioning Legislature. Given the constitutional limitation precluding judicial appropriations to the Legislature, the district court recognized that core-function funding is not an acceptable, alternative remedy.

Other potential judicial remedies such as judicially ordered core-function funding, directing the governor to call a special session, or a court order funding “necessary” legislative operations, raise separation-of-powers concerns

Core-function funding usurps the power of the purse and violates the political question doctrine. A political question arises where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. “Emergency core-function funding does not become constitutional because it happened before or because the parties request it… The justification for judicially-authorized funding of government appears to be as follows: somebody needs to step up and do it, so it might as well be the courts. That justification, while convenient to avoid government shutdowns, lacks textual support in the constitution.”

A writ directing the governor to call a special session without any conditions would be a lesser invasion of the powers of the other branches than judicial determination of core funding, but would still violate the separation-of-powers doctrine. The court may not have jurisdiction to order the governor to fulfill a discretionary function.

Court ordered funding of only “necessary” legislative functions minimizes encroachment upon the separation of powers.

If the court upholds the governor’s vetoes and forces the Legislature to spend all remaining funds and then shut down, the harm will be acute in the short term and will alter the balance of power between the governor and the Legislature in the long term. “The Legislature’s ability to enact a budget will be diminished by giving the Governor the power to unilaterally dictate the terms of appropriation bills (or potentially any bill), through the threat of line-item vetoing the appropriations to the Legislature.”

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