Supreme Court Justice Lorie Gildea last week made a precedent-busting appearance before a conference committee that, as it happens, later became embroiled in a constitutional skirmish.
House and Senate conferees began meeting last week to reconcile their twin public safety and judiciary budget bills.
On the second day of meetings Friday, one issue predominated: Is it proper to include a raft of policy provisions in a budget bill, as does the GOP House’s public safety omnibus bill? Or does that violate the Minnesota Constitution’s “single-subject” clause?
“When you mix 120 pages of policy with a budget bill, one might conclude that that is a violation of that principle,” said Sen. Warren Limmer, R-Maple Grove, the conference committee’s co-chair, in an interview Friday.
The subject arose while legislative staff read through side-by-side comparisons of the companion bills. The House’s $2.46 billion version contains numerous policy changes, including an increase in penalties for protesters on freeways, an anti-terrorism statute and a prohibition on stays of adjudication for felony criminal sex offenders, among many others.
With few exceptions, the upper chamber’s $2.40 billion bill lacks comparable policy provisions.
“I object to having any policy language in a budget bill at all,” said Sen. Ron Latz, DFL-St. Louis Park, one of the 10-member panel’s two Democrats. “I think it is a distortion of the process.”
Rep. Tony Cornish, R-Vernon Center, the House bill’s author, disputes that. “I don’t know where this rule or regulation ever came from, where you don’t have policy in finance,” Cornish told committee members Friday.
Limmer answered him. “It might be in our state constitution under the single-subject rule,” he said. The Senate has made a tradition of abiding by the rule, keeping policy and finance bills separate, he said.
Early in the session Gov. Mark Dayton asked legislative leadership to avoid mixing policy into finance bills. On April 20, he reiterated that stance, urging conferees in all budget divisions to “winnow out” as much policy as possible from existing bills and focus purely on budgets.
Cornish on Friday made clear that he has no such intention.
“The House provisions and the policy are very important to us and we are not going to back off of them,” he said. Cornish said he plans to take abundant supporting testimony on the House bill’s policy proposals as the conference committee process unfolds.
“Whenever I hold the gavel,” Cornish said, “be prepared to go to midnight.”
In an interview later, Cornish said mixing policy and finance has been common practice at least since the time he was first elected in 2002.
“It’s a rule that they have never enforced before,” Cornish said. “So I don’t know why they are still pointing to that.”
He disagrees that the single-subject clause bars the Legislature from passing policy and budget provisions together. “I don’t believe that it applies to this whatsoever,” Cornish said.
Article IV, Section 17 of the Minnesota Constitution states: “No law shall embrace more than one subject, which shall be expressed in its title.”
It is not quite correct to say either that the rule has never been enforced before or that it does not apply to omnibus bills. But it has been a while.
In 2000, the state Supreme Court ruled in Associated Builders and Contracting vs. Ventura that the Legislature had violated the state constitution by including in its 1997 omnibus tax bill a prevailing wage provision targeted to education construction projects.
Then-Justice Paul Anderson agreed with the majority that the provision violated the constitution. Yet he still dissented from the majority opinion because of the remedy it provided. Rather than strike down the entire bill, the court severed just the offending provision, allowing the rest to pass into law.
In his dissent, Anderson complained that the court had granted itself a kind of line-item veto, creating what he called a “super-legislature.”
Simultaneously, he argued, it inadvertently allowed the Legislature to cobble together any kind of bill it wishes, knowing that at worst an offending provision might get stripped out while the rest sails through. Arguably, the Legislature has spent the last 17 years proving Anderson prophetic.
It is true that mixing policy with funding in omnibus bills has become common practice, said Hamline University political science professor David Schultz. Yet there have been few challenges based on the single-subject rule in the last few decades.
“In the Legislature, everybody pretty much operates by log-rolling,” Schultz said. “They stick all kinds of stuff in there and no one really raises the single-subject rule.”
Gildea, in testimony that she acknowledged might be unprecedented, never addressed thorny constitutional questions. She used the appearance to throw her personal gravitas behind her branch’s full $51 million 2018-19 budget-hike request.
“The judiciary is not a mere state agency,” Gildea said. “The judiciary is a branch of government and it deserves to be funded as such.” A vibrant judiciary, she added, is essential to a well-functioning democracy.
Yet it is also true that money is essential to a well-functioning judiciary, and Limmer on Friday pointed out a possible irony — if not a conflict. The court is responsible for enforcing the constitution, yet if the judiciary’s omnibus bill were challenged and found in violation because of its policy provisions, the court system would put more than $700 million of its own biennial funding at risk.
“I suppose,” Limmer joked, “that the courts, in wanting to get that increase for their transcript copying costs, might overlook it as a challenge.”
While challenges to the single-subject clause are rarer now than they were earlier in Minnesota’s history, Schultz argues that it still has “real teeth.”
“If the court is serious,” Schultz said, “they could very well strike the entire omnibus bill down.”
Anderson, in an interview April 24, said the court indeed is serious about the clause. The Minnesota Constitution, Anderson said, is no “ordinary law.”
“The constitution is fundamental law that comes from the people, who are sovereign,” he said. “And it must be respected in that context.”
Anderson declined to comment on the current bill before the public safety and judiciary committee, or any other omnibus bill currently under consideration. But he did go so far as to suggest it might not be entirely safe for legislators to ignore the single-subject clause.
One day, he said, an omnibus bill might be challenged again.
“I see that as a real possibility,” Anderson said.
The public safety and judiciary conference committee began meeting again Tuesday. Gov. Dayton has set Friday as the deadline for the two chambers to reconcile their budget targets for all their omnibus funding bills.