While Gov. Mark Dayton contemplates another special session, Sen. John Marty, DFL-Roseville, is considering a lawsuit to challenge the Legislature’s habit of ignoring the state constitution’s single-subject rule.
That clause contains some of the constitution’s most straightforward language. “No law shall embrace more than one subject, which shall be expressed in its title,” it says in Article IV, Section 17.
The Legislature, critics contend, has become accustomed to ignoring the rule, particularly in the House. Public Safety committee chair Rep. Tony Cornish, R-Vernon Center, recently declared that the single-subject rule does not apply to mixing policy and finance in omnibus bills.
“It’s a rule that they have never enforced before,” Cornish said. “So I don’t know why they are still pointing to that.”
Marty wants to change both the perception and the practice. “Maybe the constitution means it,” he said. “Maybe we swore to uphold the constitution and maybe we should try and do it.”
The way legislative sessions play out these days is unacceptable, Marty said, as bloated bundles of provisions get stuffed into a dwindling number of bills. “It is not a good lawmaking process and it does not serve the people well,” he said.
But he also line-item-vetoed the House’s and Senate’s operating funds and said it would take yet another special session to put the funding back in place. Dayton said he would call a special session only if the Legislature first agrees to jettison some of the bills’ most controversial policy provisions. GOP leaders later said they likely will take Dayton to court rather than comply.
Yet on Friday, Dayton seemed ambivalent when asked if he thinks the current legislative process is hopelessly broken. “I don’t know what a better process is,” the governor said. Devising a better solution, he added, would have to fall to the next governor and Legislature.
Marty is not that patient. He is strongly considering a lawsuit as the logical next step after he and eight other DFL senators filed a rare formal letter of protest and dissent Friday. It denounced legislative action taken at the end of the 2017 regular session and special session.
Besides Marty, the letter was signed by senators Greg Clausen, DFL-Apple Valley; Scott Dibble, DFL-Minneapolis; Carolyn Laine, DFL-Columbia Heights; Jerry Newton, DFL-Coon Rapids; Chris Eaton, DFL-Brooklyn Center; Erik Simonson, DFL-Duluth; Patricia Torres Ray, DFL-Minneapolis; and Jim Carlson, DFL-Eagan.
It includes a laundry list of provisions in an array of 2017 budget bills. Among them is a provision in the environment and natural resources appropriations bill, which the senators say eliminates most Minnesotans’ right to request hearings on certain permitting decisions.
Another is the ban on issuing drivers licenses to undocumented immigrants, a late addition to the public safety-judiciary omnibus bill — and one of the provisions Dayton wants dumped as a condition of a special session. A third is a measure in the jobs and economic development bill that blocks cities from banning plastic grocery bags. “That is absolutely nuts,” Marty said.
Packing unrelated policy provisions and riders into single bill violates the constitution and “is injurious to the public,” the senators’ letter states.
“We are not interested in casting blame; we are demanding change,” it concludes. “The people of Minnesota deserve a better lawmaking process. The constitution demands it.”
Now that the letter is out, Marty said, he is fresh out of legislative remedies — and he knows the letter is not likely to effectuate change. His attempts this year during floor debates to extract policy provisions from the omnibus bill also all failed, he said, as have all his other efforts.
Going to court is the only remaining option, he said. “I am very interested in following up, whether it is as a plaintiff or encouraging others,” Marty said. “The process has run off the rails already.”
Marty thinks that plenty of citizens, groups and legislators are aggrieved by the way all the budget bills came together this year. He hopes to recruit as many as possible to sign onto a lawsuit — should one proceed as he hopes it will.
“My point is, yeah, let’s go ahead and do this,” Marty said.
An old story
Violations of the single-subject rule are hardly new. In the 1986 case State ex rel. Mattson v. Kiedrowski, state Supreme Court Justice Lawrence R. Yetka called out the practice as a “clear violation of the constitution.”
“The worm that was merely vexatious in the 19th century,” Yetka wrote, “has become a monster eating the constitution in the 20th.”
In the 2000 case Associated Builders and Contractors, et al. v. Ventura, et al., the 1997 omnibus tax bill was challenged for including an unrelated prevailing-wage provision. The state Supreme Court ruled that the insertion violated the single-subject rule, but rather than throw out the entire law, it extracted only the offending provision.
In his partial dissent, former Justice Paul Anderson warned the court that its remedy would more likely open the floodgates to single-subject violations than discourage them. The better solution would be to invalidate the entire law, he wrote.
“The majority essentially permits the Legislature to pass whatever bills it pleases, knowing that if challenged, the courts will strike only the challenged provisions,” Anderson wrote.
His warning might now be seen as prophecy. The number of session laws enacted has dropped precipitously from their peak of 1,159 in 1969. By 1973, the number fell to 783.
With some minor fluctuations, the trend line has tracked steadily downward since the mid-1970s. In the 2000 session, the year of the Builders case, only 244 laws were enacted. By 2015’s regular session, there were just 77. The number ticked upward slightly to 107 last year.
Anderson declined Tuesday to say whether the lawsuit contemplated by Marty would produce the most serious challenge to the single-subject rule since the Builders case. But he did not downplay its importance.
“It would be a serious challenge,” the former justice said.
David Schultz, the attorney and Hamline University political science professor, suggests such a lawsuit would be important because of Marty’s status as a sitting legislator who has done what he can from the inside to halt single-subject violations.
“If he can say that the Legislature isn’t policing itself, and he is an aggrieved legislator who thinks this is really bad, that adds strength to the case,” Schultz said.
That would steer the issue away from what he called a “court versus legislature battle” — something courts are loath to engage in — and toward judicial resolution of a problem that the Legislature has shown itself incapable of solving, Schultz said.
If the case is pursued, Schultz said, he expects that Marty — or whoever acts as its lead litigant — would probably need to file for expedited Supreme Court review. If the case stretches out for months while 2018-19 appropriations get spent, he said, the court is unlikely to overturn the entire laws that contain the appropriations.
Marty was not willing to discuss strategy for any potential lawsuit. He would only say that he plans to speak with an attorney about the matter soon.
His end goal, however, is plain. He wants to stop the legislative log-rolling before the Legislature decides it’s OK to jam its lawmaking decisions into one mega-omnibus bill per session.
“I would hope we’re at the stage where the court would say, ‘This is nuts. We’re going to throw out the whole law and you guys come back and get to work.’ That would teach the Legislature a lesson.”