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At the close of the regular session May 22, House Speaker Kurt Daudt, Gov. Mark Dayton and Senate Majority Leader Paul Gazelka addressed the media at the Capitol. More than a month later the three leaders are engaged in a legal dispute over the constitutionality of Dayton’s line-item veto of funding for the Legislature. (AP photo: Pioneer Press)

Dayton attorney urges no restraints on line-item veto

A judge on Tuesday granted a temporary injunction keeping the Minnesota Legislature in business until at least Oct. 1 while the courts decide the legality of Gov. Mark Dayton’s line-item veto zeroing out the Legislature’s budget.

In issuing the injunction, Ramsey County District Court Chief Judge John H. Guthmann declined to immediately rule on the veto’s legality. That and all other issues related to the Legislature’s lawsuit remain under advisement, he said in his ruling.

However, it does declare that the Legislature has standing to sue Dayton and that the issues involved are ripe for judicial review. The issues, he wrote, “require a ruling from the court.”

Declaring they are at an impasse and unlikely to resolve their dispute without court intervention, lawyers representing both the Legislature and Dayton on Friday issued a joint stipulation seeking the injunction. It allows the Legislature to remain funded and operating for 90 days while the legal hassles get sorted out, they said.

Senate Majority Leader Paul Gazelka, R-Nisswa, said in a written statement Tuesday that the ruling will temporarily protect the state’s credit rating. But he called on the court to act quickly on the outstanding issues.

“Urgency is still required,” Gazelka said. “Minnesotans will no longer have a voice at the state Capitol starting October 1. We hope this case is quickly escalated to the Minnesota Supreme Court and legislative funding is restored before then.”

In his own written statement, House Speaker Kurt Daudt, R-Crown, said he is encouraged that Guthmann sees the issues as ripe for review. “We remain confident that the governor’s actions will be found unconstitutional and hope for a swift resolution to the legal process,” he said.

The controversy arose on May 30, when Dayton vetoed the Legislature’s funding and called for a second 2017 special session to re-establish it. Before it could convene, Dayton said, the Legislature would have to agree in advance to do away with three high-priority tax breaks and two controversial policy provisions scattered across several bills.

The Legislature refused those terms and sued the governor.

Unfettered power

In Monday’s district court hearing in St. Paul, an attorney representing GOP legislative leaders contended that Dayton vaulted well beyond the limits of the Minnesota Constitution’s separation of powers clause in his use of the line-item veto.

“The branches have to be independent lest the executive sword become a sword of Damocles, precariously and intimidatingly suspended over the other branches,” attorney Doug Kelley said in pleading lawmakers’ case. “That’s where we are.”

Kelley argued Dayton’s veto was invalid because it involved no clear objection to the Legislature’s budget appropriation. His position, he said, is based on the 1876 constitutional amendment that established Minnesota’s line-item veto, where the word “objection” is used to instead of the word “veto.”

The latter word substituted for the older term in 1974 when constitution’s language was modernized, Kelley said. But the revision did not change the assumption that a line-item veto must be given in objection to an appropriation.

And since Dayton recommended the same level of funding that the Legislature approved for itself, he clearly had no objections, Kelley said.

The judge challenged that stance. “Isn’t that what a veto means? It’s an objection,” Guthmann said.

“You have to be opposed to something, your honor,” Kelley said.

“I think the governor has made that clear,” the judge responded.

Kelley called Dayton’s use of the line-item veto an unprecedented overreach.

“He chose what I call the nuclear option,” Kelley said. “‘I am going to obliterate you and your ability to conduct business for the next two years unless you come to the table.’ That is an impermissible use of the appropriation line-item veto.”

Arguing for the governor, former Supreme Court Associate Justice Sam Hanson contended that any line-item veto is legal — as long as it involves a specific appropriation.

“It’s a constitutionally authorized encroachment so that the governor has a role in the legislative function,” he said.

In fact, Hanson argued there are no circumstances under which a governor’s line-item veto to an appropriation can be considered unconstitutional. That would be true even if a governor withheld judiciary funding to pressure judges to overturn a ruling the governor disliked, he said.

“As distasteful as it is, I think the governor has that power to veto,” Hanson said. “There is no constitutional principle that limits it.” If the courts step in to limit that authority, Hanson said, that would itself be a violation of the separation of powers clause.

However, even with the veto in effect, Hanson said the Legislature is shielded from separation-of-powers abuses because it can always appeal to the courts for emergency funding. Therefore, its constitutional right to core funding is protected, Hanson said.

Kelley urged the judge to reject that argument. “I think that is the most expansive delineation of executive powers for a governor that I have ever heard,” Kelley said.

If state government is put in the position of having to repeatedly turn to the courts for emergency appropriations, Kelley argued, Minnesota’s legislative system will be thrown into chaos. “It’s inimical to the efficient running of government to have that,” Kelley said.


David Schultz, a Hamline University political science professor, attended Monday’s hearing. After reading Guthmann’s injunction, he said, he came away with two impressions.

First, Guthmann seems determined to rule on the veto’s legality rather than send the parties back to hammer out a political solution. Second, Schultz said, he thinks the judge might be tilted slightly toward favoring the Legislature’s case.

In his order, Guthmann writes: “While it may be argued that a literal reading of Article XI of the Minnesota Constitution prohibits the relief requested by the parties, it is the duty of the courts to interpret constitutional provisions that appear to be irreconcilable and attempt to reconcile and harmonize them.”

Schultz notes that unlike the Legislature, Dayton is not seeking “relief” but instead wants his veto declared valid. To Schultz, Guthmann’s wording reads almost like a temporary restraining order that funds the Legislature while the parties duke it out in court. “That to me is a tip-off for the Legislature,” Schultz said.

The injunction maintains legislative funding at 2017 levels. That means legislators will continue — at least until Oct. 1 — to receive their current $31,140 annual salary, rather than the $45,000 per year recommended by the Legislative Salary Council in March.

In addition to funding salaries for employees and other operational costs, the order requires the Senate to pay the Administration Department a sum of $683,954 before June 30. That money constitutes rent on the Senate Office Building and debt service on its parking ramp.

The Senate also is ordered to continue paying its $699,332 monthly rent and debt services payments while the injunction remains in effect. To the extent that sufficient money is not available under the terms of the injunction, the Senate may make the payments from existing carryforward money, the order says.

The injunction is in effect until Oct. 1, or until the Legislature’s suit against Dayton has been decided either in Ramsey County District Court or through appellate review.

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