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Veto dispute returns to political process

There’s money in the coffers allowing the Legislature to continue to function until a new session begins, and the governor’s line-item veto did not violate the Minnesota Constitution by “effectively abolishing” the Legislature, the Supreme Court said Nov. 16 in the case of The Ninetieth Minnesota State Senate, et al. v. Mark B. Dayton, et al.

As the Associated Press reported, “Thursday’s decision hands [Gov. Mark] Dayton a major legal victory as he seeks to rework costly tax breaks and other measures he signed into law this spring as part of a new state budget. And it leaves the Legislature on uncertain financial footing.”

Now the Legislature and Dayton must return to the political process, and the court will not decide that the vetoes unconstitutionally coerced the Legislature.

“We exercise restraint on the coercion aspect of the Article III issue because Article IV of the Minnesota Constitution — addressing the legislative process — textually commits to the Legislature and the Governor the powers to resolve political disputes that arise in the court of that process, including the process of appropriating funding,” the court said.

The opinion was written by Chief Justice Lorie Gildea, with Justice G. Barry Anderson dissenting and Justice David Stras recused. The decision overturns a ruling by Ramsey County District Court Judge John Guthman that held Dayton’s action unconstitutional. The opinion remands the case back to the judge for dismissal.

Predictably, leaders differed on what the opinion said.

“I am very pleased that the Supreme Court has upheld my line-item veto authority, which is established in the Minnesota Constitution. The Court has also found that the Legislature has access to at least $26 million to continue its full operations until it reconvenes in February. Therefore, there was no need for them to have initiated this lawsuit and imposed its costs on our state,” the governor said in an email to the press.

He also asked the Legislature to stand down: “Thus, the Legislature has no reason to resume negotiations to restore its vetoed funds and to correct its excessive special interest tax reductions, which will jeopardize Minnesota’s future financial stability. So it is time for us all to agree that this dispute has been concluded and resume working together for the best interests of Minnesota.”

Rep. Melissa Hortman, DFL-Brooklyn Park, House DFL leader, called in an email for a new construct in light of what she called Dayton’s clear victory: “The Legislature and the Governor need to return to the bargaining table as soon as possible… It is my hope that Republican leaders would finally come to the negotiations with a sincere willingness to compromise and work together.  The dynamic of five individuals meeting with staff behind closed doors has to stop.  We need a new construct for our conversations that brings the give and take and debate fully into public view.”

House Speaker Kurt Daudt, R-Crown, refused to call the opinion a Dayton victory. “They didn’t rule that his line-item veto was either appropriate or unconstitutional under that section of the Minnesota Constitution,” he said. “They believe that we have enough money to get back into session. … So during session they believe that we can work this out.”

“They did, however, say that if the circumstances change they will potentially have to step in and make a ruling on that question — whether or not the governor’s line-item veto is constitutional. That’s the question they did not answer and it states very clearly that they chose not to make a decision on whether his line-item veto was constitutional. They did not act on that,” the speaker continued.

As a result of Dayton’s veto, members of the Legislative Coordinating Commission adopted a resolution Thursday to take funds intended for nonpartisan purposes and use them to continue legislative operations with the hope those funds will be replaced in the future.

“I am disappointed Governor Dayton and the Supreme Court forced us to use funds intended for vital nonpartisan purposes in order to prevent the governor’s elimination of the legislature,” said Majority Leader Joyce Peppin, R-Rogers, in a press release. “This action is not without consequence. Without a signature from the governor or Democrat votes to override a veto, Minnesotans will lose critical services provided by their representatives and senators. We will not be able to draft legislation to help Minnesotans, provide transparency and closed captioning for the public, complete necessary audits to eliminate fraud and abuse, or sustain various citizen-councils.”


On May 30, 2017, Dayton vetoed line-item appropriations to the Legislature for its biennial budget. The Legislature commenced this action, contending, in part, that the line-item veto power cannot be used over the appropriations to itself without violating the separation-of-powers clause. The governor contends that the line-item veto power is expressly conferred on the executive by Article IV, Section 23 of the Minnesota Constitution, and thus its exercise, even over an appropriation for the legislative branch of government, cannot violate the separation-of-powers clause.

Article IV

Last September, the Supreme Court ruled that the line-item veto did not violate Article IV, Section 23 of the Constitution. In the most recent order, it said that its ruling is based on the plain language of Article IV. That says that there is only one substantive limit on the line-item veto power, specifically, the requirement that the veto be made as to an “item” of “appropriation.

Article III

The court turned to the separation-of-powers argument. The District Court concluded that the governor’s line-item vetoes effectively abolished and nullified the Legislature by depriving it of the funding needed to perform its core functions.

The Supreme Court concluded that the veto did not effectively abolish the Legislature and also rejected the argument that the judiciary has the power to order funding for the Legislature.

It determined that the Legislature needs about $26 million to fund itself from Oct. 1 to February 2018 when the next session convenes. (The parties stipulated to funding from the Minnesota Department of Management and Budget until Oct. 1). When the District Court ruled that the Legislature would run out of money, it did not consider money appropriated to the Legislative Coordinating Commission for fiscal 2018-2019 or carryover funds available to the LCC, the court said. That amounts to at least $26 million and could be as much as $40 million, depending on how the sums are calculated and what should be excluded as encumbered for other spending, it continued.

The decision to use the LCC funds rests with the Legislature and not the court, Gildea wrote. However, “[t]he fact remains, however, that the Legislature has funding available to it that maintains its existence as an independent branch of government and enables it to perform its constitutional responsibilities on behalf of Minnesota’s citizens until it reconvenes in regular session in February 2018,” the court said.

The court refused to rule on whether the line-item vetoes were unconstitutional because the governor used them to reach an unconstitutional result, citing the doctrine of judicial restraint.

“Although these arguments are cast in the framework of constitutional principles and powers, the parties’ dispute about coercion essentially asks the court to assess, weigh, and judge the motives of co-equal branches of government engaged in a quintessentially political process,” Gildea wrote.

The parties should resolve this dispute through the usual political process of appropriations, the chief justice wrote.  If the Legislature were unable to continue its usual operations until it reconvened in February, the court would be presented with a different situation, she continued.

Along with its exercise of judicial restraint, the court delivered a warning. “Our decision today should not be read to foreclose the possibility of a judicial remedy in a different situation. … We trust that, going forward, each branch of government will seek to avoid a constitutional stalemate by exercising its powers to promote the constitutional cooperation that Minnesotans expect and deserve.”


Anderson dissented on the issue of judicial restraint, saying this was not an occasion for it and the vetoes were unconstitutional under Article III. He also noted that the start of a new session is not a sure-fire safety valve.

Anderson said that inquiry beyond the vetoed appropriations creates its own separation of powers concerns.

“Although I recognize that the court has been careful to limit its conclusion to carryover funds and some portion of the unencumbered funds available to the Legislative Coordinating Commission, it is apparent that those monies were appropriated for other reasons. It also bears mention that the only reason anyone is looking at the entirely separate, un-vetoed, appropriations to the Legislative Coordinating Commission is because the Governor’s line-item vetoes left the Legislature without any appropriations for the 2018–2019 biennium. Accounting shifts and balance calculations by the Judicial Branch are neither necessary nor appropriate,” Anderson wrote.

The vetoes were unconstitutionally coercive in violation of Article III and void on that ground as well, the dissent continued. “The Governor’s message was neither tentative nor unclear; he offered the Legislature two choices, neither of which has any foundation in the powers conferred on the Executive Branch by the constitution. We need not set out a rule for all time as to when a veto is unconstitutional because of coercion. It is enough to state based simply on the Governor’s words [telling the Legislature to accede to his demands or remain financially unable to fulfill its powers] that his exercise of the line-item veto power was unconstitutionally coercive.”

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About Barbara L. Jones

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