Minnesota Lawyer
Sen. John Marty, DFL-Roseville, is once again considering a lawsuit that would challenge what he considers the Legislature’s chronic abuse of the Minnesota Constitution’s single-subject rule.
He said the same thing last year. But he was unable then to find an attorney to take on his case gratis. He still hasn’t. But he says he continues to consult attorneys and has found one who at least is considering the idea.
As for Marty, he’s says he is more interested than ever. “This year we are getting a ton more ammunition for a lawsuit,” he said.
The 10-term senator first took office in 1986, though he doesn’t look much older than when he ran as the DFL’s challenger to Gov. Arne Carlson in 1994. But the ever-affable Marty increasingly is frustrated at the single-subject rule’s continual flouting.
“It’s the worst it’s ever been,” Marty said. “That’s not saying that it was pretty good recently and it just fell off a cliff. It’s been on a decline for the last couple of years. But this is nuts.”
By “this,” Marty means the Senate’s mega-omnibus supplemental appropriations bill, Senate File 3656, which was in the early stages of a mammoth 11-hour floor debate while he was being interviewed April 26. Just moments earlier, Marty had risen on the Senate floor to jokingly offer the bill a satiric new title.
“It would be, ‘A bill relating to practically anything and everything,’” Marty said, “‘allowing sugar-beet transporters to leak liquids on the roads, exempting hair braiders from cosmetology requirements, appropriating funds to clean up two lakes near Alexandria’ …” His mock title droned on for two minutes before he stopped reading it halfway through.
“How do you call that a single subject?” Marty asked the bill’s author, Senate Finance Committee Chair Julie Rosen, R-Vernon Center.
‘Not too broad’
In her floor introduction, Rosen had described the 594-page-plus-appendix bill as “a modest spending proposal.” Compared to last year’s $46 billion biennial budget bill, that is true. SF 3656 contains only $81 million in new spending for fiscal year 2018-19, she said.
Rosen explained that her bill contains simple clean-up language. “A supplemental finance bill that deals with some of these issues is extremely appropriate,” she said, “especially since we have been doing it this way for a very long time.”
The constitution demands that each bill cover a single subject; its topic must be reflected in its title. Yet Rosen’s attitude toward the rule is not out of step with at least one interpretation of its most recent judicial test, the state Supreme Court’s April 18 Otto v. Wright Co., et al., decision.
That case pitted State Auditor Rebecca Otto against several counties that hired private auditors after the Legislature permitted them to do so. In part, Otto challenged the enabling 2015 legislation, saying it violated the single-subject clause by mixing the private-auditing provision with varied, unrelated laws. The Supreme Court disagreed.
Its ruling did, however, did find two legitimate purposes for the rule. First, it aims to prevent “log-rolling,” in which many “different and disconnected subjects are united in one bill.” Second, it serves to prevent “surprise and fraud upon the people and the legislature” when no proper notice is provided to those affected by legislation.
But the ruling added a sentence that Marty and two legal scholars found disconcerting.
“Consistent with our precedent,” the opinion reads, “the subject — ‘the operation of state government’ — is not too broad to pass constitutional muster in a challenge to legislation that addresses the roles and responsibilities of state entities.”
“You may have problems with particular issues in the bill,” Rosen told Marty on April 26. “But I think everything in here deals with the operations of government of some kind affecting the state.”
That kind of talk has Marty consulting lawyers. “I am ready to file a case as soon as I have an attorney willing to go who says it makes sense,” the DFLer said.
He admits he is asking that attorney — whoever it might be — for a favor. He lacks money to finance what he thinks would be “a huge case,” he said.
“It would have to be somebody whose only reason for doing it is because they think the constitution is important and that there is a reason for what the constitution says,” Marty said. “This is absolutely, totally dysfunctional.”
Marty said that, even if he finds representation, he is unlikely to file suit before the end of the legislation session three weeks from now.
Rough sledding
Two scholars also would like the court to finally resolve the long-running single-subject controversy, but both are skeptical that Marty’s case would gain much traction.
“It’s a very problematic area of the constitution for anybody to be bringing a suit,” said Mary Jane Morrison, a retired Mitchell Hamline School of Law professor and an expert on the Minnesota Constitution. “It’s hard to imagine how it works.”
A high hurdle — one raised higher by rulings like the Otto decision — is the Supreme Court’s clear reluctance to enter the political fray, Morrison said. As a senator, Marty may higher individual standing to bring the case than the average citizen. But that doesn’t mean justices would be eager to resolve his case, she said.
“Any claim he makes has to steer clear from being gloss-able as, ‘Tell these legislators to be good legislators,’” Morrison said.
David Schultz, the Hamline University political science professor and attorney, agrees. He thinks it would be hard for Marty, as a lone litigant, to demonstrate injury that courts need to remedy.
Marty mentioned one possible such injury toward the end of the long floor debate. The Senate failed to appropriate $6.67 million toward the stressed — and legally mandated — guardian ad litem program. That failure was partly a result of senators’ inability to argue for it amid the flood of other items being debated, he said.
Schultz doubts that’s good enough. “The court could say, ‘Guess what? You could have tried to debate that,” Schultz said. “The fact that you couldn’t, that’s not something that we’re going to second-guess.”
To be successful, Marty might need to convince a number of constituent groups to join his suit, Schultz said, each claiming that a different provision of the super-bill injured them. That, probably won’t be possible until legislation is passed and the governor signs it, Schultz said. And that signing is hardly assured.
Gov. Mark Dayton said April 26 that he won’t declare whether he will veto the behemoth legislation before it clears legislative hurdles. But rolling so many division budgets into mega-omnibuses does not bode well, he suggested.
“The larger the bill,” Dayton said, “the more likely that there would be objectionable features in it.” If the GOP wants to pass bill and “do what is right for Minnesota” the opportunity exists, Dayton said.
“But not if they lump everything together,” he said.
SF 3656 spans 42 articles and incorporates all of the Senate’s 11 non-tax omnibus budget bills — plus a heaping dose of non-fiscal policies.
It includes the judiciary and public safety budget, albeit with no gun-violence legislation. Two last-ditch attempts by Sen. Ron Latz, DFL-St. Louis Park, to amend the bill with two gun measures on the Senate floor — one for universal background checks and the other a gun-related “red flag” restraining order — were ruled non-germane.
The Senate finally passed the bill, 34-31, with no DFL votes.
The House likely will fold all its various non-tax omnibus bills — after they pass individual floor votes — into House File 4099. Once fully assembled, the House’s own mega-bill could receive a vote May 3, after this story’s deadline.
From there, both chambers’ bills would head into conference committee. The resulting compromise conference report would then head back to the floors for approval, and on to the governor’s desk to be signed or vetoed.
If all that can’t be done before session ends, Dayton said, he won’t call a special session to clean up the mess.
“Not unless there is snow in July,” Dayton said. A few flurries on the Iron Range wouldn’t count, he added: “This is, like, serious — I’d need to see it on the streets of St. Paul.”
