Creative Exercises of Executive Power:

The Minnesota Experience

Matt Gehring

Research Department

Minnesota House of Representatives

October 5, 2018

Topics for discussion

(1) Executive activism affecting miscellaneous legislative interests

(2) Gubernatorial activism and the legislature’s power to appropriate funds

• Unallotment (2010)

• Veto of appropriation for legislative operations (2017)

(3) Protecting the legislative institution: observations and questions for consideration

Executive Activism Affecting Miscellaneous Legislative Interests

• Who should decide the size of the legislature?Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972)

• Who can occupy disputed office space in the state capitol building?

• What does a proposed constitutional amendment look like?Limmer v. Ritchie, 819 N.W.2d 622 (Minn. 2012)

Gubernatorial Activism and the Legislature’s Power to Appropriate Funds

Budget Process

• Every two years, Minnesota lawmakers pass a new state budget through a series of separately-enacted laws organized by topic

• Although some programs are funded by ongoing statutory appropriations, most entities receive operating money through direct appropriations enacted every two years.

• Budget bills are passed in the odd year and are effective for two fiscal years beginning on July 1 of an odd numbered year and running through June 30 of the following odd numbered year

“Unallotment” of Appropriations

Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010)

Unallotment of Appropriations

Minnesota Statutes, section 16A.152, subdivision 4

Subd. 4.Reduction.

(a) If the commissioner determines that probable receipts for the general fund will be less than anticipated, and that the amount available for the remainder of the biennium will be less than needed, the commissioner shall, with the approval of the governor, and after consulting the Legislative Advisory Commission, reduce the amount in the budget reserve account as needed to balance expenditures with revenue.

(b) An additional deficit shall, with the approval of the governor, and after consulting the Legislative Advisory Commission, be made up by reducing unexpended allotments of any prior appropriation or transfer. Notwithstanding any other law to the contrary, the commissioner is empowered to defer or suspend prior statutorily created obligations which would prevent effecting such reductions.

(c) If the commissioner determines that probable receipts for any other fund, appropriation, or item will be less than anticipated, and that the amount available for the remainder of the term of the appropriation or for any allotment period will be less than needed, the commissioner shall notify the agency concerned and then reduce the amount allotted or to be allotted so as to prevent a deficit.

(d) In reducing allotments, the commissioner may consider other sources of revenue available to recipients of state appropriations and may apply allotment reductions based on all sources of revenue available.

(e) In like manner, the commissioner shall reduce allotments to an agency by the amount of any saving that can be made over previous spending plans through a reduction in prices or other cause.

Unallotment of Appropriations

“The unallotment statute provides the executive branch with the authority to address an unanticipated deficit that arises after the legislature and executive branches have enacted a balanced budget. The statute does not shift to the executive branch a broad budget-making authority allowing the executive branch to address a deficit that remains after a legislative session because the legislature and executive branches have not resolved their differences.”

Brayton v. Pawlenty, 781 N.W.2d 357, 368 (Minn. 2010)

Unallotment of Appropriations

“With things like this, you’re putting a big cloud over the whole nonpartisan staff.”

Unallotment of Appropriations

Discomfort over the role of nonpartisan staff – who were directed by the House Rules Committee to file an amicus brief supporting the plaintiffs – led to the adoption of a new House Rule prohibiting nonpartisan attorneys from representing the House as its counsel of record.

8.30 LEGAL REPRESENTATION. An employee of the nonpartisan House Research Department may not represent the House or its members as counsel of record, in a judicial or administrative proceeding.

Item-Veto of Appropriations for House and Senate

Ninetieth Minnesota State Senate et. al. v. Dayton, 903 N.W.2d 609 (Minn. 2017)

Item-Veto of House and Senate Appropriations

“The three departments of state government, the legislative, the executive, and judicial, are independent of each other. Neither department can control, coerce, or restrain the action or nonaction of either of the others in the exercise of any official power or duty conferred by the constitution, by valid law, involving the exercise of discretion.”

State ex. rel. Birkeland v. Christanson, 229 N.W. 313, 314 (Minn. 1930).

Item-Veto of House and Senate Appropriations

Minnesota District Court: Governor’s item-vetoes effectively abolished the legislature, and court is uncertain about its authority to order temporary funding. Item vetoes are “unconstitutional, null, and void.”

Minnesota Supreme Court: Governor’s item-vetoes complied with the plain language of the item-veto power. The legislature has other funds available that may be used.

“Particularly in the context of a dispute that has its origins in policy decisions on state spending priorities and fiscal stability, we must be wary of judicial interference in the political process.”

Ninetieth Minnesota State Senate et. al. v. Dayton, 903 N.W.2d 609, 625 (Minn. 2017)

Item-Veto of House and Senate Appropriations

Following the Supreme Court decision, the Governor announced he would sign a bill to restore full funding to the legislature, without policy conditions, at the start of the next legislative session.

The legislature approved a bill restoring funding on February 22, 2018.

The bill was approved by the governor February 26, 2018.

Protecting legislatures in an era of executive activism: Observations and questions for consideration

Who provides representation? Who is the client? Does the legislature need to be a named party?

Know your law. If working with outside counsel, bring them up to speed on legislative law…

…but recognize the political interests and frames of the dispute. Be attentive to the risk that nonpartisan

staff will be perceived as partisan actors.

On institutional questions, be cautious of conceding the forest for the trees:

What long-term interests are at risk?

Be prepared for difficult decisions.

If you litigate, don’t expect a grand,sweeping decision from the judicial branch.

Consider long-term strategies for mitigating risk.