Governor Dayton’s Retaliation Against Legislature Violated the Minnesota Constitution

As expected, a Ramsey County judge today ruled in favor of a republican form of state government, and against the power of a governor to defund the legislative branch. This was American state government 101.

Ramsey County Judge John Guttmann described Governor Mark Dayton’s use of the line-item veto as “improper” because he used the executive power “to gain a repeal or modification of unrelated policy legislation by effectively eliminating a coequal branch of government.”

Think of it this way: imagine if Dayton had demanded that the Minnesota Supreme Court change its ruling in a case or two, and if the Court did not comply, he would use his executive power to zero-out the Court’s funding. Clearly the executive cannot attempt to neuter a coequal branch of government, be it the courts or the legislature.

As Judge Guttmann ruled, Dayton actions “offended the Separation of Powers clause of the Minnesota Constitution.”

How did the legislature, aided by the court, come to defend Minnesota’s right to be represented by the people we elected to the House and Senate against the governor?

In an angry letter, dated May 30, to Speaker Daudt and Majority Leader Gazelka, Gov. Dayton said that he would allow the tax bill passed by the Legislature to become law even though he viewed a provision in the bill as an attack on his executive powers, and disagreed with other provisions in the tax bill, as well as several matters having nothing whatsoever to do with tax policy.

Dayton objected to language in the tax bill that curtailed funding for the Department of Revenue, saying if he vetoed the bill, it would “risk a legal challenge to the Department of Revenue’s budget and cause uncertainty for its over 1,300 employees. Because of your action, which attempts to restrict my executive power, I am left with only the following means to raise my strong objections to your tax bill…. I am line-item vetoing the appropriations for the House and Senate in FY 18/19 and FY 20/21.”

So in retaliation for an attack on the executive, Dayton attempted to effectively deprive Minnesotans of a legislature for not just two years but the next four years.

Why didn’t he just go to court? As I discuss below, Dayton may have had a reasonable objection based on the separation of powers.

Instead, sounding like an outraged King, Dayton went on to chide and lecture state legislative leaders, making several amazing demands: “Your job has not been satisfactorily completed, so I am calling on you to finish your work…I will allow a Special Session only if you agree to remove the following provisions…”

  1. Tobacco tax reforms (calling the provisions a “special tax break for some special moneyed friends” even though most beneficiaries are mom & pop cigar shops, and low-wage convenience store employees);
  2. An increase in the estate tax exclusion (saying that millionaires were preoccupied with avoiding taxes and would find other states to live in, basically don’t let the door hit you on the way out);
  3. The statewide property tax freeze (offering to instead exclude the first $100,000 of business property, calling the tax freeze “disastrous”);

Dayton then went on to demand changes to policies unrelated to taxes that were heavily negotiated in the legislature and with the governor’s office, both really big things he had already agreed to and signed into law.

  1. Citing the “future well-being of our children and grandchildren” Dayton demanded that the “Real ID” driver’s license law that prohibits undocumented (i.e. illegal) immigrants from getting a driver’s license be removed (claiming it is redundant and “a strategic attack” on illegal aliens); and
  2. Finally, Dayton demanded the removal of a bi-partisan teacher licensure law that allows teachers from other states, and with diverse backgrounds, to gain a license to teach in our K-12 schools (citing the protection of “standards” in a state that has bragging rights to the highest achievement gap for minority kids in the country, and probably the First World.)

Dayton wanted to re-open the session, and un-sign laws he had already signed by bullying the legislature into submission.

Here is an interesting question: Can the legislature use the power of the purse to defund or impair an executive agency, in this case the Department of Revenue? Certainly, the legislature can use it power to appropriate funds in creative ways that frustrate the policies and goals of the executive, but it is not clear to me that the legislature can pull operating funds from the executive agency that takes in taxes/fees and distributes revenues to the rest of state (and local) government. That would have been a good question for the courts to decide but that is not the route Dayton chose.

If cooler heads had prevailed back at the end of May, Dayton might have asked for an emergency ruling from the Supreme Court, raising the constitutional issue he complained of in his letter, perhaps avoiding this embarrassing episode and ruling today. Dayton was caught in a bind but in the end, he allowed the tax bill to become law. And so it stands as the law of Minnesota unless the governor successfully appeals this ruling to the Supreme Court.

Our (free) legal advice to the governor: let it go.

Note: I have cleaned up the governor’s tone considerably in this post; the letter is full of vitriol and emotionally charged accusations of bad faith. The impression left is an irritable and unstable person who is used to getting his own way. And when he does not, he retaliates. He has a fit. You can read the letter in full here. Do you agree?