Mr. Dayton, you can’t always get what you want

(Photo from Faribault.com Daily News)

The Center filed an amicus brief in the separation of powers case heard by the Minnesota Supreme Court today. Instead of watching it on line, I joined our pro bono counsel Harry Niska, and lots of other lawyers and elected officials at the Court to hear and watch the oral argument.

The Capitol courtroom ran out of seats so I stood in the hall with Pat Kessler from WCCO, the rest of the press corps, Capitol police and a member of the cleaning staff. Hey, we had our own big-screen TV and the sound was great. No popcorn was served but should have been. Our Court acquitted itself well; it was a thrilling hour and half for those of us who love to talk about the ideas behind the great American experiment.

Following Chief Justice Lorie Skjerven Gildea’s lead this morning, “Can we just get to it?”

The Center argued in the brief that Governor Dayton violated Minnesota’s Constitution when he line-item vetoed the funding for the Legislature. All the King’s lawyers and all the King’s men cannot get around the simple fact that our Constitution guarantees Minnesotans a republican form of government. Quoting from our brief:

All three branches are subject to the separation of powers restraints expressed Article 3, Section 1 of the Minnesota Constitution, which prohibit any branch from using its powers to “control, coerce or restrain . . . the others in the exercise of any official power or duty . . . involving the exercise of discretion.” State ex rel. Birkeland v. Christenson, 179 Minn. 337, 340, 229 N.W. 313, 314 (1930).

Dayton’s lawyers, led by former Supreme Court Justice Sam Hanson, gave it their best shot, but my take was that they failed to convince a majority of the Court. The Court, which in this case is just six justices because Justice David Stras did not participate, does not have a deadline for its decision. Let’s hope the Court issues an opinion for the Legislature before Labor Day.

Background: You will recall that after the Legislature delivered its work and adjourned sine die (until next session), Gov. Dayton line-item vetoed the appropriations for the House of Representatives and the Senate. That means zero funding for the coequal legislative branch—for four long years. I guess citizens are just supposed to supplicate before the Governor. Dayton’s move left the Legislature with only one (defensible) remedy—a judicial one. And keep something in mind lest you think the law suit was a partisan matter: members of the Governor’s party objected to his actions in the strongest terms. The suit was brought on behalf of the current Legislature as an institution –and all future legislatures –not by GOP leaders as individuals.

On May 30^th, Dayton said in a letter to legislative leaders that he would only call the Legislature back into session to talk about restoring funding if leaders agreed to his terms: re-open a wide-ranging list of issues he regretted agreeing to but had already signed into law. Really? It was like he woke up with a special-session hangover thinking, “I can’t believe I signed those bills! How will I face the unions?”

In a two-page tirade, Dayton scolded legislative leaders, saying, “Your job has not been satisfactorily completed…” Dayton confessed he was furious that the Legislature had “snuck” the appropriation for the Department of Revenue into the tax bill (the “poison pill”)—as if no one on his staff had read the draft. He said he chose not veto the tax bill because it would leave the Department of Revenue without funds, force lay-offs, etc. The Legislature put it in the bill because they really wanted a tax bill. And the tactic worked.

Dayton had a valid complaint about that poison pill: The Department of Revenue takes in and distributes taxes and fees. The state cannot function without it. But once Dayton signed the bill, he lost the opportunity to go to the court for help and explore whether the Legislature had acted improperly by impinging on the ability of the executive to function. Now it was law.

His revenge for this “poison pill” was to cripple the Legislature – until they acceded to his demands. In the meantime, his offered remedy is to empower the courts to figure out what the Legislature needs to function at its core (essentially asking the Court to appropriate money, a legislative function).

The Chief Justice asked Sam Hanson, “Why is it Constitutional for the judiciary to, in effect, undo that veto by restoring funding–some funding—to the legislative branch?” Hanson answered that it was not constitutional to restore the full appropriation but because this was a “political case, in a political environment” it was OK for some judge in Ramsey County to decide what the legislature needed to function (core funding), much like the court did during the 2011 shut-down for state services.

The Chief Justice responded, and I am paraphrasing, “Just because we have done it before does not mean it was constitutional.” And I agree.

The separation of powers doctrine says that the three branches of government are coequal, and that each branch has certain defining and exclusive functions: the executive executes and enforces the law; the legislature makes law and appropriates money to effectuate the law; and the judiciary interprets the law. It’s a beautiful, powerful and simple thing to behold. Which is not to say that the lines separating the branches do not blur from time to time– but this is not one of those times.

Chaos and confusion follows when one branch wanders into another’s territory, or one branch tempts the courts to do the same. This is why Justice Natalie Hudson said, and again I have paraphrased a bit: “Aren’t you asking us to institutionalize a procedure or mechanism whereby, on a regular basis, or semi-regular basis, the Court is asked to intervene in and sort out political squabbles?” Exactly.

Here Governor Dayton is violating this bedrock doctrine willy-nilly: he is trying to use his executive power to legislate, while denying the legislature’s core legislative function, and is tempting the court to use its judicial authority to legislate by appropriating funds. Do you see why such a scheme results in chaos, and opens future negotiations to devolve into one long bicker fest?

And by the way, taxpayers are funding this bicker fest: all the lawyers, court costs, everything.

You have probably already read what I assume made the headlines: a shorthand for the legal doctrine offered by the Governor’s counsel developed during a humorous Q&A between Justice David Lillehaug and Sam Hanson: You can’t always get what you want, but you just might find, you get what you need.

Ah but here Minnesota should get what it wants, and what it needs: a republican form of government.