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'Can we just get to it?' justice asks about Dayton's legislative funding vetoes

Chief Justice Lorie Skjerven Gildea asks questions during oral arguments in The Ninetieth Minnesota State Senate, et al. vs. Mark B. Dayton, et al as the Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017. Pool photo / Leila Navidi1 / 4
Senate Majority Leader Paul Gazelka, center, and House Majority Leader Joyce Peppin, to his right, attend oral arguments in The Ninetieth Minnesota State Senate, et al. vs. Mark B. Dayton, et al as the Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017. Pool photo / Leila Navidi2 / 4
Sam Hanson, the lawyer representing Gov. Mark Dayton, delivers his oral arguments before the Minnesota Supreme Court in The Ninetieth Minnesota State Senate, et al. vs. Mark B. Dayton, et al as the Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017. Pool photo / Leila Navidi3 / 4
Gov. Mark Dayton walks out of the courtroom after oral arguements in The Ninetieth Minnesota State Senate, et al. vs. Mark B. Dayton, et al as the Minnesota Supreme Court meets at the State Capitol in St. Paul on Monday, Aug. 28, 2017. Pool photo / Leila Navidi4 / 4

ST. PAUL — Minnesota Supreme Court justices on Monday, Aug. 28, had many questions about Gov. Mark Dayton's line-item veto of two years worth of funding for the Minnesota House and Senate and were anxious to get them started.

With Dayton attorney Sam Hanson just two minutes into his opening remarks, Chief Justice Lorie Gildea spoke out: "Counsel, can we just get to it?"

The six Supreme Court justices quoted from the nation-founding Federalist Papers, queried attorneys for Dayton and the Legislature about the plain reading of the Minnesota Constitution and lobbed hypothetical after hypothetical during the 80-minute court session.

The constitutional showdown the state's highest court will decide: Whether Dayton's veto of $130 million worth of legislative funding for the next two years is valid. If the court rules against the governor, the decision could mark a new limitation on the power of governors. If it rules for the governor, future legislatures' funding could be at risk in any budget battle.

The case was of such interest that the Supreme Court's Capitol courtroom was filled with attorneys, reporters and even a few Boy Scouts. Some people waited more than an hour outside the closed chambers' door to guarantee a seat. It was the first Supreme Court case the court livestreamed for all to see under a new program ushered in last week.

Dayton; Senate Majority Leader Paul Gazelka, R-Nisswa; House Majority Leader Joyce Peppin, R-Rogers; and other lawmakers from both parties took seats in the crowded chambers to watch the constitutional battle play out.

"The core question here that I hope the Supreme Court will answer is: Is my veto constitutional? And I believe it clearly is," Dayton said afterward.

"This is historic," Gazelka said. "If the court did rule in the governor's favor, that could potentially ripple across the whole country, moving more power to the governor's branch — the executive branch."


Several times during the oral arguments the justices interrupted each other, built upon and tore down their colleagues' inquiries and spun off imaginary circumstances.

If a governor could veto an entire bill that contained legislative funding, why is it any different if this governor was more surgical and used line-item vetoes? Would it be permissible to veto legislative funding, if the Legislature were still in session and could override the veto? In this case, the Legislature had ended its session before the governor made his veto; could it not have just stuck around — just in case — making the result of the veto moot?

"That's a very hard hypothetical," Doug Kelley, the Legislature's attorney, said at one point when Justice David Lillehaug asked if it would render a veto unconstitutional if the Legislature could not muster the votes to override it.

Could a future governor simply veto legislative funding because he or she wants to abolish the Legislature and a minority in the Legislature agrees, asked Justice Barry Anderson?

"I think, your honor, the case that is in front of you is difficult enough," Hanson said.

Who funds?

On several justices' minds was their own budget. If the governor is permitted to veto funding for the House and Senate, could a future governor hypothetically veto funding for the court, justices asked, echoing a question a district court asked in June and one posed by an amicus brief.

Hanson has said that theoretically could happen. But if it did, he said Monday, the court could order funding for itself, just like Ramsey Court ordered funding for the Legislature this year and has previously ordered funding for many areas of government when lawmakers and governors have failed to agree on timely budgets.

"Your argument now means, essentially, that the judiciary has the power of the purse?" Gildea asked in response.

The chief justice also put the question another way: If Dayton's veto was constitutional, then "why is it constitutional for the judiciary to give it back?"

Associate Justice Natalie Hudson asked Hanson, a former state Supreme Court justice himself, how the court could write an order demanding funding.

The Ramsey County courts have ordered funding for core government funding when the state government has shut down, as it did in 2011 and 2005, or threatened to, as it did in 2001. Ramsey County District Judge John Guthmann, who ruled Dayton's veto unconstitutional last month, also ordered the Legislature funded in June despite Dayton's veto but at the request of the governor and the Legislature.

Such funding orders, Hanson said, have become the "law of Ramsey County." But the state Supreme Court has never ruled on such funding orders, and several justices on Monday seemed reticent to put the high courts' mark of approval on judicially ordered funding.

"The Constitution already tells us who has the power to appropriate money — and it is not the judiciary," Gildea said.

Plain language, poison pill

Lillehaug and others concentrated on a different line of inquiry. The state constitution does not make any exception to the governor's line-item veto power but for requiring the veto to be of an item of appropriation, they stated. The Legislature's funding is clearly an item of appropriation, they said.

"The only question before us is the validity of the veto, am I right about that?" Lillehaug asked Kelley.

"There is also the matter of the plain language of the Constitution," Justice Barry Anderson followed up with Kelley. The Constitution seems to permit vetoing an appropriation, he said.

Kelley agreed that the governor did veto a spending item, as required by the Constitution, "but he did it for an impermissible purpose."

The court also grappled a bit with a strategic move the Legislature made this session: What Dayton and his attorney, and some of the justices, called a "poison pill." In the Legislature's final state government bill, lawmakers added a provision that said if Dayton did not sign the tax bill into law, the Department of Revenue would not get funding.

Hudson said the Legislature's complaint that the veto of its funding was an attempt to coerce lawmakers was "odd" because "isn't that exactly what the Legislature did by including the poison pill? It was an attempt to coerce, restrain ... the executive branch?"

"You need to be careful in ascribing motives," Gildea told Kelley, who has claimed Dayton's motivation in vetoing was key to its unconstitutionally, at another point. "If you go down the motive road, then we have to go down the poison pill road."

What's next?

The Legislature remains funded until Oct. 1. The House has a few months of savings to spend after that. The Senate has about a month, or less, of money in its savings. Neither body has enough money in reserves to be completely funded until the next legislative session begins in February.

The court has not said when it would rule, although it did take on the case on an expedited basis .

The court decision will come from a six-member bench. Justice David Stras, who has been nominated but not confirmed for a federal court seat, recused himself from the case. When requested, he declined comment on his decision to recuse himself.

David Montgomery contributed to this report.