Unallotment Suit Raises Constitutional Questions

Was Governor Pawlenty acting to solve an “unanticipated” problem… or did he create a financial crisis and overstep his powers as granted by Minnesota’s constitution?

The answer to that question may be decided in Ramsey County court where five people have filed a suit that could undo several billion dollars of “unallotments” the Governor made at the end of this year’s legislative session.

Governor Pawlenty took the action after he vetoed a balanced budget passed by the legislature and then removed funding to bring the budget back into balance.

Former US Attorney David Lillehaug has counseled organizations that were contemplating similar suits. He talked with Mike McIntee about it during Friday’s “Quick On The UpTake” show.

“In my judgment the law does not allow that” said Lillehaug of the Governor’s action, “and now we’ll find out for sure.”

“The lawsuit… alleges the Governor violated the unallotment statute in the way that he did it and second that what he did violates the separation of powers requirement to the Minnesota constitution. So this may be one of the most important constitutional cases in Minnesota history.

“The theory is the legislature passes laws. The Governor can veto a law, but can have his veto overridden. But once the law is passed and signed, the Governor must faithfully execute the laws. Execute means implement… it doesn’t mean shoot the law.

“And what the Governor did through his own actions, vetoing the tax bill, create a deficit. And then he said ‘now were going to use unallotment to make sure that a bunch of this money is spent.’ And if you add up the cuts and the deferrals over a two year period, you’re talking about $2.5 Billion.

“Now it seems to me, and the Minnesota constitution provides that under separation of powers, the legislature is to pass the laws. The Governor is not to make the law and is not to reorder the state’s budget through his use of a power that’s not even mentioned in the Minnesota constitution.

“Essentially what unallotment does, especially this early in the biennium, it gives him a second chance at a veto. Instead, what he ought to be doing is trying to compromise with the legislature, call them back into special session, and resolve our state’s budget deficit through the way that is contemplated by the Minnesota constitution.

“Going into the legislative session this budget deficit was entirely foreseen. Everybody knew we were going to face a very significant deficit if the legislature and the Governor did not agree on expenditure cuts and revenue increases.

“And what happened here is the legislature passed the appropriations bills and Governor Pawlenty signed them, thus creating the deficit and then when the legislature passed the revenue increase he vetoed that. So he has created the very deficit that was in fact foreseen before the session started. And that’s why under the Minnesota statute allowing unallotment, I don’t think it contemplates this kind of game playing.

“There have been unallotments before. There were four before this latest one. But what they were, they were much smaller and they occurred late in the biennium after the legislature had met and there was an unforeseen drop in revenues and if the unallotment hadn’t occurred we would have had an unbalanced budget. And we’re required that under the Minnesota constitution that at the end of the biennium to have a balanced budget. But this is an entirely different situation. We were at the beginning of the biennium and the Governor created this deficit that otherwise was completely foreseen and then claimed that he had the right to go ahead and essentially restructure the Minnesota budget.

“Now can you imagine if we had a DFL Governor and a Republican legislature. And a DFL Governor had done this same thing, but instead of unalloting money for cities and poor people and the mentally ill and chemically dependent people, a DFL Governor had unalloted all business tax breaks. Can you imagine the squawking that would occur? 


“This is not really a partisan issue. This is a matter of good government of how our government is constructed. And it’s a system of checks and balances. It’s not a system that gives the governor unilateral power to decide what amount is going to be spent and for whom.”

Lillehaug says there are cases that have gone both ways on this issue.

“There’s a Minnesota case involving an iron range minerals fund from a few years ago started by Representative Tom Rukavina. And he lost in the Minnesota court of appeals and there’s a very short and frankly unenlightening opinion on constitutionality of the unallotment statute.

“There have been similar cases in courts around the country and there are great opinions by the Supreme Courts of Florida and Alaska noting that unallotment that those Governors did was unconstitutional because it would allow the Governor to take over the power of the legislative branch.

“On the other hand there is a case from the top court in Massachusetts and they came to a different conclusion and kind of cautioned the Governor not to reorder the state’s budget priorities.

“So no Governor has done anything this unprecedented, this really radical in terms of reordering the state budget. So I think there are very good grounds for litigation, but I can’t give you a prediction as to how it is going to come out. I can give you my opinion which is he has not followed the Minnesota statute and he has not followed the Constitution.”

Lillehaug says if the rules against the Governor the unallotments would be “ineffective”.

“Then we would have to go back to the usual process contemplated by the constitution and the law which is presumably the Governor would have to call a special session and he and the legislature would try to come to some agreement.

“Now this Governor looks like he’s for President, presumably his main calling card is going to be ‘I didn’t allow any taxes to be raised’, there’ a question whether fees are taxes and local property taxes are taxes but that’s going to be his message. And so he may have a vested interest in just not coming to an agreement.

“But we’re less than half a year into the biennium and the requirement is that you have a balanced budget at the end of the biennium, so we’ve got about a year and a half to work these things out.”

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