MN State Auditor Lawsuit Raises Major Constitutional Issues

Minnesota State Auditor Rebecca Otto

Minnesota’s State Auditor Rebecca Otto is suing to prevent the “core duties” of her office from being gutted. The lawsuit argues a new law violates the separation of powers clause of the Minnesota constitution and says the legislature’s practice of bundling disparate issues into a single bill violates the “single subject” clause of the constitution.

At issue is a compromise bill hammered together in the early morning hours during one of the last days of the 2015 Minnesota legislative session and later signed by Governor Mark Dayton. The state government finance bill contained a clause that allows counties to use an outside private auditing firm starting in August 2016. Otto’s lawsuit says 50 counties have already opted for the private audits and are refusing to let her office do the audits that Minnesota law says her office must still do. Since county audit fees pay for a large part of the State Auditor’s office budget, Otto says her office is facing massive layoffs.

Otto contends the law does not prevent her office from conducting the county audits and requiring the counties to pay for them.

Constitutional Issues

Otto’s lawsuit brings up two large constitutional issues — separation of powers and a requirement that legislative acts embrace a single subject. The lawsuit cites a case that went all the way to Minnesota’s Supreme Court — Mattson v. Kiedrowski — where the court ruled that constitutional officers in the State Executive Department “possess core functions” that may not be usurped by legislative act, even if those core functions are merely transferred to the domain of another constitutional officer within the Executive Department. The court said while Minnesota’s constitution didn’t contain the specific “core function” language, it said

The provision in Article V providing that the duties of the state executive offices “shall be prescribed by law” is present in several other state constitutions. Appellate courts in these jurisdictions have consistently held that the prescribed-by-law provision does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.

Otto’s lawsuit says auditing counties has been a “core function” of her office dating back to territorial times and the ruling “stands for the undeniable proposition that the Legislature cannot interfere with the core functions of constitutional officers.”

The other issue raised by Otto’s lawsuit could have very large implications if it finds its way to Minnesota’s Supreme Court. The “single subject” clause of Minnesota’s constitution has been largely ignored by recent legislatures.

Former state Senator and appellate judge Jack Davies has been advocating for stricter enforcement of the single subject clause. After last year’s legislative session where many different subjects were crammed into just 80 enacted bills (in some years there are more than a thousand bills) he wrote

In previous cases over the years, the court has expressed its dismay at legislative passage of multisubject bills, but the court almost always has politely declined to have the judicial branch police the conduct of the legislative branch. Usually the court has said, “next time.”

This is next time.

The case names three of the counties that have refused audits — Wright, Becker and Ramsey — and the state of Minnesota. It was filed in Ramsey County District Court — the same court that refereed fights between the legislature and Governor Dayton’s office over Minnesota’s government shutdown in 2011.

Dayton, a former state auditor himself, has come to Otto’s defense. In a written statement he says “I believe the Minnesota Legislature unwisely and improperly encroached upon the State Auditor’s constitutional responsibilities to audit local governments, and I support the State Auditor’s lawful efforts to regain that authority.”

Dayton voiced his opposition to the privatization clause in the bill when it was passed. He says he signed the bill to prevent the layoff of state employees since it also contained funding to keep many portions of state government operating.

Chair of the House State Government Finance Committee, Sarah Anderson (R), says the legislature has the right to define the state auditor’s duties and the lawsuit has “no merit.”

Otto v. Wright County – Complaint

Otto v. Wright County – Complaint-c_1

Michael McIntee

Michael McIntee is a former network TV news executive with more than 30 years of broadcasting experience. He began his broadcasting career at the University of Minnesota's student radio station. He is an expert producer, writer, video editor who has a fondness for new technology but denies that he is a geek. More about Michael McIntee »

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