Pawlenty keeps the upper hand
Talk of a lawsuit over the use of unallotment to balance the budget has yet to translate into court action.
Unallotment:
The authority granted the governor by state law to reduce spending if anticipated revenues fall short of what's needed for the remainder of a two-year budget period.
DFLers say Gov. Tim Pawlenty is acting like a monarch. Pawlenty says he is doing what needs to be done because the Legislature didn't do its job.
Now that Pawlenty has laid out his plan for using his unallotment power to unilaterally balance the state budget, the lingering questions are whether the governor has exceeded his authority, as DFLers contend, and fundamentally shifted the balance of power in state government -- and whether someone might mount a legal challenge to try to prove it.
At a hearing Thursday, key legislators took turns stating matter-of-factly that Pawlenty had overstepped his legal authority with unallotment and in some instances, had applied the little-used budget-balancing tool to cut into the Legislature's role and change state policy.
"I don't believe the unallotment statute gives the governor the authority to make policy changes," said Sen. Linda Berglin, DFL-Minneapolis, the Senate's most influential voice on health and human service issues.
But no one so far has taken the idea of a legal challenge beyond hazy threats. At the hearing, Senate Majority Leader Larry Pogemiller, DFL-Minneapolis, repeatedly declared that the governor lacks the proper power for some of the steps he proposes. But afterward, Pogemiller said he doubted the DFL-majority Legislature would take a lead role in confronting the governor in court.
So far, no citizens group or trade association that is facing cuts because of unallotment has said it would challenge Pawlenty in the courtroom. At most, they have only offered vague statements on exploring legal strategies.
The lack of legal action is noteworthy because the Pawlenty administration has made public no details or legal memos explaining its confidence that it is acting within the law. Last week, Pawlenty spokesman Brian McClung did not respond to a renewed request for information that would expand on Pawlenty's legal position.
"We are confident of our legal authority," Tom Hanson, Pawlenty's top budget official, nonetheless told legislators last week. "We take all of this very seriously."
DFLers have voiced irritation over what Pawlenty is trying to do -- erase a $2.675 billion deficit through an unallotment mechanism that has been used only four times previously in the past 30 years. It has never been used to solve a budget problem larger than $281 million and, until now, was widely thought to be a stop-gap measure used toward the end of a budget cycle and not at the beginning, as the governor now proposes.
Hazards and complications
Taking the governor to court would be complicated, however.
It's unclear, to begin with, who would have "legal standing" to sue Pawlenty. Individual legislators, for example, probably do not. The Legislature as a whole might.
A citizens group or trade association that loses funding through Pawlenty's actions might have standing. But there is political risk in confronting a popular governor who still has a year and a half to go in office.
For DFLers, there are strategic risks. A lawsuit might alienate GOP legislators whose votes they may need down the road.
There is also the danger of losing.
Five years ago, the Minnesota Court of Appeals largely tossed out a legal challenge to a previous unallotment. In that case, filed by Rep. Tom Rukavina, DFL-Virginia, and others, the court ruled that ordinary citizens and individual legislators did not have legal standing when Pawlenty used unallotment to cut $49 million from the Minnesota Minerals 21st Century Fund. Their injuries were not direct enough, the court said.
While acknowledging that another plaintiff, the Range Association of Municipalities and Schools, did have legal standing, the court said the governor's use of unallotment in that situation did not interfere with the Legislature's powers.
Paul Cerkvenik, a plaintiff's lawyer in the case, said the ruling might not be applicable to the new dispute. "I'd just caution anyone from drawing too many conclusions about the current situation from that one," he said. Cerkvenik said Pawlenty's use of unallotment this time, by comparison, is "just unprecedented, and it's certainly not what anyone anticipated."
Some DFL legislators said they were researching legal options on their own. "It's not something to take on lightly," said Rep. Ryan Winkler, DFL-Golden Valley, a second-term legislator who said he is exploring having the Legislature collectively, or the House or Senate separately, challenge the governor in court and has talked to DFL leaders. "I am actively investigating that possibility, but I'm just one legislator."
'Very large concern'
Pogemiller said having legislators -- or the Legislature -- take on the governor in court is "not what we're focused on here." The Legislature, he added, "should not spend more taxpayer money fighting" the governor legally.
Still, at last week's hearing, Pogemiller chastised Hanson for not offering a more detailed legal reasoning for the governor's unallotment actions and said legislators might have to seek advice from the state attorney general.
House Speaker Margaret Kelliher, DFL-Minneapolis, meanwhile, said she planned to have more meetings with groups that might file a lawsuit, and that there is still a "very large concern" over whether Pawlenty had overstepped his legal authority.
"I don't think anything's been ruled out," said Rep. Paul Marquart, DFL-Dilworth, who chairs the House property tax relief and sales tax panel. But the Rukavina case, he said, showed that "the governor has pretty broad powers."
Karen Foy, the executive director of Andrew Residence in Minneapolis, testified last week about the financial effect of unallotment on her 36-year-old residential mental health care center, but said she had not really explored a lawsuit.
"I haven't gotten to that point. I would hope somebody would take the lead," she said.
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