High court's unallotment decision strayed into judicial activism

The Minnesota Supreme Court's unallotment decision leaves the state vulnerable to a constitutional crisis. The flaw in Chief Justice Eric Magnuson's majority 4-3 opinion is that it fails to fully appreciate Minnesota's constitutional mandate that we balance our budget every biennium --- which prohibits us from running a deficit, as the federal government does. Our expenditures cannot exceed our revenues.

The Supreme Court majority also failed to fully consider the governor's unrestricted power, and responsibility, to veto legislation that he believes in his judgment is not good for the state.

According to the court, the governor's interpretation and use of the 1939 unallotment statute was a reasonable interpretation, but the statute itself was inadequate (see page 13 of the opinion). But a fair reading of the decision suggests these four members of the court believed the governor had too much of an upper hand in negotiations with Legislative leaders. Their decision seems an attempt to level the playing field. The Supreme Court affirmed the ruling of Ramsey County District Judge Kathleen Gearin, who didn't like the governor's timing or methods in the use of unallotment power at the end of the last legislative session.

In the courts' analysis, and to justify their preferred result, they reasoned that the language of the statute was ambiguous. They implied a condition into the statute that didn't exist, holding that unallotment may only be used after the Legislature and governor have already adopted a balanced budget.

Apparently Chief Justice Magnuson's majority believed its decision would resolve the current disagreement between the governor and Legislature, but it had no such result. The 70-year-old statute was the agreed-upon method between Minnesota's executive and legislative branches for resolving an impasse like the one we have just seen: the House and Senate DFL leadership could garner enough votes to pass a revenue-raising bill, but they could not muster enough votes to override the governor's veto. The unallotment statute was one tool available for breaking an impasse -- one that many disagreed with in these circumstances, to be sure, but a tool we cannot live without.

Members of Minnesota's judicial branch should never have inserted their views into the issues between the political branches. These judges over-reached their own constitutional authority, which is restricted by the Separation of Powers Clause, Article III, Section 1, which provides that no branch can usurp or diminish the role of another branch.

There was a much better way to resolve the issue brought before the court than to diminish the role of the executive branch. The court should have exercised judicial abstention -- that is, chosen not to decide at all -- and empowered Minnesota voters to determine whether they agreed with the governor's use of his statutory power.

If his actions were heavy-handed or overly political, voters in the next election could hold accountable those who supported his actions. If voters agreed, as I did, that the governor's use of unallotment was absolutely necessary in response to our state's historic economic and financial crisis, then they could act accordingly in 2010. Instead, the court got political.

The Supreme Court's judicial activism now leaves the state of Minnesota more vulnerable to a future budget impasse. No judge can order the governor to either borrow or raise revenues, or order legislators to cut spending. No judge or court has authority to borrow, raise revenues or cut our state's operating budget. This sort of conflict can only be resolved between the executive and legislative branches. The court's decision didn't resolve the impasse, but rather made it much harder to resolve by taking off the table one of the necessary tools that help ensure that the state lives within its means.

The court didn't address whether the unallotment statute was constitutional. I wish it had, because a more thorough review of the constitutional powers and responsibilities of all three branches would have revealed the risks inherent in its decision to insert itself into the proper sphere of the political branches of government.

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Julianne Ortman, R-Chanhassen, is a member of the Minnesota Senate.

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