Earlier today, the Supreme Court released its unallotment opinion. On a 4-3 vote, the Court affirmed Judge Kathleen Gearin’s decision that the Governor’s unallotment of funds was improper. Chief Justice Magnuson wrote the majority opinion, joined by Justices Page, Meyer and Paul Anderson. Justice Gildea wrote the dissent, joined by Justices Dietzen and Barry Anderson.
The case is ostensibly decided on statutory interpretation, thus avoiding a constitutional ruling. I say “ostensibly,” because the strongest part of the majority opinion’s “interpretation” is its examination of constitutional separation of powers. Finding ambiguity about the time constraints that govern when unallotment can be exercised, the crucial distinction made by the majority is between budget creation and budget execution. Finding that our state requires the production of a balanced budget, the Chief Justice reasons that the Governor and Legislature must arrive at a balanced budget before it can be executed. In the budget-creating process, the majority reasons, the constitution gives the Governor only three true “powers”: approve bills, veto bills, or line-item veto bills. With these actions, the acts of the Legislature either go into effect, or it has a real-time opportunity to respond through an override or new legislation. Allowing unallotment at this stage clearly upsets the balance of power; the Governor can artifically create a “shortfall” by vetoing revenue measures, thus allowing a complete re-write of the budget. The Chief Justice applies this reasoning to conclude that the Legislature could not have intended to simply hand its budget functions over to the Governor. The majority interprets the statute to only confer unallotment powers to the Governor after the creation of a balanced budget and the start of the budget biennium. In so doing, the justices conclude that Governor Pawlenty jumped the gun, and support Judge Gearin’s conclusion that the unallotments are void.
The dissent finds no ambiguity in the statute, and chides the majority for “rewriting” the statute. Justice Gildea then proceeds to find the statute constitutional. The flaw in the dissent is that it spends no time addressing the constitutional process for creating a budget, instead focusing its energy on responsibility for “avoiding deficit spending.” Tellingly, in doing so, the dissent never notes that the “deficit” here is artificial – the Governor vetoed the revenue bills that would have put the budget in balance, and declined to call a special session to arrive at a balanced budget through constitutional procedure. Far from “assisting” the Legislature in “avoiding deficit spending,” the Governor singlehandedly created a deficit and then used unallotment to rewrite the budget to his liking, while denying the Legislature its constitutionally granted opportunities to respond.
Justice Page concurs separately to suggest that he would have found the unallotment statute unconstitutional largely because its ambiguity allows these crises to arise.
The Court’s opinion clearly voids the Diet Program unallotments, and in theory should prevent the Governor from following through with the announced unallotments scheduled to take effect on July 1. The Legislature and the Governor, already fighting about the current projected shortfall, now has to grapple with an additional $1 to $2 billion of projected deficit.