Virtual File - Item

Text: Rich in detail and fully cited, briefs have been filed by both sides in the Supreme Court appeal of a District Court ruling against Gov. Mark Dayton's line-item vetoes of appropriations for the Senate and the House for the 2018-2019 fiscal biennium.

Over more than 70 combined pages, the documents dish up numerous indications of the strategies each side plans to take to Supreme Court oral arguments in the case, which are scheduled for Aug. 28.

Dayton has appealed Ramsey County District Court Chief Judge John Guthmann's July 19 ruling that his budget line-item vetoes were unconstitutional.

In Dayton's appellant's brief, filed Aug. 1, former Supreme Court associate justice Sam Hanson and his legal team argue that Guthmann applied "confusing and contradictory" reasoning in deciding -- in error -- against Dayton.

Guthmann ruled Dayton's vetoes unconstitutional both because they effectively abolished an independent branch of government, and because he failed to properly "object" to the Legislature's $130 million biennial budget, which he vetoed.

Dayton's 36-page brief argues that while Guthmann tried to fashion a ruling that applied only to the "limited and unique" facts of the case, its actual impact would be broad should justices uphold it.

Allowing the decision to stand, Hanson argues, would weaken the governor's executive power relative to the Legislature and thwart "the constitutional balance created by the governor's veto power."

In addition, the brief argues, upholding the ruling "impermissibly" reads limits into the executive branch's line-item veto authority.

"Indeed," the governor's brief reads, "the district court created a new constitutional test for exercise of the line-item veto that does not arise from the text of the Constitution and fails to respect the constitutional power of the governor."

'Expansive assertion'

Led by attorney Doug Kelley, the Legislature's legal team argues in its 37-page brief, filed Tuesday, that Guthmann's ruling should be upheld. At one point, it subtly urges the Supreme Court not to throw out the case and send the parties back to settle their political disputes on their own.

"Usually these disputes can be settled in the political arena," Kelley's brief says. "This one cannot."

Kelley notes that no previous governor ever stripped funding from a Legislature in the 141 years that the line-item veto has existed in Minnesota.

"We respectfully request that the court reject the governor's expansive assertion of executive authority by issuing an opinion that unequivocally reiterates there are limits to the line-item veto power," the brief concludes.

The documents cite everything from the Federalist Papers to the U.S. Supreme Court's classic 1962 Baker v. Carr case in making their cases. Nonetheless, they essentially hew to the arguments that lawyers offered during the June 26 District Court hearing in St. Paul.

One minor difference is that, in the respondents' appellate brief, the order of arguments is flipped. In court, Kelley led off arguing that Dayton's veto inappropriately failed to provide a clear-cut "objection" to the money appropriated in the Legislature's budget. Later, he argued that Dayton's vetoes violated the Minnesota Constitution's separation of powers clause.

In his brief, however, the separation-of-powers argument comes first. There Kelley argues that Dayton exceeded his limited line-item veto authority by "using it to abolish the Legislature."

Further, Kelley writes, Dayton's written veto message states explicitly his reasons for the vetoes -- to coerce lawmakers into returning for another special session to pass a new budget. Before he would allow that, however, Dayton demanded that lawmakers ditch three prized GOP tax cuts and two controversial policy provisions, including a driver's license ban on undocumented immigrants.

That rationale pits the governor against the constitution, according to Kelley. In his brief, he asserts that the line-item veto is meant as "a negative check" on legislative spending, not as "a creative tool to help the governor achieve policy goals."

Arguing for Dayton, Hanson writes that the judiciary has no authority to explore the motives behind a governor's appropriations veto.

"It has been clear that judicial inquiry ends where the item vetoed is an 'item of appropriation,'" Hanson writes, citing Minnesota's 1993 Johnson v. Carlson case. "The court has stated, 'It is not for this court to judge the wisdom of a veto, or the motives behind it, so long as the veto meets the constitutional test."

Were the courts to make a habit of judicially reviewing line-item vetoes, the brief argues, they would be inserting themselves into politics, a violation of the separation of powers doctrine. That, Hanson argues, is what Guthmann did.

"The district court did not act with judicial restraint but instead barged headlong into the political process," Hanson's brief says.

Kelley, accusing the governor of using his veto as a "sword" to "gut" the Legislature, starkly disagreed.

"This court," he writes, "should reject the governor's misguided view to preserve the balance of power in the state of Minnesota and protect the rights of its citizens against the tyranny of the executive branch."

Judicial independence

Only one amicus brief has been offered in the case by the conservative Center of the American Experiment. One of its authors, the center's vice president and general counsel Kim Crockett, said the case is relatively straightforward. It is challenging only in one respect, she said. It has no precedent.

"So the court must look to the Minnesota Constitution and how the separation of powers doctrine has been applied in the past," Crockett said.

To put the case in context, she said, imagine the governor vetoed the judiciary's funding because he disliked a case that it had ruled on and wanted it reversed. "Why is defunding the other coequal branch, that is the Legislature, any less objectionable?" she said. "We have posed that question to the court in our brief."

As it happens, Guthmann posed that question to Hanson, in court. In reply, the lawyer stated that while the prospect is unsavory, the governor would have that authority under the constitution.

"As distasteful as it is, I think the governor has that power to veto," Hanson said. "There is no constitutional principle that limits it."

At least one observer, David Schultz, the Hamline University political science professor, attorney and court watcher, suggests that Hanson's argument in that instance might have been a threatening misstep. The judiciary has no levers to pull when it comes to its own funding, so it is entirely dependent on the other two branches.

When Supreme Court justices inevitably ask Hanson that question during oral arguments, Schultz said, he might be prudent to modify that assertion. Hanson could, for instance, offer a narrower argument about case precedent being stronger on the issue of judicial independence than it is for the legislative branch, he said.

"He can excise that to say, maybe, that the governor has more authority in terms of vetoing appropriations of the Legislature than he does with the courts," Schultz said. "And so the courts are, in theory outside, of the political process."

However, when asked about it, former Supreme Court Associate Justice Paul Anderson suggested it might be a moot point. The justices already know what is at stake in the case, he said, irrespective of any arguments the attorneys might offer at the upcoming hearing.

"The judges are aware of the delicate balance under the separation of powers," Anderson said. "There are both explicit and implicit restraints on our system of separation of powers, and the court is aware of those nuances."