• March 17, 2010

As has been widely reported in state news, the Minnesota Supreme Court heard argument on Monday in the “unallotment” case (video of argument here).

The issue, in a nutshell:  when the legislature passes laws distributing public funds and the state Constitution mandates a balanced budget, may the Governor, unilaterally and without meaningful limits on the exercise of his discretion, “unallot” funds for particular programs in order to meet the constitutional requirement of a balanced budget, programs that had been funded by the legislature?

From questions of the Justices, Minnesota Litigator will predict that the Court will uphold the lower court’s decision which found that the unallotment statute as interpreted and applied by the Governor violated the constitutional separation of powers doctrine.  (The prediction is shared by at least some here and here (good coverage also here)).

Chief Justice Magnuson asked every lawyer arguing in the case at the outset of their arguments: “Is unallotment the delegation of legislative appropriation authority or is it the codification of procedures for the exercise by the executive of his inherent authority over spending.”

Counsel for the Governor answered, “It is not the delegation of legislative authority…”

(But it sure quacks like a duck, walks like a duck, swims like a duck, I call that bird a duck, myself.  (The Duck Test is here.))

From questions from some of the justices, on the other hand, some on the Court (Justice Lorie Skjerven Gildea, Justice Christopher Dietzen, Justice B. Anderson?) might view the statute as containing sufficient standards or limits on the exercise of the executive’s discretion so that the statute passes constitutional review or, alternately, might find that, in a dispute between the legislative branch and executive branch, deference and judicial restraint is warranted?

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