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Divided court cites timing in unallotment decision

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Solicitor General Alan Gilbert
Solicitor General Alan Gilbert during oral arguments in the unallotment hearing at the Minnesota Judicial Center in St Paul, Minn.
AP Photo/Star Tribune/Richard Sennott

A sharply divided state Supreme Court has ruled Gov. Tim Pawlenty used his unallotment power unlawfully in cutting a state program before the legislature had adjourned with a balanced budget.   

Four members of the court found Pawlenty exceeded his authority in cutting a nutrition program for the elderly and disabled adults.

Writing for the majority, Chief Justice Eric Magnuson called Pawlenty's action "unlawful and void."  

That was the decision's bottom line, but it was far from a clean, unanimous one.   Two of the justices who joined the majority wrote separate opinions; and three justices dissented.  

The justices based their decision by interpreting what the statute says as to when the governor has the ability to cut the budget on his own through a process called unallotment. 

In this case, the governor and Legislature had reached a budget impasse that was unresolved when the Legislature adjourned.

Fred Morrison, a University of Minnesota constitutional law professor, says the majority appears to say that that timing was critical. 

Chief Justice Eric Magnuson
Minnesota Supreme Court Chief Justice Eric Magnuson during oral arguments in the Minnesota Judicial Center in St. Paul, Minn. on March 15, 2010. The Supreme Court was hearing arguments in the lawsuit against Gov. Tim Pawlenty's unallotment usage to balance the state budget.
AP Pool Photo/Richard Sennott

"If the budget was not balanced when the legislature adjourned, the governor cannot unallot to cure that," Morrison said. "If the budget was balanced when the legislature was adjourned but suddenly we have less tax money, the governor can unallot to deal with that problem."

The dissent argued that not only was the statute clear but that Pawlenty could use it broadly.  

Justice Lori Gildea said the state constitution requires a balanced budget, and that the executive and legislative branches had agreed on a process through the unallotment statute to ensure that it can occur. Justices G. Barry Anderson and Christopher Dietzen, also Pawlenty appointees joined in Gildea's dissent.   

But Chief Justice Magnuson said the Legislature didn't intend to use the unallotment law to shift so much power to the governor.  The Legislature, he said, has the primary responsibility for establishing the state's spending priorities through the enactment of appropriation laws.  

To do otherwise would result in an alternative budget-creation mechanism that bypasses the constitutionally prescribed process.

The sharp divide on the court has raised  questions about whether a conservative block is developing.  

Peter Knapp, a William Mitchell law professor and state Supreme Court watcher, says he's heard such talk, but he says to keep in mind that Pawlenty appointee Magnuson wrote the unallotment decision.

"When I've heard people talk about a block on the court, they've usually referred to the four Pawlenty appointees as being the block -- and of course, only three ended up in dissent.  Chief Justice Magnuson, who was appointed by the governor, wrote the majority opinion."

Justices Alan Page and Paul Anderson wrote separately that they were concerned about the lack of direction in the Minnesota statute about how unallotment authority may be exercised. 

They noted that once it is triggered the statute leaves the executive branch with virtually unfettered discretion to decide which funds to cut entirely, which to reduce in some measure, and which to leave fully funded.