Dayton's latest spat with Legislature likely headed to court

Gov. Mark Dayton
Gov. Mark Dayton speaks in St. Paul on Jan. 24.
Jim Mone | AP file

Gov. Mark Dayton said his decision to defund the Legislature was aimed at getting Republican House and Senate leaders to renegotiate some provisions he doesn't like in the budget bills he just signed.

While Republican leaders say Dayton's line-item veto of money to fund the Legislature violates constitutional separation of power rules, the governor believes he's on solid legal ground.

"The constitution gives me the authority to line-item appropriation measures. It doesn't qualify that I can line-item veto these, but not others. It's just blanket authority that I can line-item veto appropriation measures," he said on a conference call with Minnesota reporters Wednesday. "That's the basis on which I believe that I was following the law and the constitution of Minnesota."

Dayton also noted that the Legislature decides whether to fund the executive branch of state government as well as the judicial branch. But he acknowledged that the courts will ultimately resolve the matter.

On that point, Republicans seem to agree. Senate Majority Leader Paul Gazelka, R-Nisswa, said they were exploring their legal options.

"We don't think that we should be defunded. We think we're the people's voice, the legislative branch, and we don't think it's constitutional," Gazelka said.

Erick Kaardal, a lawyer who regularly takes state government officials to court, offered a similar assessment. He said he's already been approached by some individual state legislators about challenging Dayton's line-item veto, which he sees as a clear violation of the state constitution.

In the 1980s, Kaardal said, the Minnesota Supreme Court ruled against a legislative attempt to defund the state treasurer's office. He said Dayton is trying to defund an entire branch of government.

"Each branch of government should have its own prerogatives and its own necessary funding. The governor has failed to recognize that by him defunding the Legislature that he's violated the separation of powers."

When announcing the line-item veto, Dayton lashed out against GOP leaders for making funding for the Department of Revenue contingent on his signing the tax bill. He called it a sneak attack.

Former DFL Attorney General Mike Hatch said the governor has a right to be offended.

"The constitution does require three branches of government. It does require that they be funded," Hatch said. "On the other hand, you had a lot of real violations or real questionable conduct with regard to substantive policy being stuck into budget bills."

Hatch and others believe more than one lawsuit could be coming.

Mary Jane Morrison, professor emeritus at Mitchell Hamline School of Law, said a lawsuit against Dayton could be followed by another suit challenging the Legislature and whether its budget bills violated the clause of the state constitution that says bills must be limited to a single subject.

"When the court has to deal with one of them, they'll take up both of them," Morrison said. "The solution won't necessarily be one that the Legislature will ever be happy about, because the single-subject clause is really clear."

While others weighed in on the governor's action, Minnesota Attorney General Lori Swanson took a wait-and-see approach. She said it was too soon to comment and too soon to know if her office might be involved.

"Typically we provide legal representation to public officials and officers of the government. But we as always have to see what the case is before we make any announcement or determination on that," Swanson said. "So, we obviously haven't seen a lawsuit, and so the first item of business is to see a lawsuit and then we'd make that determination."

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