January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.

Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.

            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  

             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.

            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.

            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 

In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.

While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.

The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.

Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Otto v. Wright County: Why the Legislature and the Counties Should Lose

On February 4, the attorneys representing Minnesota State Auditor Rebecca Otto filed suit contending that the State Legislature’s law allowing counties to secure private audits instead of using her office violated the State Constitution.  In her complaint she alleges that the law essentially privatizing audit functions violated the state constitution in two ways: Either it was a separation of powers violation stripping her office of its “core state functions,” or the legislation violated the constitutional single-subject rule in that it was tied together in a law that did a host of other interrelated things.
The Auditor’s arguments parallel the claims I made in a June 8, 2015 Minnpost op-ed of mine.  There my focus mostly was on the separation of powers claim.  I have enclosed the original piece below.  (Please note:  I have taught state constitutional law since 1992).
The Auditor’s complaint builds upon my state case law arguments by emphasizing the historical role of the auditor back to the territorial era in performing audit functions.  This type of argument, while not dispositive, adds a strong argument suggesting that when the Minnesota Constitution was drafted its Framers original intent was to give the State Auditor core constitutional functions that included the type of auditing at dispute in this case.   Though this complaint does not make it, one can also cite case law from other states to reinforce this type of constitutional argument.
The more second single subject argument is smart.  It builds off of state case law declaring legislation shall embrace a single subject.  In cases such as Associated Builders and Contractors v. the Honorable Jesse Ventura the Minnesota Supreme Court has taken an increasingly hard line against allowing the legislature to create bills that cobble together an unrelated collection of provisions.  Other states too have single subject rules and courts across the country have ruled that the purpose of these constitutional provisions is to prevent the type of legislative shenanigans that was evident with this bill.
While former Minnesota Supreme Court Justices such as Paul Anderson have argued that the single subject rule should require the entire law to be stricken, a majority of the Court has not said that.  Why is this significant?  If the Minnesota Supreme Court wants to avoid a constitutional confrontation between the Auditor and the Legislature they can use the single subject rule simply to strike down that provision, thereby avoiding the issue of whether the Legislature actually over-reached in its privatization.
Here is my original Minnpost op-ed.

Resolution of the budget standoff in Minnesota has come down to the status of legislation that guts the state auditor’s office. Whatever the final resolution of this dispute, one thing is clear: The legislation is foolhardy and probably violates the Minnesota Constitution.

The state auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately. It is an important position in the state that promotes accountability to ensure that tax dollars are spent the way they should be. Yet the Legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms. The governor signed this bill, but now seems to want the Legislature to undo this.

The governor should never have signed a bill that allowed for this. Nothing against private auditors, but this is a duty for the state auditor. The privatization will cost taxpayers more in the long run – as is typically the case with many privatizations. I pointed this out in a MinnPost op-ed back in 2011.


Conflicts with two articles in the Constitution
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned – the provision is probably unconstitutional, conflicting with both Article V, section 1 of the Constitution creating the office of the auditor, and Article III, section 1, the separation of powers clause of the Constitution.

There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers. One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). In that case, at issue was a 1985 law enacted by the Legislature, in special session, which transferred most of the responsibilities of the state treasurer, an executive officer, to the commissioner of finance. The reason for the transfer of responsibility was that the treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties. The Supreme Court rejected this transfer of duties.

The court reasoned that even though the duties of the treasurer were prescribed by the Legislature, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.” One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.

Other Minnesota cases have reinforced that point. In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding child support giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause. The Supreme Court said yes, arguing that the transfer of power violated separation of powers. In supporting its decision, the court referred to precedents and decisions in other states reaching the same conclusion.

More separation of powers rulings
In State v. Baker the Minnesota Supreme Court voided a state-enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12-person jury trial. Here the court said that the law sought to redefine crimes to avoid the constitutional mandate. In State ex rel Birkland v. Christianson, the court declared that the Legislature cannot change form of government which would change separation of powers. In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the Legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.

Similar conclusions were reached regarding separation of powers and constitution in clerk of court's compensation for Lyon County v. Lyon County Commissioners. Other state courts have reached similar conclusions regarding separation of powers and legislative efforts to strip constitutional offices of their powers.

The constitutionality of the legislation to privatize some of the auditor’s functions resides in how far the Legislature may act to prescribe the functions of that office. This issue must be considered in light of the question: To what extent does this law impede the core duties of the auditor? Given past precedent, there is good reason to conclude that this privatization is unconstitutional and in a lawsuit the auditor would likely prevail.

Dissing Democracy Minnesota Style

The 2015 Minnesota legislative session and the soon-to-be special session will be noted for  passing few laws, failing to get its work done on time, and simply for sidestepping important policy choices that it needed to address.  But it should also be noted for its contempt for open government, democracy, and respect for the State Constitution.  In effect, it is a simply dissing of democracy and the rules for process for how government should operate.

Closed Door Budget Negotiations
Consider first the most obvious and blatant assault on democracy–the behind the door negotiations to resolve the budget.    It’s bad enough when legislative leaders and the governor did private talks and deals on the budget at the governor’s mansion.  Bad enough when votes take place at the end of session at the wee hours of the morning.  Bad enough when they take place in impromptu conference committee hearings that effectively exclude the public and most legislators.  But now the talks to resolve the disputes over the three budget bills are being done in private between Governor Dayton and Speaker Daudt.  No public, no media, no other legislators.  The deal they carve will be presented as take-it-or-leave-it to other legislators in a special session that will be perfunctory at best.   There is no real accountability and public inspection of these negotiations, no real chance to raise objections, and no real deliberation and debate.  Public matters such as the state budget should be done in public, not behind closed doors as if this were corporate America.

Big Money Wins
Second, Democrats and Republicans joined together with the governor to eliminate the political contribution rebate (PCR) program.  These program, one of the true hallmarks of political reform in Minnesota, allowed for Minnesotans to contribute up to $50 per year and have it rebated to them by the state.  The PCR was nationally hailed as a powerful campaign finance reform tool that encouraged small contributors to give.  Repeated studies pointed to how legislators successfully used it to reduce their dependence on large donors and special interests.  It was also a mechanism to help  third party candidates.
But now it’s gone.  Governor Pawlenty killed it once and it came back.  But now it is gone again, and probably dead forever.  It, along with horrible legislation passed a couple of years ago raising contribution limits and weakening disclosure laws in Minnesota have just about killed off all of the reforms this state had adopted in the early 1990s.  Minnesota has effectively deregulated  money in politics, benefitting noone except for special interests, big money, and the incumbents who voted for these reforms.

Gutting the State Auditor’s Office
Finally, consider legislation that guts the State Auditor’s Office.  The State Auditor is an officer provided for in the Minnesota Constitution and its primary responsibility is to audit local governments in the state to make sure that they are spending their money appropriately.  It is an important position in the state that promotes accountability to ensure tax dollars are spend the way they should be.  Yet the legislature voted to privatize the audit functions, giving local governments the option to hire private audit firms.  The governor signed this bill but now seems to want the legislature to undo this.
The governor should have never signed a bill that allowed for this.  Nothing against private auditors, but this is the constitutional duty for the Auditor.  The privatization will cost tax payers more in the long run–as is typically the case with many privatizations.
But in many ways, it probably does not matter whether the governor wins to get this privatization overturned–the provision is probably unconstitutional, conflicting both with Article V, section 1, of the Constitution creating the office of the Auditor, and Article III, section 1, the separation of powers clause of the Constitution.
There is a rich jurisprudence in Minnesota that carefully protects and respects separation of powers.   One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986).  In that case at issue was a  1985 law enacted by the legislature, in special session, which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance.   The reason for the transfer of responsibility was that the Treasurer, then a constitutional officer, essentially abandoned the state and was no longer performing his duties.  The Supreme Court rejected this transfer of duties.
The Court reasoned that even though the duties of the treasurer were prescribed by law, that “does not allow a state legislature to transfer inherent or core functions of executive officers to appointed officials.”  One branch of government, or even another part of the executive branch, cannot act in such a way either to undermine the core functions of another constitutional part or make it impossible for it to perform its constitutional duties.
Other Minnesota cases have reinforced that point.  In In re Marriage of Sandra Lee Holmberg at issue was whether a law regarding  child support  giving administrative law judges power to modify district court orders and to assume duties of district court judges violated the state separation of powers clause?  The Court said yes, arguing that the transfer of power violated separation of powers.   In supporting its decision the Court referred to precedents and decisions in other states reaching the same conclusion.
In  State v. Baker the Minnesota Supreme Court voided a state enhanced gross misdemeanor statute as unconstitutional because it allowed for local imprisonment without a 12 person jury trial.  Here the Court said that the law sought to redefine crimes to avoid the constitutional mandate.  In State ex rel Birkland v. Christianson, the Court declared that the legislature cannot change form of government which would change separation of powers.  In In re Temporary Funding of the Judicial Branch, a case involving funding for the judicial branch as a result of a government shutdown in Minnesota, the Supreme Court ruled that it had the authority to require the legislature and governor to fund the courts, for failure to do so would prevent the judiciary from performing its constitutional duties and therefore it would be a separation of powers violation.  Similar conclusions were reached regarding separation of powers and constitution in Clerk of Court's Compensation for Lyon County v. Lyon County Commissioners.
The point simply is that there is good reason to conclude that this privatization is unconstitutional and in a law suit the Auditor would likely prevail.  Given these precedents, it should be clear that this legislation does nothing more than express contempt for the State Constitution.  It does that, along with the current negotiations on the budget and the elimination the PCR.  The three together are a huge step backward for transparent, fair, and constitutional government in Minnesota.  Process matters.