Feeling judged? Attorney general’s office on unallotment hot seat

Role raises questions about branch-versus-branch case

They say that politics makes for strange bedfellows, and never was that more true than in the unallotment case, which has put the office of DFL Attorney General Lori Swanson in charge of representing Republican Governor Tim Pawlenty in a case that has its genesis in a political showdown with DFL lawmakers.

To end a stalemate over how to reconcile a $2.7 billion deficit, the governor combined line-item vetoes with his statutory unallotment powers to circumvent the Legislature and balance the budget by applying cuts unilaterally.

Some argued the governor’s action was a misuse of the unallotment statute, which was designed to allow the state’s chief executive to deal with unanticipated shortfalls.

Last month Ramsey County District Court Judge Kathleen Gearin found the governor’s action to be a misapplication of the unallotment statute and an unconstitutional violation of the separation of powers. The Ramsey County case involves only a single unallotment - $5.3 million withheld from a nutrition program that helps pay for medically prescribed diets for elderly and disabled people. (Gearin issued a temporary restraining order reinstating the money.)

The ruling - which technically involves only a small portion of the unallotments - casts doubt on all Pawlenty’s unallotments. With billions of dollars in appropriations potentially at stake, the governor has said he will appeal.

“It’s the Super Bowl of constitutional litigation,” said Minneapolis attorney David Lillehaug, who said he has counseled clients in connection with unallotment and closely followed the case.

So why did Swanson’s office get the handoff in a case that’s already become a political football?

First of all, Swanson’s office is not the only representation the governor has in this case. In addition to Solicitor General Alan Gilbert, Pawlenty’s own legal counsel, Patrick D. Robben, appeared at the Ramsey County hearing. It appears this collaboration will continue on appeal.

“Our office is working on the appeal with the Attorney General’s office. We will file the appeal paperwork as soon as possible,” said Brian McClung, Pawlenty’s deputy chief of staff. Robben will also continue his involvement, McClung added.

Former Minnesota Attorney General Warren Spannaus told Capitol Report that, despite Swanson’s DFL credentials, he’s not surprised the AG’s office is representing the governor. The AG is the governor’s lawyer, Spannaus explained, adding that Swanson “is a very, very good lawyer and very conscientious.”

Swanson’s office was circumspect about its future role in the case.

“The Attorney General’s Office (AGO) is legal counsel for state government, which includes the unallotment lawsuit. However, the AGO does not speak for governmental clients in litigation matters so for any questions regarding the lawsuit, I refer you to the Governor’s Office and the state agency defendants,” said Rebecca Spartz, director of administration, in an e-mail.

To abandon or not to abandon

Lillehaug wants the AG’s office to abandon the case because he believes the governor’s unallotment actions were clearly unconstitutional. And the questions about the role of the AG’s office are only likely to intensify if the Legislature intervenes in the lawsuit.

“The Legislature has standing because it was its power that was at issue,” Lillehaug said. Either the House or the Senate could request that the entire unallotment be rolled back, he added.  “Why has the attorney general chosen one branch of government over another?”

In a 1991 legal clash between the Legislature and the governor (Senate v. Carlson), both sides had outside counsel. In that case, Gov. Arne Carlson vetoed 14 bills but did not return them to the House within three days, and Ramsey County District Court Judge Joanne Smith ruled that the bills had become law.

U.S. District Court Judge John Tunheim, then the chief deputy attorney general, represented only the secretary of state.

“We were very conscious of the political undertones [of the case] and tried to be very careful,” Tunheim explained. “We discussed with the governor’s staff whether he would be more comfortable with his own attorney. I went across the hall [to talk to them]. I recall making the offer [that the governor should get his own attorney].

“We wanted to make sure than the public understood that the lawsuit was being handled well on both sides and was not about politics,” Tunheim said.

The appellate process

In the normal course of events, the case would go to the Court of Appeals and then possibly to the Supreme Court. Rule 118 of the appellate rules does allow accelerated review to the state Supreme Court if the case “is of such imperative public importance as to justify deviation from the normal appellate procedure and to require immediate determination in the Supreme Court.”

Such accelerated review is rarely granted, according to Lillehaug. Former Minnesota Supreme Court Justice Jim Gilbert said the case needs high court attention. “If I was on the court I’d say bring it right up here,” he said.

If the case does make it to the high court, Minnesotans can expect the justices to focus closely on the wording of the unallotment statute, according to William Mitchell College of Law Professor Peter Knapp.

“They have proved to be sticklers, and very scrupulous about scrutinizing statutory language,” Knapp said. He added that the 2009 litigation over the U.S. Senate recount proved that the court can speak with one voice even when a case has strong political undertones.