House DFL preparing brief in unallotment appeal; Emmer and friends will answer

Rules committee again votes to weigh in on plaintiffs’ side

The House Rules and Legislative Administration Committee will continue its support of a lawsuit challenging Gov. Tim Pawlenty’s authority to singlehandedly cut $2.7 billion from the state budget in 2010.

Over the objections of Republicans on the committee, DFLers on a voice vote Tuesday agreed to hire outside counsel to prepare a friend-of-the-court brief supporting the plaintiffs in the ongoing litigation challenging one of Pawlenty’s unallotments.

And in a separate development, GOP gubernatorial candidate and state Rep. Tom Emmer of Delano said he and other Republicans will file a friend-of-the-court brief in support of the Republican governor.

Both DFLers and Republicans on the Rules committee complained that the other side is waging its legal battles with public money.

Rep. Bob Gunther, R-Fairmont, objected that the brief will be costly and will come at taxpayer expense.

“You’re asking us to fund an attorney. Do you have any idea what that will cost?” Gunther said.

House Majority Leader Tony Sertich, DFL-Chisholm, said the legal fees are estimated at $50,000. But he’s hoping that the cost will be “significantly less than that, if not half that.” And he noted that the House will pay for legal fees through its professional and technical services budget.

Minority Leader Kurt Zellers, R-Maple Grove, offered an amendment to prohibit the use of public money to pay for the brief: “I don’t think the public should pay for this stuff,” Zellers said.

Zellers’ amendment failed on a voice vote.

In late December, Ramsey County District Judge Kathleen Gearin agreed with the plaintiffs that Pawlenty illegally applied his unallotment authority.

Sertich criticized Republicans for failing to make the same criticism of Pawlenty, who is using public money to fight Gearin’s ruling: “The silence is deafening” on that count, Sertich said.

The Pawlenty administration is being represented in unallotment litigation by the state Attorney General’s Office.

“The governor’s appealing of this case is the reason we’re here. …This goes down to the whole issue of separation of powers,” Sertich said.

Pawlenty made $2.7 billion in cuts unilaterally last year after rejecting a package that included $1 billion in tax increases and a $1.7 billion K-12 school-payments shift.

Although legal challenges to Pawlenty’s unallotments were slow to reach the courts, a group of low-income Minnesotans who were affected by a $5.3 million nutrition program cut brought suit in October.

Before Gearin’s rulings, the Rules Committee voted 14-8 to ask the nonpartisan House Research office to write a supporting brief, also known as a brief of amicus curiae, in favor of the plaintiffs in the case. Sertich said the House needs to hire an outside firm to write the brief in the appeal because House Research’s expertise was “exhausted” at the district court level.

The unallotment lawsuit hangs over the 2010 legislative session, which begins Feb. 4.

If the state high court rules in favor of Gearin, it could open the door to more legal challenges and a widening deficit. The justices won’t hear arguments in the case until early March. A ruling might not get handed down until the session adjourns.

Lawmakers in 2010 will tackle a $1.2 billion deficit that was projected in the November economic forecast. The final budget number for the session will be revealed in the February forecast that will be released in early March, and many around the Capitol are hopeful that it will be smaller than the $1.2 billion projected in the November forecast. The environment of political stalemate at the Capitol will likely make a negotiated agreement on the unallotments difficult to achieve.

“Are we going to work on a budget or wait until the Supreme Court rules?” said Rep. Larry Howes, R-Walker.

Sertich said he said lawmakers will find a solution in due time.

“I’m hopeful that we either come to a reconciliation on the budget as necessary before the court makes a decision; or, the court makes a decision and provides us an opportunity to rectify it,” Sertich said.

Rep. Joe Hoppe, R-Chaska, joked that the numerous lawyers serving in the House could do the legal work.

To that, Sertich noted that Emmer, who is an attorney, will probably be too busy on the campaign trails.

“I’m sure Representative Emmer is way too busy to help us out on this case,” Sertich said.