Unallotment: The dissent

With our Internet connectivity woes today, I’ve been unable until now to dive into the “other side” of the unallotment decision from the Minnesota Supreme Court. That is, the dissent filed by Justice Lorie Gildea. Like Chief Justice Magnuson, who wrote the decision, Gildea is an appointee of Gov. Tim Pawlenty.

Gildea, in her dissent, does everything but use the term “judicial activists” to describe the four justices who ruled against the governor.


The judiciary’s duty is simply to apply the law as written by the legislature.The majority is unable to do so because the language the Legislature used in the unallotment statute leaves the majority with uncertainty and ambiguity. The majority therefore rewrites the statute to insert additional conditions, and then finds that the Commissioner of Minnesota Management and Budget (Commissioner) violated the statute because he did not comply with the conditions the majority has added.

Gildea says she did not find the law ambiguous, she also says she does not find Pawlenty’s actions unconstitutional, an interesting distinction since the majority pointed out they weren’t ruling on the constitutionality of the case.


Because I would hold that the executive branch complied with the plain language of the statute, and that respondents have not met their burden to prove that the statute is unconstitutional, I respectfully dissent

Justice Gildea points out that it wasn’t until after the legislative session ended, that state finance officials reported the state budget was still $2.7 billion in the red for the biennium. She said because state officials found the budget deficit higher than the anticipated revenues, the power to “unallot” belonged to the governor.

Of course, it’s worth pointing out, the financial wizards of the state had been wrong for many months, consistently underestimating the problems in the state budget. It’s also worth noting that the governor first threatened unallotment (though not with the programs specifically mentioned in the court case) in December 2008. All the more reason, perhaps, why it might’ve been nice if the Supreme Court had considered the general constitutionality of the process. But it didn’t, so let’s move on…

Of course, all of this ignores a certain reality. The court case hinges on the timing of the actual unallotment. In reality, the Pawlenty administration had been using the threat of unallotment as a hammer for months. In reality, nobody was surprised that the governor did what he did. But a court challenge couldn’t be mounted, apparently, except on the question of the timing of when the budget was sent to him, and when it was officially known that it wasn’t balanced.


Respondents argue, and the district court held, that the Commissioner’s unallotments violated the statute because the budget deficit was not ―previously unforeseen.‖ Respondents’ argument is based on the fact that the budget deficit was known in February when the Commissioner prepared the forecast. Moreover, respondents contend that when the Governor signed appropriation legislation and vetoed revenue legislation, the Governor (and therefore the Commissioner) knew that the state would not have funds sufficient to satisfy the financial obligations in the appropriation legislation. Therefore, respondents argue, the budget deficit was not unanticipated.

Gildea comes down on the side that says the administration had all the power in this dispute:


Moreover, even if the judicial branch were inclined to wade into this dispute, it would be irrelevant in this case because there is nothing in section 16A.152 that limits the Commissioner’s authority to unallot depending upon what or who is most responsible for the budget shortfall. The judiciary cannot rewrite the statute to add such restrictions.

Justice Gildea also turns the “separation of powers” argument on its head, noting that if Gov. Pawlenty has no power to unallot, then the budget power rests entirely with the Legislature.


Where one branch purports to perform completely a function assigned to one of the other branches, such encroachment violates the separation of powers principle… We have recognized that such encroachment into the judiciary’s sphere of constitutional responsibility is unconstitutional. For example, where the Legislature purports to remove from the judiciary a class of cases that the constitution vests in the judiciary, the Legislature has violated the separation of powers doctrine.

She goes on to note that the Minnesota Constitution clearly delegates budgetary responsibilities to both the executive and legislative branch.


Because the function is one that the constitution commits to both branches, the unallotment statute–which simply acknowledges this joint responsibility–does not delegate pure legislative authority to the executive branch and it does not violate separation of powers. There are many instances in the operation of government, such as the prohibition against deficit spending, where the function at issue requires responsible effort from both of the political branches.

By the way, sometimes with unallotment, those affected get their money eventually. Not often, but it happens. Ethanol producers got a pile of cash in 2008 when the Legislature gave them money it took away in a previous budget crunch. That, Gildea points out, shows the Legislature retains budgetary power if it chooses to use it.


Finally, the Legislature, of course, remains free in the next legislative session to undo the unallotments as it has done in the past. The fact that the Legislature retains, and has exercised, the authority to undo the Commissioner’s unallotments provides an important check on the Commissioner’s exercise of discretion.

So what will this mean for the future? Here’s one scenario: A government shutdown. Clearly, the Legislature did a poor job of playing “chicken” with a governor in the 2009 session, by sending him a budget and painting him into a corner. It could’ve simply done what it did in 2005, when it forced Pawlenty to consider a shutdown.

But there’s political blood to be paid for such things and, besides, Gov. Pawlenty has shown over the years that he can make DFLers look impotent, even on matters of threatened shutdowns.

In any event, DFLers in the Legislature won a war today, and now have a very large battle to fight among themselves: How to turn their victory into a balanced budget.

  • John

    Gildea: “The judiciary’s duty is simply to apply the law as written by the legislature.”

    The problem is, “the law as written” or even constitutions are not always clearly written or clearly applicable to a particular situation . That’s why we need courts.

  • AaronWillard

    I think it’s interesting that two of T-paw’s appointees are on opposite sides of this decision. In fact, I think it makes Gildea look even more like an activist judge, than it does the majority who she tries to label as such. I mean, she is obviously trying to say thank you by taking the governor’s side. When both Pawlenty appointees and non-pawlenty appointees vote the same way – they are clearly applying the law as it was intended.

  • Duke Powell

    Its not often that News Cut gets its facts wrong – but today is one of those days.

    Without getting too long-winded, the article states that Pawlenty had been “threatening” to unallot for “months” prior to June 2009. To support that assertion a link is provided from MPR News posted on Dec 15, 2008.

    The problem is that the linked story was referring to a shortfall for the 2008-09 biennium. The Governor made those unallotments with the tacit approval of the Legislature.

    This has been the traditional use of the unallotment statute. Due to the fact that a biennial budget is hammered out for 2 fiscal years at a time, it is not unexpected that either a shortfall or surplus will be forecast as the end of the biennium approaches.

    A more preferable solution would be that the Legislature submit a supplimental budget. In times of surplus they are more than happy to do it. If the budgetis in shortfall, however, it becomes a little more difficult.

    The question in front of the Court in this instance was the fact that the Governor made his unallotments just after the beginning of the 2010-11 biennium. This was totally unexpected.

  • Bob Collins

    My mistake, Duke. The point I was making — poorly — wasn’t that the December unallotment was the case before the court; it’s that the governor’s strategy of using unallotment shouldn’t surprise anyone. It was NOT a secret that he was threatening to use unallotment before the budget was sent to him.

    I can see where the way I wrote it looks like I was connecting the unallotment of December 2008 with the budget submitted in late spring 2009. That wasn’t my intent; it was to point out that unallotment as a tool was a known commodity throughout most of the session of 2009. Apologies for some pretty poor writing.

    As interpreted by Magnuson, the unallotment was unlawful because it should only be used when the deficit was unforeseen. Clearly the deficit that needed to be closed was foreseen.

    Gildea’s position, of course, is that all of the requirement the governor was required to meet to assert unallotment were met.

    My comment also had to do with the reality of the situation as opposed to the facts before the court..

    The reality is that both parties played a game of chicken with the state budget.. As I noted on Twitter, the only real way to play that card is with the threat of a government shutdown.

  • David W.

    If only Pawlenty hadn’t felt it necessary for his political career to take a totally uncompromising stand on taxes, we could have avoided this mess. But as we’ve seen with the battle over a fuel tax that really was 20 years behind the times in terms of inflation, when faced with the need to pay for transportation infrastructure, Pawlenty time and time again chose to defer the day of reckoning rather than pay as you go. All because he needs to be able to say he never, ever, signed off on a tax increase to better run for President.

    And Bob, it isn’t the state legislature that’s unwilling to compromise on spending cuts and tax increases, it’s Pawlenty. Please try to not be so even-handed as to not recognize where the lion’s share of the blame lies when it comes to Minnesota’s budget deficit.

  • kennedy

    If the law as written allows unallotment only for unforeseen budget shortfall, it doesn’t apply when setting a budget at the beginning of a biennium. Barring unallotment during establishment of a budget doesn’t give the legislative branch any advantage. Veto is still a tool the governor can use. Unless that can be overridden, all must come to an agreement.

    Unallotment was a risky attempt by the governor. If it had carried, it would have been rocket boost for his presidential aspirations. Failure merely sours and already dysfunctional relationship with the legislature.