In the unallotment case, a controversy about power-sharing between the executive and legislative branches becomes the vehicle for the Minnesota Supreme Court to debate its own legitimate role in the constitutional order.  Whatever else you may think about the case’s outcome or the Supreme Court appointments that came in its wake, it is hard to deny Brayton’s pungency during a remarkable week in the Court’s history.  As everyone knows by now, Justices Magnuson and Gildea, two proponents of judicial restraint, laid out the competing arguments in the case.

Chutzpah & the little “c” court

The Pawlenty appointees–Justices Magnuson, G. Barry Anderson, Gildea and Dietzen–form the Court’s fulcrum. As we pointed out in an earlier post, they vote together, at least in criminal cases, some fantastic percentage of the time.  They share the view that courts should yield to plausible judgments of the legislative and executive branches.  They value jurisprudential modesty.  They are averse to ambitious statements and broad rules.  They prefer to decide no more than is absolutely necessary to resolve a case.   They favor a deferential, little “c” court.

The Brayton dissenters accuse the majority — and, specifically, Justice Magnuson, the majority author — of deserting these principles.  The argument feels personal.  In the opening paragraph of the dissent, Justice Gildea intones that “[t]he judiciary’s ‘duty’ is simply ‘to apply the law as written by the legislature’ ” — and then appends the information that the source for the original quote was “Magnuson, C.J. for a unanimous court.”  The rest of the paragraph completes the charge against Magnuson, et al.:  “The majority is unable to [apply the law as written by the legislature] 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.”

I do not read the majority opinion quite this way.  In fact, as I read the opinions in Brayton, it is the majority position that impresses me for its rectitude, and the dissenting opinion that strikes me as immodest.  It is the dissenters, it seems to me, who take liberties with the text, who reach to impose their will, and not the other way around.

Facts are specious things

It is reasonable to expect that a minimalist, non-interfering court would pride itself on taking the facts where it finds them.  To do otherwise — to omit, ignore,  or too deliberately manage, sculpt or stage the facts — effectively insinuates a court into the merits.  It converts a passive court into an active one.  It makes the court a player.

The majority opinion recounts the events that culminated in the executive branch unallotments (the numbering is mine):

  1. In November 2008 Minnesota’s budget commissioner forecast a 2010-2011 biennium deficit of $4.847 billion
  2. In February 2008 the commissioner forecast a deficit of $4.57 billion
  3. In January 2009 the governor submitted a proposed budget with anticipated revenues of $31.07 billion
  4. In March 2009, the governor submitted a revised budget with anticipated revenues of $29.905
  5. In April 2009 the commissioner updated its information to reflect that February and March revenues were $46 million less than projected in the February forecast
  6. On May 9, 2009 the governor vetoed a revenue bill that increased taxes in order to meet the anticipated revenue shortfall
  7. Between May 4 and May 18, the legislature passed appropriation bills that reduced spending below the levels projected in the February 2009 forecast; the projected $4.57 billion deficit was reduced to $2.7 billion
  8. The governor signed the appropriation bills into law
  9. On May 18, 2009, the day it was required to adjourn, the legislature passed a revenue bill that would raise taxes to address the $2.7 billion remaining deficit
  10. The governor vetoed the second revenue bill
  11. The legislature had adjourned by the time of the veto
  12. The governor did not call a special session of the legislature
  13. On June 4, 2009, the commissioner informed the governor by letter that the unallotment conditions had been satisfied; namely, the commissioner had determined that probable receipts for the general fund would be less than anticipated; and the amount available for the remainder of the 2010-2011 biennium “will be less than needed”
  14. The governor approved proposed unallotments of approximately $2.5 billion on July 1, the first day of the biennium
  15. The commissioner implemented the unallotments beginning in July 2009; some of the unallotments were effective for both the first and second years of the biennium, some only for the second
  16. The commissioner reduced allotments to the Minnesota Supplemental Aid program (which includes the specific Special Diet program challenged in Brayton) by $2.866 million for FY 2010 and $4.3 million for FY 2011.
  17. The effect of these unallotments was to eliminate Special Diet Program payments from November 1, 2009 through June 20, 2011, the end of the biennium

The dissent’s version of the facts dramatically downplays events 3, 4, 5, 6, 9, 10, 11, 12, 14, 15 and 16. Justice Gildea’s initial factual recitation omits to mention that the governor twice vetoed revenue bills that were intended to meet the shortfall; that the second veto followed the legislature’s mandated adjournment date; that thereafter the governor declined to call the legislature into special session; that the governor approved and ordered the unallotments on the first day of the 2010-2011 biennium; and that the cuts to the Special Diet Program formed part of a larger Minnesota Supplemental Aid unallotment of $2.866 million for all of FY 2010. Justice Gildea refers to to some of these events in the body of her argument, but only in the most cursory manner (i.e., “‘[R]espondents 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.”).

The point of including the information in points 3, 4, 5, 6, 9, 10, 11, 12, 14, 15 and 16 is not, as the dissent dismissively asserts, to cast blame about “[w]hich of the two coordinate branches of government is responsible for the budget shortfall.” These things matter because the Court was obliged to make mixed factual-legal determinations that turned on these events.  The dissent erased pertinent facts that were inconvenient to its analysis.

When Unanticipated?

Brayton deals with the meaning of two triggering conditions that are laid out in the unallotment statute, Minn. Stat. section 16A.152, subd. 4.  These conditions are the state budget commissioner’s determinations that (1) “probable receipts for the general fund will be less than anticipated” and (2) “the amount available for the remainder of the biennium will be less than needed”.  The statute does not explicitly answer the question when these determinations are to be made.  Anticipated when?  Remainder measured from what point in time?  The statute does not say.

The majority finds that, lacking express temporal benchmarks, the statute is susceptible to more than one reasonable interpretation, and is therefore ambiguous.  The Court winds up endorsing the respondents’ interpretation, which construes the statute in a common sense fashion that ascribes real meaning to all of the words that actually appear there.  “The common meaning of ‘remainder’ is . . . something less than the whole, after part of the whole has been removed or consumed.  Accordingly, the requirement that the Commissioner find that ‘the amount available for the remainder of the biennium will be less than needed” . . . reasonably means that the triggering circumstance (amount less than needed) cannot logically be met until some of the biennium has passed, and that the unallotment process can never apply to a full biennium.”  Moreover, continues the Court, the two clauses “are joined by the conjunctive ‘and’; and when read together, the natural conclusion is that the determination about receipts being ‘less than anticipated’ must be related to ‘the amount available for the remainder of the biennium.’ ”

Justice Gildea argues that the statute is clear on its face, and that it can be applied “as written” to uphold the executive branch’s unallotments.  Were probable receipts less than anticipated?  The dissent says, incredibly, yes.  All that is required, writes Justice Gildea, is that the commissioner “make this determination before he unallots.”  The statute “does not provide any deadline by which the Commissioner is to make this determination.”  The dissent simply avoids answering when, exactly, the budget shortfall was unanticipated. When the governor vetoed the first revenue bill?  The second?  When he declined to call the legislature back into special session?  These are all facts that largely fell out of the dissent’s narrative.  The budget shortfall was not just anticipated; it was front-and-center in the participants’ minds throughout the legislative season. Given Justice Gildea’s espoused commitment to applying the “plain language” of the unallotment statute, should not the dissenters have come down the opposite way?

A remaining point

One of the facts the dissent omits is that the governor approved the unallotments, including the FY 2010 unallotment to the Minnesota Supplemental Aid program which includes the Special Diet Program, on July 1, 2009, the first day of the biennium.  This is crucial information for purposes of ascertaining the effect of the word “remainder” on the unallotments’ legality.  Instead, Justice Gildea fixes on the fact that the withholding of funds for the Special Diet Program did not occur until November 1, 2009.  She writes:

“The only question presented in this case is whether the decision to unallot funds from the Special Diet Program complies with the statute.  As to the Special Diet Program, the Commissioner determined that ‘the amount available for the remainder of the biennium will be less than needed’; that is, the amount available, starting November 1, would be less than needed to fund the Special Diet Program for the remainder of the biennium.  Further, there is no dispute that the Special Diet Program funds were not unallotted until November 1.  The Commissioner’s determination that there would be insufficient funds for this program was, indusputably, only with respect to a portion of the biennium and not the entire biennium.  We therefore have no occasion in this case to determine whether decisions to unallot that were effective on the first day of the biennium violate the statute.”

The executive unallotment order concerning the Special Diet Program was given on July 1, 2009 .  It was part of a larger FY 2010 unallotment of the Minnesota Supplemental Aid program. The Special Diet Program did not actually lose funds as a result of the governor’s order until November 1, 2009, the implementation date, but the operative decision was made on the first day of the biennium.  The dissent appears to have purposefully made a hash of these facts.  This strategem allows Justice Gildea to shrink the issue so dramatically that the troublesome “remainder” question is simply removed from the frame.

It is minimalist credo that issues are to be framed narrowly.  The aspirational rationale for doing so is to curtail judicial incursion into the decision-making of the other branches and to leave as much as possible open for democratic deliberation.  I am having a hard time squaring these purposes with what the dissent has done in Brayton.  It took, in my opinion, a bold act to force the remainder issue into so artificially narrow a container.  It took boldness to edit the factual record as liberally as was done here.  In particular, it is hard to square the dissent’s exclusion of the facts describing the process of democratic deliberation with a judicial aspiration to promote the same.  The dissent’s methods in this case suggest not prudence, but its opposite. Mostly they suggest a willful effort to give a muscular hand up to the capital “E” Executive.

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3 Responses to RECENT OPINION: BRAYTON v. PAWLENTY, May 5, 2010

  1. This is a great case to illustrate the truth that there is politics in the Judiciary, and that politics will not be elimated from the Judiciary by stealing the public’s right to choose their judges and justices.

  2. Peter D. Mikkalson says:

    Well written critique. Thanks for doing that.

  3. Andy Mergendahl says:

    Well done. Now, would someone please explain (again) to me why legal “realism” is a bad idea?

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