unallotment briefsa10-64,ericblack;sharonscomplaints

[email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] CC: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected], [email protected] Sent: 3/3/2010 3:00:45 P.M. Central Standard Time Subj: 126 WinnipegJim CasciUnallotment Braytonv.PawlentyA10-64SharonsA09-2031Insura

Wed. 3rdMar2010 City Clerk Shari Moore City Clerk310 City Hall 15 Kellogg Blvd., West Saint Paul, MN 55102 Ph: (651) 266-8688 Fx: (651) 266-8574 Email [email protected]

http://stpaul.granicus.com/AgendaViewer.php?view_id=37&event_id=119

AGENDA OF THE SAINT PAUL CITY COUNCIL Wednesday, March 3, 2010 - 3:30 p.m.

PUBLIC HEARINGS - 5:30 P.M.

Page 3 of 7

Thursday, March 04, 2010 AOL: Sharon4Anderson

CITY COUNCIL CHAMBERS, 3RD FLOOR

City Hall and Court House

15 West Kellogg Boulevard Item 45 and Unallotment Case A10-64 Brayton v. Pawlenty

Final unallotment brief, by Pawlenty's side, says: Read the law; governor followed it

By Eric Black | Wednesday, March 3, 2010

Brief argues that the issue isn't one for the courts, but rather is political.

http://www.minnpost.com/client_files/pdfs/BraytonVPawlentyNoA1064.pdf

QUESTIONS: City St.Paul's Bizzare Notifications techinally denial of "due process's" Separation of Powers in this and all other

matters?

Affiant_Advocate_ VA Widow [email protected] Gives Legal Notice to Object to Item 45 re: 126 Winnipeg, apparantly obtained on the Grave of Decedant Jim Casci. By info and belief Casci's Estate has never been Probated? Apparantly QUESTIONS: (1). Was proper service valid notification given to the alleged 284 Property Owners? Mia Sihavonglee et al. signed off by Council Attorney Gerald Henderickson?

(2). Has DSI Employee Joel Essling exceeded his Authority/Jurisdiction in 126 Winnipeg St.Paul, MN 551xx and the Theft,Trespass,Treason of Affiant Sharon Scarrella Anderson's Car,Trailer,Camping Equipment at 697 Surrey Ave. St. Paul, MN 55106,creating such Harm,Injury,Commerce Rights mandating his REMOVAL for RICO ACTS 62cv09-1163(VAndenorth)A09-2031(Toussaint) www.sharon4anderson.wordpress.com All Files www.slideshare.net/sharon4anderson Forensic Evidence. Conspiract to committ Murder included. by Water Shutoff, etc. www.sharon4anderson.org (3). Salarys of Assist City Attorney Gerald Henderickson et al $135,469.00 reducing the Public to Poverty, then to sign off on the Unallotment Files A10-64 without Standing to list any "Clients" with Special Needs Diets is costly to the City. which the www.lmc.org lost in the www.alicekrengel.blogspot.com case.

Page 4 of 7


Therefore: 126 Winnipeg Ownership,Title must be Quieted, Unallotment Briefs by City St.Paul, must be pdf online at the City Attorneys Office or City Clerk for Public Preview. If the city loses's which Affiant thinks the City St. Paul will lose in the Unallotment Case then does the Citys "Risk Managment" Ron Guilfoile kick in or the League MN City Insurance Pay out to the Lawyers etc.?

http://www.google.com/search?hl=en&source=hp&ie=ISO-8859-1&q=Sharon4Anderson+v.+Joel+Essling+DSI+Inspector+MN&

� Sharons Letter Motion 62cv09-1163

Aug 19, 2009 ... Crt(MN) Water Shutoff Jul 30, 2008 ... by Sharon4Anderson. ... CODE 45 OR 163 Joel Essling Badge 322 no 651-266-1964 " Brother of Lawyer Essling" unmarked ... No DSI Inspector ie: Jack Reardon et al have never been to the interior of 697 Surrey ... Title to Realestate Abstract MN Sharon Anderson v. ...

News Flash - Selected

Motion - Amicus - League of Minnesota Cities

Supreme Court

01/26/2010 Motion

Amicus - Leave to File Motion

Final

Letter from Appellant's attorney; they have no objection to the City of St. Paul's motion to proceed amicus curiae. They request the City's brief to be filed not later than the Respondent's brief.

Court of Appeals

01/25/2010 Correspondence Incoming Final

Letter from respondent's attorney informing the court of their email addresses.

Supreme Court

01/25/2010 Correspondence Incoming Final

Motion - Amicus - City of St. Paul

Supreme Court

01/25/2010 Motion

Amicus - Leave to File Motion

Final

City Employee Salary Notification

Minnesota state law - Chapter 156 of the Session Laws of 2005 - requires that "a city or county with a population of more than 15,000 must annually notify its residents of the positions and base salaries of its three higest paid employees. For the City of Saint Paul, titles and salaries as of February 1, 2009 are: Chief of Police - $136,315, City Attorney - $133,513, and Deputy City Attorney - $135,469.

Date of Publication: January 15, 2010

Page 5 of 7


www.slideshare.net/Sharon4Anderson/sharons-letter-motion-62cv091163 - Cached

� Sharons 2USC3631Evidentary hearing 62cv09-1163Judge John VandeNorth

- 5 visits - 10:21am Aug 12, 2009 ... [email protected], Sharon4Anderson, ... pdf Court Files 62cv09-1163_StateMN v 697 Surrey Ave St.Paul,MN Candidates Plea to implement pdf ECF ... acting in concort with DSI INspector Joel Essling to Steal, ... www.slideshare.net/Sharon4Anderson/sharons-2usc3631evidentary-hearing-62cv091163judge-john-vandenorth - Cached

Show more results from www.slideshare.net btnG=Google+Search

Friday, May 30, 2008 www.jimcasci.blogspot.com

Marcia Moermond-126 Winnipeg-Demolition on the Dead Jim Casci

Legal Notice to the Minnespolis FBI for Investigation Was Jim Casci "Murdered" to Steal Realestate?

Many

Click here: http://stpaul.granicus.com/MetaViewer.php?view_id=37&event_id=119&meta_id=90605

Page 6 of 7


http://stpaul.granicus.com/MetaViewer.php?view_id=37&event_id=119&meta_id=90605

LEGAL NOTICE: /s/[email protected] ECF_P165913Pacersa1299 telfx: 651-776-5835: Attorney ProSe_InFact,Private Attorney General QuiTam Whistleblower, Sharon4 Anderson - Google Profile Candidate AG2010 www.sharonagmn2010.blogspot.com Blogger: User Profile: Sharon Anderson SharonsYahoo! iGoogle Homestead Act of 1862 Twitter / Sharon4Anderson Shar1058's Buzz Activity Page - My Buzz Activity - Yahoo! Buzz neopopulism.org - Pro Se Dec Action Litigation Pack Sharon4Anderson | Scribd Document's are based on SEC filings, Blogger: Dashboard Home | FAIR USE NOTICEThis site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of whistleblower protection issues, MY FindLaw SharonsWritProA06_1150_30Jun06_26 The CAN-SPAM Act: Requirements for Commercial Emailers kare11.com_SA Sharons-Psychic-Whispers: Sharons Gypsy Curse-Court-Cop Corruption 3Apr0http://www.givemeliberty.org/RTPlawsuit/courtfilings/Docket.htm Sharon4Council: DLJ Management v. City St. Paul A06-2118,Money LaunderinNo direct un-apportioned tax confirmed by the US Supreme Court rulings in CHAS. C. STEWARD MACH. CO. v. DAVIS, 301 U.S. 548, 581-582(1937) g andFCC Complaints - http://sharons-copywrite.blogspot.comknowledge gained as financial journalists , http://taxthemax.blogspot.com securities they recommend to readers, affiliated entities, employees, and agents an initial trade Public domain recommendation published on the Internet, after a direct mail publication is sent, before acting Google Search Times v. Sullvian Libel with malice - on that recommendations, and may contain errors. Investment decisions should not be based solely on these or other Public Office documents expressly forbids its writers from having financial interests in Google Search BlogItBabe2007 Candidate profile Sharon4Anderson's Legal BlogBriefs Sharon4And

Page 7 of 7


2009 Minnesota Statutes

16A.152 BUDGET RESERVE AND CASH FLOW ACCOUNTS.

Subdivision 1. Cash flow account established. A cash flow account is created in the general

fund in the state treasury. Amounts in the cash flow account shall remain in the account until drawn

down and used to meet cash flow deficiencies resulting from uneven distribution of revenue

collections and required expenditures during a fiscal year.

Subd. 1a. Budget reserve. A budget reserve account is created in the general fund in the state

treasury. The commissioner of management and budget shall transfer to the budget reserve account

on July 1 of each odd-numbered year any amounts specifically appropriated by law to the budget

reserve.

Subd. 1b. Budget reserve increase. On July 1, 2003, the commissioner of management and

budget shall transfer $300,000,000 to the budget reserve account in the general fund. On July 1,

2004, the commissioner of management and budget shall transfer $296,000,000 to the budget reserve

account in the general fund. The amounts necessary for this purpose are appropriated from the

general fund.

Subd. 2. Additional revenues; priority. (a) If on the basis of a forecast of general fund

revenues and expenditures, the commissioner of management and budget determines that there will

be a positive unrestricted budgetary general fund balance at the close of the biennium, the

commissioner of management and budget must allocate money to the following accounts and

purposes in priority order:

(1) the cash flow account established in subdivision 1 until that account reaches $350,000,000;

(2) the budget reserve account established in subdivision 1a until that account reaches

$653,000,000;

(3) the amount necessary to increase the aid payment schedule for school district aids and

credits payments in section 127A.45 to not more than 90 percent rounded to the nearest tenth of a

percent without exceeding the amount available and with any remaining funds deposited in the

budget reserve;

(4) the amount necessary to restore all or a portion of the net aid reductions under section

127A.441 and to reduce the property tax revenue recognition shift under section 123B.75,

subdivision 5, paragraph (b), and Laws 2003, First Special Session chapter 9, article 5, section 34, as

amended by Laws 2003, First Special Session chapter 23, section 20, by the same amount; and

(5) to the state airports fund, the amount necessary to restore the amount transferred from the

state airports fund under Laws 2008, chapter 363, article 11, section 3, subdivision 5.

(b) The amounts necessary to meet the requirements of this section are appropriated from the

general fund within two weeks after the forecast is released or, in the case of transfers under

paragraph (a), clauses (3) and (4), as necessary to meet the appropriations schedules otherwise

established in statute.

(c) The commissioner of management and budget shall certify the total dollar amount of the

reductions under paragraph (a), clauses (3) and (4), to the commissioner of education. The

Page 1 of 416A.152, 2009 Minnesota Statutes

3/4/2010https://www.revisor.mn.gov/statutes/?id=16A.152

commissioner of education shall increase the aid payment percentage and reduce the property

tax shift percentage by these amounts and apply those reductions to the current fiscal year and

thereafter.

Subd. 3. Use. The use of the budget reserve should be governed by principles based on the full

economic cycle rather than the budget cycle. The budget reserve may be used when a negative

budgetary balance is projected and when objective measures, such as reduced growth in total wages,

retail sales, or employment, reflect downturns in the state's economy.

Subd. 4. Reduction. (a) If the commissioner determines that probable receipts for the general

fund will be less than anticipated, and that the amount available for the remainder of the biennium

will be less than needed, the commissioner shall, with the approval of the governor, and after

consulting the Legislative Advisory Commission, reduce the amount in the budget reserve account as

needed to balance expenditures with revenue.

(b) An additional deficit shall, with the approval of the governor, and after consulting the

legislative advisory commission, be made up by reducing unexpended allotments of any prior

appropriation or transfer. Notwithstanding any other law to the contrary, the commissioner is

empowered to defer or suspend prior statutorily created obligations which would prevent effecting

such reductions.

(c) If the commissioner determines that probable receipts for any other fund, appropriation, or

item will be less than anticipated, and that the amount available for the remainder of the term of the

appropriation or for any allotment period will be less than needed, the commissioner shall notify the

agency concerned and then reduce the amount allotted or to be allotted so as to prevent a deficit.

(d) In reducing allotments, the commissioner may consider other sources of revenue available to

recipients of state appropriations and may apply allotment reductions based on all sources of revenue

available.

(e) In like manner, the commissioner shall reduce allotments to an agency by the amount of any

saving that can be made over previous spending plans through a reduction in prices or other cause.

Subd. 5. Restoration. The restoration of the budget reserve should be governed by principles

based on the full economic cycle rather than the budget cycle. Restoration of the budget reserve

should occur when objective measures, such as increased growth in total wages, retail sales, or

employment, reflect upturns in the state's economy. The budget reserve should be restored before

new or increased spending commitments are made.

Subd. 6. Notice to committees. The commissioner shall notify the committees on finance and

taxes and tax laws of the senate and the committees on ways and means and taxes of the house of

representatives of a reduction in an allotment under this section. The notice must be in writing and

delivered within 15 days of the commissioner's act. The notice must specify:

(1) the amount of the reduction in the allotment;

(2) the agency and programs affected;

(3) the amount of any payment withheld; and

(4) any additional information the commissioner determines is appropriate.



Subd. 7. Delay; reduction. The commissioner may delay paying up to 15 percent of an

appropriation to a special taxing district or a system of higher education in that entity's fiscal year

for up to 60 days after the start of its next fiscal year. The delayed amount is subject to allotment

reduction under subdivision 4.

Subd. 8. Report on budget reserve percentage. (a) The commissioner of management and

budget must periodically review the formula developed as part of the Budget Trends Study

Commission authorized by Laws 2007, chapter 148, article 2, section 81, to estimate the percentage

of the preceding biennium's general fund expenditures and transfers recommended as a budget

reserve.

(b) The commissioner must annually review the variables and coefficients in the formula used

to model the base of the general fund taxes and the mix of taxes that provide revenues to the general

fund. If the commissioner determines that the variables and coefficients have changed enough to

result in a change in the percentage of the preceding biennium's general fund expenditures and

transfers recommended as a budget reserve, the commissioner must update the variables and

coefficients in the formula to reflect the current base and mix of general fund taxes.

(c) Every ten years, the commissioner must review the methodology underlying the formula,

taking into consideration relevant economic literature from the past ten years, and determine if the

formula remains adequate as a tool for estimating the percentage of the preceding biennium's general

fund expenditures and transfers recommended as a budget reserve. If the commissioner determines

that the methodology underlying the formula is outdated, the commissioner must revise the formula.

(d) By January 15 of each year, the commissioner must report to the chairs and ranking minority

members of the house of representatives Committee on Ways and Means and the senate Committee

on Finance, in compliance with sections 3.195 and 3.197, on the percentage of the preceding

biennium's general fund expenditures and transfers recommended as a budget reserve. The report

must specify:

(1) if the commissioner updated the variables and coefficients in the formula to reflect

significant changes to either the base of one or more general fund taxes or to the mix of taxes that

provide revenues to the general fund as provided in paragraph (b);

(2) if the commissioner revised the formula after determining the methodology was outdated as

provided in paragraph (c); and

(3) if the percentage of the preceding biennium's general fund expenditures and transfers

recommended as a budget reserve has changed as a result of an update of or a revision to the

formula.

History: 1973 c 492 s 23; 1978 c 793 s 47; 1981 c 1 s 2; 1Sp1981 c 5 s 1; 2Sp1981 c 1 s 3;

3Sp1981 c 1 art 1 s 1; 3Sp1981 c 2 art 2 s 3; 1983 c 342 art 18 s 1-3; 1984 c 502 art 1 s 1; 1984 c

628 art 2 s 1; 1Sp1985 c 14 art 18 s 1,2,4; 1Sp1986 c 1 art 5 s 1-3; 1987 c 268 art 18 s 1-3; 1988 c

690 art 2 s 1; 1988 c 719 art 13 s 1,2; 1989 c 329 art 1 s 1; 1Sp1989 c 1 art 15 s 1,2; 1990 c 604 art

10 s 4; 1991 c 291 art 21 s 2; 1992 c 511 art 9 s 1; 1993 c 192 s 58-63,111; 1993 c 375 art 17 s 1,2;

1994 c 632 art 5 s 1; 1994 c 647 art 1 s 1; 1995 c 264 art 6 s 1; 1Sp1995 c 3 art 14 s 1-3; 1996 c 461

s 1; 1996 c 471 art 10 s 1; 1997 c 231 art 9 s 1; 1998 c 389 art 9 s 1; 1Sp2001 c 5 art 20 s 2,3;

1Sp2001 c 10 art 2 s 24; 2002 c 220 art 13 s 3-5; 2002 c 377 art 12 s 1; 1Sp2003 c 21 art 11 s 2-4;



2004 c 272 art 3 s 1; 2005 c 156 art 2 s 16; 2007 c 146 art 1 s 1; 2009 c 36 art 3 s 1; 2009 c 86

art 1 s 4; 2009 c 101 art 2 s 49,109



Final unallotment brief, by Pawlenty's side, says: Read the law; governor followed it

By Eric Black | Published Wed, Mar 3 2010 9:14 am

In the last brief in the unallotment-case appeal to the Minnesota Supreme

Court, the pro-Pawlenty, pro-unallotment side argued that in unallotting

$2.7 billion from appropriations that the 2009 Legislature had passed,

Gov. Tim Pawlenty complied with every word and every syllable of the

1939 law that created the unallotment power of Minnesota governors.

The brief [PDF] returns to the argument that Pawlenty has been making

since the legal challenge to unallotment began last year before Chief

Ramsey County District Court Judge Kathleen Gearin. Gearin didn't buy

it, and ruled that Pawlenty had acted improperly.

Now, on appeal to the Minnesota Supreme Court, Pawlenty's legal team

(Solicitor General Alan Gilbert, Pawlenty counsel Patrick Robben, and

two assistant attorneys general) asks the court to overturn Gearin. With

apologies if I'm mangling the translation from legalese (what follows just

below are not quotes from the brief but my summary of them), the final

argument goes like this:

Read the statute. (Full text of statute here: see Subdivisions 4a and

b.) It says the commissioner of management and budget must

determine that probable receipts will be less than anticipated. It says

the commissioner must also determine that the amount available for

the remainder of the biennium will be less than needed.

Commissioner of Management and Budget Tom Hanson made both

of those determinations in June 2009, because both of those

conditions were true. Once those determinations are made, and

once the state budget reserves have been used, the commissioner

and the governor are empowered to defer or suspend spending from

within any appropriation.

Read the statute and note what it doesn't say. It doesn't comment on

whether the deficit that needs to be eliminated may have been

caused by the governor's use of his veto power on a bill that would

have raised additional revenues. It doesn't establish a particular

point in time when the commissioner is or is not authorized to make

Page 1 of 6MinnPost - Final unallotment brief, by Pawlenty's side, says: Read the law; governo...

3/4/2010http://www.minnpost.com/ericblack/2010/03/03/16370/final_unallotment_brief_by_pa...

the determinations. It does not require the governor to call a special

session of the Legislature to seek input on how to balance the

budget. It does not put limits on which appropriations should be

reduced or which should be spared. The respondents in this case

(the anti-unallotment side) seems to think that some of these

limitations on the governor's unallotment power exist, but they can't

find it in the statute that creates and describes the power. Because it

isn't there.

In effect, the other side in this case asks the court to invent these

limitations and read them into the statute. They ask the court to

substitute a philosophical approach to the proper balance of powers

between the legislative and executive branches of government for

the plain language of a statute that the Legislature itself created and

retained. Don't go there, Supreme Court.

This is also a case about a difference of philosophy and opinion

between the governor and the Legislature over the best way to

eliminate a deficit. Both sides brought their constitutional and

statutory powers into that argument, but one side didn't like the way

it turned out. Now the Legislature asks the court to weigh in on its

side of the argument. Don't go there. This is a non-justiciable

political question that should ultimately be decided by political

means, not by the courts.

If my paraphrase is a little too dramatic, here is how the Pawlenty legal

team summarized the argument:

"Respondents and amici make several arguments claiming that [the

unallotment statute] does not unambiguously allow the

Commissioner to make the challenged unallotments or that the

statute should be construed to preclude the Commissioner from

making the unallotments. At their core, these arguments attempt to

impose requirements — such as the statute only applies to small,

unanticipated deficits arising late in the biennium — found nowhere

in [the unallotment statute]. Respondents and amici rely on

purported conditions in the statute that simply do not exist. They

also ask the Court to resolve a political dispute. Their contentions

are not supported by the statutory language and are without merit."

The anti-unallotment side has argued that Pawlenty could have taken

many more normal actions to deal with the budget deficit. He could have

signed the revenue bill that would have balanced the budget. He could



have used his much more ordinary veto powers to eliminate whole

appropriation bills or line items within appropriation bills to balance the

budget without the additonal revenue. He could have called a special

session to continue seeking a balanced budget that was acceptable to

himself and the Legislature. Replies the final Pawlenty brief:

"These arguments are not even justiciable by the Court since they

present political questions over which the Court lacks jurisdiction ...

See, e.g., In re McConaughy, (observing that the judiciary has no

power to determine whether the Governor should have vetoed a bill

or whether the Legislature should have passed a bill) ... To make

such determinations would require the Court to act as the referee of

a political dispute. See Baker v. Carr, recognizing that an issue

presents a nonjusticiable political question when there is "a lack of

judicially discoverable and manageable standards for resolving it."

"Such political questions are for the voters to resolve through

elections."

'Anticipation' and 'remainder'

The anti-unallotment side has focused on two words in the statute to

argue that Pawlenty exceeded the powers granted him by the statute.

The words are "anticipated" and "remainder." Here's the key phrase from

the statute that triggers the power to unallot.

"If the commissioner determines that probable receipts for the

general fund will be less than anticipated, and that the amount

available for the remainder of the biennium will be less than

needed ..."

The anti-unallotment briefs (including the amicus briefs) have argued that

the $2.7 billion was not "less than anticipated." The shortfall was

projected in February of 2009, before the governor had even submitted

his budget to the Legislature. He proposed cuts that would have

balanced the budget. The Legislature instead passed a combination of

cuts and new revenues to balance the budget. By signing all of the

spending bills, then vetoing the revenue bill, Pawlenty essentially created

the shortfall, then his commissioner declared that it was unanticipated.

The Pawlenty brief says no, the finding that receipts would be less than

anticipated wasn't the February forecast. In June, after the Legislative

session, Commissioner Hanson gave Pawlenty a letter stating that state

revenue was coming in even below the level projected in February. In



that letter, Hanson said that receipts up to that point in 2009 were "down

$70.3 million compared to the Febuary forecast." It was this finding that

met the requirement in the statute of receipts that were "less than

anticipated."

If you're following this — and I don't blame you if you're having a tough

time, I've been struggling with it myself (see the footnote on page 2 of the

brief) — you may wonder how an unaticipated shortfall of $70 million

could justify an unallotment of $2.7 billion. The brief replies: Read the

statute, syllable by syllable. It says there has to be a determination that

revenues will be less than anticipated. There was such a determination.

That triggers the power to use unallotment to balance the budget. But it

doesn't say that the unallotment is limited to the amount by which the

revenues were "less than anticipated." In fact, Team Pawlenty argues,

the statute authorizes the guv to unallot until the amount of spending still

scheduled equals "the amount [of revenue] available for the remainder of

the biennium" — in other words, until the entire projected deficit is

eliminated, which in this case was $2.7 billion. And that's what Pawlenty

did.

So yes, the amount Pawlenty unallotted was 40 times greater than the

amount by which revenues were less than anticipated. The brief doesn't

specify that this leap was necessitated by the governor's veto of the

revenue bill. But it was.

The anti-unallotment briefs also like the phrase "remainder of the

biennium," because, they argue, it implies that this unallotment power is

intended to be used late in the biennium, to make up for an unanticipated

shortfall. In 2009, Pawlenty announced the unallotment before the

biennium had even begun.

The Pawlenty brief replies to that point thusly:

"The term 'remainder' literally refers to whatever 'remains or is left' of

the designated period, which can be the entirety of the period.

Accordingly, the plain language of the statute, including the

reference to 'remainder,' allows the Commissioner to determne that

the amount available for the entire biennium "will be less than

needed" and therefore unallot to correct a deficit for all of the 2010-

2011 biennium."

Oral arguments in the case are scheduled for March 15. There is, of

course, no schedule for when the court will rule, but the timing is



awkward because the Legislature is in session and is trying to deal with a

roughly $1 billion deficit projected for the remainder of the biennium.

In the very last words of the brief, Pawlenty's legal team asserts that not

only were all of the unallotments of 2009 proper but the governor and his

commissioner are "authorized to similarly unallot to correct the remaining

$1.2 billion biennial deficit" (the figure is closer to $1 billion based on the

very latest projection).

To translate that last, if the governor and the Legislature cannot agree on

some combination of $1.1 billion of cuts or new revenues, the governor is

prepared to act unilaterally.

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Common Cause-League of Women Voters Unallotment brief: Don't just rein it in; Strike it down

By Eric Black | Published Wed, Feb 24 2010 5:38 am

The third and last of the amici (yes, that's the plural of amicus) briefs from

the anti-unallotment coalition to reach me Tuesday came from Common

Cause and the League of Women Voters. It differed from all the other

briefs to date in that it explicitly and relentlessly asks the Supreme Court

to strike down the unallotment statute as an unconstitutional violation of

the separation of powers doctrine.

You may feel you've been hearing this argument all along. But not really.

Judge Gearin, who made the lower court ruling that Gov. Pawlenty

exceeded his powers, mostly by the timing of his 2009 unallotment,

specifically ruled that the unallotment statute was constitutional. (She sort

of had to say that. The statute had been found constitutional during an

earlier challenge. But that ruling came from the Court of Appeals, not the

Supreme Court. And the Court of Appeals wasn't reviewing the 2009

unallotments. The specifics of the 2009 unallotments raised the stakes

on the constitutional questions.) Anyway, the Court of Appeals outranks

Gearin, but it doesn't outrank the Supreme Court, which means the high

court could theoretically follow the Common Cause/LWV brief's advice

and strike the unallotment statute down.

So thanks to the Common Cause/LWV brief, we have the full range of

options on the table. Pawlenty's legal team, plus the two amicus briefs on

his side of the argument, want the Supremes to rule that the 2009

unallotments were legal and proper. Most of the anti-unallotment briefs

want the Supremes to affirm Gearin, overturn the 2009 unallotments on

narrow grounds, using a mixture of statutory and constitutional bases,

and leave the unallotment power standing but reined in.

But the Common Cause/LWV brief argues that, after the 2009

unallotments, it's clear that the existence of a power that enables the

governor to overrule the Legislature without his actions being susceptible

to a possible override:

"is facially unconstitutional because it provides a delegation of pure

legislative power which allows the governor to engage in lawmaking

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without any meaningful participation by the Legislature, effectively

granting the governor a new veto power free from the threat of

legislative override, in violation of the constitution’s presentment

clause."

(The presentment clause, if you're wondering, refers to the basic

arrangement in the U.S. Constitution and all state constitutions that

requires that a bill passed by the Congress/Legislature be "presented" to

the president/governor who can sign it or veto it subject to potential

override. You might call it the fundamental building block of the balance

of power between the executive and legislative branches. The Common

Cause/LWV suggests that this basic balance is thrown badly out of

balance if a governor has the power to:

1. Veto a revenue bill passed by the legislature. 2. Declare (through his own appointees) that the lack of that revenue

creates an unanticipated shortfall. 3. Through the power triggered by the unanticipated shortfall overrule

the spending decisions of the Legislature, without the overruling being subject to override.

A couple of other excerpts the Common Cause/LWV brief:

"Lawmaking is a purely legislative function, and it cannot be

delegated to an other branch of government. Maintaining separation

of powers between governmental branches is essential to any

healthy democracy, and to permit the centralization of power

claimed here by the Executive Branch would open the door to a

power that is more monarchical than republican in nature."

Whoa. "Monarchical." And...

"The unallotment statute conveys on its face the power to prioritize

spending, and the power to prioritize spending is the power to make

law, which is a purely legislative function."

By the way, for those love their constitutionalism, please note that while

the separation/balance of powers doctrine in the U.S. Constitution is

implicit and has developed mostly through case law and tradition, in the

Minnesota Constitution it is explicit. As in:

"Article III: 1. Division of powers. The powers of government shall be

divided into three distinct departments: legislative, executive and

judicial. No person or persons belonging to or constituting one of



these departments shall exercise any of the powers properly

belonging to either of the others except in the instances expressly

provided in this constitution."

That's not to say that Article III settles the question of exactly what are

the boundaries of the powers of the different branches. As I mentioned

when writing about the pro-unallotment amicus briefs, three professor

constitutional law focused their Pawlenty-friendly amicus brief on exactly

this issue, arguing that unallotment does not transfer purely legislative

powers to the governor. Repeating the three professors' argument from

that post:

If unallotment allowed the executive to spend state money that the

Legislature had never appropriated, that would be a problem. The

power to authorize and appropriate public money is a legislative

function. The power to spend money is an executive function. But

unallotment is simply spending less than the Legislature

appropriated.

The Common Cause/LWV brief was written by Martin Carlson, a

Minneapolis-based sole practicioner. Carlson is also a former assistant

attorney general, which puts him on the opposite of the case from his

former boss, Attorney General Lori Swanson.

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