A Landmark Case
by TumaJohn Tuma’s Capitol Update – May 7, 2010
“The administration of government has become more complex.”
- US Chief Justice Charles Evans Hughes, June 1, 1931
Every aspiring attorney throughout this land of the free has to read in their constitutional law class this quote from the opinion in the landmark federal Supreme Court decision of Near v. Minnesota, which is viewed as a foundational case for the freedom of press. “Landmark decisions” are the rare cases that are truly game changers on our political or social fields of competition. Minnesota was the birthplace of the set of circumstances that gave birth to this great landmark decision regarding the freedom of press.
Jay M. Near and Howard A. Guilford ran a local political rag in the Twin Cities, The Saturday Press, in September of 1927 at the height of prohibition and mobster control of Minneapolis. Their little paper was keen on exposing corruption and they did not mince words. Guilford would later be shot in a mob-style hit in 1934. Near and Guilford themselves were no paragons of virtue. They were known to take a bribe to run attacks on rivals in their rag and they were notoriously anti-Semitic, anti-Catholic and racist. They expounded the belief in their paper that Minneapolis was owned by the Jewish Mafia.
One of their occasional targets was then Hennepin County attorney Floyd B. Olson. They believed Olson was part of the corrupt structure; the reality is that Olson gained his fame by attacking organized crime. He used his tough-nosed prosecutor image to be elected governor in 1930, which later led him to be venerated as one of our greatest governors. As County Attorney back in 1927, Olson obtained an injunction stopping the publishing of The Saturday Press by Near and Guilford under Minnesota’s “Gag Law.” Passed in 1925, the “Gag Law” gave authority to the government to shut down as a public nuisance any “malicious, scandalous and defamatory newspaper, magazine or other periodical.”
After the action was upheld twice in the Minnesota Supreme Court, the case caught the eye of the newly-formed organization known as the American Civil Liberties Union (ACLU) and the wealthy owner of the Chicago Tribune, Robert Rutherford McCormick. It was through their encouragement and money that the matter was appealed to the US Supreme Court, setting the stage for the landmark opinion providing the level of freedom of expression in our press that we’ve come to take for granted. Imagine what the new world of Internet communication would have looked like had not the Court struck down the Minnesota law.
Adding to the intrigue of this close 5-4 decision by the Supreme Court was the fact that the dissenting opinion was written by Justice Pierce Butler. It was likely that many of Butler’s friends were targets of The Saturday Press. Butler rose to prominence in Minnesota legal circles as one of the most preeminent railroad attorneys in the country. He was a corporate attorney who guided giants like James J. Hill to even greater prominence in the era of ever expanding railroad monopolies. Nonetheless, he came from humble beginnings, born as one of nine children to Irish Catholic immigrants in a log cabin farmstead near Rosemount, Minnesota. His earnest view was that the honest administration of government only became more complex and challenging when attacked by rags that were proven to be malicious and defamatory.
Some 80 years after the landmark decision Near v. Minnesota became a game changer in the freedom of press, another landmark decision has rocked the Minnesota political environment. To paraphrase Justice Hughes, “the administration of state government has become more complex” after the landmark decision in Brayton v. Pawlenty released on Wednesday, May 5 by the Minnesota Supreme Court.
The facts in this case are fairly straightforward. At the completion of the 2009 session, the Legislature presented a series of bills to the Governor which would have balanced the budget as required by our Constitution. The Governor chose to veto the tax bill after the Legislature adjourned, which left the state a couple billion dollars short of a balanced budget. The Governor took advantage of a rarely used statute known as the unallotment statute. This statute allows the Governor to make adjustments in the budget as a result of unexpected shortfalls in revenue or additional expenditures not anticipated when the budget was balanced. The statute had been used in the past for small budget imbalances, but never used to balance the budget after the Legislature and the Governor could not reach agreement during the legislative session.
As part of the largest unallotments in state history, one of the programs cut by the Governor was Minnesota Supplemental Aid/Special Diet Program for families on welfare. Deanna Brayton was one of the recipients of assistance through the program, and with the help of the nonprofit Mid-Minnesota Legal Assistance, challenged the Governor’s unallotment action. The Ramsey County District Court ruled that the Governor’s exercise of his unallotment authority violated separations of power principal to our state constitution. The Governor appealed the decision to the state Supreme Court.
In a surprise decision that reverberated throughout the marble halls of the Capitol like a cannon blast on Wednesday of this week, the Supreme Court upheld the Ramsey County decision. The most intriguing aspect of the decision was the fact that the swing vote and the one writing the decision was Chief Justice Eric Magnuson. Magnuson was appointed to the court by Governor Pawlenty two years ago, leaving a lucrative private practice. Prior to the Governor’s election, he practiced law with Magnuson, who was viewed by many as one of the Governor’s closest confidants. Soon after taking the reins as our chief justice, Magnusson realized the court was in the grips of a financial crisis which could jeopardize its core mission of delivering justice to the citizens of Minnesota. Magnuson worked closely with other stakeholders to implement efficiencies within the court system, but he soon recognized the court needed an increased budget to maintain core services. His desire for better investments put him at odds with the “no new taxes” rhetoric of the Governor.
On Tuesday the Governor again turned on his rhetoric to position himself for higher office by threatening the Legislature to balance the budget or he would do it himself through unallotments again. “If they won’t do it, I’ll do it for them,” was the quote that appeared in the Star Tribune on Wednesday, the same day the decision in Brayton v. Pawlenty was released. It seemed like the senior legal partner Magnuson was almost saying to the junior Pawlenty “that’s not quite the way the Constitution of the people was designed, my lad.” Magnuson’s opinion clearly outlined that unallotments can only be used after the budget has been balanced. Magnuson ruled that the Legislature never intended by creating this statute to allow the Governor to act unilaterally to create a balanced budget. Therefore, his only option is to work with the Legislature to first balance the budget and only after that can he use the unallotment to deal with unanticipated budget shortfalls.
The decision essentially means the Governor’s $2.7 billion in unilateral budget cuts in 2009 basically did not go into effect. Though the integrity of the Constitution was saved by this court case, the immediate budget crisis just became more challenging for the Legislature. With the Governor’s unallotments on the books and the majority of the budget issues solved earlier in April, the Legislature was looking at finding about $131 million in savings from the massive Health and Human Services budget. Frankly, the session was rather boring for most lobbyists, as we waited for the political conventions to finish so that the Legislature can solve this relatively small problem. That game has changed substantially with the Supreme Court decision and things are now much more complex and interesting.
In the midst of the quickly changing playing field of this 2010 legislative session, several key environmental issues have been taking shape.
Nuclear Power. The energy area certainly saw a game changer occur in the House on Thursday afternoon while they were debating SF2971 which made technical changes to our energy laws. Rep. Bill Hilty (DFL-Finnlayson) offered an amendment repealing the moratorium on the construction of new nuclear reactors in Minnesota. Rep. Hilty is a champion on environmental issues, but felt it necessary to make a preemptive strike with an amendment to repeal the moratorium that required some conditions to be met. Those conditions were protection for ratepayers and taxpayers from cost overruns related to the construction of nuclear power plants, but unfortunately did not include any requirements to find a permanent nuclear waste storage site. The amendment passed on a 73-59 vote with an unusual mix of support. Not all the pro-nuke legislators supported this change, but several strong environmentalists also followed Hilty. The issue will now go to conference committee with the Senate, who has not passed the moratorium repeal this year but did pass a repeal last year by a wide margin.
Coal Power. On the same House energy bill there were three attempts to repeal the moratorium on new energy coming from coal power plants in Minnesota or imported from other states. The 2007 legislation does not allow for the construction of coal power plants or the importation of dirty coal power from our neighboring states until there is a regional or national energy policy regulating carbon emissions. Only two of the amendments had a roll call vote and they both failed on a vote of 58-74.
Complete Streets. The Complete Streets legislation is now part of the Omnibus Transportation Policy Bill (SF2540) as it passed out of the Senate. The House has adopted its version of the omnibus bill, but it does not include the Complete Streets legislation. This is not a concern because the House has already had a strong bipartisan vote passing a Complete Streets bill on its own. Because of that, it can be taken up in the conference committee and will likely be included in the final conference report. The big question now is whether the Governor will sign an omnibus transportation policy bill. He vetoed a similar bill last year for various reasons.
Legacy Amendment Funding. Late Thursday night the full House passed their version of the Legacy Amendment Funding (HF3790) only after some last-minute backroom negotiations with some hunting and fishing groups and agriculture groups. Several mostly hunting and fishing groups did not like the adoption last year of definitions of the words, “protect, enhance and restore.” These groups want more of a focus on land acquisition and habitat restoration. As a result of some last-minute pressure on Thursday, they were able to obtain some modifications to the definitions through a floor amendment. The Senate has repealed the definitions and it is likely the issue will be worked out in conference committee. Agricultural groups objected to a groundwater fee increase to help supplement funding from the Legacy Amendment to study groundwater in the 11 county metro area. The fee would have only applied to large groundwater users like farmers who irrigate within the 11 county metro area. This means there will be less money for groundwater monitoring in the Twin Cities area.
The Legislature must finish their work by Monday, May 17 under the Constitution. Given the fact that things just became a little more complex after the game-changing landmark decision from the Supreme Court, it is likely the session will not finish early. There is an outside chance they may want to finish before fishing opener weekend which starts on Saturday, May 15, but that will depend on how soon legislative leaders can work out a global agreement with the Governor. As always a great deal happen in the last week of the legislative session as they rush to adjournment, so stay tuned for updates. I’ll likely try to get a supplemental update out early next week on the collaborative agenda provisions as they enter the last week.
