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Date: 11-23-2017

Case Style:

The Ninetieth Minnesota State Senate, et al. vs. Mark B. Dayton,  in his official capacity as Governor of the State of Minnesota

Minnesota Gov. Mark Dayton

Case Number: A17-1142 

Judge: Lorie Skjerven Gildea

Court: STATE OF MINNESOTA IN SUPREME COURT

Plaintiff's Attorney:

Sam Hanson

Scott G. Knudson

Scott M. Flaherty

Emily M. Peterson

Defendant's Attorney:

Douglas A. Kelley

Steven E. Wolter

Kevin M. Magnuson

Brett D. Kelley

David F. Herr

Description: On May 25, 2017, the Ninetieth Minnesota State Senate and the Ninetieth Minnesota
State House of Representatives (collectively, the Legislature) each adjourned sine die,
ending the special session that began on May 23, 2017. On May 30, 2017, the Governor
vetoed line-item appropriations to the Legislature for its biennial budget. The Legislature
commenced this action, contending, in part, that the line-item veto power cannot be used
over the appropriations to itself without violating the Separation-of-Powers clause, Minn.
Const. art. III. The Governor contends that the line-item veto power is expressly conferred
on the Executive by Article IV, Section 23 of the Minnesota Constitution, and thus its
exercise, even over an appropriation for the Legislative Branch of government, cannot
violate the Separation-of-Powers clause. The district court held that the line-item vetoes
were unconstitutional under Article III. We granted the Governor’s petition for accelerated
review.
For the first time in Minnesota history, we are asked to resolve a lawsuit brought by
one of our coordinate branches of government—the Legislative Branch—against our other
coordinate branch of government—the Executive Branch. We conclude in these
unprecedented circumstances that proper respect for our coordinate branches counsels
judicial restraint.
On the Article IV issue, we conclude that the line-item vetoes did not violate
Article IV, section 23. On the Article III issue, we conclude that the line-item vetoes did
not violate Article III by effectively abolishing the Legislature, but we decline to decide
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whether those vetoes nevertheless violated Article III as unconstitutionally coercive. We
exercise restraint on the coercion aspect of the Article III issue because Article IV of the
Minnesota Constitution—addressing the legislative process—–textually commits to the
Legislature and the Governor the powers to resolve political disputes that arise in the course
of that process, including the process of appropriating funding. The parties have so far
failed to resolve their dispute through the legislative process our constitution contemplates.
Nevertheless, the record now before us demonstrates that the Legislature has access to the
funding it says it needs to continue its legislative functions until it reconvenes in the next
regular session. At that time, the Legislature, unconstrained by gubernatorial conditions
for a special session, can exercise its constitutional appropriations powers. We, therefore,
decline to resolve the question of whether the line-item vetoes violated Article III as
unconstitutionally coercive. Based on the analysis that follows, we reverse in part, vacate
in part, and remand to the district court for entry of dismissal.
FACTS
This case arises from events that occurred at the end of the 2017 legislative session.
By the last day of the 2017 regular session, May 22, 2017, most of the final budget bills
for the next biennium—fiscal years 2018–2019—had not been presented to the Governor.
As required by the constitution, the Legislature adjourned, choosing to reconvene on
February 20, 2018. Sen. Journal, May 22, 2017, at 6101; House Journal, May 22, 2017, at
7022; see Minn. Const. art. IV, § 12 (“The legislature shall not meet in regular session . . .
after the first Monday following the third Saturday in May of any year.”).
5
The Governor, by formal proclamation, called a special session that began at
12:01 a.m. on May 23, 2017. Proclamation for Special Session 2017, 2017 Minn. Laws
1st Spec. Sess. 1015; see Minn. Stat. § 4.03 (2016) (requiring the Governor to call a special
session “by proclamation”). As noted in the Governor’s proclamation, legislative leaders
“ha[d] agreed on an agenda and procedure” for the special session. Specifically, legislative
leaders and the Governor agreed that the special session would “be confined to the
outstanding budget bills and the tax bill,” the bills would be “voted upon or passed by either
body within one legislative day,” and the Legislature would “adjourn the Special Session
no later than 7:00 a.m. on May 24, 2017.”
The Legislature did not vote upon or pass the outstanding bills within one legislative
day and did not adjourn on May 24, 2017. The special session continued until May 25,
2017. On that day, the House “adjourned sine die for the 2017 Special Session,” House
Journal, May 25, 2017, at 64; as did the Senate, Sen. Journal, May 25, 2017, at 111 (“[T]he
Senate do now adjourn the Special Session sine die.”). Bills passed during the special
session were presented to the Governor on May 26, 2017.
One of the bills passed during the special session and presented on May 26 was the
state government appropriations bill, Senate File No. 1. In article I, section 14 of this bill,
the Legislature appropriated funds to the Department of Revenue for that agency’s biennial
budget. Act of May 30, 2017, ch. 4, art. 1, § 14, 2017 Minn. Laws 1st Spec. Sess. 1409,
1420–23. But the Department of Revenue’s appropriation would not be effective “until
the day following enactment of . . . House File No. 1.” Id. at 1421. House File No. 1 made
amendments to a variety of the state’s tax laws. Act of May 30, 2017, ch. 1, 2017 Minn.
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Laws 1st Spec. Sess., at 1017. The parties agree that the effect of article I, section 14 of
Senate File No. 1 was that a veto of House File No. 1, the tax bill, would mean there would
be no appropriation for the Department of Revenue for the next biennium.
Section 2 of Senate File No. 1 provided appropriations to the Legislature for each
fiscal year (FY) in the next biennium, allocated to the House, Senate, and Legislative
Coordinating Commission (LCC)1 as follows:
Senate: $32.299 million (FY 2018) $32.105 million (FY 2019)
House: $32.383 million (FY 2018) $32.383 million (FY 2019)
LCC: $17.511 million (FY 2018) $17.681 million (FY 2019)

Act of May 30, 2017, ch. 4, art. 1, § 2, 2017 Minn. Laws 1st Spec. Sess. 1409, 1410–11.
On May 30, 2017, the Governor signed all but one of the bills presented at the end
of the 2017 legislative session,2 including the tax bill, House File No. 1, and the

1 The Legislative Coordinating Commission coordinates the activities of the Legislature, providing staff support and administrative and other services to commissions, agencies, and boards established by the Legislature. See Minn. Stat. § 3.303 (2016). The appropriations to the LCC also fund the operations of the Revisor of Statutes, the Legislative Auditor, and the Legislative Reference Library. See 2017 Minn. Laws 1st Spec. Sess. at 1411–12.

2 The constitution also provides the Governor with general veto power over an entire bill. Minn. Const. art. IV, § 23 (stating that the Governor can “veto[] a bill” and “return it with his objections to the house in which it originated”). The Governor used his general veto power to veto Senate File No. 3, a labor-standards bill that addressed local governments’ ability to establish wage and benefit standards at levels higher than provided by statute. The constitutionality of this veto is not before us.

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appropriations bill, Senate File No. 1.3 In section 2 of Senate File No. 1, however, the
Governor line-item vetoed the following provisions:
 Page 2, Line 24: Subd. 2 Senate 32,299,000 32,105,000
 Page 2, Line 25: Subd. 3 House of Representatives 32,383,000 32,383,000
S.F. 1, § 2, 90th Minn. Leg. 2017. The Governor did not veto the biennial appropriations
of approximately $35 million for the LCC.
The Governor notified the Senate that he had “line-item veto[ed] the appropriations
for the Senate and House of Representatives to bring the Leaders back to the table to
negotiate provisions” in three bills that the Governor had just signed and that subsequently
became law. Specifically, the Governor said that there were provisions in the “Tax,
Education and Public Safety” bills that he could not “accept.” He explained to legislative
leaders that he “veto[ed] the appropriations for the House and Senate” for the next
biennium because the Legislature’s “job has not been satisfactorily completed.” He offered
to call a special session if the Legislature would agree to “remove” or “re-negotiate” the
provisions the Governor found objectionable in the Tax, Education, and Public Safety bills
stating, “I . . . await your response.”
On June 13, 2017, the Legislature filed a complaint in Ramsey County District
Court. In count one, the complaint sought a declaration that the Governor’s line-item

3 The Governor notified the Legislature that he objected to the condition in Senate File No. 1, which made the appropriation to the Department of Revenue effective only upon enactment of House File No. 1. The constitutionality of the Legislature’s decision to link the appropriation for the Department of Revenue to the enactment of the tax bill is not before us.

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vetoes were unconstitutional as a violation of the Separation-of-Powers clause in the
Minnesota Constitution.4 In counts two and three, the Legislature sought injunctive or
mandamus relief directing the Commissioner of the Minnesota Department of Management
and Budget (MMB) to allot the funds that were appropriated to the Legislature in Senate
File No. 1 for the 2018–2019 biennium. The district court ordered the parties to show
cause on whether the case was justiciable and, if so, why the relief sought in the complaint
should or should not be ordered. Ninetieth Minn. State Senate v. Dayton, No. 62-CV-17
3601, Order at 2 (Ramsey Cty. Dist. Ct. filed June 14, 2017).
On June 23, 2017, the Governor and the Legislature stipulated that count one of the
Legislature’s complaint, which seeks a declaratory judgment, was ripe for decision. They
also asked the district court to enter a temporary injunction directing MMB to “take all
steps necessary” to fund the Legislature based on “fiscal year 2017 base general fund
funding” during the appeal period—defined as completion of all appellate review and
issuance of the appellate court’s mandate—or until October 1, 2017, whichever occurred
first. They agreed that a decision on counts two and three of the Legislature’s complaint
could be stayed until our final decision in this matter.
The district court filed an order on the parties’ stipulation on June 26, 2017.
Ninetieth Minn. State Senate v. Dayton, No. 62-CV-17-3601, Order at 1 (Ramsey Cty. Dist.

4 Count one of the Legislature’s complaint also suggested a violation of Article IV, Section 23 of the constitution by pleading that, because the vetoed appropriations matched amounts recommended in the Governor’s budget for the Legislature, the vetoes failed to satisfy Article IV’s requirements for the exercise of that power. This Article IV argument was made by the Legislature both in the district court and before us.
9
Ct. filed June 26, 2017). The court concluded that count one of the complaint was ripe and
that the Legislature had standing to bring the suit. Id. at 6. Relying in part on the temporary
funding orders issued by district courts in the Second Judicial District in connection with
the government shutdowns in 2001, 2005, and 2011, id. at 5, the court concluded that it
was authorized to grant the temporary funding agreed to in the parties’ stipulation. Id. at
7–11 (explaining that notwithstanding the limits on appropriation imposed by Minn. Const.
art. XI, § 1, “ ‘when the traditional processes of government have failed,’ ‘the rigidity of
Article XI’ must temporarily yield in favor of the broader constitutional rights of
Minnesota’s citizenry” (citations omitted)).
On July 19, 2017, the district court filed an order granting the Legislature’s
requested declaratory judgment on count one. Ninetieth Minn. State Senate v. Dayton,
No. 62-CV-17-3601, Order at 1 (Ramsey Cty. Dist. Ct. filed July 19, 2017) (“July 19
order”). The court declared the Governor’s line-item vetoes null and void as a violation of
the Separation-of-Powers clause in Article III because they “impermissibly prevent[ed] the
Legislature from exercising its constitutional powers and duties.” Id. at 3. Reasoning that
Article III limits the Governor’s veto power, id. at 12–13, the court concluded that, by
vetoing the appropriations for the Legislature, the Governor’s line-item vetoes “both
nullified a branch of government and refashioned the line-item veto as a tool to secure the
repeal or modification of policy legislation unrelated to the vetoed appropriation,” id. at
16. The court therefore concluded that the appropriations struck by the Governor’s line
item vetoes “became law with the rest of the bill.” Id. at 3.
10
Judgment was entered on the district court’s order on July 20, 2017. On July 31,
2017, to resolve a dispute over the level at which the Legislature would be funded during
this appeal, the parties entered into a second stipulation. They agreed that “[d]uring the
appeal period,” MMB would “continue to provide funding to the” Legislature based on its
“fiscal year 2017 base general fund funding.” Either body of the Legislature could
“petition the [district] court for funding” beyond that provided by MMB in the event of
“extraordinary and unanticipated expenses.” The district court adopted this stipulation by
order dated July 31, 2017. Ninetieth Minn. State Senate v. Dayton, No. 62-CV-17-3601,
Stipulation and Order at 2 (Ramsey Cty. Dist. Ct. filed July 31, 2017).
On July 26, 2017, we granted the Governor’s petition for accelerated review. Oral
argument was held on August 28, 2017. On September 8, 2017, we ordered the Governor
and the Legislature to address the constitutionality of judicially ordered funding for the
Legislature, as well as any other potential remedies for vindication of the people’s
constitutional right to three independent, functioning branches of government. Ninetieth
Minn. State Senate v. Dayton, 901 N.W.2d 415, 417 (Minn. 2017) (order). We also directed
the parties to apprise us of the funds available to the Legislature going forward. Id. In
response they disclosed that, as of September 1, the House had carryover funds of
$10,681,438.14 and the Senate had carryover funds of $6,004,325.94, both from previous
appropriations. They agreed that, given the chambers’ combined estimated monthly
expenses of $5.2 million and current spending rates, the Senate’s funds would be exhausted
by December 1, 2017, and the House’s funds by February 1, 2018.
11
We also ordered that the Legislature and the Governor mediate their dispute. Id.
On September 22, 2017, the parties advised us that mediation had reached an impasse.
On September 25, 2017, the Governor amended his previous statement on the
Legislature’s funding, to include carryover funds available to the LCC from previous
appropriations, in the amount of $3,640,956.91. The Governor also noted in his amended
statement that the FY 2018–2019 appropriations to the LCC, which exceed $35 million,
would, if used to fund the Legislature’s operations, allow the Legislature to continue
functioning until “well after the next legislative session begins.” The Legislature disagreed
with the “numbers presented by the Governor” and noted that the legality of the
Legislature’s use of the LCC’s carryover funds or FY 2018–2019 appropriations was
“untested.”
In an order filed September 28, 2017, we directed the parties to provide information
on the carryover funds and appropriations available to the LCC, and the legal authority that
would permit the Legislature to use those funds.5 Ninetieth Minn. State Senate v. Dayton,
No. A17-1142, Order at 3-4 (Minn. filed Sept. 28, 2017). In their subsequent disclosures,

5 In a separate order also filed on September 28, 2017, we denied the motion of the Association for Government Accountability to intervene, and denied a motion by We the People for leave to file an amicus brief, both as untimely. Ninetieth Minn. State Senate v. Dayton, No. A17-1142, Order at 1-2 (Minn. filed Sept. 28, 2017). The motion to intervene raised arguments regarding our subject-matter jurisdiction over this dispute. Having reviewed those arguments, we conclude that they lack merit. We have subject-matter jurisdiction.

We also deny the Governor’s motion, filed on September 20, 2017, to strike portions of the Legislature’s informal memorandum filed in response to our September 8 order.

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the parties generally agreed on the funds currently available to the Legislature, which
consist of funds carried over by the House and Senate from previous appropriations, funds
available to the LCC from carried over funds,6 and the appropriations to the LCC for the
current biennium. The parties also generally agreed that, subject to certain statutory
requirements, the Legislature has the discretion to use the carryover funds for the House,
the Senate, and the LCC, as well as the discretion to use the biennial appropriations to the
LCC.
ANALYSIS
The questions raised in this case involve powers the Minnesota Constitution confers
on our three branches of government. The interpretation of the constitution is purely legal
and thus subject to de novo review. Star Tribune Co. v. Univ. of Minn. Bd. of Regents,
683 N.W.2d 274, 283 (Minn. 2004) (“Issues of constitutional interpretation are questions
of law which we review de novo.”).
I. We begin with the Governor’s line-item veto power, which resides in Article IV of
our state constitution, an article that generally addresses the powers of the Legislative
Branch. See Minn. Const. art. IV, § 23 (“If a bill presented to the governor contains several
items of appropriation of money, he may veto one or more of the items while approving
the bill.”). Because it is located in the constitutional article that confers legislative powers,
we have “narrowly construed” the Executive’s line-item veto power “to prevent an

6 The parties reported in this latest disclosure that the LCC’s carryover fund balance increased slightly, to approximately $3.8 million, based on updated calculations.
13
unwarranted usurpation by the executive of powers granted” to the Legislature.7 Inter
Faculty Org. v. Carlson, 478 N.W.2d 192, 194 (Minn. 1991).
In our September 8 interim order, we stated that the Governor’s exercise of the
power to veto items of the Legislature’s appropriations for itself did not violate the plain
language of Article IV, Section 23 of the Minnesota Constitution. 901 N.W.2d at 415–16.
We explain that conclusion today.
The plain language of Article IV places only one substantive limit on the line-item
veto power, specifically, the requirement that the veto be made as to an “item” of
“appropriation.” Minn. Const. art. IV, § 23.8 See State ex rel. Gardner v. Holm, 62 N.W.2d
52, 55 (Minn. 1954) (“[W]here the language used is clear, explicit, and unambiguous . . .

7 Until the Minnesota Constitution was amended in 1974, a corollary provision existed in Article V, which identifies the Executive’s powers. See Minn. Const. of 1857, art. V, § 4 (providing the Executive with “a negative upon all laws passed by the legislature, under such rules and limitations as are in this constitution prescribed”). This separate Executive authority to issue a “negative” on legislation was deleted when the constitution was amended in 1974. Act of Apr. 10, 1974, ch. 409, § 1, 1974 Minn. Laws 787, 797 (showing proposed amendment, ultimately passed by voters, to strike this sentence from Article V). The 1974 amendments were stylistic, not substantive. City of Golden Valley v. Wiebesick, 899 N.W.2d 152, 159 (Minn. 2017) (explaining that the 1974 amendments to the constitution were intended to make the document “more readable and stylistically correct” (citation omitted) (internal quotation marks omitted)).

8 Relying on the language of the line-item veto provision as adopted in 1876, the Legislature contends that the Governor must also “object” to a specific appropriation in addition to identifying the item vetoed. See Inter Faculty Org., 478 N.W.2d at 194 & n.2 (allowing the Governor to “object” to “items of appropriation” by providing the Legislature with a “statement of the items to which [the Governor] objects” (quoting Minn. Const. of 1857, art. IV, § 11 (as amended))). The Legislature points to no authority that construed the line-item veto provision, before the 1974 amendments to the constitution, to require both a veto and an objection. In this case, the Governor vetoed the appropriations and thereby objected to them. Accordingly, we reject the Legislature’s argument.

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and free from obscurity, the courts must give it the ordinary meaning of the words used.”).
See also Inter Faculty Org., 478 N.W.2d at 194 & n.2 (explaining that the line-item veto
power is “a negative authority, not a creative one” because the power is only “to strike”
and the power can be exercised only to “delete a specific itemic component or the whole
of an appropriation”). Accordingly, we have said that our “focus” is on whether the
Governor “has vetoed ‘an item of appropriation of money.’ ” Johnson v. Carlson,
507 N.W.2d 232, 235 (Minn. 1993). And “an item of appropriation of money” is “a
separate and identifiable sum of money appropriated from the general fund dedicated to a
specific purpose.” Inter Faculty Org., 478 N.W.2d at 195.9 We do not “judge the wisdom
of a veto, or the motives behind it”; we ask only whether “the veto meets the constitutional
test.” Johnson, 507 N.W.2d at 235; see also Duxbury v. Donovan, 138 N.W.2d 692, 704
(Minn. 1965) (declining to “intimate one way or another” whether “the use of the veto in
this particular case was or was not prudent”).
The district court found that the Governor’s line-item vetoes were applied to an
“item of appropriation”—the sums listed in lines 24–25 on page 2 of Senate File No. 1—
and those sums were “dedicated to a specific purpose,” funding the Senate and the House
in the 2018–2019 biennium. We agree. The line-item vetoes therefore comply with
Article IV, Section 23.
Whether it was wise for the people of Minnesota in 1876 to provide for a veto power
over items of appropriations, in language that does not expressly exclude the appropriations

9 See Minn. Stat. § 16A.011, subd. 4 (2016) (“ ‘Appropriation’ means an authorization by law to expend or encumber an amount in the treasury.”).
15
for a coordinate branch of government, is not for us to judge. We must follow the plain
language of Article IV, Section 23. See, e.g., State ex rel. Gardner, 62 N.W.2d at 63
(noting, based on the plain language of the constitution, that “the governor clearly has the
right to veto any bill appropriating money”); see also People ex rel. Millner v. Russel,
142 N.E. 537, 538 (Ill. 1924) (explaining that the Governor’s veto authority is “direct,
plain, and affords no basis for the construction that . . . appropriations for salaries of
officers of the state government were intended to be excepted” even though “the
Governor . . . clothed with such power . . . might veto appropriations . . . and thereby
suspend the operation of any or all departments of the state government”). Had the framers
of the Minnesota Constitution and the people of Minnesota wished to exclude any branch,
officer, or agency from the scope of the Governor’s veto power, they could have done so.
They did not. See State ex rel. Putnam v. Holm, 215 N.W. 200, 202 (Minn. 1927)
(“Unambiguous words need no interpretation . . . [w]e are not empowered to say that [the
framers] meant something they did not say.”).
Based on this analysis, we hold that the Governor’s line-item vetoes of the
Legislature’s biennial budget appropriations did not violate Article IV, Section 23 of the
Minnesota Constitution.
II.
Having concluded that the Governor’s line-item vetoes did not violate Article IV,
Section 23 of the Minnesota Constitution, we next consider whether those vetoes
nonetheless violate Article III of the Minnesota Constitution. The separation-of-powers
principle is embodied in Article III, which states:
16
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.

Minn. Const. art. III, § 1.
The Legislature contends, and the district court concluded, that the Governor’s line
item vetoes violate Article III for two reasons. First, the Legislature argues that the vetoes
violate Article III because the exercise of the veto power over the Legislature’s
appropriations for the House and Senate effectively abolished the Legislature by depriving
it of the funding needed to perform “constitutionally mandated core functions.” The
Legislature explains that the monthly expenses for the House and Senate, together, are
approximately $5.2 million, which were intended to be funded by the vetoed
appropriations. The Legislature points out that it will not have another opportunity to
appropriate funding until it reconvenes in February 2018. Second, the Legislature argues
that the vetoes violate Article III because they are unconstitutionally coercive. We consider
each aspect of the Article III issue in turn.
A.
We turn first to the question of whether the line-item vetoes violate Article III
because the vetoes effectively eliminated the Legislative Branch. The district court
concluded that the Governor’s line-item vetoes “effectively abolished” and “nullified” the
Legislature by depriving it of the funding needed to perform its core functions. July 19
order at 15–16. Even taking into account the carryover funds from previous appropriations
17
to the House and Senate, the district court concluded that legislative operations would cease
well before the Legislature reconvenes in February 2018. Id. at 15 n.4.
On appeal, the Governor contends that his vetoes did not effectively abolish the
Legislature, for two reasons. First, the Governor argues that the exercise of the
constitutional line-item veto power cannot abolish a constitutional body because the
Judiciary has the authority to provide “core function funding to preserve the existence of a
constitutional body.” This approach has been used in past funding disputes between the
Executive and Legislative Branches, the Governor notes, with the Judiciary authorizing
funding as needed for the “critical, core functions” of a constitutional body. Second, the
Governor contends that the Legislature has appropriated funds available to it that will
sustain the Legislature well into 2018.10
1.
We begin with the Governor’s argument that the Judiciary can order funding for the
Legislature as needed to perform its core functions. The Governor acknowledges that the
Judiciary does not have the power to appropriate, but contends that we nonetheless have
the implied power, under Article I of the Minnesota Constitution, to authorize funding for

10 The Governor also asserted in his informal memorandum filed in response to our September 8 order that the Executive has the authority to fund the Legislature’s core functions. We disagree. We explained in Brayton v. Pawlenty that the Legislature and the Governor must work together in the budget process, but the Executive’s constitutional powers in the legislative budget process are limited to approval and veto powers. 781 N.W.2d 357, 365 (Minn. 2010). We are unaware of any constitutional authority that allows the Governor to authorize funding for the Legislative Branch in the absence of an appropriation.

18
the Legislature to vindicate the constitutional rights of Minnesota’s citizens.11 We
disagree.
The language of Article XI, Section 1 of the Minnesota Constitution is
unambiguous: “No money shall be paid out of the treasury of this state except in pursuance
of an appropriation by law.” The purpose of this provision in Article XI is “to prevent the
expenditure of the people’s money without their consent first had and given.” State ex rel.
Nelson v. Iverson, 145 N.W. 607, 608 (Minn. 1914).
In the face of this unambiguous language, we have declined to order funding, even
in circumstances where constitutional rights are at stake. See, e.g., State v. Dahlgren,
107 N.W.2d 299, 303–04 (Minn. 1961) (acknowledging that a person charged with
committing a crime “is constitutionally entitled to the advice and assistance of counsel”
but stating that we have “no power to appropriate money to compensate such counsel” and
concluding that “[o]nly the legislature can do that”); State ex rel. Chase v. Preus, 179 N.W.
725, 726 (Minn. 1920) (“The mere creation of the liability on the part of the state . . . is of
no force, in the absence of an appropriation of funds from which the liability may be
discharged.”).12 The only conclusion we can draw from the plain language of the

11 Our decision in In re Clerk of Court’s Compensation for Lyon County v. Lyon County Commissioners, on which the Governor relies, did not address the constitutionality, under Article XI of the Minnesota Constitution, of judicially ordered funding for the Legislative Branch of government. 241 N.W.2d 781 (Minn. 1976). Thus, that decision is of limited help here.
12 These decisions are consistent with those by other states that have addressed similar constitutional language. See, e.g., Wallace v. Baker, 336 So. 2d 156, 156 (Ala. 1976) (holding that the state constitution “specifically prohibits the payment out of the treasury of money” except by an appropriation passed by the legislature); Rios v. Symington,
19
constitution and these decisions is that Article XI, Section 1 of the Minnesota Constitution
does not permit judicially ordered funding for the Legislative Branch in the absence of an
appropriation.
2.
Next, we consider whether, in the absence of judicial funding, the Legislature has
been “effectively abolished.” The district court reasoned that the Governor’s line-item
vetoes abolished the Legislature because the evidence showed that, but for the parties’
stipulation that allowed MMB to provide funding to the Legislature during this proceeding,
the Legislature would have ceased operations by July 27, 2017 (Senate) and September 1,
2017 (House). In reaching this conclusion, the district court did not consider the
availability of the FY 2018–2019 appropriations to the LCC, and there was no evidence in
the record before the district court regarding the LCC’s carryover funds from previous
appropriations.

833 P.2d 20, 23 (Ariz. 1992) (explaining that “ordinarily public funds may be expended only by legislative authority”); Stevens v. Geduldig, 719 P.2d 1001, 1012 (Cal. 1986) (explaining that the appropriations provision in California’s constitution “embod[ies] a fundamental and time-honored principle of representative government” and ensures that “decisions about the allocation of public funds will be made through the legislative appropriation process”); Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 265 (Fla. 1991) (stating that Florida courts have “long held that the power to appropriate state funds is legislative”); Fletcher v. Commonwealth, 163 S.W.3d 852, 863 (Ky. 2005) (explaining that the court has “consistently held that” Kentucky’s appropriations provision “means exactly what it says,” namely, that the “ ‘raising and expenditure of the money necessary to operate state government’ ” is a legislative function (quoting Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 441 (Ky. 1986))); Colbert v. State, 39 So. 65, 66 (Miss. 1905) (“[T]he control of the purse strings of government is a legislative function.”).
20
As a matter of law, the Legislature remains in existence between sessions. See State
v. Hoppe, 215 N.W.2d 797, 804 (Minn. 1974) (explaining that “despite temporary and
interim adjournments the legislature is in existence until the final adjournment of its
biennial regular session”); see also The Pocket Veto Case, 279 U.S. 655, 681 (1929) (noting
that “the legislative existence” of Congress is not terminated by an adjournment between
sessions). The factual question this case presents is whether the Legislature has the funding
needed to exercise its constitutional duties on behalf of Minnesota’s citizens while it is in
an interim adjournment and until it reconvenes. We conclude that it does.
The Legislature adjourned the regular session until February 20, 2018 and adjourned
the special session sine die. The parties agree that, during the interim adjournment, the
monthly expenses for the House and Senate are approximately $5.2 million. Until at least
October 1, the Legislature has not needed to access its carryover funds to pay interim
expenses because the parties’ stipulations, as adopted by the district court, provided for
funding through MMB. After October 1 then, the Legislature requires approximately
$26 million to fund its interim expenses through February 2018.13

13 The parties’ stipulated funding agreement allowed the Senate to use carryover funds for Senate Office Building expenses, but the agreement did not otherwise require the Legislature to access any available carryover or appropriated biennial funds. The parties tell us that the district court’s July 31 temporary funding order expired on October 1, and the Legislature is “not obligated to refund amounts expended” during the litigation under the temporary funding orders. Thus, in calculating the Legislature’s remaining funding needs, we have used the agreed-upon monthly expenses to calculate an estimate of the Legislature’s funding needs beginning on October 1, 2017.

21
We asked the parties to explain all funding sources available to the Legislature to
pay interim expenses. The Legislature’s most recent submission explained that funds are
available to it from the following sources: (1) approximately $16,263,488 in carryover
funds from previous appropriations to the House and Senate; (2) approximately $3,466,493
in unencumbered carryover funds from previous appropriations to the LCC; and (3) after
deducting encumbered and assumed employee compensation for the biennium,
approximately $6,920,000 in appropriated funds to the LCC.14
Based on the parties’ submissions after oral argument in this case, we conclude that
the Legislature currently has access to at least $26 million, and, should the Legislature
choose, up to $40 million, in appropriated, unencumbered, funds.15 We reach this

14 The funds available to the Legislature from the LCC biennial appropriations, $35,192,000, can be calculated two ways. First, in its October 5 memorandum, the Legislature explained that $14,072,000 from the LCC’s FY 2018 appropriation has already been encumbered for FY 2018 employee compensation. Assuming that at least the same amount will be encumbered at the appropriate time for FY 2019 employee compensation, the net amount available to the Legislature from the LCC’s biennial appropriations, after taking the entirety of the biennial employee compensation into account, is $6,920,000. Second, the amounts allocated to the Legislative Auditor, the Revisor of Statutes, and the Legislative Reference Library, see 2017 Minn. Laws 1st Spec. Sess. at 1412, can be excluded from the LCC’s biennial appropriations, leaving a net sum of $6,284,000 available to the Legislature. Using either calculation, as we explain below, the Legislature has access to at least $26 million in appropriated, unencumbered, funds.

15 The Legislature stated in its latest submission that $14,072,000 in funds from the LCC’s biennial appropriations have already been encumbered for employee compensation in FY 2018, but no employee-compensation funds have been encumbered for FY 2019, which explains the range between $26 million and $40 million. Other appropriated funds have also been encumbered, dedicated for specific purposes, or otherwise are restricted in use, see, e.g., Minn. Const. art. XI, §§ 14–15. We excluded specific amounts that the Legislature identified as encumbered, dedicated, or restricted, but how the Legislature chooses to spend the remaining funds is left to its discretion.
22
conclusion because: the House and Senate have carryover funds available from previous
appropriations; the Legislature can access carryover funds available to the LCC from
previous appropriations; and the Legislature can access portions of the FY 2018–2019
appropriations to the LCC. The Legislature therefore has access to sufficient funds to
sustain its operations until it reconvenes in February 2018.
Further, we conclude that the Legislature has the necessary statutory authority to
use these funds if it chooses to do so. Specifically, the Legislature can carry over funds
appropriated in one biennium into the next biennium, which can be used “to pay expenses
associated with . . . interim activities . . . .” Minn. Stat. § 16A.281 (2016) (“Balances may
be carried forward into next biennium”). In addition, the LCC, which also holds carryover
funds and has appropriated funds available for this biennium, “may transfer unobligated
balances among general fund appropriations to the legislature.” Minn. Stat. § 3.305,
subd. 2 (2016). Finally, “[a]n appropriation made to the legislature . . . for all or part of a
biennium may be spent in either year of the biennium.” Minn. Stat. § 16A.281.
The Legislature agrees that it can access these carryover and appropriated funds, but
contends that the decision to do so rests within its sole discretion. We agree. The relevant
statutes, discussed above, are framed in permissive terms. See Minn. Stat. § 3.305, subd. 2
(stating that the LCC “may transfer unobligated balances”); Minn. Stat. § 16A.281 (stating
that the Legislature “may” spend appropriations in “either year of the biennium”). The
permissive term “may” confers discretion on the Legislature to transfer or expend the
available funds, and we cannot, in the circumstances of this case, compel those decisions.
See, e.g., State ex rel. Klimek v. Sch. Dist. No. 70, 283 N.W. 397, 398 (Minn. 1939)
23
(explaining that a statute that uses the term “may” is “permissive and imports the exercise
of discretion”). The fact remains, however, that the Legislature has funding available to it
that maintains its existence as an independent branch of government and enables it to
perform its constitutional responsibilities on behalf of Minnesota’s citizens until it
reconvenes in regular session in February 2018. Whether it chooses to use that funding to
do so is for the Legislature, not the Judiciary, to decide.
Although the constitution does not enable the Judiciary to order funding for the
Legislature in the absence of an appropriation, we conclude that the Legislature has not
been effectively abolished by virtue of the Governor’s line-item vetoes because it has
sufficient funds available to sustain it as an independent, functioning branch of state
government until it convenes again in regular session. Thus, in the circumstances of this
case, we hold that the Governor’s vetoes did not violate Article III by effectively abolishing
the Legislature.
B.
Finally, we turn to the Legislature’s argument that the Governor’s line-item vetoes
violated Article III of the Minnesota Constitution because he exercised that power to
achieve an unconstitutional result. Specifically, the Legislature contends that the Governor
announced that he vetoed the biennial appropriations for the House and Senate to bring
legislative leaders “back to the table to negotiate provisions” in enacted laws. Doing so,
the Legislature contends, uses the veto power to “coerce” the Legislature into legislating.
The district court agreed, concluding that the Governor’s line-item vetoes violated the
Separation-of-Powers clause because the Governor’s exercise of that power was used in an
24
attempt to “gain a repeal or modification of unrelated policy legislation.” July 19 Order at
22.
The Governor disagrees because, he contends, the line-item veto power is an express
exception to the separation of powers. See Minn. Const. art. III, § 1 (prohibiting the
“exercise of any of the powers properly belonging” to the other branches of government
“except in the instances expressly provided in this constitution”). Further, he argues, the
Legislature’s intent-based inquiry into the motives for exercising the line-item veto power
is inconsistent with the plain language of Article IV, Section 23 of the constitution.
We have not previously considered how the Executive’s line-item veto power fits
within the separation-of-powers principles embodied in Article III. See State v. Bates,
104 N.W. 709, 712 (Minn. 1905) (noting the “unwarranted assumption that all functions
of government must necessarily be either executive, legislative, or judicial”). And,
although the Judiciary is responsible for determining when the separation of powers among
our three branches of government has been violated, we exercise restraint when presented
with “a possible separation of powers conflict between the branches.” See State v. S.L.H.,
755 N.W.2d 271, 278 (Minn. 2008) (explaining, in refusing to exercise inherent judicial
authority to order expungement of non-judicial branch records, that “our separation of
powers jurisprudence requires that we give ‘due consideration’ to the ‘equally important
executive and legislative functions’ ” (citations omitted)). We are presented with just such
a conflict here.
The impasse that led the parties to the courtroom stems from disputes that are ill
suited for judicial resolution. The Legislature asserts that the Governor improperly vetoed
25
its biennial appropriations in an effort to coerce concessions on tax and policy provisions.
The Governor counters that his line-item veto power was the only tool he could use to
respond to the Legislature’s conditional appropriation of funding for the Department of
Revenue, which he argues was intended to coerce his agreement to the tax and policy
provisions. Although these arguments are cast in the framework of constitutional
principles and powers, the parties’ dispute about coercion essentially asks the court to
assess, weigh, and judge the motives of co-equal branches of government engaged in a
quintessentially political process. See In re McConaughy, 119 N.W. 408, 417 (Minn. 1909)
(“Many questions arise which are clearly political, and not of judicial cognizance.”).
Indeed, this case, unprecedented in the history of Minnesota,16 essentially asks the
Judiciary to choose between the Governor and the Legislature. Specifically, the parties’
arguments and positions envision that we conclude either that the Legislature’s
constitutional power to legislate prevails over the Governor’s constitutional power to veto
items of appropriation, or that the Governor’s line-item veto power prevails over the
Legislature’s power to legislate.

16 The Legislature invoked our original jurisdiction in Seventy-Seventh Minn. State Senate v. Carlson, 472 N.W.2d 99 (Minn. 1991), to challenge “the effectiveness of attempted vetoes by the Governor.” Id. We did not reach the merits of the challenge to Governor Carlson’s vetoes, but dismissed the Legislature’s petition in order to allow it to recommence a declaratory judgment action in the district court. Id. at 99–100. Ultimately, the Legislature did not do so. See Inter Faculty Org., 478 N.W.2d at 193. Other disputes between the Executive and Legislative Branches of our state government have been in cases brought by one or more members of the Legislative Branch against one or more members of the Executive Branch See, e.g., Limmer v. Ritchie, 819 N.W.2d 622 (Minn. 2012); Limmer v. Swanson, 806 N.W.2d 838 (Minn. 2011).
26
But our constitution does not require that the Judicial Branch referee political
disputes between our co-equal branches of government over appropriations and statewide
policy decisions when those branches have both an obligation and an opportunity to resolve
those disputes between themselves. See State ex rel. Burnquist v. Dist. Court, 168 N.W.
634, 636 (Minn. 1918) (explaining that the Judiciary “has not the power to control, coerce,
or restrain the action of the other two [branches] within the sphere allotted them by the
Constitution wherein to exercise judgment and discretion”); In re McConaughy, 119 N.W.
at 417 (explaining that the discretionary constitutional powers held by the Executive and
Legislative Branches are not subject to judicial control “not merely because they involve
political questions, but because they are matters which the people have by the Constitution
delegated to” those branches). Moreover, our precedent counsels that we avoid reaching
constitutional questions if there is another way to resolve the case. See State v. Irby,
848 N.W.2d 515, 521 (Minn. 2014) (noting that we will construe statutes to avoid a
constitutional confrontation, including “to avoid potential separation of powers
problems”); In re Senty-Haugen, 583 N.W.2d 266, 269 n.3 (Minn. 1998) (“It is well-settled
law that courts should not reach constitutional issues if matters can be resolved
otherwise.”).
Here, the way to resolve the parties’ dispute is through the usual political process of
appropriations. The constitution textually obligates the Governor and the Legislature to
set the budget for our State. See Minn. Const. art. IV. And, based on the record now before
us and our analysis above, the other Branches have the opportunity to resolve this dispute
when the Legislature reconvenes on February 20, 2018. If the Legislature were unable to
27
continue its usual operations until it reconvened in February, we would be presented with
a different situation. But here, the Legislature, based on its own estimates of its ongoing
expenses, and our analysis of the amount of funds available for the Legislature’s use in its
sole discretion, can operate until it reconvenes. Whether the Legislature should use those
funds is not for us to decide. The point is, the Legislature has sufficient funding to continue
to perform its functions independently until it reconvenes. Once it reconvenes, the
Legislature can pass additional appropriations for itself without adhering to the conditions
the Governor set in his veto message, and the respective powers available to the branches
under Article IV can be exercised.17
It is the “province and duty” of the Judiciary to “say what the law is,” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803), but on this occasion, principles of judicial
restraint dictate that we defer to the constitutional remedies that are available to the other
branches. See, e.g., Limmer v. Swanson, 806 N.W.2d 838, 841 (Minn. 2011) (Anderson,
Paul J., concurring) (explaining that there are occasions in which the judiciary must “stand
down” in order to allow the other branches of government to “attempt to resolve a particular
issue”). See also Bennett v. Napolitano, 81 P.3d 311, 318–19 (Ariz. 2003) (stating that the
court was “reluctant to become the referee of a political dispute” and noting that if the
Legislature had accessed a veto-override remedy it would have alleviated judicial concern
about prematurely entering “the political arena”). Particularly in the context of a dispute

17 At oral argument, the Legislature conceded that the Governor could constitutionally exercise the line-item veto power over the Legislature’s appropriations while the Legislature is in session.

28
that has its origins in policy decisions on state spending priorities and fiscal stability, we
must be wary of unnecessary judicial interference in the political process. See Limmer,
806 N.W.2d at 839 (“Resolution of . . . budget issues by the other branches through the
political process is preferable to our issuance of an advisory opinion adjudicating
separation of powers issues that are not currently active and may not arise in the future.”).18
Our decision today should not be read to foreclose the possibility of a judicial
remedy in a different situation. As we said in our order of September 8, 2017, Minnesotans
have a constitutional right to three independent branches of government, each functioning
at a level sufficient to allow the exercise of the constitutional powers committed to each
branch for the “security, benefit and protection of the people, in whom all political power
is inherent.” Minn. Const. art. I, § 1; see 901 N.W.2d at 416. We conclude that, given the
respect the Judiciary owes to our coordinate branches, see League of Women Voters Minn.
v. Ritchie, 819 N.W.2d 636, 651 (Minn. 2012), and the detailed, specific tools provided by
our constitution to resolve political disputes, it would be unwise for us to intervene here.
We trust that, going forward, each branch of government will seek to avoid a constitutional
stalemate by exercising its powers to promote the constitutional cooperation that
Minnesotans expect and deserve.

Outcome: For the foregoing reasons, we hold that the Governor’s line-item vetoes of the Legislature’s appropriations to itself were constitutional under Article IV, section 23 of the Minnesota Constitution. As to Article III, we conclude that, although the constitution does not allow the Judiciary to order funding for the Legislative Branch in the absence of an appropriation, the record establishes that the Legislature has funding to sustain it until it
reconvenes in regular session. We therefore reverse the district court’s decision to the extent that it holds the Governor’s line-item vetoes violated Article III of the Minnesota Constitution by effectively abolishing the Legislature. Finally, we conclude that principles
of judicial restraint and respect for our coordinate branches of government dictate that we refrain from deciding whether the Governor’s exercise of the line-item veto power over the Legislature’s appropriations to itself violated Article III by unconstitutionally coercing the Legislature. We therefore vacate that part of the district court’s decision. Given that our decision on count one of the Legislature’s complaint renders the relief requested under counts two and three moot, we remand to the district court to dismiss
the case in its entirety.

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