Carney will be at the Legislature Tuesday and Thursday of next week

Carney has all .pdf briefs for Brayton -- will be adding an "unallotment resource" page at www.republicancontract.com, designed to make all unallotment Court documents -- and additional "unallotment resources" -- available at one location.

Contact: Bob Carney Jr. -- (612)-824-4479 (home and business) -- bob@republicancontract.com

For immediate release                                                                              

Minneapolis, MN, March 5, 2010 -- Moderate Progressive Republican candidate for Governor Bob Carney Jr. filed an appeal of the dismissal of his "unallotment case" yesterday. The lawsuit, Carney v State of Minnesota, challenges Governor Tim Pawlenty's use of unallotment to "eliminate", as the Pawlenty administration described it, the Political Contribution Refund ("PCR") program for the current biennium. Carney also continues to seek an injunction ordering the Pawlenty administration to stop using unallotment to illegally subvert the PCR program.

Carney is proceeding pro se, is not an attorney, and has filed a motion requesting leave to proceed in forma pauperis. Carney plans to solicit funds from legislators, and others, to pay the filing fee and other direct costs. Carney is also soliciting legal help on a pro bono basis.

The Minnesota Supreme Court will hear arguments in a second unallotment lawsuit, Brayton v Pawlenty, March 15th. The two cases are similar in many respects regarding claims of statutory violations by the Pawlenty administration. However, there are also significant issues of statutory interpretation that are absent in Brayton, but are argued in Carney v State of Minnesota.
 

An assault on our election process -- and possibly an impeachable act

The Political Contribution Refund program is unique to Minnesota. It is intended to promote widespread citizen participation in financing campaigns. Individual Minnesota taxpayers receive a refund of up to $50, ($100 for a married couple), when they contribute to an eligible state political campaign or a state party. The program is also linked to Minnesota's public campaign finance program, funded when citizens check off a designated contribution on tax forms. Candidates are ineligible for contributions made under the PCR program unless they agree to participate in Minnesota's public campaign financing program. Thus, the PCR program is an incentive for widespread participation in public campaign financing.

"The Pawlenty administration has announced they have 'eliminated' the PCR program for the current biennium. I can't help but see this as an assault on our election process," Carney said.

Carney agrees with the recent U.S. Supreme Court decision in Citizens United, removing unconstitutional restrictions on corporations (associations of individuals) to make expenditures for political purposes. "Citizens United upholds the freedom of speech -- poison though it may sometimes be. I don't see any way around the First Amendment -- and in the final analysis, I'm glad there isn't a way around it. But our ability as Minnesota citizens to rely on our laws, is equally important. The inevitable consequence of the Citizens United ruling is that we now have an even greater need to counterbalance big money. In Minnesota, we have a unique antidote to the poison that can and will result from constitutionally protected free speech. Our Minnesota campaign finance system -- including public financing and the PCR program -- is today an even more necessary, and constitutional, counterweight to big money in politics. We need to protect and preserve this program, and advance it as a national model. But we can't do either if the Governor is allowed to kill it," Carney said.

Carney has called since November of 2009 for Legislative hearings on the meaning of the phrase "corrupt conduct in office" in Minnesota's Constitution, as grounds for impeachment. "As the unallotment litigation proceeds, we are seeing more clearly that the Courts are both an impractical means of micro-managing the state budget, and are properly constrained from intervening in 'political questions,'" Carney said. "However, the Legislature has both broad oversight powers, and powers of impeachment. And the Legislature will be held accountable to the voters for exercising its powers, including the power of impeachment, if the Governor acts in a corrupt way. This is the way it should be," Carney said.

"The flip side of the argument that courts should not speak to 'political questions' is that the Legislature can and must speak to questions Governor Pawlenty has forced on us with his extraordinary and unforeseen claims of unallotment power. I intend to hold the Legislature accountable for doing its job in defending itself as an institution. We need Legislative action now... not feel-good, activist-court bedtime stories for liberals," Carney said.
 

Similarities and differences between the two cases

Both cases rest on claims that the Pawlenty administration violated the unallotment statute. Ramsey County District Court Chief Judge Kathleen Gearin granted a temporary restraining order in Brayton v Pawlenty, and found that the governor "crossed the line", and violated the Minnesota constitution. Judge Gearin held in Carney v State of Minnesota that constitutional issues were not raised early enough to be considered.

While Judge Gearin's order in Brayton focused on constitutional questions, the appeallate briefs in that case appear now to be focusing more on claims of statutory violations. Courts, and especially Supreme Courts, are reluctant to reach constitutional questions if a case can be resolved on other grounds. This reluctance is further heightened when the case involves "political questions", such as the separation of powers violation Judge Gearin found in her memorandum accompanying the Brayton order.

Judge Gearin's memorandum is almost completely silent regarding the issue of statutory violations. In effect, she reaches the constitutional issue without explicitly considering the claim of Brayton that the Governor did not follow the statute.

Carney said: "I can't find anything in Judge Gearin's memorandum that speaks to the question of whether the Governor followed -- or violated -- the unallotment statute, just as a question of statutory interpretation. One the one hand, to not speak at all regarding the plaintiff's claims that the Governor violated the terms of the statute, and to proceed directly to the constitutional question, goes against the general principle that courts do not consider constitutional questions unless the case cannot be resolved in any other way. However, this is a motion for a temporary restraining order, and the judge need only assess the probability that the plaintiff will prevail in the case. Judge Gearin may have concluded that such an assessment was best made by speaking to the constitutional question, while understanding that a district court's opinion cannot be cited as precedent. However, what the Supreme Court says does establish precedent. For that reason, especially at a stage this early in the case, they are likely to be far more inclined to try to resolve the question on the narrower basis of statutory interpretation."

... differences ...

While Brayton and Carney raise many of the same statutory issues, Carney v State of Minnesota involves additional arguments and considerations regarding some areas of statutory interpretation. Four areas are highlighted here, as argued by Carney:

First, Carney claims the Political Contribution Refund is a tax refund, or more generally a refund, and as such is exempted from unallotment according to Minn. Stat. § 270C.435. Brayton argues against the unallotment of the Renter's Credit on different grounds.

Second, the Pawlenty administration claims the phrase "prior statutorily created obligations" refers to all obligations "on the books" at any time. A Pawlenty admistration reply memorandum states: "The clause's plain meaning confirms that an unallotment overrides any statutory obligation, existing at the time of the unallotment, that otherwise would require the appropriated amount to be spent." This section of the statute also includes the phrase "Notwithstanding any other law to the contrary..." Let's leave aside for now the question of how that "notwithstanding" phrase is squared with statutory obligations the exempt unallotment.

Carney argues the phrase "prior statutorily created obligations" can logically and reasonably refer only to obligations that were "on the books" at the time the current version of the unallotment statute was enacted. In short, when the Legislature enacted the current version of the Statute in 1987, it wanted to make clear that any and all prior obligations, obligations then on the books, obligations that the 1987 Legislature had the power and authority to change, were subject to unallotment. This was a wise precaution -- it ensured that any possible conflict with anything then on the books would be resolved. Of course, all Legislatures understand that any future session of the Legislature that wants to subject their statutorily created obligations to conditions, such as unallotment, is free to do so.

According to Carney: all subsequent obligations enacted by the Legislature are, well,.. subsequent... and "subsequent" is different from "prior" -- these two words mean different things... opposite things. Carney claims this is the only natural and reasonable construction of the statute language. Carney claims the Pawlenty administration's construction has the effect of making the word "prior" unnecessary -- since at any given point in time, all statutory obligations are prior to that point in time.

This argument has not been made in Brayton. The effect of accepting Carney's construction is to greatly restrict how unallotment can legally be used. If Carney's interpretation is accepted, the Governor can only unallot statutory obligations established after 1987 if the Legislature specifically told the Governor those obligations could be unalloted. Such an interpretation makes it impossible for a Governor to suddenly assume the power to unilaterally set priorities, and to unallot billions of dollars any way the Governor sees fit.

According to the Pawlenty administration's reading of the law, the 1987 Legislature, by the "notwithstanding" clause, established that any subsequent statutory obligation created by any future Legislature could be unalloted by the Governor even if the Legislature specifically exempts the obligation from unallotment. After all, such an exemption would be a law -- and the unallotment says: "Notwithstanding any other law to the contrary..." Therefore, according to the Pawlenty administration, all laws passed after 1987, establishing any obligation of any kind, can be indefinitely deferred or suspended by a Governor who absolute refuses to sign any tax increase. Unless there is a two thirds majority for approving a tax increase, such a SuperGovernor can pick and kick statutory obligations from here to eternity.

If a Minnesota Court, preferably the Supreme Court, holds that as a matter of statutory interpretation Carney's construction of "prior statutorily created obligations" is correct, the danger to constitutional government in Minnesota will in Carney's view be effectively removed. "The Legislature and the Governor can then discuss what, if anything, the Legislature is willing to subject to a Governor's unallotment power," Carney said.

Third, while the Pawlenty administration publicly announced it was "eliminating" the PCR program, it did not make any such announcement for the supplemental diet program in Brayton. Both Carney and Brayton have argued that the fullest extent of the unallotment power according to the statute -- even if the Pawlenty administration argument is accepted regarding "prior statutorily created obligations" -- is to "...defer or suspend..." In Brayton, the issue is money for supplemental diet needs. It is obviously no real help to people who need this food today, and tomorrow, to say, "don't worry, this money will be available two years from now." By contract, people eligible for the PCR money can be told, "you will receive this sometime,... almost certainly in this or the next biennium -- it's a statutory obligation." The PCR statute does provide for payment of interest on some delayed refunds.

"In my judgment, the pointed public announcement by the Pawlenty administration that the PCR has been 'eliminated' for the current biennium -- not 'deferred', not 'suspended' -- is convincing evidence that the Pawlenty administration is attacking the whole system of public campaign finance in Minnesota," Carney said.

Fourth, the PCR program resets every calendar. For this reason, people who had a right to participate in the program in 2009, but were told by the Pawlenty administration the program was "eliminated" commencing July 1, 2009, have been illegally obstructed and prevented from participating in the program. This illegal act by the Pawlenty administration can only be remedied now by either a Court, using equitable powers, or by the Legislature, restoring the right of Citizens who did not make a PCR contribution in 2009 to make a 2009 contribution this year. "There is nothing the Pawlenty administration can do on it's own to remedy this particular harm -- even if they wanted to," Carney said.
 

A summary of Brayton Brief positions regarding statutory interpretation:

Regarding the issue of statutory interpretation, relevant statements from the briefs in Brayton are as follows:

The plaintiffs, Brayton and others (respondent) -- p 14: "Respondent's position remains the same as argued in their memorandum in support of their Temporary Restraining Order. A ruling in this case does not have to reach constitutional questions because the statute is clear..."

The Pawlenty administration (appellant) -- p 14: "Application of the plain language of the statute, and longstanding principles of construction if the statute is considered ambiguous, establishes that the challenged unallotment is authorized by section 1 6A. 1 52."

The Minnesota House of Representatives Amicus Brief -- p1-2: "This case may be decided under the unallotment statute, without reaching any constitutional issues." Note: This is similar (but more categorical) to the position of the House in their Amicus Brief to the trial court (emphasis added) -- p 17: "... the court should construe the statute in a manner that is consistent with its purpose and all of its provisions -- i.e., to apply to reductions in revenues that are determined by a forecast made after the budget has been enacted and to exclude reductions that were already known when the budget was enacted -- since that will avoid serious constitutional issues."

Minnesota House (and one Senate) Republican Amicus Brief: This focuses only on constitutional issues, and does not address statutory interpretation.

The "Law Professor's" Amicus Brief (note 1), (supporting Pawlenty's position) -- p 1 (first sentence): "Amici curiae take no position as to whether the unallotments at issue in this case were authorized by MINN. STAT. § 16A.152, subd. 4 ('the unallotment statute')."

The Common Cause / League of Woman Voters Amicus Brief: This focuses only on constitutional issues, and does not address statutory interpretation.

The "Cities" Amicus Brief (note 2): This focuses entirely on statutory interpretation. -- p 25-26: "The unallotments at issue in this appeal violated the plain language and the legislative intent of the unallotment statute. The unallotment statute must be narrowly constructed because it is an exception to the legislature's constitutional power of appropriation. A narrow construction of the unallotment statute that requires unallotment determinations to be objectively reasonable is consistent with its legislative intent, and it is good public policy."

<end>

Note 1) The law professors are: Professor David Stras (University of Minnesota), Associate Professor Ryan Scott, (Indiana University), and Professor Michael Stokes Paulson (University of St. Thomas).

Note 2) The "Cities" includes: The LEAGUE OF MINNESOTA CITIES, the CITY OF MINNEAPOLIS, the CITY OF SAINT PAUL, the COALITION OF GREATER MINNESOTA CITIES, the METRO CITIES, and the MINNESOTA ASSOCIATION OF SMALL CITIES