of Appellate Courts Ramsey County
Douglas A. Kelley, Steven E. Wolter, Kevin M. Magnuson, Brett
D. Kelley, Kelley, Wolter & Scott, P.A., Minneapolis,
Minnesota; and David F. Herr, Maslon LLP, Minneapolis,
Minnesota, for respondents.
Hanson, Scott G. Knudson, Scott M. Flaherty, Emily M.
Peterson, Briggs and Morgan, P.A., Minneapolis, Minnesota,
N. Niska, Ross & Orenstein LLC, Minneapolis, Minnesota;
and Kimberly Reynolds Crockett, Center of the American
Experiment, Golden Valley, Minnesota, for amicus curiae
Center of the American Experiment.
Gildea, C.J. Dissenting, Anderson, J. Took no part, Stras, J.
Governor's exercise of his line-item veto power on
appropriations to the Legislature complied with the plain
language of Article IV, Section 23 of the Minnesota
plain language of Article XI, Section 1 of the Minnesota
Constitution does not authorize the judiciary to order
funding for the Legislature in the absence of an
Because the Legislature has the authority under Minn. Stat.
§ 3.305, subd. 2 (2016), and Minn. Stat. § 16A.281
(2016), to access appropriated funds that are sufficient to
pay the Legislature's estimated expenses and allow it to
continue as an independent, functioning branch of state
government until it convenes again in regular session, the
Governor's exercise of his line-item veto power did not
violate Article III of the Minnesota Constitution by
effectively abolishing the Legislature.
Because the Legislature has access to appropriated funds that
are sufficient to pay the Legislature's estimated
expenses and allow it to continue as an independent,
functioning branch of state government, it will be able to
exercise its constitutional powers under Article IV of the
Minnesota Constitution when it reconvenes. Principles of
judicial restraint therefore dictate that the judiciary
decline to decide whether the Governor's exercise of his
line-item veto power violated Article III of the Minnesota
Constitution by unconstitutionally coercing the Legislature.
in part, vacated in part, and remanded.
GILDEA, Chief Justice.
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
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
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 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
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.").
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."
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.
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. 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.
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) as follows:
$32.299 million (FY 2018)
$32.105 million (FY 2019)
$32.383 million (FY 2018)
$32.383 million (FY 2019)
$17.511 million (FY 2018)
$17.681 million (FY 2019)
May 30, 2017, ch. 4, art. 1, § 2, 2017 Minn. Laws 1st
Spec. Sess. 1409, 1410-11.
30, 2017, the Governor signed all but one of the bills
presented at the end of the 2017 legislative session,
the tax bill, House File No. 1, and the
appropriations bill, Senate File No. 1. In section 2 of Senate
File No. 1, however, the Governor line-item vetoed the
• Page 2, Line 24: Subd. 2 Senate
32, 299, 000
32, 105, 000
• Page 2, Line 25: Subd. 3 House of
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.
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."
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 vetoes were
unconstitutional as a violation of the Separation-of-Powers
clause in the Minnesota Constitution. 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.).
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.
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.
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"
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.
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).
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.
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.
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
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. Ninetieth Minn. State
Senate v. Dayton, No. A17-1142, Order at 3-4 (Minn.
filed Sept. 28, 2017). In their subsequent disclosures, 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,  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.
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.").
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
unwarranted usurpation by the executive of powers
granted" to the Legislature. Inter Faculty Org. v.
Carlson, 478 N.W.2d 192, 194 (Minn. 1991).
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.
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, §
State ex rel. Gardner v. Holm, 62 N.W.2d 52, 55 (Minn.
1954) ("[W]here the language used is clear, explicit,
and unambiguous . . . 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. 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").
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.
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 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