Thursday, May 06, 2010

Gildea’s lament

In her fevered dissent (this is a link to the whole opinion; you’ll have to scroll down for the dissent), Justice Gildea complains that the Court found ambiguity in the unallotment statute where there was none, and argues for more “judicial modesty.”

One is put in mind of the famous quote by Winston Churchill, but we won’t go there, at least for the present.

Here’s the language in the statute that is the heart of the controversy:

(a) If the commissioner determines that probable receipts for the general fund will be less than anticipated, and that the amount available for the remainder of the biennium will be less than needed, the commissioner shall, with the approval of the governor, and after consulting the Legislative Advisory Commission, reduce the amount in the budget reserve account as needed to balance expenditures with revenue.

(b) An additional deficit shall, with the approval of the governor and after consulting the legislative advisory commission, be made up by reducing unexpended allotments of any prior appropriation or transfer.  Notwithstanding any other law to the contrary, the commissioner is empowered to defer or suspend prior statutorily created obligations which would prevent effecting such reductions.

(c) If the commissioner determines that probable receipts for any other fund, appropriation, or item will be less than anticipated, and that the amount available for the remainder of the term of the appropriation or for any allotment period will be less than needed, the commissioner shall notify the agency concerned and then reduce the amount allotted or to be allotted so as to prevent a deficit.

(d) In reducing allotments, the commissioner may consider other sources of revenue available to recipients of state appropriations and may apply allotment reductions based on all sources of revenue available.

(e) In like manner, the commissioner shall reduce allotments to an agency by the amount of any saving that can be made over previous spending plans through a reduction in prices or other cause.

Minn. Stat. § 16A.152, subd. 4.

Both sides in the controversy argued that the statute was unambiguous, and that it provided directly contradictory answers. That should tell you something.

It is, in truth, laughably easy to find ambiguity in virtually anything that purports to be absolute or plain truth. If you don’t believe me, consider how easy it is for a child to bring a parent to his knees with a single repeated question, “Why?” It takes maybe three questions, four tops, and the parent is stumped. When the parent replies, “Because I said so,” you know that you have arrived at the ambiguity.

And so it is with legislation; this statute is no exception. “Probable receipts,” “less than anticipated,” “remainder of the biennium” are just a few of the terms that had to be interpreted to parse the statute and determine what the Legislature really meant. This is by no means an exhaustive list.

There was no change in revenue forecast just prior to the time that the governor took the unallotment steps; there was no “Holy Smoke, we’ve got a problem,” epiphany on the part of the administration. The shortfall was entirely anticipated, in other words, wasn’t it?

And what does “remainder of the biennium” mean when the biennium hasn’t even started yet?

So this was yet another case when a court has to try to figure out what a legislature meant. When it has to do that, the court will rely on canons (rules) of construction that are sometimes statutory themselves (more ambiguity!) or adopted by the court in cases over the years.

The goal is to try to figure out the “legislative intent,” not, as Justice Gildea or Tom Emmer charge, to rewrite the statute.

One of the things that a court must do is presume that a legislature is not composed of complete drooling idiots. That is why, in the words of Chief Justice Magnuson, the Court reaches constitutional issues last. It endeavors to construe a statute in a way that presumes that the legislature intended to act in a constitutional way.

And that is exactly what the Chief Justice did, brilliantly. The decision was the only way to save the statute from the conclusion that it was an unconstitutional derogation of legislative authority to the governor.

Update: You might also want to read Gildea’s lament II.

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