Please call or e-mail to request a Saint Paul media availability in the Capitol press area on Monday afternoon (this will be 3:00 to 3:45 if requested),... or just call to discuss 

Carney will be available Monday morning from 8:00 to 10:00 AM to answer questions by phone or e-mail, and will "probably be available" most of the rest of the day

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

For immediate release                                                                              

Minneapolis, MN, January 18, 2010 -- Minneapolis Moderate Progressive Republican candidate for Governor Bob Carney Jr. will appeal Ramsey County District Court Chief Judge Kathleen Gearin's recent dismissal of Carney v. State of Minnesota, his lawsuit challenging Governor Pawlenty's unallotment of the Political Contribution Refund program.  Carney will also be seeking expedited Supreme Court review.  "Regarding statutory interpretation, these two cases are so similar that they should be consolidated.  In short, if Brayton goes, I should go too," Carney said. 

"I am going forward, however, representational status is still under discussion, and may be pro se," Carney said.

A copy of this news release is being sent to most members of the Minnesota House of Representatives and the Minnesota Senate.  "I am actively seeking help from Legislators to defend the Political Contribution Refund program," Carney said.  Carney plans to ask the Legislature to file an amicus curiae brief supporting his legal challenge to unallotment of the PCR.

Judge Gearin granted the defense motion to dismiss, which alleged that Carney had failed to "set forth a legally sufficient claim for relief..."  The Judge's ruling including a memorandum, which stated:

• "[Carney] does not raise the constitutional issues previously ruled upon by this court in the Brayton case."
   

• "...the complaint did not contain a constitutional challenge to the way the Governor unallotted.  Specifically... the separation of powers doctrine was not pled."
   

• "...the unallotment of funding for the PCR program is substantively within the authority given by Subd. 4(b) of §16A.152."
   

• "... the PCR program is a campaign financing assistance program, not a tax program... These refunds are not a refund for payment of taxes or fees..."

"I respectfully disagree with Judge Gearin regarding all of these points, although I do acknowledge 'the separation of powers doctrine was not pled' in the complaint and the first memo, Carney said.

"Judge Gearin was not required to provide a memo," Carney said.  "It is important to note some of the issues raised in my case that the Judge did not address in the memo.  Among these are a series of issues regarding statutory construction -- in layman's terms, 'the way the Governor did it'.  Recall: in Brayton, Judge Gearin wrote: 'It was the specific manner in which the Governor exercised his unallotment authority that trod upon the constitutional power of the Legislature,'" Carney said. 

Carney's lawsuit raises the following issues regarding the "specific manner in which the Governor exercised his unallotment authority," none of which were specifically addressed in Judge Gearin's memorandum accompanying her order to dismiss:

General Claim: Statutory predicates for unallocation per § 16A.152 and § 16A.14 were not met:

i. Claim: An unallocation can only be made after an allocation per §16A.14.  There is no evidence this was done.

ii. Claim: An unallocation per §16A.152 requires probable receipts be "less than anticipated". However, anticipated revenues were unchanged from the time the Legislature completed its enactments comprising the budget to the unallocation announced July1, 2009.

iii. Claim: Per § 16A.152, enacted in 1987, only "prior statutorily created obligations" can be unalloted.  The PCR, first enacted in1990, is a subsequent statutorily created obligation.

iv. Claim: Unallocation can only properly be done as a kind of "mid-course" correction during the biennium.  The Governor first created an unbalanced budget at the start of the biennium by vetoing the final revenue bill; he then proceeded illegally with unallotment.

v. Claim: Even accepting for discussion all of defendant's arguments are true, an unallocation can only "defer or suspend" a statutory obligation such as the PCR.  But the Pawlenty administration has announced instead the PCR was "eliminated" for this biennium.

"All of these claims are firmly rooted in my Complaint," Carney said.  "For what it's worth, all of these issues were raised in my case before the Brayton complaint was filed.  The failure of the Governor to follow statutory predicates for unallotment is the basis for Brayton's first claim for relief as stated in Brayton's complaint.  Typically, courts rule on constitutional questions only 'when all else fails.'  With respect to both Brayton and my case, the failure of the Governor to follow the mandates and procedures of statutes is sufficient grounds for relief by restraining order or injunction.  Because these issues are properly decided by statutory interpretation, there is no need to reach the constitutional issue," Carney said.

"I certainly do agree with Judge Gearin that what Governor Pawlenty has done is a violation of the Separation of Powers doctrine.  But beyond the question of narrow or broad judicial rulings, what do We the People of Minnesota do about it?  I am becoming more convinced every day that this Separation of Powers violation can be most properly and effectively addressed by the Legislature -- through impeachment -- not by the courts.  We need to formally study what the phrase 'corrupt conduct in office' means.  If one of our employees -- a public servant -- refuses to follow the law, do We the People tail him with a judge, or do we fire him?  That's what this amounts to.  Isn't that a lot more practical than having some slow-as-molasses court try to micro-manage the relationship between the other two branches?  Sure, the courts can 'weigh in' on this -- and they have -- but as a practical matter, the judicial branch cannot deliver a timely and real solution to the unalloment mess," Carney said.

Carney suggests the following as a preliminary framing of the impeachment question:

Governor Pawlenty is seen to be running for president.  Are his political and financial imperatives -- fundraising and pandering to a national party base -- "corrupting influences", causing him to act against the best interests of Minnesota?  Is his decision to violate the Separation of Powers by his unallotment "corrupt conduct in office?"

"If the Legislature gets serious about its powers and duties as the preeminent branch of a '... republican form of government...', this can all still be worked out by negotiation.  I outlined one possible resolution in my article last week in the Star Tribune," Carney said. 

The standard for dismissal based on failure to state a claim.

The main issue of Carney's appeal is whether his Complaint was properly dismissed for failure to state a claim. 

Judge Gearin wrote: "... it would not be fair to deny a motion to dismiss based on claims that were not asserted in the Complaint and not argued in the initial Plaintiff's memorandum."

Regarding the standard of review, Carney's response memo to the Motion to Dismiss stated:

In reviewing cases dismissed for failure to state a claim upon which relief can be granted, the only question before us is whether the Complaint sets forth a legally sufficient claim for relief.  It is immaterial for our consideratin here whether or not the Plaintiffs can prove the facts alleged."  N. States Power Co. v. Franklin, 265 Minn. 391, 394, 122 N.W.2d 26, 29 (1963).  This standard is normally difficult for a defendant to overcome, and it becomes even more stringent when the government is challenging a Complaint that alleges a violation of the Minnesota Constitution.  "A Rule 12 motion [to dismiss] is subject to increased scrutiny to protect the public from possible government overreaching.  Thus, when the plaintiff alleges a constitutional error, a Rule 12 dismissal is proper only when the defendant demonstrates the complete frivolity of the complaint."  614 Co. v. Minneapolis Community Dev. Agency, 547 N.W.2d 400, 405 (Minn. Ct. App. 1996) (citing Schocker v. State, 477 N.W.2d 767, 769 (Minn. Ct. App. 1991).

 

Plaintiff makes constitutional claims at two levels in this case.  At the broader level, the actions of Defendants violate the essential constitutional structure and delegation of authority found in the Minnesota Constitution.  On a more specific level, however, the public policy underlying the PCR is the legislature's encouragement of participation in the political process.  Defendants' actions in unilaterally eliminating the PCR operate as a chilling effect on political speech that has long been understood to constitute a compelling interest protected by both the Minnesota and the U.S. Constitutions.

Following is an additional excerpt from a District Court order denying a Motion to Dismiss where the defendant was a government entity (the Metropolitan Airports Commission):

Standard of Proof - Dismissals under Rule 12.02(e) are generally disfavored. Jacobson v. Bd. of Trustees of the Teachers Retirement Assn., 627 N.W.2d 106, 109 (Minn. Ct. App. 2001). A motion to dismiss must be denied if “it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” Elzie v. Commissioner of Public Safety, 298 N.W.2d 29, 32 (Minn. 1980). The facts alleged in the complaint must be taken as true, Marquette Nat’l Bank v. Norris, 270 N.W.2d 290, 292 (Minn. 1978), and the complaint must be given a liberal construction in favor of stating a claim. Hutton v. Bosiger, 366 N.W.2d 358, 360 (Minn. Ct. App. 1985). All assumptions made and inferences drawn must favor the Plaintiff, against whom dismissal is sought. Pederson v. Am. Lutheran Church, 404 N.W.2d 887, 888 (Minn. Ct. App. 1987).

"Based on the above standards set forth for ruling on a Motion to Dismiss, I have concluded that Judge Gearin's order to dismiss my case for failure to state a claim is reversible error," Carney said.

Judge Gearin also dismissed Carney's Motion for Preliminary Injunction.  Carney will also appeal that ruling.

Differing views of the Governor's role in "... a republican form of government."

Since 2006 Carney has advanced two "contracts with voters" one for the Governor, the second for the Legislature.  These are the foundation of his candidacy and his political activity in 2010.  Carney presented "A Minnesota Republican Governor's Contract with Voters" to Governor Pawlenty at the 2006 5th Congressional District Republican Convention.  Governor Pawlenty said he would read it, and his campaign responded by letter to Carney's request for him to agree to it. 

"I believe my 2006 efforts bore fruit.  However, it is apparent that Governor Pawlenty and I have significant differences regarding the proper roles of the Governor and the Legislature.  Governor Pawlenty appears to see the Executive branch as a power base for moving policy initiatives forward -- with a crowbar if necessary. The Governor's use of unallotment is the most extreme example to date of what I see as a fundamentally 'unrepublican' view of the Governor's proper role.  I see a far more limited role for the Governor -- carrying out Legislative intent impartially and efficiently -- helping the Legislature to work effectively as a deliberative body -- listening to and serving all Minnesotans.  The Legislature is the preeminent branch in a '...republican form of government'," Carney said. 

Carney may need help

Carney has been in on-going discussions with attorneys representing him in this case.  "On the one hand, I have been told this certainly can be appealed," Carney said. Based on the reasons presented in this news release, Carney is convinced such an appeal has merit. "Whatever happens, I am very grateful to my attorneys -- I am convinced the full extent of accomplishments founded on their good work will become evident as events unfold.  However, the law firm representing me has been proceeding on a class action and contingent fee basis.  They need to do their own assessment of their position with respect to both the case per se, and its unusual context, including my recent declaration as a Moderate Progressive Republican (Republican for short) candidate for Governor.  I may be proceeding pro se -- if so, I will be issuing various appeals for help with this effort, including contributions to pay filing fees and other court costs, and likely including a solicitation of pro bono legal representation and/or assistance.  I believe that if necessary I can effectively carry this appeal forward myself.  However, because I am not an attorney, it would require a very unusual (although not impossible) order by the Appellate court to allow me to continue this case as a class action," Carney said.