Carney will be at the Legislature Today and Monday of next week, working to ensure Senator Bakk does not interfere with the PCR Program

Contact: Bob Carney Jr. -- (612)-824-4479 (home and business)

Note: please use this e-mail temporarily -- bobcarneyjr@msn.com

My e-mail address at republicancontract currently has technical problems -- Bob

Note: if you prefer to receive news releases at another e-mail address, please let me know -- Bob

For immediate release                                                                              

Minneapolis, MN, March 26, 2010 -- Moderate Progressive Republican candidate for Governor Bob Carney Jr. is filing a petition at the Minnesota Supreme Court today, for accelerated review of his lawsuit challenging Governor Pawlenty's unallotment of the Political Contribution Refund. The lawsuit, Carney v State of Minnesota, raises many of the same issues raised in Brayton v Pawlenty, another unallotment case that the Supreme Court accepted for accelerated review. The Court heard Brayton March 15, 2010. However, Carney v State of Minnesota raises additional issues that bear on both Brayton, and on unallotment generally, and that are not part of the Supreme Court's record for Brayton.

In a related development, the Star Tribune reported yesterday that State Senator Tom Bakk wants to use the Political Contribution Refund money for the next biennium to fund, per the Star Tribune article: "tax breaks for small-business investors and developers who restore historic buildings".

The Star Tribune article states:

"'It looks pretty self-serving to have that program be gone,' said House Taxes Committee Chairwoman Ann Lenczewski, DFL-Bloomington. 'You don't want a situation in which only people with means can run for office.'"

"I agree completely with Chairwoman Lenczewski. The Political Contribution Program is the lynchpin of Minnesota's entire system of campaign finance -- one of the best systems in the country. We should maintain and expand our system as a national model, not flatten it. There's work to be done all over Minnesota for Senator Bakk's bulldozers. I just don't want him to level our campaign finance system," Carney said.

Beyond the question policy issue, the Political Contribution Refund program is currently in the Minnesota Court of Appeals. "I think it would be extremely unfortunate if the Legislature were to interfere with a court case that is so central to defending the Legislature's power and authority against encroachment and invasion by the Pawlenty administration," Carney said. "If Senator Bakk persists in his attempt to level the PCR, I will raise this as central issue in my campaign for Governor.  Senator Bakk must not interfere with the PCR program while it is in the Courts," Carney emphasized.

Statutory and Constitutional issues that call for Supreme Court review

In his petition, Carney raises the following issues that are not present in the Court record of Brayton, but that are central to both constructing the unallotment statute, and to determining its constitutionality.

Regarding statutory interpretation Carney's petition states (citations omitted):

However, one statutory argument crucial to interpreting the unallotment law has been advanced in the present case, but not in Brayton. Per § 16A.152, Subd. 4 (b) enacted in 1987, only "prior statutorily created obligations" can be unalloted. Appellant argues that statutorily created obligations enacted after 1987 are subsequent obligations, not prior obligations. Such subsequent obligations can only be unallotted if they were explicitly made subject to unallotment when the statutory obligation was enacted. Respondent's claim that the word "prior" refers to statutory obligations "... existing at the time of the unallotment..." leads directly to an absurdity: all statutory obligations are tautologically prior to any unallotment. Appellant's construction is the only reasonable way to give meaning to the word "prior" when constructing the statute.

A further issues is raised in Carney v State of Minnesota, with fundamental consequences for the constitutionality of the unallotment statute. Carney's petition states:

In the present case, the Governor announced the "elimination" of the Political Contribution Refund for the current biennium. See Appendix Ex. 4, p. 2. This is directly at issue in the present case; in COUNT 1, Plaintiff/Appellant prays for injunctive relief. See Appendix Ex. 7, p. 2. Two questions are present here. First, Appellant argues the Governor clearly overstepped the bounds of "defer or suspend". However, beyond this, we have a more fundamental question regarding the unallotment statute. If a Governor can defer or suspend a statutorily created obligation established subsequent to 1987, does this not amount to a power of the Governor to mandate that one or more future Legislatures appropriate money for the obligation? And if so, how is this not a fundamental usurping of purely Legislative power? The statute by its own terms explicitly acknowledges the existence of an "obligation". However, this obligation cannot possibly be met without an appropriation from a future Legislature. The Court should be aware of the fact that $1.17 billion of Governor Pawlenty's 2009 unallotment is in the form of aid payment deferrals to a future biennium of school funding statutory obligations (separate from $600 million in levy revenue recognition), done without Legislative authority of any kind. See Appendix, Ex. 4, p. 4, highlighted. In doing this, the Governor claims authority to require one or more future sessions of the Legislature to appropriate $1.17 billion, ignoring any interest due. It appears that the provision of § 16A.152, Subd. 4 (b) to establish a statutory power of the Governor to obligate future Legislatures to pay for deferred or suspended obligations is a fundamental violation of the separation of powers.

In the Brayton Appellant brief, page 19, (Appendix, Ex. 5) the Pawlenty administration asserts:

"The Minnesota Constitution does not permit the State's biennial budget to remain in deficit. Minn. Const. art. XI, § 6. The Governor and Legislature were previously unable to reach agreement on how to resolve the $2.7 billion budget deficit. Under the district court's reasoning, in the absence of such an agreement, spending pursuant to the biennium's appropriation bills will continue until such time as the State simply runs out of money before the biennium ends, resulting in a government shutdown, at least as to non-core functions."

Appellant has researched these claims, which are made by the same counsel in both cases. Please see Appendix Exhibit 6 for Appellant's article "Is Unallotment Unnecessary?", cognizable by the Court per Rule 103.04; the apposite Constitutional and Statutory texts commence at page 7. Appellant has concluded that this Court has been badly mislead by the Pawlenty Administration's brief in Brayton. The Minnesota Constitution, Art. XI § 6 provides for the ability to "roll over" Certificates of Indebtedness for up to 17 months in the event of a biennium that ends with a deficit. The Constitution further requires that if all Certificates -- current and "rolled over" -- cannot be paid in full with money in a fund on December 1st, five months after the end of the biennium, the State Auditor is required to levy a statewide property tax to fully retire all the Certificates within one year. These Constitutional provisions are given effect in Minn. Stat. § 16A.671, which allows, but does not require, the Commissioner of Minnesota Management and Budget to "roll over" the certificates as described. It appears that in the event of a biennial deficit, a Governor might refuse to "roll over" the Certificates. But this would be part of the political process of give and take -- a Governor's choice -- not a Constitutional mandate. In any case, the Minnesota Constitution does mandate the retirement of any biennial deficit. The crucial point for the Court to bear in mind here is that Minnesota is in no danger of "becoming another California", or of the necessity of a government shutdown if there is a deficit at the end of a biennium. In short, Minnesota's unallotment law is a convenience, but not a necessity -- the Court should properly view it as such.

"Because these crucial legal questions are at issue in Carney v State of Minnesota, in the Court of Appeals, and now before the Supreme Court as a petition for accelerated review, it is essential that the Legislature not undermine this legal effort to defend and maintain the core power and authority of that body, at a time when these are being challenged in Court," Carney said. "I call on Senator Bakk to not attempt to redirect the Political Contribution Refund money. I also call on Senator Bakk, and everyone at the Legislature, to work with me in defending the Political Contribution Refund program in court, against what I see as a clearly illegal use of unallotment. I will work with Senator Bakk and everyone else to find alternative ways to pay for the programs Senator Bakk is advancing," Carney added.

"If this whole process results in enactment of what I have called the 'Unallotment Reform' bill -- authored by Senator Richard Cohen and Representative Lyndon Carlson -- we can at least see some good coming out of this very unfortunate situation," Carney concluded.

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