"candidate/journalist" Carney will raise Illegal Unallotment as an issue in his primary campaign against Emmer

Carney called Attorney Galen Robinson, offered "congratulations on a famous victory"

Carney contacted Kelliher campaign "to get the PCR program up and running again ASAP"

Carney will be at the Legislature Friday, 5/7/10, and some days next week

Carney will be at the Independence Party Convention Saturday, 5/8/10

Carney promotes alternative approach to "judicial retention" elections

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 an archive of all news releases, and more information, please visit: www.republicancontract.com

For immediate release                                                                              

Minneapolis, MN, May 6, 2010 -- Moderate Progressive Republican candidate/journalist Bob Carney Jr. today called on the Minnesota Legislature to demand that the Pawlenty administration immediately reverse all unallotments for the current biennium.  Carney will be running against Representative Tom Emmer, the endorsed GOP candidate, in the August Republican primary for Governor.

Carney is the plaintiff in the first "unallotment lawsuit", Carney v. Minnesota, challenging the unallotment of the Political Contribution Refund ("PCR") program.  Carney is expediting the preparation of his brief, based on advice from a knowledgeable attorney that yesterday's Supreme Court ruling is so direct, and so pointed, that it is the only controlling law that need be cited regarding the illegality of the Pawlenty administration's unallotment of the Political Contribution Refund.

Carney has contacted the campaign of House Speaker Margaret Kelliher, to discuss working together "to get the PCR program up and running again ASAP."  Carney plans to speak to the Independence Party candidates for Governor about this at their May 8th Convention at Normandale Community College.  "I spoke with Party Chairman Jack Uldrich earlier this week.  We agreed to talk at the Convention about ways we can work together," Carney said.

In one sense, the Court's ruling is at an early stage of the Brayton case, and directly requires only that a Temporary Restraining Order be continued.  However, the opinion has much more far reaching impact as precedent.

"The Supreme Court has now spoken, and their ruling is both clear and final.  The Executive does not have statutory authority to use unallotment unless and until the Legislature and the Executive have together enacted a balanced budget for the biennium.  This is now controlling precedent for unallotment in Minnesota.  Because this condition has not been met, all unallotments are illegal, and must immediately be reversed," Carney said.

Today Carney called Attorney Galen Robinson to congratulate him on "a famous victory" in yesterday's ruling.  "We talked briefly -- Mr. Robinson is working on the next steps for his case.  The courts haven't seen the last of unallotment yet, and we agreed to stay in touch," Carney said.

If the Pawlenty administration does not immediately reverse all unallotments, Carney suggests multiple possible remedies are available to the Legislature, including:

•     A broader negotiated solution between the Legislature and the Governor

•     Seeking an immediate writ of mandamus ordering the administration to reverse the unallotments (there may be an issue of standing, Carney is considering such a writ separately.)

•     Impeachment

"I think it would be truly unfortunate if the Legislature is forced to use impeachment powers to protect and defend the baseline, benchmark requirement of launching each biennium with a balanced budget.  But it would be better to proceed with impeachment than to allow the Governor's unallotments to stand unreversed in the face of yesterday's ruling by the Court," Carney said. 

"The Governor and the Legislature must now work together to undo the damage done by Governor Pawlenty's illegal unallotments," Carney said.

Carney will raise unallotment as a major issue in the Republican Gubernatorial Primary

"I was the first person to file a lawsuit challenging Governor Pawlenty's unallotment -- defending the Political Contribution Refund.  When I started working on this, my focus was narrowly on that program.  However, from my complaint forward I have raised the issue of the Pawlenty administration's violation of the mandates of the unallotment law.  The more I read and studied, the more appalled I became at the extraordinary overreaching that has been attempted by the Pawlenty administration.  Since November of 2009 I have been publicly saying that if the Governor and the Legislature cannot resolve the unallotment situation, the Legislature can and should hold a hearing to study the meaning of the phrase: "corrupt conduct in office" as non-criminal grounds for impeachment.  Tom Emmer has been cheering Governor Pawlenty along every step of the way.  Mr. Emmer needs to be held accountable for supporting the illegal unallotment effort, and I will hold him accountable," Carney said.

Carney publicly called for an impeachment hearing in his speech to the Senate District 60 Republican Convention, earlier this year.  Carney was subsequently not elected a delegate to the State Convention.  "This position doesn't go over very well with my fellow Republicans, but I have always been treated politely and respectfully by Republican precinct and State delegates.  I maintain the Republican party is the party of ideas," Carney said. 

While Carney has always had good relations with Republican delegates, he has observed more resistance to his activities by state Republican party officials.

Video of Carney's SD 60 speech is online at www.youtube.com (bobcarneyvideos), and at Carney's website, www.republicancontract.com

Impeachment in Minnesota -- background, including a detailed analysis of the history and meaning of the phrase "corrupt conduct in office", is also available at Carney's website.

Carney calls on the Pawlenty Administration to settle Carney v. Minnesota

Carney is also sending a letter today to the attorneys representing the Pawlenty Administration, calling on the Pawlenty Administration to immediately agree to a settlement of Carney v. Minnesota that will fully reinstate the Political Contribution Refund ("PCR") program.   Carney will publicly release the letter tomorrow. 

"In light of the new Supreme Court precedent, it is pointless for the Pawlenty administration to continue to attempt to defend the PCR unallotment in Court," Carney said.

Carney will also send a separate letter to Legislative leaders, demanding a hearing to investigate the consequences of the past illegal disruption of the PCR program.  "Minnesota taxpayers have already been illegally deprived during the calendar year 2009 from exercising their legal right to participate in the PCR program.  Because that year is history, there is no apparent direct remedy for anyone who wanted to participate in the program during the last half of that year.  This harm needs to be examined and addressed," Carney said.  Carney will also publish this letter tomorrow.

"candidate/journalist" Carney analyses present situation, offers recommendations:
 

    The Court's opinion and its effect

The nub of the Court's ruling is this:

"Because the legislative and executive branches never enacted a balanced budget for the 2010-2011 biennium, use of the unallotment power to address the unresolved deficit exceeded the authority granted to the executive branch by the statute."

In short, absent an agreed-to and enacted balanced budget, all the unallotments in the current biennium have been and are illegal.

We have three alternatives:

First, the Governor and the Legislature can agree on a balanced budget.

Second, the Legislature can retroactively ratify some or all of the Governor's unallotments.

Third, if neither of the above options are chosen, the State can, and in fact must, continue to spend according to Legislative Appropriations. The next Legislative session and the next Governor can take corrective action, including, if necessary, short term deficit spending for the current biennium -- something our Constitution and Statutes do allow and provide for.

See my March 18, 2010 news release for an article on the limited (but real) deficit spending powers of our state.
 

    Good jurisprudence... but also a real mess
 

The court's opinion is a model of jurisprudence. But the ruling, and the need for it, both demonstrate the limitations of trying to manage a state budget through the courts. Courts were never designed to do this.

Let's be clear -- the immediate aftermath of the Court's decision is a real mess -- the state budget is now in complete disarray.

But this is not the Court's fault.

Courts can only take the cases they are given, and apply the law as best they can.

It is the duty of people in the "political branches" to act responsibly. It is the duty of these people to anticipate the foreseeable and possible consequences of their actions, and to act prudently. Our present situation is the result of a Governor who chose to attempt to use the unallotment law in an unprecedented way, knowing that there would be likely legal challenges. I testified at the June 30, 2009 LAC hearing that I would sue if the Governor didn't relent on the Political Contribution Refund -- he didn't relent, I did sue, and my case is currently in the Court of Appeals.

Governor Pawlenty had the power to call a special session of the Legislature in 2009. We could have reached a balanced budget through the interaction and cooperation of the "political branches" -- the way it has always been done -- the way the process of "... a republican form of government..." is designed to work. Every previous legislative session in the history of Minnesota has done that.

In choosing to try to illegally usurp the power of the Legislature, Governor Pawlenty has, in my view, been at war with the fundamental process of a republican form of government. Yesterday, the Minnesota Supreme Court declared that war is now over.
 

    The way forward -- one piece at a time
 

PIECE ONE -- The "unallotment" reform bill

This bill will significantly improve the unallotment process in Minnesota. I will be coming to the Legislature, and attempting to meet briefly with Governor Pawlenty, to build support for this bill. In response to a question I asked at the Fifth District Republican Convention, Representative Marty Seifert stated he thinks this should not be a "caucus vote" -- everyone should be free to vote their own best judgment. However, it needs to be modified to incorporate and codify yesterday's Supreme Court opinion.

Here is the current proposed new language for 16A.112 (from the House version):

After each legislative session that modifies general fund revenues or expenditures, the commissioner shall prepare a fund balance analysis showing forecast general fund revenues and expenditures for the current and next following bienniums, as modified by the laws enacted at that session. The fund balance analysis must be prepared in consultation with the chairs of the Senate Finance Committee and House of Representatives Finance Committee and Ways and Means Committee and legislative staff designated by the chairs.

We need to include this sentence (or something similar) immediately after the above new language:

No amount from the budget reserve can be spent, and no unexpended allotment can be reduced, unless and until the fund balance analysis demonstrates that no general fund deficit is projected for the current biennium.

This sentence will codify the nub of the Court's opinion into the new law. It is necessary because the Court's opinion speaks directly only to the current law. While it seems obvious that the Court's opinion would be controlling for the new law, why take any chance!

Additional language should also be added, making it clear that unallotment cannot be used if the state enters a biennium with less than a statutorily specified minimum in the budget reserve account. My reading of the law indicates to me that this is actually already a requirement, but the language here can and should be improved and clarified. The point is again to prevent any attempt to use unallotment as a "political weapon" in the process of negotiating a budget. I will develop proposed language for this, together with an analysis of the underlying issue. This is addressed in an article I wrote, published April 19th by MinnPost, included at the bottom of my May 3, 2010 news release.

Here's a link to the House version of the "unallotment reform" bill.

See my March 23, 2010 news release for three other suggested amendments to the bill (I support the bill without those amendments, but think each would be an improvement).
 

PIECE TWO -- The $1.7 billion in accounting shifts

The Legislature should ratify the accounting shifts, including the revenue recognition shift, which is not an unallotment strictly speaking. It will take a long time to repay the school deferrals, and the property tax recognition shift may end up being permanent. However, at the next session of the Legislature, a special tax can be proposed and debated to address this piece of this puzzle. In the meantime, this major element of the deficit will have been legally resolved.

PIECE THREE -- Careful, patient, and prudent cuts, and limited deficit spending if necessary

We will have a new Governor, and a full Legislative session, before the end of the current biennium. There will still be about $1 billion of unallotments to deal with from 2009, together with whatever remains unresolved from the additional deficit projected more recently.

However, we need to keep three facts in mind:

First -- the State does have limited powers to run a short term deficit. Certificates of indebtedness can be issued, and can be rolled over for 17 months if a biennium ends with a deficit. The Constitution requires these be retired within that 17 month period. Minnesota has never been in danger of becoming California.

Second -- while the Legislature can cut spending in a more intelligent and informed way than the Governor, this process is time consuming. We've already seen a hasty patch job to the GAMC program fall apart. It's better to cut carefully, patiently, and prudently -- through the Legislative process -- even if this does result in a short term deficit.

Third -- we have an election coming up. There will be plenty of time to explain to the voters of Minnesota what has happened, and why we need to clean up this mess with mops and dustpans, not axes and chainsaws. Here's my take: we are in the mess we are in because Governor Pawlenty violated the law, and attempted unallotments that were and are illegal. Recall: Governor Pawlenty did not renew his "no new taxes" pledge during the 2006 campaign.  At that time, I interpreted this as clear evidence that he was committed to being more reasonable during his second term.  Had there been a special session in 2009, with the necessary give and take, we would have entered the biennium with a balanced budget. In short: Governor Pawlenty chose this mess -- he will soon be gone -- we all need to work together to clean it up.
 

PIECE FOUR -- Do reasonable cuts now

The Legislature should focus now on making whatever reasonable and prudent cuts can be made in the remaining few days of the session. But this cannot be a repeat of the GAMC fizzle. The priority should be to put reasonably digested cuts into final form -- not to act hastily and prematurely.
 

PIECE FIVE -- A Special Session

Governor Pawlenty and the Legislature should try to agree on a special session to take whatever additional actions can be reasonably be done to further reduce spending. The Legislative process takes time to adjust and time to work. The timing of the Court's decision is such that a special session is strongly indicated.

It is unfortunate that our citizen/legislators may be forced to put in extra time due to the imprudence of our full-time (?) Governor.
 

----------------------------
 

Carney works with Tea Party leader -- offers alternative to "Judicial Retention"
 

Carney spoke yesterday with both Senate Majority Leader Larry Pogemiller and Senate Minority Leader David Senjem regarding an alternative to the proposal for Judicial Retention elections. Carney gave both a copy of his 2006 article supporting a Constitutional amendment designed to prevent "judicial activism". In a 2006 videotaped interview, Carney presented his amendment to then House Speaker Steve Sviggum, who said he could support the amendment.

Carney also met for two hours Tuesday evening with Minnesota Tea Party Patriots leader Toni Backdahl. Backdahl, and many Tea Party members, are opposed to the Judicial Retention amendment, as it would take away the right of Minnesota citizens to directly elect judges.

"We need to take a closer look at the election of Judges, and especially the process by which a Governor's appointment -- which will be unreviewable by the legislature -- is the only way on to the bench," Carney said. "I'm sympathetic with the goal of trying to avoid 'big money' judicial elections, but we've avoided these so far, and the alternative amendment I'm proposing should further reduce the danger of 'judicial activism' morphing in to that kind of an election scenario," Carney said.

Carney will contact former Governor Al Quie, and will attempt to arrange a meeting between Quie, Backdahl, and himself.

A copy of the article Carney gave to Senators Senjem and Pogemiller follows this news release.

<end>

A “Stop, Look, Listen” Amendment for Minnesota's Constitution

By: Robert S. Carney Jr -- 4-2-06 -- revised 4/10/06
 

Some people have attacked the current effort to amend the Minnesota Constitution to protect marriage, saying it's unnecessary, or it would unfairly single out one group.

Others disagree, and say something like this: “Look at the history of 'activist court rulings.' It's too easy for judges to claim to discover constitutional rights that most or all people didn't have in mind, and wouldn't have accepted, when the constitution was agreed to. We need to make sure marriage doesn't fall victim to this process.”

Let's consider a possible “Stop, Look, Listen” amendment that might be agreeable to both groups. Here it is:

Whenever a state court holds any non-criminal Minnesota law violates the State Constitution, the court's order shall be stayed for 90 days. If during this 90 day period the Secretary of State's office receives a Petition for Amendment Review that is signed by 25% of the members of either house of the State Legislature, the court's order shall remain stayed until the completion of a) one full Legislative session commencing after the date of the court's order, and b) one subsequent general election. During this time, in addition to the Legislative process for amending the Constitution, an amendment shall also be placed on the ballot if a petition for the amendment signed by 50,000 Minnesota voters is received by the Secretary of State's office no later than the first Monday after the first day of October prior to the general election. If any such amendment is approved, the court's order shall be vacated, and the case shall be heard again, with the approved amendment to be taken as the most relevant rule of construction for the case.

The Legislature shall implement this amendment through appropriate legislation, and may by law provide a process for consolidating multiple amendments if they are substantially consistent in effect.

To see how this would work, let's consider the hypothetical case of a Minnesota Supreme Court ruling that our current marriage law is unconstitutional. Here's what would happen:

First, the court's ruling would be automatically stayed for 90 days.

Second, during this time, the Secretary of State would almost certainly receive a Petition for Amendment Review from 25% or more of the Legislators in either the House or the Senate. This Petition would automatically stay the court's order for one Legislative session and the general election following the session. During this time, either the Legislature, or the people directly by petition, could put a clarifying amendment on the ballot.

Third, if an amendment passed, the court would rehear the case, with the explicit instruction that the court must take the new amendment as the most relevant rule for deciding the case.

Because Minnesota courts are reasonable, we can expect that for most cases, no Petition for Amendment Review will be presented to the Secretary of State within 90 days of a court's order. In cases where a Petition for Amendment Review was submitted, but no amendment emerged, the court's order would take effect after the next general election. Except for these delays, the process would work exactly as it works today.

Let's consider why this approach should be agreeable to supporters and opponents of the current proposed amendment to protect marriage.

For supporters of a proposed marriage amendment, “Stop, Look, Listen” would let them put an amendment on the ballot if necessary, but only if necessary, to ensure Minnesota's current marriage law isn't "overruled" by an activist court. Beyond this, “Stop, Look, Listen” would give all Minnesotans protection against any and all “activist court” rulings. Isn't this better than trying to pass “pre-emptive amendments” against a list of things a court might do?

Here's a question for opponents of the proposed marriage amendment: If you think the “marriage amendment” is unnecessary, why not agree to “Stop, Look, Listen?” It doesn't single out anyone. “Stop, Look, Listen” simply provides a way for Minnesotans to be sure they don't wake up some morning to be told that their Minnesota Constitution says something that most people never intended it to say.

Like all constitutions, the Minnesota Constitution is a contract. When a court is uncertain about the meaning of a contract, there are standard, accepted ways to consider what the parties to the contract intended. The “Stop, Look, Listen” amendment is simply a way for the people of Minnesota to state our constitutional intentions more clearly, whenever necessary, to help the courts carry out their constitutional duty of interpretation.

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