by Steve Timmer

Feb 7, 2016, 3:30 PM

Disappearing the Auditor

A long time ago — not that long, really, now that I think about it — an effort was mounted to make a statewide elected official sleep with the fishes. You might say that it was a situation analogous to the one that State Auditor Rebecca Otto finds herself in at the moment. You might say that, but it’s more than analogous.

It’s a precedent.

I refer, of course, to State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). Well, maybe not of course, but I do.

In a special session of the legislature in 1985, a bill was adopted to deprive the state treasurer, Robert Mattson, of many of his duties as a constitutional officer — an elected position. Bob was annoyed, and he asked the Supreme Court to tell the Commissioner of Finance to knock off doing his job, and it did:

Robert W. Mattson, Treasurer of the State of Minnesota, petitions this court to issue a writ of quo warranto to Peter J. Kiedrowski, State Commissioner of Finance, directing the Commissioner to cease and desist usurping the duties of the State Treasurer under the color of authority of Chapter 13 of the 1985 Minnesota Special Session Laws. Mattson contends that, as it relates to the State Treasurer’s Office, Chapter 13 is unconstitutional in that it abolishes, in effect, his executive office. We agree and, accordingly, issue the writ to the Commissioner.

Quo warranto is Latin for Who do you think you are? It’s one of my favorite writs. And the word usurpation is one of my favorite words. The separation of powers in the Minnesota constitution provided the principal grounds for the opinion. The legislature tried to deprive the treasurer of core, constitutional functions of the treasurer, and the Supreme Court said “no.”

The present situation with the state auditor is no different. Actually, it’s worse. The powers usurped from the treasurer were transferred to another department of the executive, the governor, who is at least another elected official.

Here, the authority was transferred to unelected, unaccountable (unless they are sued, and who has the money, and maybe the standing, to do that?) private parties: private auditors.

Although Mattson was a state treasurer case, it cited an Arizona state auditor case:

The Arizona Supreme Court, in Hudson v. Kelly, 76 Ariz. 255, 263 P.2d 362 (1953), held that a state statute that transferred duties of the state auditor, an executive officer, to the state controller, an appointed official, was unconstitutional. Although the duties of the state auditor were not detailed in the constitution, the Arizona court noted that at the time of the adoption of the state constitution the term “state auditor” was commonly understood to connote a person who was an accountant of the state. These accounting duties, which constituted the core function of the constitutional office, could not be transferred to an appointed officer.

As I say, this situation is even worse, because the duties are pitched into a private void.

And it seems that the state’s chief legal officer, Lori Swanson, doesn’t see it.

If you want to read more about the separation of powers in Minnesota, I commend to you the recent story here by Professor David Schultz.

Attorneys defending the privatization of the county audit function are going to have to do a pretty amazing soft shoe routine to avoid the Mattson case. I doubt it can be done.

Some of you will remember that the Office of the State Treasurer was ultimately eliminated by amendment of the constitution, which voters agree to do. Could that be done to the auditor’s office, too? Of course it could. But it would have to be done in the daylight, where the public could debate it and weigh in.

Update: Reader Lawrence comments:

Spot on, Mr. Timmer. Your article coupled with Dave Schultz’s provide a needed summary of the issues involved and the pertinent law. The separation doctrine is too often found sleeping, especially when dealing with state constitutional issues, and I am pleased you have provided a resuscitation. Now that I’ve discovered LeftMN I will have another website on my must-read list.