by Steve Timmer

Jun 10, 2015, 11:00 AM

The Separation of Powers

In civics class, back when they had them, we learned about the three branches – functions, really – of government: legislative, executive, and judicial. We learned that the branches operate in a ballet called “checks and balances.” The functions were not supposed to be intermingled.

Minnesota takes this idea pretty seriously. Article III, Section 1 (there is only one section in Article III, really) of the Minnesota Constitution states:

DISTRIBUTION OF THE POWERS OF GOVERNMENT – The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The next three articles in the Constitution describe the three branches or functions, but Article III is a predicate to them, warning people not to mix them up.

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A principle abstracted by the courts from the language of Article III is that “core functions” of a branch cannot be usurped by or delegated to another branch. The express language of the section also states that a person cannot serve in two branches (at least at the same time), unless it is “expressly provided” elsewhere in the Constitution.

In fact, Section 5 of Article IV states:

RESTRICTION ON HOLDING OFFICE – No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

The section does not say “elective office,” just “office.” Because of the narrowness of the exclusion, a legislator sitting in a governor’s administration would certainly seem to be prohibited.

In general, of course, the legislative branch makes the laws; the executive branch executes or performs them, and the judicial branch adjudicates disputes about the law, and when necessary, interprets the law and determines its consonance with the Constitution.

Professor David Schultz wrote recently – and not charitably – on his blog about the recently-ended legislative session He mentioned in particular the middle of the night shenanigans to gut the Office of the State Auditor. In spite of the efforts of Governor Dayton to undo this feat of legerdemain by the leadership of the Legislature, including Senate Majority Leader Tom Bakk and his Chief of Staff Tom Kukielka (who is also, I believe, the Executive Director for the Senate Rules Committee), it appears that it is going to happen.

Professor Schultz wrote that the act of the Legislature to effectively defund a constitutional office raised a serious issue under the separation of powers doctrine. He cited several cases, one in particular dealing with another constitutional office, the State Treasurer:

One of the best cases on this issue is State ex rel. Mattson v. Kiedrowski, 391 N.W.2d 777 (1986). In that case at issue was a 1985 law enacted by the legislature, in special session, which transferred most of the responsibilities of the State Treasurer, an executive officer, to the Commissioner of Finance. The reason for the transfer of responsibility was that the Treasurer, then a constitutional officer [the Office of State Treasurer was abolished by amendment of the Constitution, subsequently, ed.], essentially abandoned the state and was no longer performing his duties. The Supreme Court rejected this transfer of duties.

The Supreme Court reasoned that the Legislature could not, because of the separation of powers clause, strip a constitutional officer of his or her authority.

Cases involving the separation of powers also arose to challenge the failure to provide funding for the judicial branch; Professor Schultz refers to one of them, In re Temporary Funding of the Judicial Branch, holding that the courts could compel the Legislature and the Governor to fund the courts.

The separation of powers was also raised by the plaintiffs in Brayton v. Pawlenty, a case that sought to restrain the use of the unallotment authority of the governor to balance a budget before a biennium even began. The case was decided on statutory construction grounds, holding that the unallotment authority did not extend to balancing an unbalanced biennial budget prior to its beginning.

In his concurrence with the result, however, Justice Alan Page would have found Governor Pawlenty’s unallotment actions to be unconstitutional under the separation of powers clause, as an invasion of the legislative function, not merely unlawful as a matter of statutory construction. Justice Paul Anderson joined Justice Page’s concurrence.

I doubt that we have heard the end of this. Auditor Rebecca Otto has said as much. The governor has vowed to pursue it, too.

One of the things that ought to be part of the summing up of this lamentable affair is exposing the vendetta of Sen. Tom Bakk and his lieutenant, his henchman, the sinecure holder, Chief of Staff Tom Kukielka. And other Ranger senators, too, like Senator Tom Saxhaug. Sitting on the Executive Committee of the state, Rebecca Otto voted against the approval of 31 sulfide mining leases in northern Minnesota. That voted touched off what turned out to be a spectacularly unsuccessful “Dump Otto” campaign on the Range. Since it didn’t work, other methods were apparently required.

Now if this bothers you, and perhaps it should, you might consider signing a petition calling for Tom Bakk’s resignation as Senate Majority Leader.

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But that isn’t all that needs to be done. The work of the separation of powers isn’t finished. The Iron Range Resources and Rehabilitation Board, a state agency on which the Range legislators sit, and decide millions of dollars of grants and indulgences every year, that giant suckhole of money and patronage, ought to be examined to see if it is an unlawful invasion of the executive branch by the legislative branch.

The IRRRB has a Commissioner who sits in the governor’s cabinet. The Board – these legislators – make the spending decisions about who gets the money. (They have an annual appropriation of about $20 million* to hand out, part of the mining production taxes levied and collected by the state, and make grant decisions out of other special Range funds, often to the mining companies.) Not the governor, not the whole legislature, but rather part of the legislature sitting as an agency. Reporters often describe the IRRRB as an “unusual” or “peculiar” agency when writing about it.

But it’s so much more.

Entirely apart from the usurpation of an executive function, the legislators on the IRRRB hold multiple offices “under the authority of the state of Minnesota.” I think they’re constitutional dead ducks. The IRRRB may be, too.

Some Range legislators are so cavalier about separating their job as a legislator from everything else that they don’t see a problem with taking yet an additional position, for compensation, with a publicly-funded organization that lobbies the Legislature for more.

The Rangers wail that the mining production taxes collected and distributed by, inter alia, the IRRRB, are merely in lieu of property taxes on mining companies. That is so under Article X, Section 6 of the Minnesota Constitution, the same document that requires the separation of powers and prohibits legislators from wearing multiple official hats.

The IRRRB is an engine of patronage, and probably worse. The legislators who sit on it retire from the legislature to peddle their influence on behalf of mining companies. If you are really good at it, you get a slush fund named after you.

* 3/19/16 – More than that, currently.