Limmer v. Ritchie

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. I agree with most of what Justice Page has said in his dissent, but I write separately for two reasons. The first is to articulate a different basis for my disagreement with the majority’s analysis. The second is to underscore my conclusion that, much like in League of Women Voters v. Ritchie, 819 N.W.2d 636 (Minn.2012), the majority fails to provide a sound foundation for its holding. There is a sequence of events here that, when reduced to its essentials, unequivocally leads me to conclude that the majority’s holding is wrong. Therefore, I cannot join the majority opinion.

What power the Legislature has falls under its general legislative powers, and must be exercised within the scope of other provisions in the Minnesota Constitution, in particular Article IV. Article IV defines the path the Legislature is required to follow when it creates an ordinary legislative act: the Legislature must first pass a bill through both houses and then submit the bill to the Governor for the Governor’s consent. If the Governor consents through his signature, the bill becomes law. If the Governor does not consent — vetoes the bill — the bill can only become a law if two-thirds of the members of each house of the Legislature vote to override the veto. Minn. Const, art. IV, § 23. After examining the relevant provisions in the Minnesota Constitution, the starting point for my analysis becomes obvious — events that occurred in 1919.

In 1919, the Minnesota Legislature passed a bill, which was signed by the Governor, that requires the Minnesota Secretary of State to “provide an appropriate title,” with the approval of the Attorney General, for ballot questions on pro*634posed constitutional amendments. See Act of Mar. 18, 1919, ch. 76, § 1, 1919 Minn. Laws 72, 73 (now codified at Minn.Stat. § 204D.15). This law is binding on subsequent Legislatures until repealed or amended through the ordinary legislative process. See Gudvangen v. Austin Mut. Ins. Co., 284 N.W.2d 813, 819 (Minn.1978) (“ ‘The opinion of a subsequent legislature upon the meaning of a statute, is entitled to no more weight than that of the same men in a private capacity.’ ” (quoting Bingham v. Bd. of Supervisors of Winona Co., 8 Minn. 441, 448 (Gil. 390, 398) (1863))).

In April of this year, and May 2011, the current Legislature proposed two new constitutional amendments. In accordance with section 204D.15, subdivision 1, the Secretary of State then provided ballot titles for the two amendments. It appears that the Legislature initially acknowledged the import of section 204D.15, subdivision 1, when it presented its own versions of titles to the Governor for his approval in accordance with Article IV, but the Governor vetoed those titles.1 The Legislature did not attempt to override the Governor’s vetoes. The Legislature now plans to circumvent the process it mandated for itself in section 204D.15, subdivision 1, by placing its own titles on the November 2012 ballot.2

There are only two theories under which the Legislature can prevail: (1) the Legislature must find an unstated, inherent power under Article IX to place titles on the 2012 ballot — a theory which can only prevail by reading extra words into section 204D.15, subdivision 1; or (2) the original 1919 law is an unconstitutional delegation of authority from the Legislature to executive departments.

The first sentence of Article I of the Minnesota Constitution makes clear that the right to “alter, modify or reform government” belongs to and remains with the people of Minnesota. Article IX then delegates to the Legislature the role of proposing constitutional amendments; but that role is specifically defined and limited. The people reassert their primary role in this process by retaining, at a general election, the power of approving or rejecting the Legislature’s proposed constitutional amendment.

The Legislature asks us to expand its limited role. Contrary to the plain language of the 1919 statute, that the Secretary of State is to “provide” an “appropriate title,” the Legislature would have us read into the statute an additional requirement that the Secretary is to provide a title only if the Legislature has not already done so. But, such a requirement cannot be found in the plain language of section 204D.15, subdivision 1, or of any other statute, or the Constitution. Thus, the power the Legislature seeks to assert can only come from reading between the lines of the limited powers assigned to the Legislature.

As Justice Page points out in his separate dissent, the majority creates a nonexistent constitutional conflict and then uses this illusory conflict as a means to avoid applying longstanding principles for how we interact with the legislative and executive branches of government. As both Justice Page and I noted in League of Women Voters v. Ritchie, 819 N.W.2d 636 (Minn.2012), the majority reads Article IX *635so broadly that, in the name of judicial deference, it grants to the Legislature inherent power the people did not grant to that body. Here, it appears that the majority not only concludes that the Legislature’s “inherent” powers require an extraordinary level of deference from our court, as stated in League of Women Voters, but also our proactive rewriting of a valid statute. The latter premise is even more erroneous than the unprecedented deference the majority grants to the Legislature in League of Women Voters.

The second way the Legislature can prevail is if the 1919 statute is an unconstitutional delegation of legislative power. For this theory to prevail, the Constitution would have to be read to provide that proposing ballot question titles is a power exclusively mandated to the Legislature. As previously outlined, the role of the Legislature is limited. Nowhere in the Legislature’s core powers, under Article IV, or the constitutional amendment process under Article IX, is such a mandate discussed. Amendments are controlled by Articles I and IX, and there are other limited roles for the Legislature in the electoral process in Article VII. Nothing here makes the constitutional amendment process the exclusive province of the Legislature.

If the 1919 statute had not been passed and section 204D.15, subdivision 1 did not exist, then the issue before our court would be quite different. If that were the case, then the question of which office of government — the Legislature or the Secretary of State — was responsible for drafting the title for proposed amendments would be a more open, and somewhat ambiguous question. If section 204D.15, subdivision 1 did not exist, and both the Legislature and the Secretary of State issued a title for the ballot question, then the constitutional conflict that the majority imagines would actually exist. Such a conflict might even exist if the Legislature and the Governor had approved a later statute that implicitly repealed the 1919 law, although implied repeals are generally rejected; because they are subject to a “relatively stringent standard.”3

But, try as the current Legislature and the majority might to claim otherwise, section 204D.15, subdivision 1 is the law. The reasons why the 1919 Legislature passed section 204D.15, subdivision 1, are not at issue, nor is the constitutionality of the statute before us. The key point to be acknowledged is that, using its ordinary legislative power and acting under Article IV, the Legislature did enact section 204D.15, subdivision 1, a statute that is still the law in Minnesota. Nevertheless, the Legislature intends to circumvent this valid law by in effect rewriting it, and the majority affirms the Legislature’s implicit revision of the statute. While we may agree or disagree with the 1919 Legislature’s choice to empower executive officers in this way, the wisdom of that law is also not before us today. Whenever possible, we must defer to the public policy choices of the Legislature. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162 (1810). But we must also enforce any duly passed and executed law of the State of Minnesota. The Legislature bound itself when it passed the 1919 statute and the Governor *636signed it into law. If the current Legislature disagrees with the policy choice of their predecessors, they are given a very clear way forward — follow Article IV, section 23 of the Constitution by passing a new law through both houses and then presenting it to the Governor for his signature.

Here, the Secretary of State has performed the duty imposed upon him by the Legislature. He has provided titles for the Legislature’s proposed constitutional amendments, which titles have been approved by the Attorney General. While it is possible to quibble about the language used by the Secretary of State in his titles, neither the majority nor I conclude that his titles are not “appropriate.” There-foi’e, after concluding that the law as embodied in section 204D.15, subdivision 1 is valid and must be followed, I would hold that the titles provided by the Secretary of State must appear on the November 6, 2012 general election ballot.

. See Letter from Mark B. Dayton, Governor of Minn., to Michelle Fischbach, President of Minn. Senate (May 25, 2011); Letter From Mark Dayton, Governor of Minn., to Kurt Zellers, Speaker of the House, Minn. House of Representatives (Apr. 9, 2012).

. It should not be lost on anyone that this process will now — based on the holding of our court — escape any scrutiny by either the executive or the judicial branch even if the title is inappropriate, inaccurate, misleading, or deceptive.

. As Justice Antonin Scalia and legal writing expert Bryan Garner have written, "[r]epeals by implication are very much disfavored.” Antonin Scalia and Bryan A. Gamer, Reading Law: The Interpretation of Legal Texts 327 (2012). Writing for the U.S. Supreme Court, Justice Clarence Thomas has agreed. J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 142, 122 S.Ct. 593, 151 L.Ed.2d 508 (2001) ("The rarity with which [the Court has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be an irreconcilable conflict between the ... [laws] at issue.” (citation omitted)).