Erick Kaardal: Legislators, a pay raise and the courts

  • Article by: ERICK KAARDAL
  • Updated: August 5, 2009 - 6:34 PM

What do these have in common? Obliviousness to the state Constitution.

A recent Star Tribune editorial ("Put per diem reform on agenda," July 31) missed the point of why Citizens for the Rule of Law sued over an increase in the daily payments provided to legislators. The citizens group brought the lawsuit to put Minnesota courts on trial -- not the Legislature.

First, let's agree on some facts. Per diem compensation is a daily wage paid to legislators on top of salaries and reimbursed expenses. Legislative per diem compensation has nothing to do with expenses, which are eligible for separate 100 percent reimbursement. The Senate and House fiscal offices understand this, so they withhold for federal and state income taxes on per diem payments made to individual legislators. These daily wages are now a critical part of legislator compensation -- probably up to 30 percent for some legislators. In 2007, many legislators brought home more than $20,000 in per diem payments.

Second, the Minnesota Constitution requires that compensation for legislators be determined by law and that a pay increase not take effect until after the next election.

Third, in 2007, the state Senate -- not by an enacted law, but by a vote of the Senate only -- increased its per diem compensation from $66 per day to $96 per day. The House Rules Committee made a similar increase, but only to $77 per day. The discrepancy between $96 per day for senators and $77 per day for representatives, again, shows that it's a daily wage. It has nothing to do with expenses.

Based on these facts, Citizens for Rule of Law knew (as any reader of this commentary would know) that legislators violated the state Constitution in 2007 by increasing their compensation without an enacted law and by increasing their compensation before the next election in 2008.

Citizens for Rule of Law did not need a lawsuit to prove that legislators did this to pad their pocketbooks. Politicians are crooks. There is nothing new, novel or interesting about that.

No, the more interesting question was whether the Minnesota courts would apply the Constitution to the Legislature.

The answer so far is no. The Court of Appeals decision issued July 28 held that legislative per diem payments are not "compensation" within the meaning of Article IV, Section 9 of the Minnesota Constitution and that, therefore, an increase to legislative per diem payments, effective immediately, does not violate that section's prohibition against same-term increases to compensation.

The court's decision failed several tests. Let's just take three: ordinary language, logic and common sense.

The ordinary language of the Constitution, voted for by the people, indicates that state legislative pay increases need to be enacted by law -- meaning the House and Senate agree on a bill that is presented to the governor for signing. The Court of Appeals failed to acknowledge that this didn't happen in 2007.

The ordinary language of the Constitution, voted for by the people, requires that a vote for a pay increase not take effect until after the next election. The Court of Appeals failed to state that a pay increase took effect before the 2008 election.

Logic suggests that if the court were right -- and that per diem payments aren't compensation -- then legislators wouldn't care whether they received the $96 or $77 per day. But legislators do care. These daily wages have become a significant part of their compensation package. The court simply missed the logic that if legislators consider these daily wages their "compensation" and are relying on it to "make a living," then it must have been unconstitutional for them to increase their "compensation" without an enacted law and without delaying the increase until after the 2008 election.

Common sense suggests that legislators are illegally paying themselves. People on the street, when it comes to paying for things and paying taxes, are expected to comply with all the laws -- even the little laws. In return, the little people, like the members of Citizens for the Rule of Law, believe that Minnesota courts should make the big people follow the laws, too.

Put simply, the Minnesota Court of Appeals decision has shown that in this state, if you are big enough and important enough, you don't need to follow the law. There are no consequences.

Sad, but true.

Erick Kaardal, an attorney, is representing Citizens for Rule of Law and is general counsel for

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