My head is spinning with all the new moves in the legal arguments over the ever-closer partial shutdown of the state government. I’ll just try to catalog them.
Development 1: Petition filed with Supreme Court
As I advertised last week, four Repub state senators on Monday filed a petition with the Minnesota Supreme Court making the full constitutional argument that — with relatively few exceptions — state funds cannot be spent unless they have been appropriated by the Legislature.
The brief is long, rambling and contains a zillion technical arguments, but its basic argument is simple. Nothing in the Constitution authorizes the courts, the governor, the attorney general nor the commissioner of finance to spend state money on what they deem to be essential services or core functions. You can read the petition here. It asks the Supreme Court to order the governor and Ramsey District Court Chief Judge Kathleen Gearin, who is handling the shutdown case, to say where they get this appropriation authority.
Erick Kaardel, the attorney for the four senators, says he believes the Supreme Court will promptly issue an order to those parties to identify their authority. Most other legal observers I talked to think the Supremes are more likely to tell Kaardel to make his argument directly to the lower court and then they will handle it on appeal, if it gets that far.
Development 2: Voters’ group drops out
One thing to note: The Minnesota Voters Alliance, which originally had been among Kaardel’s clients in the case and would probably have been paying the costs, seems to have dropped out. Their spokester told me yesterday that the MVA may make a similar argument in a separate case with another lawyer. I’m not sure what’s behind this.
Development 3: GOP senators file another suit
Meanwhile, curiously, the same four Repub senators — Warren Limmer, Scott Newman, Roger Chamberlain and Sean Nienow — simultaneously serve as plaintiffs in another legal action with another attorney (this one is by former state Sen. Fritz Knaak) asking Judge Gearin to order Gov. Dayton to call a special session so the Legislature can pass a temporary spending bill to avert the shutdown and also avert the constitutional crisis over whether anyone other than the Legislature has the constitutional power to spend.
Personally, I will be shocked if the court — which has mess on its hands that it would love to avert — decides that it has the utterly unprecedented power to order the governor to call a special session.
Plus, if we take the identity of the plaintiffs in the two cases seriously, the same four senators are telling the Supreme Court that the judiciary has virtually no power to spend state money, because that is the Legislature’s power, but then they are telling the Ramsey Court judge that the court has the power to order the governor to call a special session, a power that the constitution pretty clearly gives to the governor alone. Yikes.
It is reasonable to read the Knaak petition as a press release seeking to encourage the public to view the governor as the culprit in the looming shutdown. And it is true, of course, that Dayton has said that he won’t call a special session unless and until a full budget deal is worked out, and that he will not sign a “lights on” bill to keep the government running while he and the Legislature continue to seek a biennial budget deal.
Development 4: Courts try to keep working
Late last week the Judicial Branch authorized the filing of a petition by Attorney General Lori Swanson advocating that the courts are among the functions that must continue in the event of a partial shutdown.
It is exquisitely awkward for the judiciary to petition the judiciary to say that whatever else shuts down, the judiciary must continue to be funded. But on the constitutional front, this one has some special standing. There are various arguments in play for why this or that function should stay open.
Even if you take the constitutional no-spending-without-appropriations language very seriously, one of the strongest arguments for an exception would be spending that is necessary to protect basic constitutional rights. And the argument that we can’t protect our basic constitutional rights — for example, the right to a speedy trial in a criminal case — without courts and judges is a strong one.
On the other hand, if we take seriously the need for shutting down everything that can be shut down, there are things that the courts do — let’s say, make it possible for people to change their legal names as a small example — that are fairly far removed from basic constitutional rights.
Anyway, Judge Gearin recused herself from handling this aspect of the case (judges typically don’t state a reason when they recuse, but this one might be because her own job status would be covered by the ruling) and Supreme Court Chief Justice Lorie Gildea (whose job status would also be in play) appointed retired Judge Bruce Christopherson to handle that portion of the case and to get paid by the day for doing so.
Development 5: Dayton files response
Gov. Dayton filed his own response to the keep-the-courts-open petition, saying that if the courts conclude that the constitutional appropriations process has “failed,” and the court is forced to rely on its “inherent powers” to remain open, “the governor expects [nice word choice] that the executive department, including the Department of Management and Budget, will comply with the orders of the judicial department.” (In such a scenario, Management and Budget would have to be sufficiently open to pay for the operations of the courts.)
In what could, like the Knaak suit, be taken as a public reminder of where things stand in the blame game, the Dayton response also reminded the court that he has asked the court to appoint a mediator to help him reach an overall budget compromise with the Republican majority of the Legislature. In fact, if you read Dayton’s original filing closely, appointing a mediator and ordering the parties to participate in mediation is the only thing Dayton asked the court to order.
If mediation were to occur (the Republicans previously rejected a Daytonian suggestion of mediation), and succeed in bringing about a budget deal, then of course all of the rest of these fairly wild legal issues would settle down.
Dayton’s previous suggestion of mediation will be before Judge Gearin when she holds her first hearing on the matter, scheduled for Thursday.
As I mentioned a few days ago, judges tend to like mediated settlements. But I’m unaware of any precedent for a court-ordered mediation between the other two branches of the government. And it could even be technically difficult, since neither the Legislature itself, nor certainly the Republican caucus, are at this point parties to any of these cases. Although …
Development 6: Panel authorizes Senate intervention
In a little-noticed action last week, the Senate Rules Committee, chaired by Majority Leader Amy Koch, did vote (along party lines with all Repubs voting aye and all Dems nay) to authorize the Senate itself to intervene in the case with its own lawyer. So far, to my knowledge, the Senate hasn’t done so.
Noon update: Oy, a couple of other bounces of the legal ball have come to my attention since I filed this earlier today.
Development 7: Swanson asks the Supremes to dismiss the Kaardal petition
The Kaardal petition is the one from Development 1 above, asking the court to issue a writ of “quo warranto” demanding that everyone in the case (including Attorney General Swanson) explain what makes them think they have constitutional authority to spend state money without appropriations. Apparently within minutes after it landed, Swanson filed a petition asking the Supremes to reject it completely, on the grounds that this was not an appropriate use of “quo warranto,” or to at least not take the case themselves. The court does have the discretion to kick this can down to a lower court, which is what they did with an almost identical petition in the aftermath of the 2005 state government shutdown.
Development 8: Senators accuse Gearin of partisan bias
In a supporting document as part of the second suit by the four senators (development 3 above), the senators and their attorney Fritz Knaak (who, it should be noted, has been the Repub Party attorney in several cases and represented Norm Coleman in the 2008 recount) served notice that they are seeking to have Judge Gearin removed from the case “inasmuch as her previous participation in the earlier unallotment litigation in addition to her participation in the Senate recount in which her actions could have, and were, perceived by some citizens to have been partisan, or, in some way, biased, in her determination.”
Nobody told the Moon
The government shut down at midnight,
and the Moon which
had been hangin’ around since sunset…
stayed there ’til sunrise.
Nobody
told
the Moon to
go home.
Indeed, it gets complicated pretty quickly. Thanks for the update, Eric. For a relative newbie to the state, this is all very interesting in an academic sense. That sense will rather quickly change if a deal isn’t struck and the government shuts down. At that point, blame will be allocated…
I suggest that if the government shuts down, it all shuts down – courts and all. Let our legislators bear the wrath of the people for their failure at their jobs. Perhaps this way we can force compromise …
And yes,thanks Mr Black for defining the jumble of ever-rising issues so clearly…plus
I say Dayton will later be remembered as one of the most powerful governors in Minnesota history; working against all ‘odds’… yet who has consistently tried to recognize the needs of all the people in this time of economic crisis. The legal filings and political foreplay leading up to a close-down of all but emergency services, will be a sad day for the Republicans essentially, as they are the architects of virtue-less anarchy
here, as they now represent themselves. They have redefined themselves as the ME-FOR-ME party which sends its message like flashes of grubby graffiti that represents injustice in its most tragic form.
Eric, I join with those thanking you for the update; it must have taken all kinds of sorting and shuffling to get the story into a form we could read. This is definately a “breaking story”.
Nonetheless, I think it’s time to remind voters how many of these elected representatives pawn themselves off as “leaders” in campaign literature and while stumping for votes. Ha!
So, my question is, if someone on Medicaid is denied health care, or is afraid to seek it, or doesn’t understand what is going on and hesitates to see a doctor, or who can’t get transportation to a clinic, and then they croak, are the legislature and governor guilty of negligent manslaughter?
If so, don’t seat me on that jury! My mind is made up, the legisaltors and governor would be toast!
“…seeking to have Judge Gearin removed from the case ‘inasmuch as her previous participation [snip] in which her actions could have, and were, perceived by some citizens to have been partisan, or, in some way, biased, in her determination.'”
“Some citizens” perceive bias on the part of a judge? How would any judge qualify if that is the standard?
They’re just throwing stuff up there to see what sticks while they run out the clock.
I can only hope a mediated settlement will eventually be the order of the day,…
Because the way our dysfonic Republican legislative leaders seem to be operating is akin to an aggrieved spouse seeking to use lawyers and the courts,…
and the court of public opinion amongst the couple’s former friends to do as much damage as possible, even to the extent of total destruction, of their former spouse,…
whom they have rejected because that spouse refused to sell their soul in order to become only and exactly what that rejecting spouse wanted and needed them to be,…
while that rejecting spouse loudly proclaims their own perfection as a spouse (which everyone BUT themselves knows to be a completely inaccurate image and claim),…
and completely ignores that the most vulnerable people in the equation, the children of their union, are being damaged and destroyed right along with that former spouse who “didn’t meet their (unreasonably co-dependent) needs.”
Perhaps what the average citizens of Minnesota need is a “guardian ad litem,” to protect the interests of the most vulnerable among us in place of only protecting the interests of the wealthy lovers some of our politicians seem to be so infatuated and enamored with, over and above those of us whom they are SUPPOSED to be representing and to whom they are SUPPOSED to be responsible – the average citizens of the state.
The same state constitution that gives the legislature the right to appropriate money, gives the governor the right to veto those appropriations. It also gives the courts, the “judicial power”, which it never really defines. The rule is that “every court has jurisdiction to determine its jurisdiction?” Why would the legislators want to have the court system “preserve” legislative rights by narrowing its own jurisdiction? That’s a pretty dicey proposition unless you think you have the Chief Justice and a majority of justices on your side? Wouldn’t a better way for the legislature to preserve their legislative “rights” be to use those “rights” to pass a budget the governor would sign? The fact the legislature wants to “kick the can further down the road” indicates how disingenuous they really are.
During all the time from the beginning of the year and continuing through the shutdown, tax monies and fee monies will be flowing into the State Treasury. So lack of money is no reason to cease spending. Indeed, can we not view those tax monies as services ‘Paid For’ and say that not doing the services is unconstitutional? The Rs say government must run like business. You pay for X at a store and don’t get X, results in what? Anyone know how many bucks are in the Treasury today?
#6 – “They’re just throwing stuff up there to see what sticks while they run out the clock.”
…again.
Colleges stay open during shutdown. Lots of DFL unionized activists from Professors to janitors. Got it. Must keep our political army paid. Amount of Students going to school? Minimum. Who cares they don’t vote. Bridge in Stillwater(Bachmann country). Close it. 1. that bridge helps tens of thosands of people to get to and from their jobs , job INTERVIEWS and family transportation. And it does it everyday of the year. Those people (most likely not Dayton or DFL supporters) Close it. 2. Bridge only employs six govt workers. Minimum impact upon DFL Gov. and DFL party workers. 3. This Act by Gov. Shutdown….PRICELESS. Isn’t looking out for all Minnesotans fun?
#11 Eric–
The reason that state colleges and universities are able (for the moment) to stay open is that the majority of their funding does NOT come from the state (tuition is the biggest source). Over the past 40 years state support of higher education has steadily decreased.
As one of my colleagues in MnSCU put it, the state universities have gone from
state supported to
state assisted to
state located.
#11, reread “Development #1” in the second paragraph above and revisit your assertions about “Gov. Shutdown.”
As I recall in 2005, it was a DFL-controlled legislature and a Governor by the name of….uh…uh…OH! Pawlenty that wanted to shut everything down at that time.
So is the lesson supposed to be that it is OK for a Republican governor to want to “shut it down” when he has the same disagreement with the legislative branch of government, but it’s not OK when the parties switch roles?
On a side note, I wonder which way the person who was traveling across the Stillwater lift bridge was going for that job interview….
No way any court is going to order the Governor to call a special session. Aside from the fact that that’s a power expressly granted to him alone by the constitution, it would be a pointless exercise unless the court were to also order the Governor to sign whatever Zimmer and his ilk send him. Not likely.
Pawlenty also insisted on having a deal agreed to before he would call a special session. He even once sent the DFL Caucus a letter warning them that “a deal is a deal” when they started making some noises about straying beyond what had been agreed to. I imagine the Rs supported his position back then, and would do so again were he governor today. Mr Dayton is right and smart to insist on the same.
He’s also right to reject a “lights on” bill. This would be appropriate if a deal was largely done or in sight, without sufficient time to conclude it before the end of the biennium. That’s not the case here, and his very proper rejection keeps the pressure on both sides to find a way to agree.
Fritz Knaak shows up in a lot of this stuff (he defended the indefensible Gretchen Hoffman as well) and does the things he does largely because he was himself a republican legislator back in the 80s. Good riddance, BTW.
I’m not at all clear on why the Rs are so afraid of mediation. Not that grownups should need it, but it has proved to be a useful tool in any number of situations over the years. If they think their “mandate” is so strong….what’s the problem? Wouldn’t they assume they’d win?
I really like the term “Daytonian.” I expect it to be used more and more as the decades pass.
Eric! No report on Minnpost from the KSTP/Survey USA poll, what give?
Going forward, should Minnesota’s government increase spending? Decrease spending? Or continue to spend about the same amount as it has been?
8% Increase
60% Decrease
27% About The Same
5% Not Sure
4.) Asked of 359 who think spending should be decreased/Margin of Sampling Error for this question = ± 5.3%
By how much should spending be decreased? 0-3%? 4-6% 7-9%? Or by 10% or more?
13% 0-3%
32% 4-6%
20% 7-9%
27% 10% Or More
9% Not Sure
5.) Asked of 359 who think spending should be decreased/Margin of Sampling Error for this question = ± 5.1%
Would making cuts to state services be acceptable? Or unacceptable? To you?
61% Acceptable
31% Unacceptable
8% Not Sure
Looks like the good people of Minnesota are in favor of that ‘all cuts’ budget. Does this news rattle your cage?
Lori Swanson has the shutdown figured out for the Attorney General’s Office. The word from her managers in that even though the union employees won’t be there, the attorneys will be expected to report to work, unpaid and without insurance, or presumably risk losing their “at will” employment.
Sorry, no cages rattling here. The question NOT asked was about increasing revenues by raising taxes on those who can MOST afford to pay (and whose massive tax cut of ten years ago helped bring about this crisis).
Consequently, although the survey quoted above might seem to support budget cuts, it doesn’t even address tax increases. The jump to “cuts only” support is not justified in any way by the survey results (no matter how much some of the commentariat here, might desperately wish it to be so).
I also suspect that a survey which included followup questions asking WHAT respondents would most like to see cut would have the vast majority refusing to support actual cuts anywhere close the percentage they claim to want.
The dysfonic “conservatives” still have a majority of the public buying the snake oil regarding huge amounts of “waste, fraud, and excess in government budgets, but of course, as anyone with half a brain knows,…
The REAL waste fraud and excess is to be found in the private sector – in CEO compensation, in board rooms, in the flim flam which currently passes for investment vehicles, etc.
If government were truly being run “like a(n ACTUAL) business,” especially a Wall Street business or an oil company, it would be costing us ten times as much (at least).
Michael–
Did KSTP ask people what benefits they personally were willing to give up?
The sample size and margin of error in the cited poll make it unconvincing. Furthermore, the questions are too broad to be meaningful. Most important, however, is that everyone agrees we must make cuts – that does not at all equate with an “all cuts” budget. So many polls refute such a conclusion it’s a waste of time countering your argument.
Thanks, MinnPosters for this rousing exchange. The brainpower and fine writing give me hope in this dark hour. Seriously.
Gail O’hare
So, just out of curiosity, are the Republicans also asking the judge to order Dayton to sign whatever lights-on bill they want to pass in this special session they want the judge to order? Can’t see any constitutional issues with that. Why don’t they just ask the judge to order Dayton to sign their “compromise” bill and save us all a bunch of time?
These people are very nearly certifiably whacko.
(#15) Michael
Put it this way–how much more do you pay for food, gas, insurance, concrete, steel, etc than you did a couple years ago? I bet it is noticeably more.
Lets say that your family grew larger in the last few years. Did your expenses get larger?
Staying at the same funding is a significant reduction in what is delivered or covered, considering higher costs for everything and more people requiring services.
It’s not that hard, is it?
So these “brain dead” arguments repeated ad infintum are entirely unhelpful in dealing with the issue of what changes are needed by the circumstances. This is the problem with the current legislators who want the soundbite without the serious discussion.
If I understand the Republican position,no one has the authority to spend money without authorization.In that case,are they going to volunteer to go slightly north of the Capitol and take over the guard positions at Stillwater and Oak Park Heights?
I predict the courts will not allow a total shutdown. The Courts will have to remain operating if for nothing else but to handle criminal dockets. Speedy trial and all that. But once you’ve made the decision that the courts remain open for these reasons you can’t say they’re only open for these reasons. Judges and court personnel aren’t paid by the type or number of cases they handle. So the courts will stay open. Beyond that hospital staff, emergency personnel, police, prison staff, Department of Health. I suppose road construction might actually be suspended.
These Republican lawsuits smack of desperation and an honest fear these people know who the public’s going to blame for this totally unnecessary, wasteful and childish stunt.
#15 Michael, yet somehow the good people of Minnesota still elected a Democrat for Governor! With people like you, I have a little clearer understanding of how the Tea Party exists.
I hope that if and when there is a shutdown that people with disabilities and the senior citizens who rely on Medical Assistance will be able to keep the services and supports they need. The same goes with those people who are in any form of custody in state penal and other institutions. Whatever is necessary to do beyond those “core functions”, I hope the shutdown, if it comes, is long and broad. The citizens of Minnesota need to realize just how much they rely on state government in their daily lives. When this realization hits, they also should recognize that the government services we all depend upon requires us to pay our fair share, including the top 2% of earners. We either pay for the government services we want or we must give them up. I’m betting most Minnesotans are willing to see an increase in taxes in order to meet their very real needs, including the needs of vulnerable Minnesotans. Hopefully, the GOP will pay a heavy political price in 2012 for their short-sighted, greedy and social darwinistic approach to government.