Minnesota Senate makes the constitutional argument for shutting down pretty much everything
MinnPost photo by Terry Gydesen
If the Senate position is adopted by the courts, the brief seems to imply that almost all spending from the state Treasury must stop on July 1.
At the last minute before a judge takes up the legal arguments about a state shutdown at 10 a.m. today, both the Minnesota House and Senate weighed in separately late Wednesday on the legal issues. The two houses made very different arguments.
The House filing was simple and politically clumsy since it asks the court for only two things: Don’t order us to mediation with the governor to try to prevent a shutdown; and, if there is a shutdown, help us keep our own funds flowing to the Legislature itself.
The Senate made a strong, simple and radical assertion of what I’ve been calling the constitutional argument. It goes like this:
The Minnesota Constitution says no unappropriated funds can be paid out of the state treasury. It means precisely that. It is not overruled by any other language in the Constitution. Therefore, the judicial branch can’t order spending to continue (although this is what happened during the last shutdown and this what Attorney General Lori Swanson has been asking the court to do) and the governor has no “inherent power” to spend money for “critical services” (although Gov. Mark Dayton argued in his own brief, that he does that power, at least to protect lives and health of Minnesotans and to prevent an economic disaster that might befall the state in the shutdown scenario).
Oh yeah, the Senate’s legal position also agrees with the House that the judge cannot grant the governor’s request to appoint a mediator or order the Legislature to participate in mediation to reach an overall budget deal.
If the Senate position is adopted by the courts, and if Dayton and the Legislature cannot reach a budget deal by the exercise of their normal constitutional powers, the Senate brief seems to imply that almost all spending from the state Treasury must stop on July 1. The Senate is not explicit about whether this means the state prison guards would be laid off the prisoners released or whether mentally ill patients would be turned out of state hospitals, but there is nothing in the filing that suggests any exceptions.
While the House retained former Chief Justice Eric Magnuson as its attorney, the Senate went with its own staff counsel, Thomas Bottern.
It should be noted that the Senate brief really represents the legal position of the Republican leadership of the Senate, or perhaps the Senate Republican caucus. Last week, when Senate Majority Leader Amy Koch convened a meeting of the Senate Rules Committee to ask the committee’s authorization to get involved in the legal arguments, DFL members of the committee asked what legal position they were authorizing. Koch said the position hadn’t been worked out, but assured Sen. Richard Cohen of St. Paul that no one would assume that the Senate brief was speaking for the DFL minority.
In 2005, when a similar budget impasse led to a brief shutdown, Ramsey County District Court did appoint a special to oversee spending of unappropriated state funds sufficient to perform the “core functions” of the executive branch. But, although the Constitution language on the topic hasn’t changed, no one argued to the 2005 court – at least not until after the shutdown had ended and a budget had been adopted and the spending that had been done during the shutdown had been retroactively ratified by the Legislature – that the Constitutional no-spending-without-appropriation language should be strictly construed.
This time, someone is, and it’s the state Senate. The argument, as I mentioned above, is simple and less than two pages long, so brief, in fact, that for those who don’t click through to the legal filing itself, I can give you a five-paragraph excerpt that captures the point succinctly and you don't have to be a lawyer to understand:
- “The Minnesota Constitution, Article III, vests the legislative power of the state of Minnesota in the Legislature and prohibits a member of another department (the executive or judicial departments) from exercising legislative powers, except as expressly authorized by the constitution.
- The Minnesota Constitution, article XI, section 1, provides that “No money shall be paid out of the treasury in this state except in pursuance of an appropriation by law.” Article IV, section 22, of Minnesota Constitution requires a majority vote of both houses of the Legislature to enact a law (with the concurrence of the governor, subject to override of the governor’s veto by two-thirds majority vote by each house of the Legislature). The spending requested by the petition of the Attorney General is not ‘in pursuance of an appropriation by law’ as required by article XI, section 1, of the Minnesota Constitution.
- The Governor’s claim in his June 15, 2011 Response that he has an ‘inherent power’ to direct funding for ‘critical services’ is not ‘in pursuance of an appropriation by law’ as required by Article XI, Section 1, of the Minnesota Constitution.
- Since the Biennium does not begin until July 1, 2011, the Governor still has ample time and opportunity to call a Special Session to enact appropriation bills or to pass a temporary state government funding bill to allow additional time for negotiation.
- The judicial branch does not have any specific or inherent authority under the Minnesota Constitution to order the executive and legislative departments to enter into mediation for purpose of enacting legislation appropriating money for the operations of the executive department. As a result, the court does not have authority to grant the relief requested by the Governor.”
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Comments (22)
Republicans have been in disarray in a number of respects for a while now. Party leaders are busily arguing that Dayton's cuts are too severe and too politically motivated, while their legislative leadership is arguing in court that the governor shouldn't be allowed to spend any money at all. Republican legislators are now calling for a special session while being unable to point to any change in the position of the parties, that would suggest that they could make any more progress than than they did in the special session. I won't even get into the flurry of conflicting and contradictory numbers that have been coming from Republicans who not only seem to disagree with each about what's going on, but can't even agree with themselves.
We are in trouble here. It's not just that Republicans disagree with the governor. It's also true that there are bitter disagreements within the Republican caucuses themselves, and that their leaders do not have the power to speak for their caucuses. Without that, it's not just that negotiations have no chance of success, rather there is no chance that a meaningful negotiation process will ever get started.
The Republican attitude toward mediation is revealing. To start with, their legal position is entirely correct. No court should insert itself into the dispute between the executive and legislative branches by ordering them to do anything. Still, as a matter of just how things work, is it so unreasonable to think that a third problem in the room, a voice of reason, might just make things a little easier.
Sen. Michel yesterday said roughly that there needs to be agreement on three things, numbers agenda and policy. Where numbers are concerned, there is lots of agreement, it's just that there are too many of them, and many of the arguments over them are without significance. A mediator could be very helpful sharpening the focus there. As for agenda, mediators live for agenda issues. The parties really need to have someone help with priorities. Once some progress is made on those two things, the parties can get down to what really matters, that is policy. Whether a mediator can help with that is anyone's guess, but at least he could help the parties stop looking so foolish.
I can only assume the Rs want the blame for shutting down the state. This is what people will remember long after this is over.
Dayton should just go ahead and appoint a mediator. A certain former Republican governor from the 90's might be a good candidate. Then make a point of EVERY DAY walking up the hill to the capitol and sitting in a conference room for an hour with no one on the other side of the table. Just him and the mediator, sitting there patiently waiting...waiting...waiting. Cameras rolling. Photos snapping. And then hold a press conference and state once again that no progress has been made in mediation because the Republicans didn't show up.
Is there any precedent for court ordered mediation? I think it's possible because the court wouldn't be telling one party or the other what to do, and it wouldn't be intervening itself, it would be directing both parties.
As for the Republican attitude towards mediation, while some of them may or may not understand what mediation is, the basic opposition arises from their refusal compromise. Those who know what mediation is now that it will result in a compromise settlement. As a general rule this is why mediation is always apposed by any party that thinks it may be forced to compromise.
Their refusal to consider mediation is both stupid and revealing. Dayton is actually giving them an "out" that would allow them to compromise and blame it on someone else. It's also revealing in that it confirms Dayton's position that they refuse to compromise.
I wonder if MN's who voted for these clowns are paying attention and learning the lesson here? If not, this state may actually melt down as well as shut down.
The Rs don't want mediation because they know that Dayton's offer of compromise is more honest than their own. Compromise would result in some type of revenue increase, something they have pledged themselves against. Any of them willing to truly compromise is afraid to speak up because of pressure from the radical right wing of their party. They need a shut down in order to save face if they ultimately have to cave in on compromise.
"Is there any precedent for court ordered mediation?"
I haven't heard of any in this context. Anyway, the courts don't have the power to make the other two branches, and should avoid engaging in the fruitless effort of trying.
Something to understand about courts is that when you get down to it, all they have is moral authority. They have the power that we believe them to have. If they lose that credibility, they cease to be an effective institution. Good judges and justices have an instinctive understanding of that, and they careful to keep their decisions within the realm of the possible. They won't order the other two branches to do what they don't want to do, because they risk the possibility that they will simply be ignored. And nothing is more dangerous to the rule of law than it's being ignored.
If you submit a brief to the court, then as a general rule you have agreed to submit yourself to the authority and jurisdiction of the court in that dispute.
Judges have inherent and statutory authority to order parties in a lawsuit to mediation, and even to choose the mediator for those parties. Those procedures are clearly spelled out in the court’s rules.
By submitting briefs the Senate and House (or the individuals acting on behalf of those bodies) agreed to whatever mediation process the judge may order.
"Judges have inherent and statutory authority to order parties in a lawsuit to mediation, and even to choose the mediator for those parties. Those procedures are clearly spelled out in the court’s rules."
Here is a thing that you have to know about judges. They can pretty much say or do whatever they want. They can issue an order requiring the sun to rise in the west, and cite it for contempt if it violates the order. But just issuing an order in no way contributes to making whatever is ordered happen.
More specifically, these briefs are simply private documents put together by private individuals who happen to be legislators. They are not themselves the legislature, nor has the legislature in any way authorized them to speak on it's behalf. At most, the court can order those specific parties to do something or other, not the legislature itself.
#4 - I like it! Send an email to the Gov's office!
I am a strong supporter of mediation and my nonprofit organization provides mediation services.
However, mediation does seem misguided here because the issue before the court is (if and only if there is a shutdown)how do larger constitutional obligations compete with the constitutional language about appropriations? It is entirely appropriate for the court to resolve what constitutionally can happen after a shutdown. The court has no basis to suggest processes that could prevent a shutdown. However, the court WOULD seem to have a resonable basis to order mediation only on the issue of funded services during a shutdown. But doing so would of itself imply a defeat for the hardline Senate republicans position, so it makes more sense just to decide the issue. (Or decide against the republican Senate and order mediation only for the Governor and Attorney General to resolve their positions.)
Mediation works when you have the few key people in the room who are authorized to make final decisions on behalf of the parties they represent.
I don't see any indication that Koch or Zeller have that wide-ranging authority.
I don't see that it is an acceptable insertion into a legislative process.
If I read this correctly, the House position is nothing short of bizarre! A demand that they keep "funds flowing to the legislature" (i.e they continue to get paid while everyone else gets stiffed).
Thank goodness we have Dayton, and he is standing strong; otherwise we would clearly be in the same boat as our neighbor Wisconsin.
Dayton fortunately is in the cat birds seat in one important way; the legislature goes up for election next year; Dayton has 3 more years to serve. Hopefully, the voters will remember the House position at the ballot box.
As of this morning, court-ordered mediation is a moot issue. Judge Gearin, perhaps with tongue-in-cheek, held that the parties have "institutional competency" to address the dispute without the court's intervention in that regard.
A few points on the previous discussion, however. I agree with Mr. Foster - this is not an area in which the courts should become involved. There is no more inherently political act than enacting a budget.
Gov. Carlson has long since passed the point at which Republicans would be willing to accept him as a peacemaker.
At this point, I'm afraid that expecting the legislature to compromise its position is like asking the Pope to negotiate his position on abortion. Both are matters of faith, not reason.
The core reason for the Republican refusal to budge lies in their fundamental principles. To achieve those purposes is to welcome and expand government shutdown. It means all government capabilities to protect the people from all manner of shysters and chiselers must be totallly destroyed, that the heavy boot of government must be removed from the neck of all private enterprise. In this way, life would become so onerous that all would cry out for a state constitutional convention governed and controlled by the Republicans & the Tea Party. So it is my belief the Republicans & Tea Party want a full and total shutdown so to fyrther their individual interests. All other mouthings before the cameras and microphones are just noise, meant to sound good and misdirect.
Second Mr. Hamilton’s last paragraph…
As highlighted by Brian Lambert in “The Glean” this morning, all of this – hysterical rhetoric, threats of shutdown of the largest employer in the state, undeserved misery added to the lives of thousands of people who depend on support from the community that makes up a state, padding the billable hours of several law firms, is because Dayton’s tax proposal is essentially accurate.
He’s asked for a small revenue increase to go with substantial spending cuts, and the right wing crazies on the other side of the aisle are basically defending a plan to inflict a lot of pain on everyone in the state to avoid a modest income tax increase on the LESS THAN 2 PERCENT of the population which can MOST AFFORD a modest income tax increase.
The Republican position is morally indefensible. My hope is that it also becomes politically indefensible.
SOMEONE has to be the grownup here, and since the children of the elephants are the most immature, doing the most screaming and crying, I won’t be surprised if Dayton has to take on that role. I hope, however – somewhat in the spirit of Scott’s comment (#4) – that if some degree of humanity forces Dayton to give in more than he (and I) would like, he will remind Minnesotans at every public appearance for the remainder of his term that none of the unhappy result was necessary – the services they’re not getting, the higher property taxes they’re paying, the more dangerous conditions they’re enduring, are absolutely the result of purposeful decisions by the right wing of the Republican Party.
Republicans lately are many things, but “conservative” is not among them.
One word resolves the problem: Conservatorship
Who would be the conservatores: Amy Klobuchar and Al Franken.
Why these two individuals? The US Constitution.
Reasoning: Each serves as an elected individual chosen by ALL the eligible voters who chose to vote in two *different* elections in two *different* years (per the US Constitution). Thus, they reasonably *know*--and should best represent--the best interests of the citizens of the state.
THAT determination would have go to the MN Supreme Court or the US Supreme Court.
The logic is valid, however.
I didn't think he had the stones to do it, but it sure seems like Gov Dayton is ready to call the GOP bluff. That being: if you believe so little in gov't that you're willing to shut it down in lieu of raising taxes slightly on the wealthy, let's find out just what it is that gov't does for us each and every day. Shut 'er down!
Tongue in cheek, I offer the following: Let's press Jesse back into service and lock the leadership into a small, poorly ventilated room with him as mediator. Vatican style secret conclave, no one enters and no one leaves until it's over. Surely they would all soon be willing to compromise and the shutdown would be avoided.
Agree that Dayton seems to have the stones. Good for him - what's needed now is a little LBJ-style suasion.
Not a good idea, Lance. Ventura was one of the architects of the decade-long deficit, aided and abetted by T-Bag, who at the time was the House majority leader. Their tax cuts and "Jesse checks" piddled away the balanced budget structure that Carlson left them and we've been in financial crisis mode ever since.
Tongue in cheek indeed.
#19 from your lips to God's ears. Zellers could sure use a little "come to Jesus" in the Capital urinal.
I think that Minnesotans either underestimate or are ignorant of
(1) the Grover Norquist oaths ("I will not permit any new revenue or tax raises lest you spend millions of dollar$ to ensure I am never elected again") taken by mainly GOP legislators;
(2) the sway of the American Legislative Exchange Council (ALEC) which has cut and paste legislation on the floors of Statehouses throughout the US. This legislation (eg, SB1070, voter ID, et al) follows corporate rules for state behaviour that benefits the elite, looney right wing plutocracy plan. Millions have been spent lobbying our GOP for privatization of education, transportation and prison facilities; and
(3) the model ALEC has followed in MN is more akin to Michigan than WI. They WANT unelected receiverships, no LGE grants thus they force the smaller communities already burdened with Pawlenty cuts, to go bankrupt. Then the GOP can step in and the very same people who created the MESS can become receivers. This is NOT what democracy looks like - and the GOP simply does not care for that OR the health and welfare of MN citizens.
My question is - when the unions, the media and the democrats ALL know that ALEC/the Koch Brothers are behind the impasse they don't inform the public !! What a nonsense and extremely bad for those @the bottom of "social ladder."
If a shutdown comes, of course I support the Governor and am trying to rally troops to FIGHT BACK June 30th @the Capitol when it seems probably the DOORS LOCK @5pm. The GOP constantly puts forward bafflegab put in their mouths by people OUT OF THE STATE and need to get pink slips, each and everyone. Meanwhile the Democrats are leaving the voters confused and ill informed by NOT leading. We'll have to solve this OURSELVES I am afraid as previously when the campers rebelled. NO STATE PARKS JULY 4th weekend, folks.
What happens is up to US and that's POLITICS.