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Small-fee case explodes: Minnesota justices direct judicial anger at Pawlenty and Legislature

The Minnesota Supreme Court has added $100 to the fee lawyers pay to renew their licenses. No biggy, right?

At first glance, this looks like a pretty small deal. The Minnesota Supreme Court has added $100 to the annual fee paid by practicing lawyers to renew their licenses. This will raise roughly $2 million a year, which the court will then allocate to subsidize the operation of public defender offices around the state — which represent indigent defendants in criminal cases — and to further subsidize Legal Aid, which helps poor Minnesotans in civil cases.

No biggy, right? Most lawyers can afford an extra $2 a week for such good causes.

But if you read the Supreme Court order and accompanying documents, it’s clear that this little order, which was adopted by just 4-3, is carrying a whole lot more baggage. Inside that baggage is judicial anger about the separation of powers, the threat to “liberty and justice for all” (it’s in the Pledge of Allegiance, y’know), and justices who are royally pissed off at the governor and the Legislature for abdicating their responsibility to raise the taxes necessary to cover the spending they order, including spending that is required by the U.S. and Minnesota Constitutions.

The memorandum supporting the order, written by Chief Justice Eric Magnuson on behalf of three members of the court, says the fee increase is taken reluctantly and temporarily, almost apologetically, in the hope that it will last only two years, after which the other branches of government will do their jobs.

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The two dissents representing three justices argue that the action is unconstitutional, insofar as it amounts to imposing a tax on lawyers, and it is the Legislature, not the Judicial branch, that is in charge of levying taxes.

But the most remarkable piece of the package is raucous, angry concurrence by Justice Paul Anderson. Anderson sides with Magnuson, which makes his the deciding vote in favor of the deal. The license fee is necessary for the maintenance of “a civilized society,” Anderson says. But the price he exacts for his vote is a fierce lecture about how government ought to function. He ratifies the deal, then denounces it as necessitated by the “unfortunate impasse” between Gov. Tim Pawlenty and the DFL Legislature. But “unfortunate impasse” is pale language compared to what happens when Anderson gets warmed up.

If I fail to capture what is going on here, I encourage you to read the order, the concurrence and the dissents, but especially Anderson’s concurrence, which is a very unusual judicial document. He denounces (not by name, but there is no mistaking it) the famous anti-tax conservative kingpin Grover Norquist, who once famously said that his goal is to shrink government down to the size at which he can drown it in a bathtub.

Anderson, whose political origins are moderate Republican (he got his judicial appointments from Republican Gov. Arne Carlson), has had it with the Norquist (and apparently Pawlenty) aversion to taxes. After paraphrasing Norquist’s bathtub comment, the justice writes:

“The problem with this approach is that when you continuously put the government’s head under water, it is not the government that drowns — real people drown. Floodwaters breach levees and people drown. Bridges collapse and people drown. I have little tolerance for this anti-government rhetoric given the adverse consequences that result to real people, especially the least advantaged among us, when this myopic approach to governing actually gets translated into policy. I believe that government does have a proper, even an essential role to play in creating and preserving a civilized society.”

A little background

In the landmark 1963 ruling in Gideon v. Wainwright, the U.S. Supreme Court ruled that criminal defendants who cannot afford a lawyer must be provided one at public expense. In other words, maintaining a sufficient public defender operation is not optional; it is mandatory.

The vast majority of criminal defendants in Minnesota are poor enough to qualify and end up being represented by public defenders. During the budget squeeze of recent years, the public defenders office has been laying off lawyers while their caseloads and other expenses (health insurance anyone?) have been rising.To deal with the problem, public defenders stopped representing clients not absolutely entitled under Gideon to a public lawyer. For example, indigent parents whose custody of their children is threatened no longer get a public defender.

Over recent budget cycles, the public defender’s office laid off more than 10 percent of its staff. The typical caseload of a public defender in Minnesota reached almost twice the proper caseload as recommended by the American Bar Association. In 2008, the public defender’s office faced a $2.3 million deficit for the biennium. Then because of the state revenue shortfall (or, one could say, the political impossibility of new taxes to make up for the shortfall), the Legislature cut another $1.5 million from the public defender budget. During the 2009 legislative session, the committees responsible for funding the public defender office cut another $2 million, which State Public Defender John Stuart says would have led to another round of layoffs of almost 10 percent of the staff and more cases that the office simply couldn’t handle in an adequate or timely fashion.

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The legislators hit on the idea of asking the Supreme Court to raise that amount through a hike in the lawyers’ licensing fee. The Legislature actually voted for, and the governor signed language authorizing the court to do this.

Well, as is clear from last week’s ruling, the court didn’t like the idea much. Magnuson (a Pawlenty appointee and close associate who publicly expressed his unhappiness over budget cuts imposed on the judicial branch in general) ordered the increase, writing that he did so reluctantly and hoping that it would only be necessary for one biennium. Magnuson took only three pages to explain his thinking.

Then Anderson spent 10 pages concurring, while explaining how much he hated the situation.  He pretty bluntly threatened that he would not vote for the deal after the current biennium:

“It is my hope that at the end of this two-year period, the Governor and Legislature will thoughtfully reexamine their respective positions, consider what it means to live in a civilized society and reflect upon the words ‘and justice for all’ in the Pledge of Allegiance. If they do such a reexamination, I hope they will, with the support of the people of Minnesota, provide adquate funding for Minnesota’s public defenders.”

That rhetoric comes from a justice who voted for the deal. Justice Alan Page, who dissented (joined by two other justices), argued that the deal is not just inadvisable but impermissible. For one reason:

“A ‘fee’ imposed solely to raise revenue to fund an obligation of the state is a tax, plain and simple.”

Fee or tax?

This is, of course, reminiscent of Pawlenty’s pyrotechnics of 2005 attempting to argue that the 75 cents a pack that the state imposed on a pack of cigarettes was not a tax but a “health impact fee.” But that argument was merely political semantics, an effort by Pawlenty to square his advocacy of that revenue raiser with his pledge not to raise taxes. The fee/tax on lawyers is different. If Page is right that the $100-a-year lawyer charge is a tax, then it presents a different problem because the Supreme Court is not empowered to impose taxes. “Because it is a tax, we may not impose it,” wrote Page.

Page further argued that funding the public defenders’ function is an obligation on the whole state, not on a small segment of the population, namely, lawyers. On that point, while this may not affect Page’s technical legal argument, it should be noted that the Minnesota Bar Association did adopt a resolution supporting the deal. So, if the MBA speaks for the state’s lawyers, they have agreed to pay. It should also be noted that MinnCare, the state health plan for the poor, has relied on a fee/tax imposed on the state’s physicians. Perhaps Page would distinguish the cases on grounds that the provision of medical care to the poor is not an “obligation of the state” in the sense that it is not required by the Constitution, whereas the provision of lawyers to the poor is constitutionally mandated.

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The three justices who voted against the fee/tax deal make an interesting coalition. Page is perhaps the most liberal and only DFLer on the court. Justice Helen Meyer is a Ventura appointee and one of the court’s moderates. She joined in Page’s dissent. Justice Lorie Gildea is a recent Pawlenty appointee (she filed a separate dissent, simply stating that she agreed the court lacked the authority to make the deal, dissociating herself from the rest of Page’s opinion).

Chief Public Defender Stuart is in the middle of all this. He agrees that this is no way to run an airline, but the court’s order is actually and technically in response to a petition he filed asking them to do it. He remained philosophical as he spoke of the unusual tone of the rulings:

“To varying degrees, the justice all say this isn’t the way public defense ought to be paid for, and they’re right,” Stuart said. “Certainly Justice Paul Anderson was pretty clear in calling out the governor on this. As a matter of theory, I agree with them all that this ought to be paid for out of general funds.

“But it would be very stressful to the operation of the court system to have us lose 30 more lawyer positions. The possibility of interminable delays in certain kinds of cases wouldn’t be good either. The way I look at it, the court did the best thing it could in a bad situation.”

Stewart said the case in which he reluctantly became a player fits the pattern of recent years in Minnesota, where shrinking revenue and no-new-taxes creates a funding crisis for a vital government function, and the players look for creative “revenue enhancements.” Eventually, he said, the “revenue enhancements get stretched too thin” and something will have to give.

“We’re just trying to provide good services to our clients and we can’t do it if we have to lay off a whole bunch of lawyers every year.”