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Appeals Court begged Legislature to avoid next budget crisis back in 2007

Judge Kathleen Gearin
Judge Kathleen Gearin

While an anxious Minnesota awaits either a Dayton/Legislature budget deal, or a ruling from Judge Gearin about what portion of state government she thinks can continue on Friday without such a deal, let me call your attention to a portion of the 2007 ruling of the Minnesota Appeals Court decision that practically begged the Legislature to do something before the next budget crisis to reduce the direness of pretty much exactly the crisis that we now face.

It was written by the unanimous three-judge panel of the Appeals Court, which tried to send a message and it went something (OK, exactly) like this:

“The legislature could prevent another judicially mandated disbursement of public funds without an authorized appropriation by, for example, creating an emergency fund to keep the government functioning during a budgetary impasse or enacting a statute setting forth the procedures to be followed during a budgetary impasse.”

The Minnesota Constitution clearly assigns the power of the purse to the Legislature, with a role for the governor as signer or vetoer of appropriation bills. The judicial branch doesn’t want the job, even on a short-term, emergency basis, and — in the same Appeals Court decision — recognizes the strong possibility that it lacks the constitutional authority.

No Way To Run an Airline
The idea that anyone should even have to consider whether the state prisons, hospitals or police should have to close is just No Way to Run an Airline. The Constitution provides no real guidance, although we are bound by our traditions to pretend that the answer must be in there somewhere.

There are a few functions that have a different status because a sort of permanent appropriation is on the books for them that can, in situations like this, take the place of a more normal appropriation. MNSCU is one. And some aspects of K-12 funding. But most of the key emergency/public health and safety functions are not covered.

It’s also not the job of the judiciary to tell the Legislature what laws it ought to pass, but in the language quoted above the Court of Appeals was sort of appealing for a longer and better focused list.

There is a counterargument to this. I’ve alluded to it before. If the state is cushioned from the impact of a partial government shutdown, it’s likely we will have more of them. Politically, on this round at least, it seems to be Gov. Dayton that wants to send the message that if there is a shutdown, it will be a “hard” one — presumably as a way to pressure the Legislature to make a deal. That’s why the Legislature has been begging for a special session to enact a “lights-on” spending bill and why Dayton has refused.

Anyway, the law that the Appeals Court recommended to the Legislature in 2007 cannot be part of the solution now, at least not without a special session.

And you should note that the court was at the same time signaling that it took very, very seriously the constitutional problem that it must confront — that Gearin now confronts — when the situation gets to this stage.

If you can stand it, here are few paragraphs from the 2007 ruling in which the please-do-your-job-so-we-don’t-have-to-decide-whether-we-are-authorized-to-do-it-for-you language occurs, so you can appreciate it in context:

“We start from the fundamental principle that we cannot exercise powers that belong to the legislative branch. (Minn. Const. art. III, section 1.)

“The Minnesota Constitution provides the legislature with the power to make appropriations. Minn. Const. art. XI, section 1.)

“And, [w]ithin the constitutional limits of their jurisdiction, members of a coequal branch have an independence of official action no less complete and no less important than that of the judiciary…

“…Because of the structure and function of legislative power, it is the legislature and not the judiciary that has the institutional competency to devise a prospective plan for resolving future political impasses.

“The legislature could prevent another judicially mandated disbursement of public funds without an authorized appropriation by, for example, creating an emergency fund to keep the government functioning during a budgetary impasse or enacting a statute setting forth the procedures to be followed during a budgetary impasse.

“See S.F. 87 (1st Spec. Sess. 2005) (proposing enactment of amendment that would provide for maintenance and preservation of core and essential services).”

Comments (7)

  1. Submitted by Ray Schoch on 06/28/2011 - 10:47 am.

    Thanks for this, Eric. Very useful for a newbie to the state.

    The court was recommending the use of reason in 2007. I’ve only been here 2 years, but I’ve seen no evidence that reason constitutes a significant part of current Republican orthodoxy. The mantra is “smaller government,” whether logic or consequences support that position or not. “Smaller” may or may not be more efficient or effective, and may or may not serve the taxpaying public better than the existing model, but “smaller” is the only word they know besides “tax cut.” The “laser focus” of last November’s campaign on “jobs, jobs, jobs” seems to have disappeared along with last winter’s substantial snow.

    Lefties have their own Achilles Heel in trying to make everything better for everyone, whether everyone wants that to happen or not, and whether they’re willing to pay for it or not. It seems entirely possible that the structure of Minnesota’s economy and government funding may not be sustainable, somewhat in line with another MinnPost article today on Beltrami County. I learned from civil engineers in the Colorado cities where I was a planning commissioner that 60% of the cost of a road is maintenance after it’s built. Maybe that’s similarly true for government programs. We’ve established a lot of them, but perhaps the cost of maintaining them is more than we can (or that we choose to) bear. While I lean left, it’s not to such a degree that I actually believe in the concept of a genuine “free lunch.” Services have to be paid for, and if they can’t be, then either income must increase or the service must decrease – or, I suppose, the state could declare bankruptcy.

    I sympathize with the courts and the judges who don’t want this responsibility, and for whom the Constitution provides no framework within which to exercise it beyond an impromptu use of… reason. I also marvel at the tenaciousness of Republicans in their defense of those relative few in the upper 2 percent of incomes in the state. There must be a LOT of campaign contributions coming from those 45,000 tax filers, and they must be flowing disproportionately to a select group of legislators. If not, Republican hostility to a modest increase in income taxes on the wealthiest Minnesotans is essentially… irrational.

    In any event, this budget crisis will pass. The solution may be elegant or ugly, but there will be a solution. I’d argue it’s the responsibility of both the Governor and the legislative leaders to pay attention to the signals (i.e., sirens, flashing lights, explosions, loud voices of voters shouting angrily) that the current system is dysfunctional to a degree that requires them to correct the structural deficiencies in Minnesota’s economy and government funding mechanisms so that this sort of thing doesn’t happen again.

  2. Submitted by Eric Larson on 06/28/2011 - 12:48 pm.

    Excellent Work Eric!

  3. Submitted by Greg Kapphahn on 06/28/2011 - 01:51 pm.

    A society peopled with healthy individuals would have far less trouble making sense of itself, each person making sense of others, coming to terms with those who are in legitimate need and balancing that with the need to justly reward those who are providing society with the greatest benefit.

    That we are largely unable to do so is a testament to the way so many of us have been left with dysfunctions which lock us into seemingly self-imposed, stubbornly-maintained, societally-destructive blindness and ignorance.

    Although we’ve never come anywhere near that point, there is, I suppose, a slight risk that people who still have their empathy and compassion intact, but have had their ability to trust damaged in ways that cause them to trust absolutely anyone, especially those who might seem to be in any kind of need, no matter what the reason for that need,…

    would, given the chance, bankrupt our state’s wealthiest citizens by ACTUALLY overtaxing them…

    You know, if we gave people who really are what the right always accuses ALL of us of being: “bleeding heart liberals” power to run everything in the same way the “conservatives” have currently taken to themselves the power to control the Republican Party and the MN legislature,…

    But the reality is, the rest of us liberals would never tolerate the takeover of our party or our political lives by folks who were SO dysfunctional.

    Sadly, our dysfonic conservative friends all seem to share the same perspective, based on their inability to experience or express compassion or empathy or to trust anyone who does not agree with them on their standard laundry list of social issues,…

    not to mention the largely-suppressed internal conviction that they are completely unworthy of love for which they compensate by trying to prove to the world by external means that they’ve “earned” such things,…

    A perspective which tells them that, if they just accumulate enough money they will be able to prove they are worthy to surround themselves with people who are willing to convincingly act out the roll of loving and admiring spouses, friends, associates, etc.,…

    even though those “conservative” folks are completely incapable of offering in return the love, compassion, understanding and trust that makes such relationships rewarding, satisfying, and functional for normal, healthy people.

    What’s worse is that their only acceptable formula for “happiness and fulfillment” doesn’t work, because no matter how much money they have, and no matter how many admiring sycophants they are able to keep orbiting around themselves because of their wealth,…

    they, themselves, are incapable of experiencing or expressing the satisfactions of relating to those people in healthy ways, nor to feel that they are worthy of the love of those people (even the ones who really love them).

    Their solution? MORE money,… and MORE, and MORE, and MORE.

    But I must ask my conservative friends a simple question:

    “What does it profit them if they gain the whole world, but lose or forfeit themselves?” [Luke 9:25]

    I can only hope that our “conservative” friends will begin to find their way back to the “selves” with which they were born.

    The same is true for the farthest fringe of our “liberal” friends.

    Life is far too short for any of us to spend a lifetime of energy trying to prove that it was WE ALONE who were correct, that those with whom we disagreed: our ENEMIES, were completely evil, and only discovering after we leave this life behind that we are completely out of place and uncomfortable in “eternity” because it is peopled with many of the very people we so loathed during our lives on earth.

  4. Submitted by Bernice Vetsch on 06/28/2011 - 04:27 pm.

    We used to have a healthy surplus – until Jesse Ventura decided it was “the people’s money” and zeroed it out by sending each of us a hundred (two? three?) bucks. He then cut taxes for the “job creators” and Pawlenty continued the cuts for the eight years following Jesse’s two.

    For each year of Pawlenty’s reign, the revenue lost was One Billion Dollars. In his last year, he cleverly signed the spending bills before vetoing the revenue bill and then claimed that the resulting “unforeseen shortfall” required him to slash state spending and steal money from MinnCare and the tobacco avoidance program in order to balance the budget.

    Would Pawlenty have established a reserve or allowed passage of legislation that would spell out what to do in the case of another shutdown? I don’t think so, because the Grover Norquist anti-government goal would be better served without either such legislation or a reserve.

  5. Submitted by Diane Clare on 06/29/2011 - 08:14 am.

    The court was recommending the use of reason in 2007.
    The Democrats didn’t want any part of it, in 2008, 2009, or 2010.
    That’s why many got booted out in the 2010 state election.

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