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).”