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Dayton asks for a mediator to reach budget deal

Gov. Mark Dayton
MinnPost/Jay Weiner
Gov. Mark Dayton

Pardon the breathless quality of the previous post. It was a bulletin based on the release just moments earlier of Gov. Mark Dayton’s court filings this morning in the shutdown case. Starting over, here’s a more thorough and calmer view of the brief.

1. Dayton is taking the Constitutional argument (that I’ve been writing about for the last couple of weeks) seriously. 

The Minnesota Constitution (Art. 11, Sec. 1) says no money can be spent from the state treasury without an appropriation.

In the 2005 shutdown, Gov. Tim Pawlenty, Attorney General  Mike Hatch and Ramsey District Judge Gregg Johnson worked their way around that language using a series of arguments, most broadly, that the Legislature could not shut down the core functions of the excutive branch by refusing to fund them. So most of the state government stayed open during the brief 2005 “shutdown.”

Attorney General Lori Swanson, in her Monday brief, employed the same legal arguments and seemed prepared to ask the court to authorize core functions to remain open after July 1, if there is still no state budget. Swanson’s proposal was that each state agency identify what it would need to keep essential services flowing and submit a bill to the commissioner of management and budget. The commissioner would fund the agencies, but the whole arrangement would be under the supervision of a special master, appointed by the courts. She suggested retired Supreme Court Justice James Gilbert for that role.

Dayton’s brief offers a substantially different view. It takes the language about no spending without appropriations, adds in Article III of the state Constitution which says that no branch can exercise the powers of another branch, and without calling much attention to it, tells the court that it lacks any constitutional power to order spending without appropriations. Says the brief:

“The Minnesota Constitution specifically bars any branch of the state government from exercising powers assigned to a different branch. For the court to take over the role of appropriating state funds, it would have to exercise the budgetary powers specifically invested in the Legislature — through its power to appropriate — and, to some degree, in the governor, through his power to veto appropriation bills.”

And, more directly:

“With the exception of the judicial department’s inherent power to protect itself from unreasonable and intrusive assertions of authority by other departments… the Minnesota Constitution does not grant to the courts the power of the purse.”

II. Dayton is asking the court to appoint a mediator to help him and the Legislature reach a deal.

The shutdown would be horrible. The continuation of state government spending without appropriations is constitutionally questionable. So the best solution would be a budget deal between the two branches that are supposed to make such a deal — the governor and the Legislature. Says the brief:

“The governor hopes and trusts that, before June 30, the legislative majority will recognize that the governor shares the power of the purse under Article IV, sec. 23, and proceed to a balanced compromise. The Governor has the right to call the legislature into special session, and intends to exercise that power if and when a balanced compromise is reached.”

But to help make that happen, and to save the court from having to sail into the constitutionally awkward role of approving spending without appropriations, he asks the court to appoint a mediator. He specifically nominates former Justice Gilbert (the same guy whom Swanson has suggested as special master in her brief) or former Chief Justice Kathleen Blatz.

The brief specifies that both of the former justices have agreed to serve if asked. Gilbert, since his retirement from the bench, has run a professional mediation business. As a political matter, it might be worth mentioning that both Blatz and Gilbert had Republican ties in their pre-judicial careers. Both were Arne Carlson appointees.

This could be viewed as politically clever, since Dayton wants the public to view him as the guy who is ready to compromise and to reinforce the opposite view of the Repubs. Presumably the very idea of mediation implies movement toward a middle position, which Dayton must hope would put pressure on the Repubs to get off their not-a-penny-of-new-taxes position.

Dayton has previously suggested that the parties might benefit from mediation and the Repubs have declined. Methinks it will be harder for them to decline if the courts order it.

And the mediation idea might be catnip for the courts. In general, judges love mediated settlements that excuse the courts from having to pick winners and losers, especially in a constitutionally awkward situation like this.

And, just to get in a last bit of I’m-the-reasonable-one positioning, the last paragraph of the Dayton brief’s mediator section reads:

“The Governor commits to be present at the mediation and to devote his full time and attention to reaching an agreement. The Governor wants a balanced compromise, not a government shutdown.”

III. And Dayton is asking that the court do nothing else at this time.

Swanson on Monday asked the court to approve a special master and endorse a continuation-of-core-services program. Today’s brief, written by Dayton’s special counsel David Lillehaug, asks the court to hold off on any such order, theoretically to allow mediation time to work.

But, if the court agrees not to consider a shutdown plan, the next two weeks will put even more pressure on the parties to compromise. They will not have the comfort of a standby plan to keep most state functions going in case they can’t make a deal by July 1, and they will have to consider the possibility that ultimately the courts will agree with Dayton that it can’t intervene to keep the government open.

IV: But if it comes to that, Dayton is suggesting a harder shutdown.

Although Dayton is telling the court that the judges have no power to approve unappropriated spending, his brief argues that he, as governor, does have power to do some spending during a shutdown. But he takes a narrower view of what state functions can continue:

  • Those necessary to protect the life and safety of Minnesotans or prevent a severe statewide economic impact
  • Those necessary to protect constitutional rights of Minnesotans under the state or federal charters
  • Those that are mandated by the “supremacy clause” of the federal Constitution.

There’s a lot of similarity between these categories and the ones used in 2005 and those cited by Swanson in her Monday brief. Dayton takes a narrower view of them and specifically says that Swanson’s view of what services would continue during a shutdown “exceeds what the Governor considers to be allowed by the Minnesota Constitution.”

One chief difference between the Dayton brief and the Swanson brief is that Dayton rejects the argument — which was used both in 2005 and by Swanson on Monday — that the budget impasse amounts to an unconstitutional effort by the Legislature to shut down the executive branch.

This argument flows from the 1986 case of Mattson v. Kiedrowski. State Treasurer Bob Mattson (back when that was an elected state constitutional office) angered the Legislature by moving to Florida while continuing to collect his salary as state treasurer. The Legislature stripped the treasurer’s office of most of its funding and transferred most of its duties to the Department of Finance. The Supreme Court ruled that this was an unconstitutional attack by the Legislative branch on an elected constitutional office within the executive branch. How can you have a balance of power across branches if one branch can shut the other one down?

In 2005 and again on Monday, the attorney general argued that when the Legislature doesn’t fund the executive branch agencies, it is committing a Mattson-like violation of separation of powers. Dayton’s brief rejects the Mattson argument, thus:

“As of the date of this response, the governor is not yet prepared to conclude that the legislative majority’s use of the power of the purse — by its failure to pass appropriations bills that will be signed or that have the support of two-thirds of each house — has abridged inherent functions of the governor in a fashion akin to Mattson, much less requires the sweeping relief requested by the Attorney General.”

I’m not sure, but I think the big deal here is that what might be considered “core functions” of the executive branch and might be continued during the shutdown under the Mattson language, would not be continued under the Dayton argument. So the functions that would continue would be limited to those necessary to prevent emergencies and those required by the federal Constitution.

The full brief is here. How Dayton believes state agencies and functions should be treated under a shutdown scenario is summarized here.

Comments (12)

  1. Submitted by James Hamilton on 06/15/2011 - 04:32 pm.

    What respect I had for Governor Dayton is rapidly dwindling, as he states that the court lacks jurisdiction on the one hand and asks it to exercise jurisdiction on the other. Even if it has the power to order certain state functions to continue, that’s a far cry from compelling the other two branches to sit down at a table and work out their differences. That’s what the political process is for. As I’ve suggested elsewhere, mediated discussions between the legislative leadership and the governor cannot compel the vote of any individual legislator.

  2. Submitted by Susan Herridge on 06/15/2011 - 04:54 pm.

    Eric, don’t Governor Dayton and Attorney General Swanson talk to each other before they embark on such different legal strategies? Who is Swanson’s client in this case? And why does it seem as though they have not communicated at all?

  3. Submitted by Greg Kapphahn on 06/15/2011 - 04:57 pm.

    I’m not a constitutional expert, but I suspect Gov. Dayton is technically correct in his interpretation of the constitution’s requirements regarding government spending.

    I’m sure that the fact he’s just made the fire our Republican Legislature is so determined to play with far more likely to blow up in their faces doesn’t hurt his feelings either.

    Whereas before, the Republicans were just playing with political dynamite, Gov. Dayton’s brief now threatens to turn that dynamite into C4, and with a VERY short fuse.

  4. Submitted by Walt Cygan on 06/15/2011 - 06:05 pm.

    Where is the GOP’s credibility when they were so recently arguing that Dayton had NO authority to spend in the event of a shutdown, and are now complaining that he isn’t going to spend enough? Whiplash!!

  5. Submitted by will lynott on 06/15/2011 - 06:10 pm.

    The Governor has been outfoxing the Rs since day one.

  6. Submitted by Neal Rovick on 06/15/2011 - 06:29 pm.

    I’m still not sure how a mediator would work when there is no way for just a couple of authorized people to sit down and arrive at an overall number and then build in enough specificity to define an actual budget.

    Much mischief could be made in the long road between an overall number and actual budget items.

  7. Submitted by Don Medal on 06/16/2011 - 07:30 am.

    One big advantage of mediation, in my thinking, would be what mediation does best – force both parties to articulate their positions in a neutral and level playing field. While the mediator can not force a solution, he/she can force the participants to speak directly to the issues and to address the concerns raised by the other side. Such an environment would tend to favor constructive statements and tend to discourage sound-bites, much as it does in divorce and other mediation. At a minimum it puts both sides on record and less able to duck issues by spouting party lines. 2005 gave us an erroneous sense that a shutdown would be a minor speed bump. This one will be more like running off the pavement and the voters will suddenly care a lot about what the real positions are.

  8. Submitted by Paul Udstrand on 06/16/2011 - 08:04 am.

    Another advantage to mediation is that it recognizes actual compromise and rejects gamesminship… which is why the Republicans will fight it. Regardless of how mediated settlements are enforced, the Republicans would not be able to hide behind these lame declarations that they compromised when they haven’t.

    The only thing I think Dayton is weak on here is he’s failing to drive home the cuts and tax hikes that the Republican budget forces on MN. Those facts are getting lost in shut down noise. It’s fine to talk about what services people will lose in a shut down, but the fact is many of those services will cut and diminished by the Republican budget even if there were no shutdown.

  9. Submitted by Neal Rovick on 06/16/2011 - 08:09 am.

    Don (#3), I understand what you’re saying. However, the position of both parties is clear–no new taxes vs. new taxes are required. Everyone knows that by now.

    The compromise is between “5” and “0”, which logically is “2.5”, is a loss to the “0” party. In fact, any other number than “0” is a loss for one party, which restricts movement mightily.

    Especially when the party of “0” is composed of over a hundred people who have been saying “0” for almost a year.

    It strikes me that most mediation is performed in privacy, where statements are not on public record, where the individuals in the room have the ability to make the final agreement take effect.

    The ability (and likelihood) for a member of the party of “0” to arrive at a private mediated agreement and impose it on a sufficient number of members to get a budget passed is extremely small. I would say that the party of “0” would be risking a split, top to bottom, if an agreement were reached in a mediation.

    The process, then, of going from mediated agreement to final, signed legislation would be a truly remarkable and unique situation.

  10. Submitted by Elsa Mack on 06/16/2011 - 08:21 am.

    Neil, I think a compromise scenario could also include alternate forms of revenue, like gambling or raising some fees. I recently saw a quote from an R legislator that didn’t completely reject an expanded sales tax (don’t have time to dig that source up right now, but it was either in MinnPost or the Strib because that’s what I read).

    I’d like to think another form of compromise would involve where exactly one sets the bar for the new tax bracket, but that does not seem to be something the Republicans will accept.

  11. Submitted by Bruce Bednarek on 06/16/2011 - 10:09 am.

    Can someone provide a link or address to a current comparative summary of the two budget plans? Something that is beyond the two major differences of new taxes vs no new taxes? A nice, simple table /chart that summarizes changes by category and ignores the hyperbole each party relates to the category.

  12. Submitted by Paul Udstrand on 06/19/2011 - 10:50 am.


    The problem is none of these Republican ponzi schemes will make a dent on the deficit.


    The media appears to be too busy at the moment with blow by blow accounts of dead end meetings to actually produce something as useful as you suggest. By the way, the “mood” has soured in case you missed it.

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