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Dayton’s shutdown brief full of surprises

Gov. Mark Dayton
MinnPost photo by James Nord
Gov. Mark Dayton

Gov. Mark Dayton’s brief to the Ramsey Court has just been released, and it’s a potential game-changer. I’ll read all the documents and get back to you as quickly as I can but for now:

Dayton is asking the court not to grant the kind of order that Attorney General Lori Swanson sought on Monday, which would have continued most of the major state government activities in case of a July 1 shutdown.

Instead, he is asking the court to appoint a mediator to help him and the Legislature reach a budget deal.

(Dayton had previously asked the Repub legislative leaders to accept mediation and they had declined. Now he is asking the judicial branch to order mediation. I’m not sure if the Legislature could legally reject court-ordered mediation, but given that they are already perceived as the party that is less open to compromise, I don’t think they can politically afford to refuse mediation.)

If mediation succeeds and a budget is approved before July 1, the three branches can avoid the awkward constitutional questions raised by the shutdown. But — and here’s the other big headline about the guv’s brief — Dayton is taking those constitutional issues much more seriously than they were taken in similar circumstances in 2001 and 2005 or than they were taken in Swanson’s Monday brief.

The guv’s brief — written by former U.S. Attorney David Lillehaug, Dayton’s new special counsel for these issues — says that, in the event of a shutdown, the only state activities that can continue without appropriations are those that the absence of which would threaten the life and safety or Minnesotans or those that are necessary to prevent a severe statewide economic impact.

I haven’t digested the list of what would stay open and what would close under the guv’s new definition of emergency powers, but it would be a much harder shutdown than the one that occurred in July of 2005 and much harder than what would happen if the court adopts the Swanson arguments of Monday.

I’ll update this as soon as I can get through the documents.

Comments (25)

  1. Submitted by James Hamilton on 06/15/2011 - 10:01 am.

    Court-ordered mediation between the legislature and the governor? Not a chance, legally or practically. When it comes right down to it, no one can dictate the vote of an individual legislator, regardless of Tony Sutton’s thoughts on the matter.

    As for the hard shutdown, it looks like Dayton’s decided to gamble on the Republicans taking the heat for it. At the moment, he may be right.

  2. Submitted by Michael Corcoran on 06/15/2011 - 10:07 am.

    Just where is there legal precedent for a court to impose mediation between a Governor (executive) and legislature?

    Guess what? There isn’t any. This is a nonsensical political ploy and nothing more…

  3. Submitted by Tim Walker on 06/15/2011 - 10:55 am.

    This is a great line in the sand to have drawn.

    Way to go, Gov. Dayton!

  4. Submitted by Hiram Foster on 06/15/2011 - 11:11 am.

    Without going into a lot of the legalities surrounding the subject, the fact is courts can do pretty much what they want in terms of issuance of orders. You can explain to the Supreme Court how they are wrong in all the detail you want, but the inevitable result is that they will rule that they are right, and there isn’t any appeal from that.

    I can even cite you a precedent for that. Gore v. Bush holds basically, that Supreme Courts can do any darn thing they want, and the rest of us must either like it or lump it.

  5. Submitted by Craig Huber on 06/15/2011 - 11:18 am.

    There’s no legal precedent for a lot of things that have happened lately… for example, the various extraordinary maneuverings in Wisconsin. Doesn’t mean it might not work. I agree, tho, mainly political maneuvering, similar to the Republican “compromise” early last week.

    To be sarcastic: sounds like Gov Dayton is trying to “run government like a business”. Mediation and arbitration are big watchwords in business these days, after all.

    In short, while the pain of a shutdown is not something I look forward to seeing take place, I do think it’s going to take that pain to wake people up from the right-wing dreamland they are stuck in/clinging to. At least this is potentially a short-term pain, as opposed to the long-term nightmare the austerity crowd has in mind.

  6. Submitted by Bill Schletzer on 06/15/2011 - 11:31 am.

    Probably not a feasible idea but Dayton continues to win the PR war, the Republican legislators conintue to say, “No”. Just hope this idea makes the evening TV news where most people get their news. A typically shallow mention on TV together with the disengaged listening public would score more points for Dayton. Show Mr Earnest then show the glum head shaker trio that the Repubs trot out. Priceless.

  7. Submitted by will lynott on 06/15/2011 - 11:34 am.

    James #1, certainly a court cannot dictate a legislator’s vote, but it may be able to dictate that the two sides mediate, under pain of having the other side get its way by default if it fails to do so.

    Michael #2, every precedent in jurisprudence was established for the first time somewhere, prior to which there was no precedent. That’s not a deal breaker here.

    Courts can do pretty much anything they want.

  8. Submitted by David Greene on 06/15/2011 - 11:49 am.

    Mary Lahammer is reporting that the Governor’s Residence is on the critical functions list.

    While I’m sure it’s there to make a point that the legislature can’t force the Governor out of his home, it seems like a bad move, politically. It opens all sorts of avenues for criticism and cedes the Governor’s moral authority.

    I really hope her reporting is incorrect.

  9. Submitted by Paul Brandon on 06/15/2011 - 11:51 am.

    Good points!
    I suggest that some of the earlier posters look up the difference between

  10. Submitted by Christa Moseng on 06/15/2011 - 11:56 am.

    I think the prime shortcoming of the request for mediation, as brilliant as I believe it to be, is that it arrives in a case with an odd procedural posture. The court action is a petition filed by the AG and against nobody in particular. Specifically, the legislature (and/or its leaders) are not parties to the suit. It would be unusual in any circumstance for the court to seek to exercise jurisdiction over someone who hasn’t been made a party to a civil case, and subject them to an injunctive order.

    However, it seems worth noting that the Senate is discussing whether to intervene in the action. If they do, would they be subjecting themselves to the jurisdiction of the court?

    There is a lot of uncharted water, just as in some of the other high-profile cases of statewide interest. Maybe the legislature should focus on negotiating a budget than litigating.

  11. Submitted by Paul Udstrand on 06/15/2011 - 12:06 pm.

    Brilliant. Dayton was born for this.

  12. Submitted by David Weidt on 06/15/2011 - 12:06 pm.

    It’s disappointing that does not include a link to the filed briefs so that we could all read them.

  13. Submitted by Elaine Frankowski on 06/15/2011 - 12:08 pm.

    Comment all you wish about a hard shut-down waking people up from their right wing dreamland or that a request for court ordered mediation is merely a political ploy. Most MinnPost readers will not be severely adversely affected by a shutdown. The people who will be most adversely affected are the least able to endure it —— North Minneapolitans living in the park after a tornado, people eating because of food aid, children protected by the Department of Human Services, battered women looking for a state supported shelter, all the state workers who’ll be without salary, and so on.

    Congratulate Mark Dayton on suggesting an innovative way to reach a budget agreement; urge the Legislature to accept mediation [although I’d rather see binding arbitration] before the court orders it; and, lets keep the state running

  14. Submitted by Paul Udstrand on 06/15/2011 - 12:08 pm.


    In theory we can impeach judges.

  15. Submitted by Lance Groth on 06/15/2011 - 12:09 pm.

    Excellent. I’m glad Dayton is opting for a hard shutdown. To do otherwise would make it too easy on the Repubs.

    As for mediation, far from being nonsensical, it’s a smart tactical move. Dayton has been the one to show statesmanship and a willingness to compromise all along, and the voters know that. Polls show he has majority support in this fight. By asking for a mediator, he puts the Repubs even more firmly in the corner they’ve painted themselves into. If they don’t go along, it puts them square in the crosshairs as the party that won’t negotiate, won’t compromise, won’t engage in the give and take that makes politics work, won’t, in essence, govern. If they do go along, they will have to compromise.

    Outstanding. Nice move, Gov.! The more I see of him, the more impressed I am with him.

  16. Submitted by craig furguson on 06/15/2011 - 12:21 pm.

    OK kids, for the fun of it compare the numbers in Daytons recommendations to stay open vs. the number of employees in the Minnesota State Office of Management and Budget employee fte pivot tables (the last update was second quarter 2010. Total fte’s were 35,575. I’m counting 13,250.5 “critical” positions plus another 3,444.4 in courts plus 411.7 in agriculture (a signed bill). That totals 17,106.6 ftes that will continue working. So according to Dayton’s plan, about half of the state workforce will be off July 1. fuzzy math, but interesting.

  17. Submitted by Neal Rovick on 06/15/2011 - 12:23 pm.

    Who would be party to the mediation? The governor, obviously, but on the the other side all the legislators, or just a few?

    Can a handful of people impose spending legislation? I doubt it–if so, it is a very different country than it used to be. So the same mechanism, a majority of legislators, will have to agree, mediator or not.

    And that agreement will only come after obvious pain to the defunded.

  18. Submitted by Georgia Holmes on 06/15/2011 - 12:27 pm.

    My understanding of the U.S. Constitution and the federal form of government we have in this country is that state government is/was intended to be the “basic” governmental entity. It is the states that have “police powers” as part of their inherent sovereignty and that is recognized by the Tenth Amendment. The term “police powers” encompasses the right of state government to protect public order, health and safety. If the state fails to exercise these powers, the result will be chaos/anarchy, because there will be no “government.” I think this must be the argument made by the AG in her brief. The federal government technically does not have the same “police powers” that states have. It cannot step in to fill the vacuum, except perhaps in situations covered by the “Commerce Clause.” I guess local units of government such as counties and cities can exercise police powers as recognized subdivisions of the state, but there are certainly limits to the powers they can exercise. FYI. Article I, Section 1 of the Minnesota State Constitution says: “Object of Government: Government is instituted for the security, benefit and protection of the people in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.” Legislators need to review this section of the constitution and remember why they have been sent to St. Paul.

  19. Submitted by Hiram Foster on 06/15/2011 - 12:30 pm.

    The governor is open to suggestions, and has a few of his own. No law against that as far as a I know. He has talked about mediation, which is a non-binding sort of a process rather than arbitration which may be binding according to whatever terms by which it is established.

    In a broad way, I view government as the anti-business, that which business isn’t, that which will and must do that which business will not do. Those who try to run government like a business are headed for disaster, or would be if they were allowed to get away with it. Check out Stephen Colbert’s bit ridiculing Pawlenty’s proposal to run the government by google.

  20. Submitted by Patrick Wells on 06/15/2011 - 12:54 pm.

    I think that this court imposed mediation idea is sheer genius. This idea best serves the citizens of Minnesota. David Lillehaug is experienced and would not support this idea if he felt that it would not work.
    It is absolutely clear that Dayton and Lillehaug have the best interests of the state in mind. Court imposed mediation is the logical rememedy when the legislative processs is disfunctional. This is why we have three branches of government.

  21. Submitted by Elizabeth Halvorson on 06/15/2011 - 01:13 pm.

    Every day I respect our governor more and more.

  22. Submitted by Eric Ferguson on 06/15/2011 - 02:03 pm.

    It seems both Dayton and Swanson are just doing their jobs. Dayton has to resolve the budget issue, which is inherently political, and he seems to be doing everything he can short of giving the GOP legislators just whatever they demand. Swanson is the state’s lawyer, not Dayton’s, and the inevitably of the court’s stepping in and looking at running the state from a purely legal point of view means she has to chime in with her recommendation of what the law allows. Though we keep hearing about the prohibition on spending unappropriated money, the constitution also requires the state government to look after some basics like public safety, so a hard shutdown might be unconstitutional, and the court properly gets to decide what is essential for public welfare and therefore gets funded without an appropriation. A clause prohibiting governors from spending money all on their own shouldn’t shut down the whole government.

  23. Submitted by Bernice Vetsch on 06/15/2011 - 03:09 pm.

    Hiram (#4) — After the Citizens United decision, Dick Durbin in the Senate and Alan Grayson in the House wrote legislation that would have negated the worst results of this bad-for-democracy decision.

    Congress can also amend the Constitution to make bad decisions no longer apply.

    And it can impeach judges (Supreme or other) if they fail to exhibit “good behavior.”

  24. Submitted by Craig Huber on 06/15/2011 - 03:26 pm.

    Agreed, a link in the article would have been best. Not too difficult to locate independently, tho (thankfully)… here’s a link to the page at the governor’s web site that links to the document and various addendums filed (I presume this is the document being referenced by the article).

  25. Submitted by Gary Pagel on 06/15/2011 - 04:50 pm.

    When the Feds can’t agree on a budget they “usually” pass a short term appropriation to continue government services for 90 days or so. Seems preferable to a shut-down. I understand the requirement to balance income and expenditures, but a 90 day period would not cost more than the cash on hand. I do not see any provision in the constitution for the courts to determine what is essential.

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