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GOP legislators, voters group will ask court to block spending during a shutdown

On Monday, four Republican state senators and the Minnesota Voters Alliance will ask the state Supreme Court to declare that neither the state courts nor the governor has the constitutional authority to order unappropriated state funds be used to enable state agencies to perform their “core functions” in case the budget impasse turns into a partial government shutdown on July 1.

If that argument prevails, the portion of state government activity that could go dark in two weeks would be much greater than would occur under the existing proposals of either Gov. Mark Dayton or Attorney General Lori Swanson.

In fact, the attorney for the senators concedes, his argument could lead to the almost unimaginable scenario in which state prisons and mental hospitals would have to shut down, possibly causing convicted felons to be set free and severely handicapped Minnesotans to be turned out of state facilities.

As unlikely as that prospect might be, the legal argument is firmly grounded in the language of the Minnesota Constitution, especially Article XI, Section 1:

“No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law.”

Notwithstanding that language, Swanson on Monday asked Ramsey District Chief Judge Kathleen Gearin to appoint a special master to oversee the spending by the commissioner of Management and Budget of millions of dollars of state funds during July to keep the state’s core functions going.

“In essence, she is asking the court to order the commissioner to commit a crime,” said Erick Kaardal, the Minneapolis lawyer who is handling the case for the four senators.

Four legislators

The four senators are Judiciary and Public Safety Chair Warren Limmer of Maple Grove, in his sixth term, Finance Vice Chair Sean Nienow of Cambridge, in his second term, freshman Sens. Scott Newman of Hutchinson and Roger C. Chamberlain of Lino Lakes.

Sen. Warren Limmer
Sen. Warren Limmer

Kaardal says the senators have standing because the Legislature’s nearly exclusive power over the state’s purse is what the other two branches are violating. The senators and the Minnesota Voters Alliance also have standing as Minnesota citizens, since the ability of the citizenry to control how their tax dollars are spent, via the elected Legislature and the appropriation, is likewise at stake.

Although Kaardal and the senators will take their case directly to the Minnesota Supreme Court, it will be the third different vision placed recently before the courts about what should happen if Dayton and the Republican leadership of the Legislature don’t reach a deal by July 1.

Kaardal made a similar argument in the aftermath of the brief 2005 brief shutdown of the Minnesota government. Although the argument was not successful then, it was never considered on its merits. Rather, the Minnesota Court of Appeals ruled that since the money had already been spent, the budget impasse had been resolved, and the Legislature had ratified retroactively the unappropriated spending that had occurred, there was nothing to adjudicate.

Sen. Roger Chamberlain
Sen. Roger Chamberlain

Kaardal and his clients (three of whom were also plaintiffs in the 2005 action) want to make sure the arguments gets before the courts in time on this round.  Kaardal argues that we have entered an era of frequent stalemates between legislators and governors. The courts need to face up to the question of whether Article XI means what it says.

The filing on Monday will take an unusual form. Although Dayton and Swanson have filed their briefs with Ramsey District Court, Kaardal will file with the Supreme Court asking the justices to issue what’s called a “writ of quo warranto.” That’s an order to all of the parties in Judge Gearin’s court to explain what constitutional or statutory authority they have to use state money to fund the continuation of state government activities without legislatively enacted appropriations after June 30.

According to Kaardal, the governor and the attorney general have dreamed up various constitutional glimmers to explain why they can keep spending without benefit of enacted legislative appropriation, but “it’s pretty clear that they’re wrong,” Kaardal said in an interview. “Any strict constructionist will agree that we need to follow the separationn of powers principle embedded in the Minnesota Constitution.”

Sen. Scott Newman
MinnPost/James Nord
Sen. Scott Newman

Kaardal does believe there a few exceptions to the no-spending-without-appropriations rule, but fewer exceptions than Dayton and Swanson have argued. There are a small number of state functions (public schools and MNSCU may be two of them) that are covered by permanent appropriation laws that guarantee them a flow of state aid even if the most recent Legislature hasn’t voted for it; there are a small number of guarantees embedded in the state Constitution that can’t be fulfilled without funding; and there are some federal mandates that Minnesota must fulfill or risk violating the “supremacy clause” of the U.S. Constitution.

'Core functions'
But there is nothing in the Constitution about any list of agency-by-agency “core functions,” he says. What the Constitution guarantees, he says, is that the people rule over the spending of their money through appropriations enacted by their elected legislators.

Sen. Sean Nienow
Sen. Sean Nienow

The senators’ filing will ask the Supreme Court to make the same demand (show us where you get the authority to do this) in regard to the proposal made in Dayton’s brief of Wednesday that the district court should appoint a mediator and order the parties to mediation to try to reach a deal.

Kaardal says no such authority exists (in either matter) and that once the Supreme Court establishes that fact, it should end the Ramsey District Court proceedings.

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Comments (17)

So here it is..."leadership" in 2011; choas is preferable to order, just so long as a point can be proved.

To my own surprise, I'm inclined to agree with the "conservatives" on this one, even though Senator Newman probably wouldn't talk to me because I'd never vote for him…

The language in the state Constitution seems unequivocal to me. "Shutdown" ought to mean "shutdown" in reality, not just rhetorically. The negative fallout from a genuine shutdown will, I hope, fall primarily on the people who have the constitutional responsibility to allocate the people's tax dollars, and that's the legislature. In this context, a shutdown might – I wouldn't bet real money on this, but it's my personal supposition – prove damaging to the state GOP.

So far, at least, Governor Dayton has been winning the state finance PR war handily, and I think that will continue once a generally inattentive public realizes that it's the Republicans many of them voted for who are insisting that they be laid off, or that their street or highway not be resurfaced, or that some other state function that they've taken for granted be suspended. In short, some of my neighbors ought to be more careful about what they wish for.

The reality of a Grover Norquist ideology put into practice might well prove unpalatable to a lot of people who think it's fine in the abstract. We'll see. Either way, the next few weeks will be, as they say, "interesting."

It is infuriating to watch these right wingers engage in their childish theatrics over the lives and destines of millions of Minnesotans. The logical consequence of their "strict construction" argument is that even the Supreme Court and the rest of the courts will have to be furloughed, or, as some of the rest of us have to do from time to time, work for no pay for awhile.

Anyway, I thought the legislature actually had appropriated funds for Agriculture and Environment and the Governor signed that into law. The Constitution and the law does not say that the Governor can't "advance" the those funds for other things until the drama queens are forced to their senses.

A tax cut transfers money from the state budget to individuals.
How is this not spending?

I think the Governor and the Attorney General know that these four are in the right legally, but who wants these four are proposing? Understandably they don't want their authority to be marginalized, but the state can't go on forever under an emergency budget, eventually both sides will have to agree on a budget. What these four are proposing is using the states economy and economic well-being as leverage in a budget battle. Clearly, they are more interested in their chess game then representing their constituents.

Minnesota Constitution

Section 1. 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.

Although Limmer and cadre may stand correct on the legislative power of the purse, by their actions they violate Article I under the terms "security, benefit and protection of the people".

This is violation of their oath of office to uphold the constitutional bill of rights while enforcing another element of that same document.

Time for a recall! Four names given above.

Jeff Wilfahrt, Rosemount, MN

Few of the adamant government-bashers understand how much of the economy depends on government contracts. The most obvious is the effect on highway consruction companies, but all of their suppliers will be in jeopardy, too. Small-town hospitals and nursing homes are major employers and critical to their communities' well-being.

Can't we go to court over the failure of the Legislature to do their jobs? And doesn't the governor have emergency powers in times of imminent crisis?

While we waste time and money on a frivolous mean-spirited amendment to ban same-sex marriage, why don't we amend this unrealistic section of the constitution? Clearly, we the people are not being served by it.

Gail O'Hare
St. Paul

I think this essentially proves the Republicans really, really want to shut down government. They hate it SO much they think the world would be better in anarchy. I see this as an example of their unwillingness to compromise to the point that a grinding halt is really what their ultimate goa..

As for the constitutional argument, there are also constitutional clauses that say the state MUST provide an education to children. So which part of the constitution is more important? Like the Bible, the constitution has to be taken as a whole. You can’t pull on one line of it and say it somehow takes precedence over the others.

I am of two minds.

One has the desire for all to see the logical limit of the GOP "drowned in a bathtub" attitude toward government.

The other realizes that there are those who will suffer mightily compared to the limited disruption that I will personally feel.

I wonder if failure to enact a budget, resulting in a total shutdown, would satisfy the nonfeasance provision of Minnesota law governing recall elections.

I don't think we can wait another 15 months to throw these jokers out.

By total shutdown of all agencies, does that mean the Department of Revenue will be closed and no taxescollected? Would the Minnesoa State Retirement Service be closed and no retirees would get their payments?

The Republican Party is having a hard time getting their act together. One faction is criticizing Dayton for trying to make the shutdown punitive; another faction is trying to make the shutdown as punitive as possible.

Republicans have talked a lot about how difficult it was to reach their compromise position. What they don't talk about is that the hard won compromise was made within their party. I don't dispute that an extraordinary amount of work went into getting Republican positions where they are today. What we saw yesterday, the display of pointless intransigence followed by childish petulance from a new legislator over a tweet tells us a lot about what the Republican leaders had to deal with when it came to stuff that actually matters.

As a past Republican, I cannot imagine that any sane person would support Warren Limmer et al. Thank God that we have courts to properly interpret the laws.

Not to think too much like a lawyer, but if the constitution says no money can be paid out of the treasury without an appropiation, I would start my thoughts going on how to comply. Hopefully, there is a large bank that the governor could approach to open a state line of credit of many dollars, with a delayed repayment provision so the state treasury does not get used. Or some such thing.

If the state shuts down because of the intransigence of the Republicans and their kowtowing to the radical Tea Party right, then let it be on their heads. Every Minnesotan will know that the Governor asked for a balanced budget to sign, and they gave him one that, again, benefits the few at the expense of the many. There is no need for further tax breaks for the already wealthy.

If State agencies cannot receive/spend new funds to fulfill "core" state government responsibilities after June 30, will Minnesota become a failed state requiring Federal intervention to secure the public?

Would Federal intervention be an Executive or Legislative function (i.e. would Minnesotans answer to Boehner or Obama?). Fun theoretical questions if they weren't loosely based on reality.

It's hard for me to believe that these people actually want to be remembered as the party that shut down the ENTIRE state because they wanted to protect their rich friends from pitching in with the rest of us to solve the deficit. Can that really be the legacy they want?