Judge Gearin makes clear: This shutdown will hurt

Before I forget, I have to pretty much take back the main thrust of the piece I put up early Thursday morning about the Minnesota State Senate brief. The Senate’s legal position is not to call for the shutdown of practically everything. The Senate is not really calling for anything in particular to stay open or closed in case of a shutdown. More on that later.

Judge Kathleen Gearin
Judge Kathleen Gearin

But first, other than the fact that Ramsey District Court Chief Judge Kathleen Gearin rejected Gov. Mark Dayton’s request for court-ordered mediation to resolve the budget impasse, the main takeaway from a long day in court Thursday was that Judge Gearin really, really, really wants to impress on everyone, most especially the guv and the legislators, that this is going to be a hard, tragic, painful shutdown. She also wants everyone to know that, although she may well order some state functions to remain open, it is not the job of the court to indemnify us all against the pain, danger, loss, suffering and inconvenience that will occur in July if the Dayton and the Legislature don’t reach a budget agreement.

She found many ways to express her feeling that that the circumstances have placed her in a horrible dilemma. Here are some of the ways she expressed this feeling Thursday (all of the following are quotes or paraphrases from Gearin):

“We are in a horrible dilemma.”

Compared with the 2005 shutdown, when her predecessor was able to keep much of the state government open, she faces “a far more significant crisis…a far more sweeping  issue…and “a constitutional issue of extreme significance” because there is no easy way to prevent grievous harm without interfering with the normal balance and separation of powers. “Separation of powers are at the core of government…The separation of powers is one of the most important doctrines” of constitutional governance and “courts are always reluctant to get into separation of powers issues.”

At the end of the morning session of the court, she told the attorneys representing the governor, the state House and the state Senate to use the lunch hour to contact their clients and tell them to get back to the bargaining table and do something constructive. After lunch they all said they had done so.

Gearin appreciated that but kept hectoring the attorneys to hector their clients. “The people want you to keep talking,” she said, meaning not that the lawyers should keep talking but that the governor and the legislators should. “The clock is ticking” toward the expiration of the current budget, she reminded them.  And Gearin wants to make sure they know that if a shutdown occurs, it will be grim, grisly, gruesome and gross.

“There will be private businesses that will not survive.” Gearin said.. There will be families that will not be able to pay their mortgages. There will be people that will not be able to get all of their medical treatment. It’s frightening. “

She implied — and of course this absolutely not anything you could take to the bank — that she may agree with Attorney General Lori Swanson’s request that the court appoint a special master to oversee some kind of a bare-bones state government, but that if she does the special master will be severely constrained as to which functions can be funded. “If there is a special master,” she warned, “he will have far more restricted boundaries” than the special master of 2005.

“I’m not happy about this,” she said, referring again to the human suffering that a hard shutdown will engender. “But we have to respect our Constitution.”

Lots of people are going to be asking the court or the special master to protect them from various forms of shutdown harm, she warned, but “it is not the court’s role to make everything better. There’s not a legal solution to all of the problems” created by the failure of the other two branches to fulfill their obligation to enact a budget.

Now on to my modified takeback
My early Thursday morning post, headlined  “Minnesota Senate makes the constitutional argument for shutting down pretty much everything,” was based — entirely — on a straightforward reading of the legal papers that Senate Counsel Thomas Bottern filed with Gearin’s court on Wednesday. If you didn’t read it yesterday, you can read it here. It’s brief and seemed clear to me.

It cited three different provisions of the Minnesota Constitution, all of which suggested that the key provision — stating that no money can leave the state treasury except according to an appropriation by the Legislature — means what it says and no one from the other branches of government can usurp the Legislature’s power over the public purse.

The Senate brief went on to state flatly that although the governor has asserted that he has inherent powers to spend money on critical services during a potential shutdown, the Senate does not agree that such powers meet the constitutional requirement for an appropriation before spending state money.

The Senate brief went on to note that the petition by Swanson for a court-appointed special master to oversee judicially supervised spending during a shutdown likewise does not fulfill the constitutional requirement.

In my Thursday post, I said that Bottern’s brief made a strong, simple and radical assertion of what I’ve been calling the constitutional argument.

Apparently, I was wrong or else the Senate changed its position overnight and now claims that the brief says something different. On Thursday, before Gearin and in an interview with me afterward, Bottern said that the Senate takes no position on the governor’s plans for a possible shutdown nor on the governor’s claim that he has inherent powers to engage is certain limited categories of emergency spending. He likewise said that the Senate takes no position on Swanson’s petition for a court-appointed special master and no position on whether the judiciary has the constitutional power to order any spending of funds that have not been appropriated.

When I suggested that Bottern’s previous filing seemed to take positions on those issues, he told me that “a lot of people have read things into the filing that weren’t there.” He said the only reason for the filing was to make the point that the Senate should be part of the conversation and that the Senate reserves the right to take, in future, a position on some of the legal/constitutional issues on which it currently takes no position.

The House, by the way, represented by former Chief Justice Eric Magnuson, also officially takes no position at this time on whether the governor or the judiciary has any constitutional power to spend unappropriated funds.

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Comments (21)

  1. Submitted by Neal Rovick on 06/24/2011 - 08:44 am.

    The Republicans are starting to flinch at the prospect of a shutdown–they have come to the realization that they cannot force a complete shutdown and survive as a viable political party.

  2. Submitted by Jon Kingstad on 06/24/2011 - 09:05 am.

    Thanks for the reporting and laying out the issues here, Eric.

  3. Submitted by Bill Schletzer on 06/24/2011 - 09:17 am.

    During the Pawlenty years it was up to the legislature to pass a budget bill that wouldn’t get vetoed by the guv. The democrats running the legislature had to bend over and take it for the sake of getting a bill passed. Seems like the same situation exists now only in reverse. The difference is that the Republicans put their “principles” (i.e. low taxes for the rich) ahead of their responsibility to pass a budget that won’t get vetoed.

    Since probably 99% of these principled Republicans would claim to be Christians with a “personal relationship” with Jesus, it behooves me to point out the analogy between them and the pharisees of Jesus’ time who put the literal interpretation of the law ahead of its essence forcing the “new covenant” with Jesus. In the parable of how hard it was for a rich man to get into the kingdom, I don’t recall Jesus referring to him as a job creator. I think he was admonished to give his riches to the poor, something that the government helps to do in a just society.

  4. Submitted by Jon Kingstad on 06/24/2011 - 09:23 am.

    It’s remarkable how the Republican tactics here resemble those now taking place at the Federal level. At this point, the Democrats are supposed to compromise and fold. That’s what will probably happen at the Federal level. A shutdown is horrible but sometimes that’s how you have to deal with unreasonable bullies. Otherwise they will continue to abuse you. It’s also horribly unjust and unfair for the people who have not caused any problems with the economy to pay for the mistakes of those who did and who have been unjustly rewarded and enriched for it. I’m hoping we will soon see petitions for recall of these legislators.

  5. Submitted by Diane Clare on 06/24/2011 - 09:28 am.

    Well done, Judge Gearin.

  6. Submitted by Tim Walker on 06/24/2011 - 09:36 am.

    I don’t believe the new spin that Senate Counsel Thomas Bottern is putting on his filing.

    I don’t think you’re reading anything into it at all, Eric.

    I mean, if you take out all the things that Bottern says other people are reading into his clients’ filing, there’s nothing left.


  7. Submitted by Mark Stromseth on 06/24/2011 - 09:50 am.

    Well, I guess if the court filing of the House and Senate officially takes no position on whether the governor or the judiciary has any constitutional power to spend unappropriated funds, then what is the point of filing anything?

    Bottern and his counterpart are obviously dissembling. Nothing new there.

  8. Submitted by Paul Udstrand on 06/24/2011 - 10:19 am.

    I have to agree with #6, they’re back-peddling for a variety of reasons. They filed a brief asserting they have no position? Poppycock.

  9. Submitted by Paul Brandon on 06/24/2011 - 10:30 am.

    Sounds like the Gingrich argument:
    Just because I said it doesn’t mean that’s what I meant.

  10. Submitted by barb lehn on 06/24/2011 - 11:18 am.

    Mr. Black, your writing was so crisp and detailed. I felt as if I was in the courtroom with you. Nicely done.

  11. Submitted by will lynott on 06/24/2011 - 11:56 am.

    There you go again, Eric, just another liberal hack distorting the conservative position by quoting them verbatim.

    Seriously, though, what’s with the walkback? C’mon, are you going to believe Bottern or your own eyes? The Rs just woke up this morning and thought “What on earth were we thinking?”, thus forcing their lawyer to make what we call a “red-faced argument.”

    I’ve wondered before why the Rs would want to be remembered as the party that wanted to bring the entire state to a screeching halt. Actually filing a court brief to that effect makes this very hard to deny. And, let’s not kid ourselves, they did this, not for “principle,” but for ideology run amok. Sounds like pretty effective sound bite material for Democrats about a year from now.

  12. Submitted by John Ferman on 06/24/2011 - 12:18 pm.

    The one factor that no one knows anything about is what outside ideological forces are driving political caucus positions. The leaders may be talking to the governor, a deal may be hammered out, but the House and Senate caucuses carry the weight of delivering the votes. We know the Tea Party caucus takes advice from outside forces, for example. I suspect Grover Norquist sees Minnesota as an excellent opportunity to “drown government in the bathtub” – he has a singular mission and he has an unadvertised voice in the Republican and Tea Party caucuses. So my belief is that the Republicans want a government shutdown, but they do not want to look as such. Perhaps it is schadenfreude.

  13. Submitted by Tony Wagner on 06/24/2011 - 12:22 pm.

    So how did we avoid a hard shutdown in 2005?

    And even if a strict interpretation of the law suggests a hard shutdown, wouldn’t the 2005 precedent have some value too? The fact is that the law has never been interpreted in this manner or this strictly before in similar circumstances, correct?

  14. Submitted by Hiram Foster on 06/24/2011 - 01:14 pm.

    So how did we avoid a hard shutdown in 2005?

    I believe the answer is that the parties weren’t quite so locked into the extent of the budget dispute, and a key to the resolution was the addition of a fee or tax on cigarettes.

  15. Submitted by jody rooney on 06/24/2011 - 01:15 pm.

    Thank you Judge Gearin, there is finally an adult at the table telling the kids play time is over. Now if we could just ground them that would be nice. How about taking away their toys for a week? No news coverage?

    Imagine the 48,000 wealthiest Minnesotan’s who would be taxed holding up the other 5,000,000 people in the state.

    I think there are evaluations that need to be made of expenditures and tax expenditures (tax breaks) and that some need to be changed or eliminated. But this is not the way to do it.

    Taking $650 million a week out of the Minnesota economy is not going to help anyone in a recession. Given the cost of shutdown and re-mobilization the first and last weeks will probably be closer to $1 billion. This is definitely the penny wise and dollar foolish scenario.

  16. Submitted by Robert Ryan on 06/24/2011 - 01:51 pm.

    So how did we avoid a hard shutdown in 2005?

    I believe in 2005, several portions of the budget had already been passed and signed into law, so only part of the government was not funded by July 1st. This time, Governor Dayton vetoed the whole shebang.

  17. Submitted by Lauren Maker on 06/24/2011 - 02:18 pm.

    Eric– I just read the Senate filing–it says what you said it says. It does not say what Mr. Bottern said it says.
    I would also note Mr. Bottern is Senate staff counsel– which means he’s a paid government employee. If this is the competency of their paid legal staff, it seems to sort of make the GOP case for wasteful government spending.

  18. Submitted by Brian Simon on 06/24/2011 - 02:49 pm.

    Jon Erik Kingstad says: “It’s remarkable how the Republican tactics here resemble those now taking place at the Federal level. At this point, the Democrats are supposed to compromise and fold. That’s what will probably happen at the Federal level.”

    The tactic has worked enough times that there’s really no incentive for them to try something new. Why mess with success?


  19. Submitted by Ray Schoch on 06/24/2011 - 03:06 pm.

    Thanks, Eric. Nice work.

    I’m inclined, like several others, to agree with #6 and #7. What’s the point of the filing(s) that say “We take no position”?

    Go ahead, chastise me for the placement of the question mark.

    The easiest and most clear way to “take no position” is simply to shut up. That’s a position in a budget argument that Republicans reflexively feel compelled to ignore. In the current context, they have a position that’s been made clear for at least the two years I’ve lived here.

    Paul and others may well be correct in asserting that they’re backpedaling, and I very much like Jody’s (#15) first and last paragraphs. A grownup needs to tell the children – some of whom are more unruly than others – that the game they’re playing has serious, real-world consequences, and that some of them may not be allowed to play the game any longer if they’re going to insist on not following the rules.

    Rule #1: You don’t serve your party. You don’t serve a political philosophy. You may represent those things, but without spending $60+ on Amazon to get my own copy of the state constitution, my guess is that the Minnesota Constitution says nothing about executive or legislative responsibilities to party or philosophy. I’d also guess that, if it says anything specific about legislative and executive responsibilities, it’s that the people in those respective positions are there to serve the interests of the people of the whole state.

    Serving the greater good. What a concept…

    The political consequences for Republicans of a genuine shutdown might well be catastrophic, no matter how much money the Koch brothers and other wealthy right-wingers funnel into campaign coffers. Consequences for Dayton might also be severe, but he has so far managed to be most convincing that he’s the one at the table who’s representing the people as a whole. Judge Gearin is reminding both sides that they have to be grownups, now, and she’s not at all happy about having to remind them of that.

  20. Submitted by Gregory Lang on 06/25/2011 - 07:28 am.

    “The Revenue Department would keep a skeleton crew – 40 of its 1,400 employees – on the job to collect taxes, but it wouldn’t send taxpayer refunds, including about $90 million scheduled to be paid to 70,000 renters next month.”

    Note: The Circuit-breaker checks for renters are supposed to be out by mid August and are used by many renters for “back to school” supplies. (Homeowner credits go out in mid-October). The renter payments are based on property taxes paid as part of rent and income. More renters than homeowners tend to be democratic. The payment is largest for lower income renter of housing that is not subsidized. The larger refunds to lower income are more important to them than people with higher income. Market renters with lower incomes (IE: tend to vote democratic) are at times LITERALLY banking on this mid August money.

    The payments to homeowners is scheduled for mid October. The logic here is that it can be used to pay second half-property taxes due 10-17-11. If a late penalty is applied because people depended on the circuit breaker homestead refund here is the penalty schedule. https://www16.co.hennepin.mn.us/taxpayments/ratestable.jsp

    Basically renters will be affected worse than homeowners by payment delays. The renters are more likely to be vote democratic.

  21. Submitted by Jackson Cage on 06/27/2011 - 09:03 am.

    Thanks Ray #19 “The easiest and most clear way to “take no position” is simply to shut up.”

    I need to tape this to my keyboard whenever I read a MinnPost story.

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