The Minnesota Supreme Court could rule on key constitutional question raised by shutdown spending

The Minnesota Supreme Court will consider the fundamental constitutional question surrounding the government shutdown.

The question might be put this way:

Given that the Minnesota Constitution says that no money can be spent from the state treasury without an appropriation by law, and given that the two branches responsible for the state budget — the legislative and executive branches — have been unable to agree on appropriations for most state functions, does the third branch — the judiciary — have authority to order and supervise the spending of many millions of unappropriated state dollars on what the court deems to be “critical core functions?”

I’ve written about this constitutional question several times before. And the Supremes have declined on two previous occasions — once in 2005 and once in June — to get involved. But now they have taken the case, which greatly increases the odds that the shutdown of 2011 will produce a definitive constitutional answer.

And that answer could dramatically affect the current shutdown, as well as set the terms for what will happen in future budget impasses, which have become increasingly common.

To be more concrete, the four Republican senators and two Republican House members who have brought this matter to the Supremes are arguing that the courts have much, much more limited authority to keep state spending going. The argument made by their attorney, Erick Kaardal of Minneapolis, puts on the table even the unthinkable possibility that the state prisons and hospitals for the mentally ill might have to shut down.

I’m not even slightly predicting that the court will go that way, but I confess that I don’t find Kaardal’s constitutional logic at all ridiculous.

His argument relies on two things: The Constitution grants the Legislature the sole power to appropriate funds (subject to either the signature of the governor or the override of the governor’s veto). The Constitution also states specifically that no branch of the government can exercise powers reserved to another branch. Nothing in the Constitution gives the court, or the court in collusion with the governor or the attorney general, authority to operate large swaths of the state government with money that the Legislature has not appropriated. To do so, Kaardal writes in his petition, is an act of usurpation” that creates a “constitutional crisis.”

So the six legislators — Sens. Warren Limmer, Scott Newman, Sean Nienow and Roger Chamberlain, plus Reps. Glenn Gruenhagen and Ernest Leidiger — petitioned the court on Friday to issue an unusual document called a writ of quo warranto, which basically orders Ramsey County District Court Chief Judge Kathleen Gearin, Gov. Dayton, Attorney General Lori Swanson and Management and Budget Commissioner Jim Schowalter to explain where they get the authority to commit these acts of usurpation.

Kaardal and his clients believe there is no such authority, and that when that becomes clear, the Supreme Court will order them to cut it out. Kaardal suggests that at that point, the court grant the governor and the Legislature a seven-day pause before all the spending stops to give them a chance to resolve the budgetary impasse.

The court set arguments for July 27. Gearin’s order establishing the core functions program is due to expire July 31, subject to possible renewal or to expire when the Legislature and governor end the budget impasse.

I’ll provide more details of the argument soon. I’m writing this in the Southdale lobby because the power is off at my house, so please pardon any incoherence, although the Cinnabons are very tasty.

The Kaardal petition (57 pages, I’m afraid) is viewable here.

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Comments (22)

  1. Submitted by Ray Schoch on 07/11/2011 - 05:13 pm.

    I can’t use this excuse forever, but I’m still enough of a newbie to Minnesota to be unfamiliar with the details of the 2005 shutdown. My impression – subject to correction by those who were here and are more knowledgeable about the political wrangling that surely surrounded it – is that Governor Pawlenty refused to sign the budget bill presented to him by the DFL-controlled legislature. I assume that’s because the bill contained more spending than he liked, or increased taxes, or both, or in some other way violated his fiscal and/or governmental philosophy. Did Republicans argue in 2005 that the state shutdown was the Governor’s “fault?”

    Since the government did not remain shut down for long, I assume that some sort of compromise was reached. I’ve read that Pawlenty approved a “fee” in cigarettes that elsewhere in the universe would be called a “tax” (“sin” taxes being the kind that many a social conservative can manage to endorse unless they are themselves smokers and/or drinkers), but that is surely only part of the story. Presumably, the DFL-controlled legislature had to back off some of its spending proposals and/or revenue-raising ideas in order to get the deal done.

    What I’m getting at here is the constitutional language that gives the legislature the power of the purse – no question about that, and it echoes the U.S. Constitution as well as that of virtually every other state – but requires that the Governor sign that budget.

    If – remember, I wasn’t here – the 2005 shutdown occurred because Pawlenty refused to sign the budget presented to him, I’m left wondering how the current situation is constitutionally different.

    I understand how it may be different in practical terms, with significant differences in monies available to the state from several sources in an economy that’s been in the toilet, and may well return to that situation if Republicans get their way nationally (legislators need to reacquaint themselves – or acquaint themselves for the first time – with the consequences in 1937 of abandoning a portion of the New Deal). Times have changed in the intervening 6 years. But if the issue boils down to the legislature having the power to devise a budget, but the Governor having the power to reject their proposal, could not an argument – legal and sensible – be made that it’s the legislature’s responsibility to create a budget that the Governor WILL sign?

    Wasn’t the essentially what happened in 2005? The budget bill(s) had to be revised by the legislature until the relevant language had been changed enough to be signed by then-Governor Pawlenty, after which the state went back to business as usual, more or less?

    If – and it continues to be “if” – that was the case in 2005, why is it not the case now? The names have changed, as have the political parties, but it seems plausible to me that the constitutional situation is very similar. And, if that’s the case, then the burden of “movement” in a budget impasse is not solely on an intransigent Governor, but rests just as much on an equally intransigent legislature. When people start pointing fingers and assigning blame for an event that will cost this state most of its good reputation by the time its over, I’m inclined to point mine at least as much at a legislature not living up to its constitutional responsibilities (especially in regard to education and its funding) as I am to point at a Governor with a perfectly reasonable idea he’s not willing to let go of. I’ll be very interested in the reasoning of the Supremes when their ruling is handed down. For one thing, I feel certain that they’re very much aware of the political and economic consequences that have already occurred, and that are likely to increase dramatically if the shutdown drags on into the winter.

  2. Submitted by Steve Titterud on 07/11/2011 - 05:24 pm.

    RE: “…the unthinkable possibility that the state prisons and hospitals for the mentally ill might have to shut down. ”

    It ain’t unthinkable to monomaniac cultists in the Republican caucus. These are the folks who don’t brook any exceptions, compromises, or dilution of the Kool Aid.

  3. Submitted by Claire Lundgren on 07/11/2011 - 05:25 pm.

    This opinion makes a lot of sense. And the implications are downright scarey! It appears to me that NO ONE REALLY KNOWS WHO IS IN CHARGE. It should be the Governor in the end but he has not demonstrated his willingness or perhaps his competence to get this mess cleaned up.

  4. Submitted by James Hamilton on 07/11/2011 - 05:47 pm.

    Seems to me that if the courts lack jurisdiction, they lack jurisdiction: period. If the courts can’t order spending, they can’t grant a 7 day grace period.

  5. Submitted by Paul Brandon on 07/11/2011 - 05:53 pm.

    The problem is that in our system of checks and balances no ONE is in charge; we’re sorting out the conflicting authorities of the different branches of the government.
    And of course the MN Supremes could fudge by sitting on the question (‘discussing it’) until the question is moot.

  6. Submitted by Lora Jones on 07/11/2011 - 06:07 pm.

    #3 “he has not demonstrated his willingness or . . . competency”? Where have YOU been? The people who haven’t moved or tried to come up with some alternative are Koch and Zellers (or, perhaps, their might-as-well-try-to-herd-cats caucus).

    At any rate, I find it hard to imagine that the MnSC will, in effect, overturn Gearin’s reasoning that, because the US (and State) constitutions afford certain rights to individuals (and by extension responsibilities to the government) a total lights out cannot legally, constitionally be borne.

  7. Submitted by will lynott on 07/11/2011 - 06:39 pm.

    #1, back in 2005 TP had raided every available pot of money and used every accounting gimmick he could find in order to balance the budget without raising taxes. He found that even after all that the budget was still out of balance.

    He did not, of course, dare to cut spending to be in line with his and “The Thin Skinned Body’s” tax cuts.

    Democrats, meanwhile, had kowtowed to TP’s every demand for gutting education and public assistance, but finally found their limit. No more cuts. But, in the end, they signed off on the majority of TP’s spending cuts, so most of the bills were passed before June 30. Since the budget was nevertheless not completely balanced, and TP was taking more heat for it than the Ds were, someone in TP’s office came up with raising the cigarette tax but calling it a “health impact FEE”–not a TAX, mind you. TP subsequently went on TV and made this red faced argument, the Ds bought it, and the rest is history. Never mind that the proceeds went to the general fund, not any health or smoking cessation programs; everybody was glad to get out of town with a settlement.

    It’s a shame, but I’ve come to understand that to be a politician you must be a hypocrite, a liar, and very good at spin, regardless of what everyone else understands to be the facts.

  8. Submitted by Terry Bovee on 07/11/2011 - 09:50 pm.

    “the six legislators — Sens. Warren Limmer, Scott Newman, Sean Nienow and Roger Chamberlain, plus Reps. Glenn Gruenhagen and Ernest Leidiger” – Are these guys funding this action on their own dime? Where is the money coming from to fund this lawsuit? One of these legislators is mine…and I wouldn’t think his share of the money needed to take this sort of action is coming out of his pocket.

  9. Submitted by DC Navratil on 07/11/2011 - 10:00 pm.

    #1 and #7, your comments are right on! Thank you!

  10. Submitted by Claire Lundgren on 07/11/2011 - 10:30 pm.

    #6, Lora Jones, As I understand the article by Erik Black, the suit being discussed is based on the argument that the Constitution states in very clear language that no one can authorize the appropriation of any money except for a ruling by the legislature ratified by the governor. Any other entity (the Judicial Branch) can not legally authorize or be granted power to spend money without usurping the power of one of the other two entities. Therefore, the money being authorized by the Judge and the Special Master is not legal. Because of the way it is written, it sounds like there is a case to be made.

    My comment about the governor concerns his refusal to order a Lights On bill. You can’t have it both ways, according to the Constitution. You either have total shutdown or not. I don’t care if they argue and negotiate until November. But it is unfair to bring the state to a halt while all this non-negotiating goes on. This is reaching into the economy of the state and the well being of thousands of families who are are not employed by the state and not able to draw unemployment. The state is opening itself to lawsuits that will make our present debt seem small in comparison. Presently the state is denying many in the private sector from their right to make a living.

  11. Submitted by Eric Dietz on 07/12/2011 - 07:34 am.

    We spend a lot of time trying to interpret Constitutional language though the literal text, context, and original intent. Perhaps a textual argument would stop all state spending on all programs, but is that really what the Minnesota Constitution was designed to accomplish in this situation? This is our government, so is that what we desire of our government in this situation? I would think not. Finally, one purpose of a Constitution is that it establishes the powers of government. Interpreting it in a way that seeks to eliminate the government in its entirety is not supported in the MN Constitution, evidenced by the fact that the document doesn’t suggest or even contemplate a shutdown.

  12. Submitted by Jon Kingstad on 07/12/2011 - 08:10 am.

    #1 and #7: Let’s not forget about the increase in court fees! The worst being the “motion filing fee” which requires the payment of $100 fee per motion per party for any motion. This a regressive tax on individuals who are forced to take their grievances to the courts and be subjected to combat by discovery.

  13. Submitted by Lora Jones on 07/12/2011 - 08:43 am.

    #10 Claire, apparently that is the source of our difference. I agree with Dayton that a “lights on” bill is a mere ploy by the Repubs to string the shutdown out even longer and avoid any compromise whatsoever. It’s their gambit to keep from having to negotiate. Not much different, really, than the Repugs in DC wanting to kick the can down the road with some sort term extension of the debt limit.

    Koch and Zellers say they have been “working on a counter-proposal” since last Thursday. Bull. They’re pushing “lights on” because they have no intention of proposing anything.

  14. Submitted by Ralf Wyman on 07/12/2011 - 08:47 am.

    Claire, if the Gov had accepted a lights-on bill, there would be no incentive whatsoever for the GOP to come back to the table to negotiate. Dems are often accused of being too cautious, but in this case I fully support Dayton’s refusal to set up a stop-gap. Likewise for Obama over the debt limit.

    We citizens have been scammed by the GOP to many times (see #7 above) and I am thankful that some top Dem leaders are waking up to the intransigent bullies who think capitulation is the same as agreement.

  15. Submitted by Paul Landskroener on 07/12/2011 - 08:55 am.

    #11 has it right. As Oliver Wendell Holmes famously put it, the life of the law is not logic, it is experience. The failure of the text of the Constitution to provide for the present political situation doesn’t mean that the government has to disband, prisoners freed etc. (Christians know that THAT day has nothing to do with the government). It means that the People who wrote the Constitution now have to come up with an extra-Constitutional way to preserve civil society while doing as little violence to the underlying governing principles that the Constitution embodies.

    The law sometimes recognizes a rule of necessity: for example, a court always has the power to determine whether it has jurisdiction to hear the case before it because SOMEONE has to decide. Even if the court concludes that it doesn’t have jurisdiction to her the case, it has the jurisdiction to make that decision because there is no one else in a better position to decide the question. That’s the situation we’re in.

    I, as a lawyer and as a citizen, am not happy that the courts are currently acting as a de facto legislature, appropriating public funds for the purposes they find “essential.” But no one has proposed any reasonable alternative. It is less bad than a complete abandonment of governmental responsibility. I am happy, though, that Judge Gearin seems to get it and is taking the separation of powers seriously (if not literally or absolutely) and saying “no” to many expenditures that may be essential to people’s lives but not to government per se. This keeps the pressure on the Legislature and the Governor as it should be.

  16. Submitted by Maureen Conway on 07/12/2011 - 09:22 am.

    Republicans have spent the last three decades trashing government. I say, give them what they want: Shut the whole thing down and let’s see if their attitude changes when the drunks control the highways and the released felons control the by-ways, including those leading to the gated communities. It appears that no less draconian methods can bring these people to see reason.

  17. Submitted by Diane Clare on 07/12/2011 - 10:00 am.

    Like what #15 has to say and also feel that Judge Gearin is doing her part admirably.

    Biggest problem with the shutdown,is the lost MN State revenue, caused by the shutdown of many entities that do provide some of the revenue that was spent in the balanced budget presented to Governor Dayton.

    With the lose of this revenue already and throughout the shutdown, a balanced budget will require, either more cuts or increased taxes on everyone, not just millionaires.

    From the sidelines, Governor Dayton would have played better partisan political strategy by signing the balanced budget with reservation, and allowed MN to come to it’s own conclusion(s).

  18. Submitted by Don Medal on 07/12/2011 - 11:33 am.

    Thanks for your comments, Paul (#15) and others, and especially to Eric for tackling this giant knot in the garden hose of Minnesota politics.

    By what legal basis would the MNSC decide that the Constitution forbids expenditures except as approved and still decide to fund prisons, State Police, etc. ? That would involve drawing a line, and it seems the whole point of the suit is that a line can’t be drawn because the Constitution doesn’t permit it. Either only funds which the legislature approved can be spent, or the courts have an obligation to fund some things and not others. First one means no prison funding, 2nd one is what Judge Gearin is doing, is it not?

    Reasonable people might say well the state needs to fund the Highway Patrol. (reasonable being in short supply at the capitol). But to make such a decision by the court would seem to need some creative judicial activism as the Constitution doesn’t provide for this and seems to prohibit it.

    What a mess we have gotten ourselves into!

  19. Submitted by Bill Gleason on 07/12/2011 - 11:53 am.

    I think we all know how this will shake out. The Supremes seem in no great hurry to rule on this. That is a tip off.

    One of the warrant seekers is Nienow. At the same time he has been on a non-stop campaign for his lights on bill, and whining about the suffering of citizens if this bill is not enacted. His hypocrisy is obvious.

    The warrant request is yet another publicity stunt and attempt to stall by the GOP, especially by Nienow and fellow travelers.

    Sadly, the GOP is handing the 2012 election to the DFL – on a silver platter.

    Bill Gleason

  20. Submitted by Claire Lundgren on 07/12/2011 - 08:35 pm.

    Perhaps one of you enlightened people can explain to me why Canterbury Park has been closed? I have horses there and have been active since the track opened the first time in 1985. You might say I am slightly prejudiced.

    Canterbury is totally self funded and it also pays the wages of the Racing commission, track stewards, and vets. The money is paid up front through the meet- in this case through July- and escrowed to be dispensed by the MRC. It has been previously determined that it has not been necessary to have legislation every year to pay these wages since it was legislated in the original general licensing agreement. Because of the wording that the MRC regulates the track it was closed down and deemed non- essential. When the appeals were heard Canterbury, Running Aces, and the Minnesota zoo were grouped together for a hearing as their situation was different in that they are not dependent on the state for funding. The Zoo, that actually does receive some state money, was allowed to reopen. The tracks were not and no reason was given except that the Judge declared that the state knew best. So, in effect, the state is now guilty of shutting down a private business and putting a couple thousand people out of work. They are not able to get unemployment and they are also not able to get work in the industry if they remain in Minnesota. If they leave, when and if the track is able to open, there will no longer be enough people or horses to resume a meet. This is the earning season for the horsemen and Canterbury is the only source of income in the state. This will be the the fatal blow to an industry that supplies $2 billion per year in economic activity statewide ( based on the most recent economic impact study done by the U.) The effects will be statewide because the horse industry is spread all over the state. If the shutdown is ruled to be unconstitutional, The state should be open to a series of lawsuits that will leave us even further in debt because they are guilty of blocking a private industry from its right to make a living.

    This has always seemed to be a poor judgement on the part of Judge Gearin and the insult added to injury is that she has not recused herself from hearing the appeal. In fact, she has prolonged a ruling for so long it almost seems she is waiting for the state to reopen so that she won’t have to reverse her own ruling.

    I am hoping that someone can explain to me what the judgement is based on since the Zoo was allowed to open. Any ideas?

  21. Submitted by Andy Driscoll on 07/13/2011 - 01:10 am.

    First of all – @Claire Lundgren – while the track and races themselves may be self-funded, they are regulated by a commission and the Attorney General’s office and not, apparently viewed as critical, so the shutdown of regulatory functions means a closing of Canterbury.

    I think Eric’s has been a fascinating excursion into the deeper recesses of state Constitutional questions and the commenters here have added interest to the discussion. Kaardal’s argument seems more like hypothesis than definitive precedent, but then, in this unique event, all manner of hypotheses makes it open season on interpretations.

    Can’t wait to see how it comes down.

  22. Submitted by Hiram Foster on 07/13/2011 - 06:22 am.

    There is lots of law out there. Because of the pre-eminence of the US Constitution, and it’s Supremacy Clause, the Minnesota Constitution doesn’t have anything like the final say about what the law is in Minnesota. The most obscure federal statute, which is within the enumerate powers of Congress takes precedence over anything the Minnesota Constitution has to say, or any law enacted by the legislature, if they are in conflict.

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