Minnesota Supreme Court will not decide the constitutional case created by the government shutdown

In a ruling that seems tinged with ambivalence, the Minnesota Supreme Court Wednesday decided that it will not decide whether the judiciary is allowed to step in as budgeter/appropriator of last resort when the failure of the executive and legislative branches to agree on a budget would otherwise cause a shutdown of the Minnesota government.

The question is moot, Chief Justice Lorie Gildea wrote for the majority, because the controversy was resolved by the other two branches before the Supreme Court could decide the underlying constitutional question.

The Minnesota Constitution specifies that no state money can be spent without an appropriation, that the power of appropriation is assigned to the Legislature (subject to the usual gubernatorial veto power), and that none of the branches of the Minnesota government can perform functions that are reserved to other branches. Those three provisions create the problem that the Supreme Court had been to asked to solve before the next similar budget crisis occurs.

Courts will typically decline to hear a case if the underlying controversy has been otherwise resolved. There are exceptions to that general rule, and the plaintiffs in this case — four Republican state senators — had argued that this case fit the exceptions. But Gildea and five other justices decided that it did not.

Only Justice Alan Page dissented, going back to the monumental case of Marbury v. Madison, which established in 1803 the power of courts to overturn legislation on constitutional grounds for the iconic statement that it is the role of the courts “to say what the law is.”

Because the court will not hear this case, Page argued, the state will go forward — perhaps to another government shutdown and another request for courts to perform budgetary functions that the Constitution assigns to the Legislature — without knowing what the law requires and what it permits in such a circumstance.

But the majority relied on the likewise fundamental principles of judicial restraint, which suggests that the courts should avoid if it can interfering with the other branches of government. At the same time, the court almost pleaded with the Legislature to pass a permanent “lights-on” bill that would in essence create permanent appropriations for the most critical core functions of the government so that the courts would not have to decide which functions are so critical that they must continue in operation even in the absence of ordinary appropriations:

“We generally do not decide important constitutional questions unless it is necessary to do so,” Gildea wrote. The constitutional questions posed by this case are currently moot and will not arise again unless the legislative and executive branches fail to agree on a budget to fund a future biennium. In addition, the legislative and executive have the ability to put mechanisms in place that would ensure that the district court is not again called upon to authorize expenditures by executive branch agencies in the absence of legislative appropriations, even if a budget impasse were to occur. Resolution of these budget issues by the other branches through the political process is preferable to our issuance of an advisory opinion adjudicating separation of powers issues that are not currently active and may not arise in the future. We therefore decline to apply here the exceptions to the mootness doctrine.”

The full text of the rulings is here.

Erick Kaardal, the Minneapolis attorney representing the four senators (and Kaardal filed a similar action in 2007 when a similar government shutdown crisis was looming) emailed me this comment on the ruling:

“The Minnesota Supreme Court denied the petition for mootness — not reaching the merits. The dissenting justice recognized the importance of the Court resolving the constitutional issues including the sanctity of the separation of powers. We agree. Thus, we think the public should continue to scrutinize the constitutionality of a process where the Attorney General petitions a single Ramsey County District Court judge to mandate state spending absent a legislative appropriation. Where is that process in the Minnesota Constitution?”

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Comments (3)

  1. Submitted by James Hamilton on 11/30/2011 - 05:21 pm.

    I rarely find myself in agreement with Justice Page, but he makes valid points here. The bottom line, however, is that “judicial discretion” in this instance means that the court will hear what it wants to hear. It can only lose in the court of public opinion by issuing an opinion now.

  2. Submitted by Ray Schoch on 11/30/2011 - 06:51 pm.

    Clever judges, those Supremes. “You guys keep making the messes. Clean ‘em up yourselves!”

    Justice Page has a point – at least it seems so to this non-lawyer – but it’s not a point that appears to be so time-critical that it must be decided *right now.* Thus, pending Thursday’s economic forecast, if and when the legislature and the Governor once again reach a budgetary / spending impasse, a second round of finger-pointing (“which finger?” one wonders…) seems a possibility in another 5 or 6 months.

    Mr. Kaardal also seems to have a point.

    Eventually, the Supremes will have to deal with this question, but for the time being, they’re kicking the issue down the road, mostly, I suspect, because they can.

  3. Submitted by Paul Brandon on 11/30/2011 - 09:09 pm.

    I agree that this looks like a judge fudge, and Justice Page’s arguments are intuitively appealing but ….

    I think that the separation of powers argument trumps. The judicial branch should not make laws. If it rules on the basis of what might happen in the future, that’s what it is doing. So it is constitutionally correct in waiting until a case actually goes through the court system before acting on it.

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