Court’s government shutdown ruling settles very little

Yesterday’s Minnesota Supreme Court ruling on the constitutional/government-shutdown question leaves things unclear and unsatisfying.

For most of Minnesota’s history, state budgets have been made the old fashioned way, with appropriations agreed to by the Legislature and the governor. We have had plenty of times when this required a compromise across party lines and when the parties pushed the process to the limit. But it got done and, until recently, the question never seriously arose of what would happen if the two branches that are supposed to do the budgeting couldn’t agree.

But now we have entered the era of no compromise.

In 2005 (with DFLers controlling the Legislature but a Republican governor) they couldn’t find a compromise until after a Ramsey District Court judge agreed – with little in the state Constitution on which to base this new judicial power – to take over as budgeter of last resort. A case challenging the idea that the court had such power made it as far as the Minnesota Court of Appeals, which dismissed the matter because by then a budget deal made it “moot.” The Appeals Court did urge the Legislature to put in place a standby bill, specifying what should be funded in such emergencies. The Legislature didn’t do it.

Chief Justice Lorie S. Gildea
AP/Ben Garvin
Chief Justice Lorie S. Gildea

In 2011 (now with a Repub-controlled Legislature and a DFL guv, but the basic philosophical disagreement across party lines still in place), we reached the shutdown point again and, once again, a Ramsey District Judge agreed to step in. A similar legal challenge was filed (by the same attorney, Erick Kaardal, of Minneapolis).

Elements of “judicial modesty” and deference to the other branches makes the courts reluctant to decide a big constitutional question if they can avoid it. And, once again, the budget deal had been settled so the court had the option of punting. But the “mootness” doctrine has some exceptions and one of them suggests that if you have a problem that is likely to keep arising, but keeps disappearing before the court has a chance to decide it, the court has permission to overcome its modesty.

Justice Alan Page, the only dissenter from yesterday’s decision to punt, argued that it is fundamental to the court’s role to “say what the law is.”

Personally, I was sympathetic to this impulse. Not as a matter of legal philosophy, but as a practical matter, if we are going to have these frequent shutdowns or near shutdowns, the whole state should know what the rules are.

But the potential consequences of such a ruling are serious. If — as seems quite likely given the clarity of the Constitutional provisions on appropriations and who is empowered to make them — the Supreme Court were to rule that the judiciary lacks constitutional authority to take over as budgeter of last resort, then the next shutdown crisis would occur on the edge of a cliff. If the executive and legislative branches couldn’t work out a budget or a lights-on bill before the deadline, the state might face a sudden cataclysmic cutoff of even the most truly essential of services.

It’s possible and reasonable and even a bit hopeful to believe that in such a circumstance, the two more political branches would simply understand that failure to compromise is simply not an option. But there are no guarantees in the era of no compromise.

So the court, invoking the doctrine of judicial modesty and respect for the Constitution, has declined, for this round at least, to say what should happen, constitutionally, if the other branches fail to do their job.

But, ironically (if “ironically” is the word I want here) judicial modesty and respect for the Constitution in this instance means that the judicial branch has modestly let stand a double precedent that the judicial branch has a very significant power over the budget process that is nowhere mentioned in the Constitution.

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Comments (4)

  1. Submitted by Ray Schoch on 12/01/2011 - 01:03 pm.

    I’m not a lawyer, but it appears to me that the Constitution grants revenue-raising power exclusively to the legislature. The Governor’s role in that context is essentially neutral or negative – he can sign the revenue bill into law, or he can veto it. The veto is a powerful tool, but it mostly stops things from happening, and only rarely is a veto going to have the effect of putting some sort of government action into motion.

    That sounds to me like one point for the legislature, one point for the Governor. Gridlock. The legislature can override a gubernatorial veto, but it requires a two-thirds vote. If Republicans don’t have a two-thirds majority in both houses, and I don’t believe they do, then a veto seems unlikely to be overridden should Governor Dayton veto the next budget bill.

    That reality has us tumbling over the rhetorical cliff that Eric has provided. With revenue the exclusive responsibility of the legislature, if I’m the Governor and a situation similar to this year were to arise, but with the sort of cataclysmic shutdown that Eric mentions instead of the kind of band-aid, last-minute court intervention we’ve had – and which the court would much prefer to avoid – I’m going to point out to anyone who asks that raising the revenue necessary to keep the government operating is the responsibility of the legislature. I’d be sure to be pointing my finger – the index, not the middle – at whichever legislative leaders seemed to be most responsible for the failure to present me with a bill I’m willing to sign.

    Those same legislative leaders will be speaking into any microphone thrust in front of them that they *have* presented a budget bill to the Governor, but that said Governor, through obstinance, stupidity, socialist tendencies, or some sort of character flaw, or a combination of all the above, has stubbornly refused to sign a “perfectly reasonable” budget bill. The impending shutdown is the Governor’s fault, and the collective legislative fingers (no speculation on just which fingers) will be pointed at the Governor.

    Of course there will be feverish negotiations going on in private behind the scenes, but publicly, it’s hard to argue anything but that the legislature essentially holds the fund-raising cards. If they won’t provide enough funds to operate the government, and as a result, the government genuinely stops, then the legal responsibility – moral, practical, and ethical responsibilities aside, for the moment – rests with the legislature.

  2. Submitted by Paul Brandon on 12/01/2011 - 03:55 pm.

    Of course, a Governor (see TPaw) can effectively raise revenue by refusing to pay debts, such as State money owed to public school districts.

  3. Submitted by Jon Kingstad on 12/01/2011 - 04:34 pm.

    I agree with Justice Page’s and Eric’s dissent. The doctrine of “judicial modesty” aka “judicial restraint” is based on comity for the other branches of government and the need to avoid “political questions.” This is one case where I think avoiding the political question seems to be quite political in the sense of letting the uncertainty continue about what happens when the other two branches cannot agree on the budget.

    On the other hand, the Court’s silence also implies approval. Common law is made not just by the Supreme Court but by lower courts and other branches of government in how they address real practical problems and disputes. Denying review here says that what the lower courts last summer to mitigate some of the hardship over the shutdown was right. This silent decision therefore does offer a bit of a blueprint for future deadlocks.

  4. Submitted by John Olson on 12/01/2011 - 08:28 pm.

    Perhaps the underlying thinking of the Minnesota Supreme Court was that a written decision would provide a “how-to guide” for enabling the same behavior in the future by either political party.

    The larger issue to me is the notion that once-upon-a-time was considered to be “unthinkable” will likely now become an accepted strategy and practice. The only scenario where the threat of a large-scale shutdown will probably not occur every other year will be in a future situation where the majority in both chambers of the legislature and governor are all from the same political party.

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