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Judge Gearin not likely to restart transportation, construction projects

There are currently 98 road projects on hold and the executive branch estimates roughly $100 million in state aid would have to be released to continue construction.
MinnPost photo by Jana Freiband
There are currently 98 road projects on hold and the executive branch estimates roughly $100 million in state aid would have to be released to continue construction.

Ramsey County Chief Judge Kathleen Gearin didn’t leave much hope for Minnesota’s stalled construction and transportation projects after hearing arguments from two lawmakers and a contractors association Wednesday.

Republican Rep. Michael Beard and Sen. Joe Gimse, chairmen of their chambers’ transportation committees, argued before Gearin that she reconsider her June 29 ruling which deemed most transportation construction a “non-essential” state service.

The two lawmakers said they appeared before Gearin as “private citizens” with an “extraordinary understanding” of transportation issues. “We are taking this upon ourselves as our civic duty,” Beard said in his opening remarks.

There are currently 98 road projects on hold, Beard said, and the executive branch estimates roughly $100 million in state aid would have to be released to continue construction.

Beard and Gimse, who don’t have an attorney, argued that, like K-12 education, road construction and upkeep is mandated in Minnesota’s Constitution. They also asserted that Minnesota citizens’ public safety — a core function of government — would be in jeopardy if construction zones and partial road closures continued into the winter because work has temporarily stalled.

But Gearin seemed to dismiss the lawmakers’ request to “clarify and expand” her ruling almost immediately. In her explanation of core government services, Gearin was extremely aware of the judicial branch’s role in state government and the necessity for separation of powers.

Judge Kathleen Gearin
Judge Kathleen Gearin

“I’ve heard of activist judges,” she said at the Wednesday hearing. “It sounds to me like you’re asking Justice [Kathleen] Blatz [the special master] and I to be super activist judges.” Gearin also cited previously case law that sets a precedent prohibiting her from getting involved.

Unsurprisingly, David Lillehaug, special counsel to Gov. Mark Dayton, opposed Gimse and Beard’s request. He called a supporting order from Gearin “probably the most activist thing a judge could do.”

As she has in the past, Gearin reminded both Lillehaug — who reports to Dayton daily — and the legislators in the room that the quickest path out of the shutdown is for the governor and lawmakers to reach a budget deal.

“As senators, you’re part of the group who could resolve this,” Gearin said. She also corrected Beard in the middle of his remarks when he referred to the “inability” of the executive and legislative branches to compromise. “Inability isn’t a good word,” she cut in. “How about failure?”

After the hearing, Gimse and Beard seemed realistic about Gearin’s expected ruling. When asked what they thought of their chances, Beard had a joke ready to go: “If we hadn’t been here, they’d be zero. So somewhere North of zero.”

If the judge’s order doesn’t support their arguments, Beard said it’s likely the transportation chairmen will “ratchet it up on a political level.” That’s more in line with the GOP leaders, who for weeks have been calling on Dayton to call a special session so they can pass “lights on” legislation.

Construction projects on hold, too
Focusing on a similar issue, representatives of Minnesota’s contracting and architecture organizations requested that Gearing rethink her original ruling and allow certain state-funded construction projects to continue.

Dean Thomson, an attorney for the building organizations, argued that the executive branch should conduct a study to find if stopping state projects funded in part by federal dollars is a violation of the U.S. Constitution’s supremacy clause.

He also asked the court to inform the executive branch that it has the power to de-fund current appropriations — for example, for landscaping on the side of a highway — and instead use that money to pay inspectors to keep transportation and building projects moving forward.

The executive branch estimates that it would require about $7.7 million each month to keep the projects running.

Thomson’s goal was to get his clients back to work. But, again, Gearin made the chances seem slim.

“I’ll take this under advisement, but please repeat what you’re saying to the legislators and the governor,” she said.

It’s unclear if the judge, who typically works fast, will prepare one order for both petitions or address each separately.

Gearin, her usual boisterous self, seemed harried by the staggering amount of petitions that have appeared before her court. She ticked off a list of worried industries and businesses that are afraid they’ll go out of business. On Monday it was miners, on Tuesday it was loggers, today it’s contractors.

Without much case law to guide her, Gearin said it’s difficult to move forward. “Not to be casual,” she said, “but we’re making this up as we go along.”

Gearin also praised Blatz, her special master, for the speed and efficiency the former Supreme Court chief justice has shown in clarifying Gearin’s June 29 ruling on essential government services.

“I don’t know how Justice Blatz is keeping up, but she’s doing a wonderful job,” Gearin said. “I can barely keep up with her. In fact, I can’t keep up with her.”

“There’s a simple solution — that is, both sides resolve this budget crisis,” she said. “It just doesn’t seem to be happening.”

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Comments (6)

  1. Submitted by Steve Titterud on 07/13/2011 - 04:26 pm.

    So THIS ISSUE is where the Republicans earnestly ask for the state to continue spending?

    My, oh my, whatever happened to those high-minded principles about a smaller government and reducing profligate spending? You’d think Grover Norquist would give these boys a good whipping!

    The industry they represented in the hearing has swilled at the public trough as much as any. It seems so natural to get public servants to do their bidding. Is this what public service has come to in MN?

    And they came forward as “private citizens”? Who do they think they are kidding? Make no mistake about it, folks – they were there to speak on behalf of the industry.

    Did Rep. Michael Beard and Sen. Joe Gimse, the new champions of urgent spending needs, also go to the trouble to request urgent HUMAN needs be funded? Like those involving food, housing, health care, child care? Or were they mute on those matters?

  2. Submitted by Richard Pecar on 07/13/2011 - 04:28 pm.

    The honorable Judge Gearin has pushed the court to get in for a dime, the court might as well be in for a dollar. What is the downside? I think she did the right thing, just not enough of it. After all, aren’t the contractors billing the state “liquidated damages” for each day the cranes, dozers, and excavators sit idle? These contractors have other obligations when they are finished with the Minnesota’s work, what do they tell the clients that are waiting? The contractors will need to pay the next client “liquidated damages” if they can start the job on time. It’s cascading in a very bad way. The state shut down is not an event of “force majeure” like a flood or Act of God, it’s an act of mean-spirited ideology, the republicans, a gaggle who doesn’t know the difference between a dollar and a daffodil.

    By cutting spending like a chain saw massacre, the republicans are simply lowering the bar. Less wages, less revenues to government, bigger deficits. Less aid to hospital and doctors, higher costs there.

    The worse gets, the worse it will get. The death spiral.

    You know what the monkey said when he pee’d in the cash register? “This is running into money”

  3. Submitted by Mike Underwood on 07/13/2011 - 04:43 pm.

    “They also asserted that Minnesota citizens’ public safety — a core function of government — would be in jeopardy if construction zones and partial road closures continued into the winter because work has temporarily stalled.”

    They (the Republicans) are OK with this Shutdown lasting into winter, unbelievable?

    If everyone has some skin in the game (contractors) maybe they should contact their legistators to get things moving at the capitol, it’s that simple!!

  4. Submitted by Eric Larson on 07/13/2011 - 05:27 pm.

    Hey Editors-

    Reference – Pic at the top of this story. That sure looks like a city street. Or is it a state street? Anyhoo. If it’s not a state responsibility, then lets not show it with a state highway funding article. Wrong impression, or lazy, or sensationalist. Oh BTW. If you do drop the pic, please make note of correction in the comments section with a link to said erronious pic. Thanks

  5. Submitted by will lynott on 07/13/2011 - 09:11 pm.

    #4, when you get around to condemning conservative zealots for, say, putting up billboards depicting, say, aborted fetuses, post said condemnation in the comments section, with the appropriate link.

    Thank you.

    BTW, city streets are quite often state federal aid or county state aid highways.

  6. Submitted by craig furguson on 07/14/2011 - 12:02 am.

    How about beer? That must be essential.

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