MinnPost - Minnesota Senate makes the constitutional argument for shutting down pretty much everything

MinnPost - Minnesota Senate makes the constitutional argument for shutting down pretty much everything

Minnesota Senate makes the constitutional argument for shutting down pretty much everything

By Eric Black | Published Thu, Jun 23 2011 12:01 am

MinnPost photo by Terry GydesenIf the Senate position is adopted by the courts, the brief seems to imply that almost all spending from the state Treasury must stop on July 1.

At the last minute before a judge takes up the legal arguments about a state shutdown at 10 a.m. today, both the Minnesota House and Senate weighed in separately late Wednesday on the legal issues. The two houses made very different arguments.

The House filing was simple and politically clumsy since it asks the court for only two things: Don’t order us to mediation with the governor to try to prevent a shutdown; and, if there is a shutdown, help us keep our own funds flowing to the Legislature itself.

The Senate made a strong, simple and radical assertion of what I’ve been calling the constitutional argument. It goes like this:

The Minnesota Constitution says no unappropriated funds can be paid out of the state treasury. It means precisely that. It is not overruled by any other language in the Constitution. Therefore, the judicial branch can’t order spending to continue (although this is what happened during the last shutdown and this what Attorney General Lori Swanson has been asking the court to do) and the governor has no “inherent power” to spend money for “critical services” (although Gov. Mark Dayton argued in his own brief, that he does that power, at least to protect lives and health of Minnesotans and to prevent an economic disaster that might befall the state in the shutdown scenario).

Oh yeah, the Senate’s legal position also agrees with the House that the judge cannot grant the governor’s request to appoint a mediator or order the Legislature to participate in mediation to reach an overall budget deal.

If the Senate position is adopted by the courts, and if Dayton and the Legislature cannot reach a budget deal by the exercise of their normal constitutional powers, the Senate brief seems to imply that almost all spending from the state Treasury must stop on July 1. The Senate is not explicit about whether this means the state prison guards would be laid off the prisoners released or whether mentally ill patients would be turned out of state hospitals, but there is nothing in the filing that suggests any exceptions.

While the House retained former Chief Justice Eric Magnuson as its attorney, the Senate went with its own staff counsel, Thomas Bottern.

It should be noted that the Senate brief really represents the legal position of the Republican leadership of the Senate, or perhaps the Senate Republican caucus. Last week, when Senate Majority Leader Amy Koch convened a meeting of the Senate Rules Committee to ask the committee’s authorization to get involved in the legal arguments, DFL members of the committee asked what legal position they were authorizing. Koch said the position hadn’t been worked out, but assured Sen. Richard Cohen of St. Paul that no one would assume that the Senate brief was speaking for the DFL minority.

In 2005, when a similar budget impasse led to a brief shutdown, Ramsey County District Court did appoint a special to oversee spending of unappropriated state funds sufficient to perform the “core functions” of the executive branch. But, although the Constitution language on the topic hasn’t changed, no one argued to the 2005 court – at least not until after the shutdown had ended and a budget had been adopted and the spending that had been done during the shutdown had been retroactively ratified by the Legislature – that the Constitutional no-spending-without-appropriation language should be strictly construed.

This time, someone is, and it’s the state Senate. The argument, as I mentioned above, is simple and less than two pages long, so brief, in fact, that for those who don’t click through to the legal filing itself, I can give you a five-paragraph excerpt that captures the point succinctly and you don't have to be a lawyer to understand:

• “The Minnesota Constitution, Article III, vests the legislative power of the state of Minnesota in the Legislature and prohibits a member of another department (the executive or judicial departments) from exercising legislative powers, except as expressly authorized by the constitution.
• The Minnesota Constitution, article XI, section 1, provides that “No money shall be paid out of the treasury in this state except in pursuance of an appropriation by law.” Article IV, section 22, of Minnesota Constitution requires a majority vote of both houses of the Legislature to enact a law (with the concurrence of the governor, subject to override of the governor’s veto by two-thirds majority vote by each house of the Legislature). The spending requested by the petition of the Attorney General is not ‘in pursuance of an appropriation by law’ as required by article XI, section 1, of the Minnesota Constitution.
• The Governor’s claim in his June 15, 2011 Response that he has an ‘inherent power’ to direct funding for ‘critical services’ is not ‘in pursuance of an appropriation by law’ as required by Article XI, Section 1, of the Minnesota Constitution.
• Since the Biennium does not begin until July 1, 2011, the Governor still has ample time and opportunity to call a Special Session to enact appropriation bills or to pass a temporary state government funding bill to allow additional time for negotiation.
• The judicial branch does not have any specific or inherent authority under the Minnesota Constitution to order the executive and legislative departments to enter into mediation for purpose of enacting legislation appropriating money for the operations of the executive department. As a result, the court does not have authority to grant the relief requested by the Governor.”