Lori Sturdevant: State judges now enter the budget thicket

  • Article by: LORI STURDEVANT , Star Tribune
  • Updated: June 18, 2011 - 11:06 PM

Will their reputation for impartiality be able to survive a shutdown?

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"The onset of a constitutional crisis."

That description of this year's unremitting struggle to balance the state budget, uttered by an ordinarily cool Capitol head last week, brought me up short. Is that what Minnesota is witnessing?

A constitutional crisis is a government problem that the constitutionally established system is unable to solve.

That is indeed what Minnesota would be facing on July 1 if state government consisted of only two branches, the executive (the rock) and the legislative (the hard place). They're in a runaway car headed for a cliff, and they can't seem to find the brake pedal, let alone figure out who should stomp on it.

Fortunately, there is a third branch -- the steady, ever-ready judiciary.

One way or another, the courts will decide what parts of state government can still function on July 1 and beyond if no budget has been set in law by 11:59:59 p.m. June 30. It will be up to one or more judges to determine whether the State Patrol is on the highways, the State Prison is guarded, the Governor's Residence is available for occupancy, and on and on.

A worried people will be looking to the courts to rescue them from the worst a shutdown could do.

And worried judges will be looking to minimize the damage not only to the state, but also to their own branch's reputation for impartiality.

Settling disputes is what the courts do. Setting the state budget is not -- ordinarily. But it could come to something close to that, the occupants of the Minnesota Judicial Center know, given the uncompromising natures exhibited to date in the buildings next door.

Go too far toward allowing government to operate as usual, and some conservative legislators will think their government shrinkage project has succeeded. The courts will be accused of throwing in with the Tea Party.

But already last week, the prospect that the courts wouldn't go far enough was bringing out Republican brickbats.

They were flung first at DFL Gov. Mark Dayton, whom they accused of seeking a "maximum pain" shutdown in his petition-response filing with Ramsey County District Court.

But GOP stones will fly in the courts' direction, too, if judges agree with Dayton that only "critical life safety issues," as determined by the governor, should be funded in the absence of duly enacted appropriations.

This comes at a time when around the country, the political impartiality of judges has been eroded by big-money and special-interest electioneering. Minnesota judges have strived mightily to avoid political taint.

There's a self-interest twist in this story, too: Whether or not to keep judicial paychecks coming is one of the shutdown questions the courts will get to decide.

Chances are good that before long, a batch of Minnesotans are going to be unhappy with a batch of judges. Things could become "awkward" for the judges, or so I allowed in a chat with one of the state's top constitutional law experts, former law professor and Court of Appeals Judge Jack Davies.

For the second time last week, I was brought up short.

"Awkward? That doesn't matter," Davies said. "What matters is that the court has to preserve a functioning government. That's the basic object of the entire Constitution."

But what about that sticky little Article XI that says that no money gets spent "except in pursuance of an appropriation by law"?

Again, no matter, Davies said. "You cannot let one sentence trump the thrust of the entire Constitution. The message of the whole document is that we will have a functioning government."

Despite contradictory clauses or endangered reputations, "you have to make an accommodation," he said. "The only tool you have in this situation is judicially determined administration of government, and you have to use it."

In other words, somebody has to be the grown-up. Nonpartisan, partially unelected, often invisible judges might not make the best budgeteers. But in a pinch like the one that Minnesota could feel on July 1, they'll have to do.

Davies predicted that judges won't go far toward setting a full state budget. "Courts instinctively operate at the most conservative level they possibly can," he said.

In this situation, that means they'll go along with what Dayton has proposed, he predicted. Dayton's brief says the governor has sufficient authority to protect life and safety in an emergency, but no more. That reasoning means saying yes to prison guards but no to payments to school districts.

Think that won't be controversial?

Davies counsels judges: Fear not. "If they preserve a functioning government, they will not get in trouble."

Lori Sturdevant is a Star Tribune editorial writer and columnist.

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