When the Minnesota Supreme Court came to a fork in the judicial road, with support for Gov. Mark Dayton going one way of constitutional law and support for the Republican Legislature going another, to quote the immortal Yogi Berra, it “took it.”

Dayton used his constitutional authority to veto any line-item appropriation made by the Legislature to deny all funding to the Legislature. The Legislature then took him to court for violation of a different provision of the Minnesota Constitution, one that provides for three separate and equal branches of government. No branch can suppress either of the other two.

In its very short opinion of last Friday, our Supreme Court, frankly, was not Solomonic. It cut the proverbial baby in half, giving a win to the governor and an offsetting win for the Legislature.

The court called on both parties to mediate their dispute. It did not rule on the law. It allowed — for now — both the governor and the Legislature to hold to the righteousness of their different interpretations of our state’s Constitution.

To me, the Supreme Court abdicated the responsibility of an appellate court and decided to act more like a trial court referee caught between two spouses in a bitter divorce squabble. To the governor and his Republican opponents in the Legislature, the Supreme Court in effect said: “Be nice. Act like adults. Put aside your harsh feelings about broken vows and betrayals and generously divide the money between you and take the interests of the children to heart.”

This kind of a decision is more like playing politics than telling us what the Constitution requires.

The state Constitution lays out the boundaries of the political playing field. The Supreme Court’s duty then is to show us just where the lines are. The players are left to their own skills as long as they stay within the four corners of the field.

The court got off on the wrong foot when it concluded that “[w]e are unaware of any authority which allows the Judicial Branch to authorize spending simply because parties ask a court to do so.” Under the Minnesota Constitution, only the Legislature can spend the state’s moneys. The court simply can’t.

This is true, but irrelevant to the court’s responsibilities in this case.

Nonetheless, the justices decided they should be very, very reluctant to get too close to interfering in the process of spending state funds.

This dispute between the DFL governor and the Republican-led Legislature does not need the court to appropriate any funding, only to set forth a rule as to who between them has the last word in how much the Legislature can spend on itself.

If the governor has the last word, then the Legislature has no money. If the governor’s veto is null and void, then the Legislature can spend the money it had already appropriated for itself.

Actually, the justices gave many hints during oral argument of this case when they peppered the lawyers for both the governor and the Legislature with trivial questions about how the executive and the Legislature conduct their bargaining, scheming and deal making. The justices, I thought, thus showed little will to bite the bullet of duty and give victory to one side or the other. In effect, they were suggesting: You people have made a hash of this, so go fix it; don’t come to us. It’s not our job to broker a deal between you.

With this reluctance to properly adjudicate what the Constitution means, the Supreme Court has tilted our system against the law and toward gridlock politics.

We need it to do just the reverse — to get us out of childish finger-pointing, name-calling and uncompromising partisanship, and get us back to respect for the law and duty.

Now, I may be going a bit too far in my disappointment, for the court’s opinion did contain an important warning to the governor about what the law is.

The court said that Minnesotans have a constitutional right to have all three branches of state government functioning at a level where they can perform their duties. And the court quoted from Starkweather vs. Blair (1955) for the rule that constitutional powers may not be used to accomplish unconstitutional results.

Thus, if the governor does not reach agreement with the Legislature in the mediation, then the Supreme Court won’t allow him to use the line-item veto authority to stop the Legislature from doing its constitutional duties.

The Supreme Court retains jurisdiction over the case pending the success or failure of the mediation. If mediation fails, the court will be forced to decide one way or the other who is in the right — the governor or the Legislature.


Stephen B. Young, of St. Paul, is a former professor and dean at Hamline Law School and global executive director of the Caux Round Table.