**Note: Judge Kathleen Gearin issued her order on June 29, 2011. For information on what’s included in that order, visit our more recent blog post.**
The question of how the state would (or would not) function in the event of a government shutdown made its way into a courtroom on Thursday. Ramsey County District Judge Kathleen Gearin held a hearing on the “tsunami” of motions, petitions, affidavits and other documents that have been filed with the court in the last several days (last count: 84 documents).
One of the fundamental issues at stake, in our layman’s understanding, is whether Judge Gearin should grant Attorney General Lori Swanson’s petition that a special master be appointed to decide what elements of government should function in the event of a state government shutdown. Governor Dayton is arguing that no special master is required because the executive branch already has the authority to fund core services, which he has specified in court filings.
Those fundamental questions weren’t resolved on Thursday, but other issues were.
- Judge Gearin rejected Governor Dayton’s petition for the court to appoint a professional mediator to help resolve the differences between himself and the Legislature.
- Judge Gearin denied a motion from four Republican Senators to intervene in the case, saying their interests were adequately represented by legal counsel for the Senate as a whole. This decision effectively blocked their ability to ask the court to require Governor Dayton to call a special session.
As the clock ticks closer to a possible government shutdown, there appear to be three categories of state spending that will be in question if a budget is not in place by July 1.
One category are funds that some are arguing have already been appropriated by the state or federal government, and so would not fall under the constitutional restriction that “no money shall be paid out of the treasury of this state except in pursuance of an appropriation of law.” These include:
- Funds that have been appropriated by the federal government, but flow through the state. It was argued that these federal dollars usually come with administrative funds for the state that could be used to cover the staffing needed to process the federal funds during a shutdown.
- Funds that have been appropriated by the legislature in a prior session. For example, Hennepin County argued that aids to local governments that were appropriated in the 2010 Legislative Session should be paid on July 20 as scheduled in law.
- Funding authorized through a statutory, standing or open appropriation, like most funding for school districts. This is in contrast to most state funding, which is made through a “direct” appropriation authorizing funds for a specified period of time.
A second category of funds are those that do not meet the hurdle of having been appropriated by the legislature, but pay for services that are considered to be “core” to government. These are situations where the failure to continue services could interfere with constitutionally-guaranteed rights or where “the life, health, safety, and liberty of citizens would be profoundly and irreparably impacted.” In the event of a shutdown, a court-appointed special master could determine what services fall into this category.
A third category of funds are those that have not been appropriated and the services are not deemed to be protected by the constitution or essential to the immediate health and safety of the public.
Judge Gearin has strongly suggested that any ruling from the court on the question of funding services during a government shutdown is likely to be very limited in scope. She pointed out that policymaking expertise and experience lies with the legislative and executive branch, not with the courts. And in the event the Governor and Legislature cannot come to an agreement and a shutdown occurs, “It’s not the court’s role to make everything better.” Judge Gearin hinted that if a special master is appointed, the boundaries of his authority is likely to be very restricted.
A ruling from Judge Gearin is not expected until sometime next week, possibly as late as June 28 or 29. In the meantime, she pleaded with Governor and Legislature to resolve their differences and stop playing what “feels almost like a game of chicken.”