Minn. AG starts legal preparations for shutdown

Published 7:42 pm Monday, June 13, 2011

ST. PAUL — Minnesota Attorney General Lori Swanson asked a state district court Monday to rule that some core functions of state government must continue even if a lingering stalemate over the budget forces it to shut down on July 1.

The motion filed in Ramsey County District Court pointed to services such as guarding prisoners and sex offenders, quelling outbreaks of disease and food-borne illness, operating the State Patrol and Bureau of Criminal Apprehension, collecting taxes and running veterans home as among those that citizens should expect even without dedicated funding.

Democratic Gov. Mark Dayton and Republican legislative leaders have reached an impasse over the new two-year budget. The current budget runs out at midnight on June 30, and a state government shutdown looms.

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“Obviously, we hope the budget impasse can be resolved and that a new budget can be solidified,” Swanson told The Associated Press. “But if not, the courts will ultimately have to determine what services the state and U.S. Constitution guarantee to citizens.”

Dayton’s administration is preparing its own, more specific blueprint of vital services in a shutdown but has so far kept it under wraps. Dayton’s spokeswoman said Monday that the administration’s separate plan would be filed to the court later in the week, and Dayton’s office also announced that the governor hired former U.S. Attorney David Lillehaug to act as special counsel to advise the governor on legal matters related to the shutdown.

Lillehaug represented Dayton in the legal battle surrounding the recount in the governor’s race last fall, and Dayton’s office said he would work for the state for free in the new role.

The AG filing initiates the court process by which the Dayton administration and other groups can mount arguments about which services should keep going. Besides constitutionally required services, Swanson said state government programs paid for in part by federal funds are required to continue “regardless of the budget process.”

The 21-page filing gives a good idea of those services likely to be at the top of a list of essentials. It cites the state’s role in caring for 1,288 mentally ill patients, guarding 9,000 criminal offenders in state prisons and monitoring 20,000 offenders out on supervised release, and the 616 sex offenders under civil commitment.

The document also notes that there are 754 veterans under care in five state veterans’ homes. It highlights the role of the Division of Homeland Security and Emergency Management in responding to national security matters, the State Patrol and Bureau of Criminal Apprehension in enforcing laws, and the Department of Transportation in responding to highway emergencies.

It points to 600,000 low income senior citizens, individuals with disabilities, pregnant women, children and their parents on state Medical Assistance; and the role of state agencies in responding to food-borne outbreaks and infectious diseases, in providing protective services for children, in collecting taxes and processing unemployment applications.

While most of the above services are likely to continue in some fashion, a court will decide the minimum number of employees necessary to accomplish that. It’s likely to be much smaller than the roughly 36,000 state executive branch employees who were notified last Friday they might be laid off on July 1.

Swanson is also asking the Ramsey County court to appoint a so-called “special master,” a judge whose sole job would be to hear legal arguments over which state services should be essential and then issue rulings. That’s how such decisions were made during the brief state government shutdown in 2005, and Swanson said that former state Supreme Court Justice James Gilbert is available and willing to take on the job this year if necessary.

Rep. Ryan Winkler, DFL-Golden Valley, signaled that not all state lawmakers would take kindly to seeing their constitutional powers of appropriation usurped in a shutdown. He cited the Minnesota Constitution as granting those powers only to the Legislature and governor and said the court should reject Swanson’s motion.

“If the action requested by the petition is granted, the court will assume a sweeping and unprecedented scope of power,” Winkler said.

The AG’s filing anticipated this critique, saying that the consequences of a total shutdown of state government “could not have been intended by the drafters of the Minnesota Constitution.”

While the Dayton administration intends to present its own argument that certain services be declared vital, other groups and organizations that interact with state government would be entitled to argue before the special master.

A hearing on the AG’s filing has not yet been scheduled in Ramsey County District Court.

While some services are nearly certain to be declared essential, many are not. That could include operation of state parks and trails, processing of licenses and permits, highway and road construction projects and countless other services.

So far, Dayton and Republicans have agreed on only once small slice of the state budget — about $75 million for agricultural programs. That’s in contrast to the shutdown in 2005, when a number of budget bills were passed and signed into law when July 1 hit.

“The 2005 shutdown was relatively narrow,” Swanson said. “The magnitude of legal issues we could be facing this time is much more far-reaching and broad. I expect there will be many, many more legal issues presented and confronted.”

Dayton and Republicans had no direct budget talks scheduled so far this week.