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In a petition to Ramsey County District Court, Lori Swanson said that unless a court keeps core services running, sexual predators could be out on the streets, veterans turned out of nursing homes, unemployment checks left languishing, and there would be a "catch-and-release" criminal justice system if no judges were able to preside over hearings.
"The operations of state government cannot completely shut down," Swanson told the court.
The petition, which outlines a potentially dire no-spending scenario, is a first step toward getting court authorization for state spending without any legislative and gubernatorial approval. It also asks the court to appoint a "special master" to oversee daily spending decisions, as happened during a partial state government shutdown in 2005.
DFL Gov. Mark Dayton and Republican legislative leaders remain deadlocked over how to deal with the state budget. If they fail to reach agreement by June 30, the state will lose its authority to spend money and a court would have to step in.
Some lawmakers are already publicly challenging the idea that a court can authorize spending on even the most critical services.
"If they do this, that's unconstitutional," said Sen. Sean Nienow, R-Cambridge.
The Minnesota Constitution says, "No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law."
Nienow said "there have been conversations amongst members" about whether to sue to stop any court-ordered spending in a shutdown. But, he said, no one has yet decided to take that action. Nienow sued to stop the 2005 spending that a court allowed to continue during the partial shutdown, he said. The merits of that case were never really settled.
DFL Rep. Ryan Winkler of Golden Valley voiced objections similar to Nienow's.
"The petition today asks the court to perform an unconstitutional function," Winkler said. "If the state officials continue to use the courts as a pressure-release valve for settling budget disputes, we will simply enable dysfunctional government to continue."
Swanson, on behalf of the state, noted that in the 2005 shutdown and in preparations for a possible 2001 shutdown, which was averted, courts directed core functions to continue even though lawmakers and the governor had not agreed to a budget.
Some things 'can't be ignored':
In an interview, Swanson said the Constitution says government exists for "the security, benefit and protection of the people" and promises due process.
"Yes, there is no budget, but on the other hand, there are some things that are so fundamental and are themselves constitutional that they can't simply be ignored," Swanson said.
To make that point clear, she outlined the prospect of releasing psychopaths, booting veterans from their homes and the other dire consequences of no spending.
"The argument is an attempt to show the court: If there is no budget we need a court order in order to make sure some of the core functions can go on," she said.
Just the start of legal steps:
Swanson's filing is only the start of the legal wrangling.
Separately, Dayton plans to file a more detailed request to the court, delineating what he thinks needs to stay open in a shutdown.
Dayton said Monday night that he had only seen a draft of the document earlier that day.
"I'm meeting tomorrow with [Minnesota Management and Budget Commissioner Jim] Schowalter for about three or four hours to go through in detail our proposal," he said. "So we're not hiding anything from anyone. ... If all goes as we hope tomorrow, we'll be filing it on Wednesday. It'll be public."
For weeks, the Dayton administration has been asking agencies to compile lists of services that would need to be kept open during a shutdown. But despite media requests, it has not released those lists, saying they are not ready.
"The lack of transparency by the Dayton administration is unacceptable. The citizens of Minnesota deserve to know who will be affected most by Gov. Dayton's decision to shut down state government," Senate Majority Leader Amy Koch, R-Buffalo, said in a statement. She plans to focus a hearing on the issue on Wednesday.
League of Cities weighs action:
Other parties could also join in the litigation.
Jim Miller, executive director of the League of Minnesota Cities, said the league is considering filing its own petition with the court, filing its own lawsuit or asking a special master to consider the needs of cities in a shutdown.
The cities may not be alone.
Swanson said that in 2005, about 50 petitioners asked a special master to consider their funding. That year, only four major budget bills were left undone.
"I would expect that the magnitude of petitioners coming before the court would be much broader than in the past," Swanson said.
She suggested former state Supreme Court Justice James Gilbert act as special master this year to sort through the requests.
This year, only one budget bill -- for agriculture programs -- is signed. The rest -- from health care to courts to state government to schools -- are not completed.
With just over two weeks before government would begin to shut down, Swanson said, she hopes the court moves quickly.
"We are requesting a quick hearing," she said.