Monday, September 11, 2017

Dayton v. Legislature: The Minnesota Supreme Court Punts

The  Minnesota Supreme Court's Dayton v. Ninetieth Minnesota State Senate and the Ninetieth House of Representatives was not a decision, it was a  punt.  The Supreme Court did not really decide the case in favor of Dayton or anyone, contrary to what the media reported; instead it pushed it down the road, hoping to avoid having to make the real decision.  It did so perhaps to avoid revealing  something deeper and more troubling in the case–a Court that is divided politically by the case with Dayton appointees voting for him, the other Justices against him.
The Dayton non-decision had something for everyone, and both the governor and he legislature can claim to be winners.  It both declares that the governor’s line-item veto of the legislature’s funding is constitutional but in the very next sentence it says this “conclusion does not, however, end the matter.”  The Court then describes how the Constitution requires three functioning branches and then the governor and the legislature are ordered into mediation to resolve disputes over funding and perhaps other matters.  The Court notes the tension between the two conflicting provisions of the State Constitution yet it never  resolved it.  This is the essence of judicial review, and the Supreme Court punted at the most critical spot.
The Court really did not want to decide the case and it made that clear when it stated that:  “The other Branches should resolve these doubts through the political process.”  The real decision here was to declare this dispute a political question, one that the Court did not have to or consider legitimate to decide.  In ordering mediation, the Court hopes that the two sides will work out their differences.  Paradoxically, one has to wonder whether the Court can order them into mediation, especially given that this is the same Court in oral arguments and in this decision which questioned whether it had the authority to order temporary funding when the governor and the legislature are deadlocked.
Another sign that the Court did not really decide the case–there was no vote.  This was an order signed by the Chief Justice.  The Minnesota Supreme Court can issue per curiam unsigned opinions, but they generally only do so when very divided and all they can agree on are some basic points.  This is what happened here.  One hypothesis is that the four Dayton appointees wanted to rule for him, the other Justices against him.  A Minnesota Supreme Court ruling for the governor  with votes supplied simply by his appointees and divided by political party and who appointed the justices would have done lasting damage to the Court and questioned the legitimacy of the decision.  Thus instead, the Dayton Justices got a part of a decision that said the governor should win, the other Justices favored the Legislature, and the political deadlock on the Court produced an opinion with language to make everyone happy while not deciding the case.
Institutionally this non-decision may have been the best choice for the Court if it wishes to  protect it political and legal legitimacy.  Yet for those hoping that the basic constitutional questions would be resolved, it was not. And for those worried about the Minnesota courts becoming politicized, this case speaks to a potential fear that the Supreme Court may be at that point.

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