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Judge steps onto Legislature's turf
By Elizabeth Stawicki, Minnesota Public Radio
June 29, 2001

In an unprecedented move, a Ramsey County district judge has ordered the executive branch to fund core services of state government if the Legislature fails to approve a budget by its deadline. The order averts a potential partial government shutdown. But some legal analysts say it upsets the delicate balance between the three branches of government, which are supposed to co-exist equally.

Former Minnesota Surpeme Court Eustice Esther Tomljanovich has been appointed special master to decide any disputes over the core functions issue. See Judge Cohen's order.
(MPR Photo/Kaomi Goetz)
IN A PACKED RAMSEY COUNTY COURTROOM, no one stood up to argue against Attorney General Mike Hatch. His office requested that the executive branch step in and pay for core government funding if the Legislature fails to complete a budget by midnight June 30th, the end of the state's fiscal year.

Chief Judge Lawrence Cohen appeared visibly uncomfortable and said his order was not, and must not serve as, a precedent in future years. His order acts as a financial safety net for essential services of government. What are essential government services will be left up to state agency heads to define for their respective departments.

Although the attorney general's request was highly unusual, Mike Hatch says there is a precedent for one branch of government treading on the turf of another. "In the south with desegregation, there were many times when courts would have to order that school districts build schools so that kids could get educated. They weren't financed or appropriated by the legislature, the executive branch wasn't building them, the courts ordered that it be done," he said.

In addition to what agency heads deem core services, Cohen's order also includes funding for but isn't limited to the public school system, welfare, food stamps, medical assistance, hospitals, nursing homes, group homes, law enforcement and care of prisoners.

Finance Commissioner Pam Wheelock and State Treasurer Carol Johnson will then issue checks from the general fund. If, however, there are disputes, Cohen has appointed retired State Supreme Court Justice Esther Tomljanovich as special master to mediate and make recommendations to the court.

"I'm going to have an office in the Capitol and meet with the attorney general Monday morning at 10 and perhaps there will be nothing to do and maybe there'll be some work," she told reporters after the court hearing.

Although the attorney general's request was highly unusual, Mike Hatch says there is a precedent for one branch of government treading on the turf of another.
(MPR Photo/Kaomi Goetz)
Hamline Law Professor Joe Daly says he understands Cohen's position, but he considers it unsettling from a constitutional point of view. He says the three branches of government are now intersecting with one another in an area which is clearly legislative turf. Daly likens this constitutional situation to the one that arose in Watergate, "in which the legislative branch, the executive branch and the judicial branch are ordering each other around. And it can become very dangerous when that sort of thing happens; that's why we have three separate and co-equal branches of government," according to Daly.

But the head of the state's employee relations division says Cohen's order was sorely needed. Julian Carter called Cohen's order "a good short-term financial fall back." He says state employees have been living in financial limbo and Cohen's order at least starts the process of knowing who and who won't be funded. "We have been planning for the last few weeks in the event of a government shutdown. Part of that planning has hinged upon getting authorization to continue even critical services. We needed this today and we got it. So it's great," he said.

Under an administration plan released last week, about half of Minnesota's 53,000 state employees would face an interrupted work schedule in the event of a shutdown.