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Lawsuit: Shutdown means stop

Briana Bierschbach//June 17, 2011

Lawsuit: Shutdown means stop

Briana Bierschbach//June 17, 2011

Erick Kaardal says government funding during a shutdown is unconstitutional; he filed a similar case in the 2005 shutdown that was dismissed. (Staff photo: Peter Bartz-Gallagher)

Attorney Erick Kaardal heads to court to argue there can be no spending in a government shutdown

On Monday, yet another legal petition regarding the terms of a state government shutdown is expected to be filed in Ramsey County District Court, and this one makes a very simple case: In the event of a shutdown, priority funding should go to — no one. Nothing gets funded. Any such arrangement is illegal on its face according to the Minnesota Constitution.

The claim is being advanced by Minneapolis attorney Erick Kaardal, who is bringing the action on behalf of four Republican senators and the nonprofit Minnesota Voters Alliance, best known for its pro-voter-ID activism. The legislators are GOP Sens. Warren Limmer, Sean Nienow, Roger Chamberlain and Scott Newman.

Kaardal believes that court supervision of continued government spending is a violation of the separation of powers

as defined in the Minnesota Constitution, which decrees that no money can be spent from the state treasury absent a legislative appropriation.

The argument is a reprise of one Kaardal made in a lawsuit after the partial government shutdown in 2005. At the time, his move enjoyed the support of a slew of GOP legislators, including now-House Speaker Kurt Zellers and Majority Leader Matt Dean. But the case was ultimately dismissed on the grounds that it came too late and had been mooted by the Legislature’s subsequent appropriation of the money already spent during the shutdown.

“It happened in 2001, it happened in 2005, and I told the courts it could happen again,” Kaardal said recently, referring to previous budget stalemates and the plans they generated to keep parts of the government operating in a shutdown. (No shutdown occurred in 2001, but the legal foundations for one had been laid.) Dayton and Attorney General Lori Swanson have each filed separate petitions in Ramsey County District Court in the past week.

“They’ve taken a bad idea and just run with it,” Kaardal said of both those briefs. “Someone has to watch these agencies.”

Bucking the establishment

Kaardal is no stranger to Minnesota politics. The University of Chicago-trained attorney, originally from Redwood Falls, began forging his political connections during his undergraduate days at Harvard, where he started the John Adams debate society. Upon his return to Minnesota, Kaardal became involved with the state Republican Party, both as an activist and as party secretary and treasurer.

He also quickly became emerged in the intricacies of the Constitution and policy law. Kaardal is the founder of and has worked extensively with clients to sue the federal, state and local governments. According to the neopopulism website, the cases generally involve accusations that the government “has violated its authority, the rule of law and common sense.”

“In a lot of these public policy cases, if someone else was doing it, I would just take a pass,” Kaardal said, “but there is so much need.”

In 2002, Kaardal and his law partner, Will Mohrman, took on a case that was appealed all the way to the U.S. Supreme Court. The court ultimately sided with the Minnesota lawyers, ruling that Minnesota’s requirement to keep judicial candidates from discussing political topics was unconstitutional. Since then, Kaardal has teamed up with groups like the Minnesota Majority and the Minnesota Voters Alliance to take on the secretary of state’s office and the DFL caucuses.

Kaardal made local news most recently when he challenged the state’s newly enacted primary seat belt laws in 2010. He represented a driver who was pulled over and cited for not wearing a seat belt. But according to Kaardal, there was still a statute on the books that said a police officer cannot issue a citation unless the driver was stopped for a moving violation. (That case is still on appeal.) Kaardal also represented Citizens for Rule of Law in 2007, which alleged that state legislators violated the Minnesota Constitution by increasing their per diem payments before the next election and without an enacted law. While the per diem challenge failed, Kaardal said he learned more about the institution, and it increased his desire to buck the establishment.

“When you lose, you kind of take it a little harder, but it actually made me notice even more problems and [get] even more excited,” he said. While he has worked in other specialty areas, including Native American law, estate law and intellectual property cases, Kaardal admits his heart lies in the obscure art of statutory interpretation. “You talk to the law school professors, and maybe statutory interpretation isn’t the hot issue, but I think it’s really exciting,” Kaardal said.

Mohrman, Kaardal’s law partner since 2000, said, “He is able to see distinctions in the law that others just don’t see. And they are not distinctions that are stupid or stretching the language.”

2005 lawsuit

In 2005, Kaardal tried to take that a step further and intervene in the budget impasse, an endeavor he admits now “didn’t go all that well.” More than a month after former Gov. Tim Pawlenty and legislators solved the budget deficit and stopped a partial government shutdown, Kaardal, then-House Speaker Steve Sviggum and 12 other House Republicans asked the Supreme Court to resolve whether the courts and the administration exceeded their constitutional authority during the shutdown by spending state money without legislative approval.

But the timing was off. Courts ruled that the legislators and Kaardal should have proceeded before or during the government shutdown and opted not to rule on the merits of the case. Among the plaintiffs in the 2005 case were former Majority Leader Erik Paulsen and former GOP Reps. Paul Kohls, Phil Krinkie and current Rep. Mark Buesgens. (Current plaintiffs Limmer, Nienow and Newman were parties to the 2005 action as well.)

But despite the court’s rebuff, an appellate court in 2007 cited the plaintiffs’ “compelling arguments” and encouraged bringing up the constitutional issue in a timely manner if the question arose again.

This year, the timing will be right, Kaardal says. He is seeking a declaratory judgment that Dayton and Swanson’s proposed course of action is unconstitutional and will ask for accelerated appellate review of the constitutional question.

He is hoping to attract more legislative support for his case after the suit is filed but noted that the GOP legislative majorities seem to be mulling a petition of their own. The Senate Rules Committee passed a procedural motion Thursday that opens the door for a legislative counterfiling. Kaardal said there have been no signs of pressure from the GOP leadership on members not to join his efforts. “I think there’s an understanding that each individual member can make the choice,” he said.

Kaardal said he “feels good” about his chances this year. For one thing, he said, the Constitution is on his side. He further believes that Dayton made a serious error in his filing by calling on the courts to appoint a mediator, which he says is even further outside the realm of their responsibility.

But Hamline University Law School Professor David Schultz said he will be surprised if Kaardal prevails in his efforts this year. First, the 2001 and 2005 decisions show there is broad authority in the Constitution for the state to allow temporary funding, Schultz said, not to mention a need to fund the courts. Second, the U.S. Constitution includes a “supremacy clause” that gives the federal government the authority to force states to comply with funding or certain federal laws.

Kaardal doesn’t completely disagree. He said funding could still be achieved through the federal government or by passing a statute to cover contingencies like the current circumstance. “I am anti-establishment,” he said, “but I’m trying to do it in a good, civilized way.”

There are Democrats who agree with Kaardal’s legal argument, but he will have a hard time getting any of them to join him, as they are likely to put a unified front behind the governor. Rep. Ryan Winkler, DFL-Golden Valley, says Kaardal is right about the limits in the Constitution but adds that he isn’t interested in joining Kaardal’s “crusade.” “I don’t know him, and I’m not interested in joining a conservative crusade against government,” Winkler said. “I don’t really know the purpose and motivations of the people who are joining forces with him.”

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