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Attorney Erick Kaardal says core separation of powers and constitutional questions remain and deserve a resolution.

Attorney: Constitutional challenge to shutdown spending will proceed

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)

The constitutional challenge over state spending during this year’s historic government shutdown is expected to proceed before the state Supreme Court, the lead attorney bringing the lawsuit said Wednesday.

Despite language in the budget bills that retroactively approved the court-ordered spending during the shutdown and vacated the series of court orders that approved it all, attorney Erick Kaardal says the core separation of powers and constitutional questions remain and deserve a resolution.

“We think the issue is still open,” Kaardal told PIM. “One might say, ‘strange times, you get strange remedies.’ They can be strange, but they can’t be unconstitutional.”

The suit argues that any state spending without proper legislative approval is unconstitutional, even if that means a complete government shutdown. A similar case was brought before the Supreme Court in 2005 but was ultimately dismissed, leaving the underlying constitutional questions unresolved. That order, however, welcomed petitioners to bring the suit again if the situation arose.

In Kaardal’s telling, that’s exactly why it’s important to pursue a resolution this time.

“It’s about all the people who think we need a good process,” Kaardal said. “In my view, we clean up this process, we’ll never have a impasse go beyond June 30.”

A hearing is scheduled for next Wednesday, July 27, before the Supreme Court. Kaardal has until Friday to file his final paperwork in the case, while Gov. Mark Dayton and Attorney General Lori Swanson have already made their positions known in separate filings posted earlier this week. See Dayton’s here (pdf) and Swanson’s here (pdf). The League of Minnesota Cities, Coalition of Greater Minnesota Cities and Association of Minnesota Counties are also involved in the suit.

Six Republican senators and two GOP representatives have joined Kaardal in bringing the challenge, including Senate Judiciary Chairman Warren Limmer. Despite a resolution to the shutdown and budget impasse at the Capitol, Kaardal says the lawmakers remain interested in the case and are “in it for the long run.”

Kaardal expects to gain even more backers from the Legislature now that the political implications of a complete government shutdown have been relieved, he said, and will be seeking additional clients in coming days.

“It’s about 2013, it’s about 2015,” Kaardal said. “Everyone would agree, if not now when?”

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