Presiding judge in shutdown case offers up post-mortem
Since before the state government shutdown even began, it was clear where the impasse was headed if neither governor nor Legislature blinked: straight to the courtroom of Ramsey County District Court Chief Judge Kathleen Gearin.
Gearin is no stranger to cases involving high political stakes. In recent years she has overseen the legal fallout from the Republican National Convention, the Franken-Coleman recount and the Tim Pawlenty unallotment case. But the 20-day shutdown of 2011 would ultimately become what Gearin now calls “one of the hardest things I’ve done.”
“I think I’ve had the chief judgeship from hell,” she told Capitol Report in a wide-ranging interview on Thursday, a day after Gov. Mark Dayton signed the budget bills that ended the shutdown. “I guess I didn’t want to believe that this would happen also, but it did.”
Looking back on the ordeal that spanned more than a month, brought hundreds of court documents to her office and focused the attention of thousands of Minnesotans on her courtroom, Gearin offered up her thoughts not only on the judicial philosophy that guided her decisions but also the political stalemate that brought the Capitol’s budget battle to her courtroom in the first place.
“I kind of really didn’t think it would happen,” Gearin recalled thinking about a possible shutdown. “It was in the back of my head, and it was worrying me a little bit, but I thought, they won’t do this. This is too much.”
Capitol Report: You said a lot of things from the bench that underscored your frustration with being cast in the role of arbiter on the entire state budget. I’m curious to know your thoughts on how you came to be in that position, and why more and more courts in Minnesota and elsewhere are getting drawn into budget-making decisions that have traditionally been settled between the other two branches of government.
Kathleen Gearin: I know any judge faced with this situation would be frustrated. The reason we have the frustration, as it was stated in the Sviggum case [a 2007 appellate case challenging the court-ordered spending in the 2005 government shutdown], is that it’s the executive branch and the legislative branches that have the ‘institutional competency’ to deal with these complex budget issues.
The statutes are extremely complicated. There are some budget issues that involve federal programs, and there’s a difference between ones that seem to fall under the supremacy clause, the ones that are just pass-through funds that the state barely touches, and some federal programs that have matching funds. In some programs almost all the funds are state, but there are some federal funds. Some are federal grants that have to be administered by state employees — the decisions as to who gets them [as well as] the auditing and management of those funds. That’s one example of the complexity.
These things have developed over years from the executive branch and the legislative branch. Those people are the experts in the area. I know every year there are new legislators, but they’ve got staff who are experienced and there are always legislators that are re-elected, so they get years and years of experience … What you’ve got is a judge trying to develop instantly the competency, the familiarity of the Legislature and the executive branch and the commissioners and the experienced managers as to how these funds are to be distributed and which programs are really critical.
That should be a legislative decision, unless it’s something like prisons, which comes out of the Eighth Amendment. That’s no problem; I think that’s all right for judges, deciding at which point it’s cruel and unusual punishment to have somebody in a locked facility without adequate services.
But how much staff is needed to operate a prison? That shouldn’t be a judicial function. How much funding should go to which social service programs? Which ones are critical, and which ones aren’t? That’s really a legislative and executive branch function.
Plus, I really believe [Article 11 of] the Minnesota Constitution means that a judge should act very, very cautiously in these areas, because it says [state spending is] supposed to be legislatively appropriated. Now, if the Legislature doesn’t, we get into other legal arguments and the Supreme Court will ultimately determine that. [Editor’s note: A strict-constructionist argument against court-ordered state spending in a government shutdown, brought by attorney Erick Kaardal on behalf of six Republican legislators, will be heard by the Minnesota Supreme Court on Wednesday.]
CR: What does it mean for our system of government that the courts are becoming more involved in budgeting?
Gearin: I think it’s a negative. We shouldn’t be involved in budgeting. Obviously, it means that our political system is becoming more and more divisive. It’s easy to say people are becoming less willing to compromise. Compromise doesn’t mean you give up your principles. Compromise to me means you realistically look at your position, one, see how realistic it is that it can succeed at this time. You don’t give up your position. And then you look at, all right, if I hold my position, how much is it going to hurt the state if I just stick with my position? How much should I basically reach some common agreement that isn’t exactly what I wanted, what either side wanted? I think people have lost sight of the effect of their decisions on average citizens who don’t pay much attention to government.
I’m afraid that what’s happened [is that] the people who aren’t really politically sophisticated have already become skeptical of government. I’m afraid there’s an attitude growing not just in the state but in the country where the skepticism, the cynicism that government is going to be harmful, is harmful to our country…. I worry about the cynicism, and I think some of the politicians that we’re electing today — at every level — are feeding on that cynicism. There’s a difference, to me, between cynicism and fighting for your beliefs.
CR: You made it clear that you believed courts did not belong in the middle of this fight. Yet you also authorized certain amounts of state spending. Do you worry that by keeping state government functioning in these situations, you’re empowering future Legislatures and governors to keep coming back to this kind of brinksmanship?
Gearin: Yes, I guess I’d have to say I fear that. I wish that the legislators who weren’t involved in all the [budget] negotiations could have gone and sat in front of Justice [Kathleen] Blatz or been in my courtroom to hear these individuals and these businesses and nonprofits. I wish they could have heard and seen the loggers in my courtroom in their jeans and T-shirts talking about how [the shutdown] was destroying their generations-held family businesses in places like Koochaching [County].
I don’t know that they really understand all of the damage that this shutdown was doing to just average people. I don’t think they really did. And I wish they could have heard.
CR: Obviously, you had a different approach to the special master role and the question of funding this time around than was taken in 2005. Why was that?
Gearin: I think there’s two reasons. The biggest one was that when I read the Sviggum case, that was a well-written decision. And I read it [to mean] that the appellate court was basically cautioning the trial court to really strictly interpret [the Minnesota Constitution] and strictly use the power we have to decide what is critical to be funded and not. That’s one thing.
Another [factor] is that I had a far broader area of funding issues to determine than the last judge. I mean, almost all the major funding bills in 2005 had already been passed and signed.
I chose Justice Blatz [as special master] knowing that her way of looking at it would be more like mine. I’ve dealt with her in the past. We aren’t close friends, but I have a great deal of respect for her. I thought she would take kind of a cautious approach, and I didn’t want to appoint somebody where I would not approve of most of their recommendations. I wanted somebody who agreed with my viewpoint that the court should proceed very cautiously and we should almost start with the assumption that this shouldn’t be funded unless you can prove where it falls into either a critical core function, the supremacy clause, already appropriated or some other constitutional provision.
Other than that, I am uncomfortable with the courts being involved in this situation. Obviously, I made the decision that I felt that I had the authority to [make] — that the petition of the attorney general should be granted at least in part. And that was my decision, but it doesn’t mean I’m comfortable with it, doesn’t mean I like it, doesn’t mean that I think it’s the best way for government to operate.
CR: You frequently exhorted attorneys for the Legislature and the governor to keep their clients talking. I’m curious to know why you chose to do that and whether you were trying to pressure some of the actors up there on the hill to get moving.
Gearin: I don’t know about pressure. I was certainly taking every chance I had to urge them to do their jobs. Because they’re better at it than the courts.
The other thing is, you’ve got to remember that I’m sitting there, faced far more than they were with the day-to-day agony of people in the state because they couldn’t operate their businesses, they couldn’t get their licenses, they couldn’t continue with programs that they believed were absolutely essential for vulnerable people. I was faced, and so was Justice Blatz, with the day-to-day pain of people and sometimes the frustration of the public at how certain funding schemes or licensing schemes seemed ridiculous.
I felt a lot of pressure, and Justice Blatz did, too. We usually talked at night on the phone, and we both felt enormous pressure. There were things that I would love to have approved. For example, on the battered women issues or the domestic abuse victims and the sexual offense services issues, I know how needy the people are who are going through that. I know a lot of these victims have families, kids they’re trying to take care of, and how hard that period in their lives is.
At least as hard, and sometimes even harder, were the business things. I just hated the decisions I had to make on that. I think of the loggers, I think of the mining companies, the small bar owners. These people don’t know if they’re going to be able to keep their businesses going, and it was example after example.
Whether we spend all these funds on social service issues, whether we require certain licensing provisions or permits and how much supervision they actually need — that’s not our job to determine. My job was to determine, should I order the DNR to bring back enough people to either give new permits or regulate the permits they’ve already given for lumber? Should I order the Pollution Control Agency to hire back enough people so that these mining companies could expand so there’d be more jobs on the Iron Range?
I can’t, I can’t do it. Did it make me feel bad? Yeah, it did a lot. It was a really stressful period. Not once did I go home thinking, ‘Wow, this was a good day.’
CR: Any other thoughts on this month-long ordeal?
Gearin: I kind of really didn’t think it would happen. I’m staring right now at the wall, where I put this [January 2011 Capitol Report] article that refers to me as “The Decider.” I was laughing about it, but I thought, well, if it comes, it comes. Since that article, it was in the back of my head and worrying me, but I thought, they won’t do this. This is too much.
You know, the bloggers have both Blatz and me as leftists, and I’m laughing. Blatz was a Republican legislator. They have us both appointed by Democrats, too, and neither of us were, so that was good.
But, you know, what would be the last reflection on the thing? I think I’ve had the chief judgeship from hell. The RNC. The Franken-Coleman [recount]. The unallotment. And I guess I didn’t want to believe that this would happen also, but it did.
It’s one of the hardest things I’ve done. And do I know that I’m right? I made the decision I made. There are people who think I should have totally denied the attorney general’s petition. The governor does, because he thinks he should have been making the [spending] decisions as I read his brief — that’s an interesting position. That certainly gives an awful lot of power to the governor. And I think those Republican senators who are at the Supreme Court think I shouldn’t have [ordered any state spending to proceed] because it would have forced a compromise or because [Article 11 of the Minnesota Constitution] should have been interpreted even more strictly than I did.
But let’s just say: People can disagree with my decisions, but I feel all right about the job I did. I don’t feel ecstatic, but I feel all right about it. I did as good a job as I could do given the time, given the complexity, given the number of issues I had to deal with so quickly, given the passion of the people involved in these issues, given the constant public scrutiny. I gave it the best effort I could, the best analysis I’m capable of, and I felt that I rose to the occasion judge-wise. I know some people think differently.
And it’s brought me a lot more public scrutiny than I have ever wanted in my life. That’s it. I’m happy it’s done.