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Sam Hanson, the attorney representing Gov. Mark Dayton in his line-item veto dispute with the Legislature, delivers his oral arguments Aug. 28 before the Minnesota Supreme Court at the Capitol in St. Paul. (AP file photo: Star Tribune)
Sam Hanson, the attorney representing Gov. Mark Dayton in his line-item veto dispute with the Legislature, delivers his oral arguments Aug. 28 before the Minnesota Supreme Court at the Capitol in St. Paul. (AP file photo: Star Tribune)

Report from the Capitol: 2017’s top stories

What else can you say? The year 2017 was one heck of a voyage around the sun.

So why dally? Here are our top stories of the year, direct from the Minnesota Capitol.

Dayton’s vetoes

House Speaker Kurt Daudt, R-Crown, still insists that the Minnesota Supreme Court, in upholding Gov. Mark Dayton’s line-item vetoes, did not rule in Dayton’s favor.

“They simply kicked the can down the road,” he told lobbyists at a Minnesota Government Relations Council forum on Dec. 19.

If so, it seems to have landed in the governor’s court. With a lone, sharp dissent from Justice G. Barry Anderson, the court on Nov. 16 upheld Minnesota governors’ ability to nix a Legislature’s full funding. Justice David Stras was recused.

Daudt, however, has a point: The court withheld judgment on whether Dayton’s vetoes aimed to coerce lawmakers back to the bargaining table. Instead, justices decided the Legislature had money enough to operate into the 2018 legislative session, at which point it could re-pass its budget and resolve the matter politically.

The court thereby skirted legislators’ key constitutional challenge: Did Dayton violate the separation of powers? “They decided not to rule,” Daudt said. “Does that weaken us in the future? I don’t know.”

Dayton has signaled he would sign a “clean” budget bill—one with nothing but the vetoed 2018-19 budget. Daudt and Senate Majority Leader Paul Gazelka, R-Nisswa, both recently expressed confidence that a budget will pass without any more fireworks.

But the intrigue doesn’t end there. The court also ruled the judiciary can no longer authorize temporary funding for critical services during government shutdowns.

That’s a problem, Daudt said, with trust between the legislative and executive branches at such a low ebb. Future legislatures likely never will approve an executive budget bill, he said, unless the Legislature’s budget already bears the governor’s signature.

“That increases the risk of not coming to a final resolution on the budget and potentially coming to a shutdown,” Daudt said in an interview. “And we all know now, that it is much more severe if you have a hard shutdown, because the courts now cannot appropriate money.”

Sexual harassment

In Barbara Tuchman’s classic 14th century history, “A Distant Mirror,” she tells a tale of sexual misconduct dismissed by paternal authority’s sickeningly familiar wink.

Italians hated the French in the 1300s, and their animus increased with the presence of a French pope and his abbots. One day an abbot’s nephew took a shine to a gentleman’s wife and decided to take with force what she would not offer freely. Attempting to escape through a window, she fell and died. Responding to the outraged townsfolk, his uncle smirked: “Did you suppose all Frenchman are eunuchs?”

Obviously, sexual misconduct has not vanished with time. But in 2017, dismissive responses to harassment, like that of the abbot, shuddered to a halt with startling force.

In Minnesota, sexual-harassment allegation casualties included U.S. Sen. Al Franken; state Sen. Dan Schoen, DFL-St. Paul Park; and Rep. Tony Cornish, R-Vernon Center, chair of the House Public Safety committee. The legislators resigned in December. Franken will step down Jan. 2.

Two responses to the crisis are being batted around at the Capitol.

Rep. John Lesch, DFL-St. Paul, and Rep. Marion O’Neill, R-Maple Lake, propose House rule changes that would put sexual harassment complaints on a fast track to House Ethics Committee investigations. Sen. Jeff Hayden, DFL-Minneapolis, is tossing around a semi-independent ombudsman’s office to take in complaints and investigate cases. It is not known if either or both will move forward.

Still, legislative leaders agree that resolving the crisis is top-of-mind for 2018. House Minority Leader Melissa Hortman, DFL-Brooklyn Park, said on Dec. 19 that it will be “the closest area of collaboration” between Democrats and Republicans in the coming session.

Protester bills

John Thompson, friend of slain motorist Philando Castile, testifies before the House Public Safety Security Policy and Finance Committee on Feb. 22. The committee passed two bills that day that would make blocking freeways during political protests a gross misdemeanor. (File photo: Kevin Featherly)

John Thompson, friend of slain motorist Philando Castile, testifies before the House Public Safety Security Policy and Finance Committee on Feb. 22. The committee passed two bills that day that would make blocking freeways during political protests a gross misdemeanor. (File photo: Kevin Featherly)

John Thompson’s howl spoke volumes about the fight over two GOP House bills, which aimed to increasing punishments of political protesters who block highways and disrupt public transit.

“This is nothing but white supremacy in our face!” Thompson screamed at lawmakers on Feb. 22, after both bills passed the House Public Safety committee with identical 10-6 party line votes. “If you want us to stop protesting, sir, stop giving us a reason to protest!”

Thompson was friend and workmate to Philando Castile, the school lunchroom manager killed by a St. Anthony police officer, Jeronimo Yanez, after Castile got pulled over for a broken taillight on July 7, 2016. The killing sparked nationwide protests, including a dangerous clash between police and protesters on Interstate 35W in St. Paul.

House File 390 was authored by Rep. Nick Zerwas, R-Elk River. Its counterpart, House File 1066, was authored by Rep. Kathy Lohmer, R-Stillwater. Both made blocking access to major transit ways gross misdemeanors rather than simple misdemeanors. First Amendment expert Marie Failinger, told Minnesota Lawyer the measures likely would withstand constitutional challenges, had they passed.

They didn’t. Zerwas’ bill got all the way to the Public Safety-Judiciary conference committee late in the 2017 regular session, but was traded away at the last minute to preserve the GOP’s undocumented-immigrant driver’s license ban. Zerwas said in June that he had assurances from Daudt that his protester bill would get a hearing early in 2018.

In a poignant coda to the story, Yanez was acquitted of Castile’s killing on June 16.

Marr v. Stearns

What do you get when a sitting U.S. senator resigns and a governor wants to promote his lieutenant to the U.S. Capitol? A mess, obviously, but you get more than that. You also get a wacky history lesson.

The mess comes from the Constitution’s line of succession—the rationale for which seems to have faded in the mists of time. It says that the Senate president must replace the lieutenant governor whenever a vacancy occurs in the latter office.

In the present case, Lt. Gov. Tina Smith is set to replace U.S. Sen. Al Franken on Jan. 3. Senate President Michelle Fischbach, R-Paynesville, is set to replace her in the governor’s suite. Fischbach says she will do that, but will keep her Senate seat, too. Gov. Mark Dayton says that won’t work.

Several constitutional amendments from half a century ago suggest that she probably can’t. Fischbach has countered with an 1898 Minnesota Supreme Court case, Marr v. Stearns, which apparently says she can.

The lesson of that case is too long to recount. (See a full rundown here.) Suffice it to say that it involved an angry agri-populist from Aitken County who wanted the rail barons of the day to pay their fair share of property taxes. Not your typical latter-day Republican cause.

Contrary opinions on who is right—one from the nonpartisan Senate Counsel Thomas Bottern supporting Fischbach; the other from Attorney General Lori Swanson supporting Dayton—have been issued. For now, the issue is in suspended animation.

We may know as soon as Wednesday what happens next. Senate Majority Leader Paul Gazelka, R-Nisswa, said recently that Minority Leader Tom Bakk, DFL-Cook, would file a lawsuit immediately if Smith ascends to the U.S. Senate on Jan. 3 with Fischbach still clinging to her legislative seat.

Get your popcorn ready.

Disappearing law library bill

First it appeared. Then it disappeared. Then it appeared and disappeared again—only to be resurrected, in secret. That’s when Gov. Mark Dayton finally signed it. Twice.

It was a lot of fuss over a little bill. Rep. Nick Zerwas, R-Elk River, wrote House File 1380 to help Sherburne County officials clear a statutory impediment so some library funds could be diverted to help pay for the county’s new courthouse and law library.

State law librarians were less than charmed. Though provisions were in place to insure that library coffers never got drained, they sensed a backdoor passage for any county to raid library fees for construction projects. Indeed, in its first incarnation, the bill had statewide scope.

Librarians marshaled forces. Though the bill passed, Gov. Mark Dayton was convinced to veto it. A later attempt by Sen. Mary Kiffmeyer, R-Big Lake, to resurrect it wilted on the Senate floor. It appeared dead. Not so much.

It was revived in backroom negotiations at the tail end of the regular session, its scope now limited to Sherburne County. Added into the public safety omnibus bill, it cleared both chambers, but Dayton delayed signing it. Later, in frantic special-session negotiations, identical language was inserted into the government operations bill—the one notorious for containing the Legislature’s vetoed budget.

On May 30, Dayton signed both the public safety bill and the state government finance bill—minus the lawmakers’ money. The little-noticed law-library provision had been embedded in both. It was so nice, in other words, the governor signed it twice.

Real ID


In 2017, the Legislature approved Real ID, a set of post-9/11 federal standards that driver’s licenses must meet for card bearers to access federal and military installations and—as of 2020—commercial flights.

For much of the last session, the bill was controversial. House leaders insisted it include a statutory ban on undocumented immigrant driver’s licenses. When similar language got slipped into the Senate version, it was defeated on March 6. Its fate was in limbo.

In conference committee toward the end of session, however, the immigrant provisions were removed and the bill passed both houses. Dayton signed it May 18. (The driver’s license language re-emerged, however, as part of the public safety-judiciary omnibus bill, which was approved by both chambers and later signed by a chagrined Dayton.)

The U.S. Department of Homeland Security has granted a formal extension, through October 10, 2018, for Minnesota to finish rolling out Real ID.

Dayton, Gildea fight for the judiciary

A DFL governor and a GOP-appointed Supreme Court chief justice might seem a strange alliance. But when it came to fighting for judiciary funding, Mark Dayton and Lorie Gildea stood shoulder to shoulder, in a common corner of the ring.

In January, Chief Justice Gildea submitted a $51.4 million Judicial Branch budget increase request. It included additional money for treatment courts ($3.38 million), psychological exams and interpreters ($2.33 million), cybersecurity ($1.98 million) and salaries ($42.0 million), among other things. For the first time in a decade, it also sought funds for two new District Court judgeships.

Dayton threw all of it into his Jan. 24 biennial budget pitch. The GOP-led legislative chambers, however, were not game to go along. As finance measures rolled through committees, budget-conscious Republicans either fractionally funded or turned down many of Gildea’s requests.

Demonstrating her resolve, Gildea made a precedent-busting April 20 appearance before the Public Safety-Judiciary conference committee to argue for full funding.

“The judiciary is not a mere state agency,” Gildea said. “The judiciary is a branch of government and it deserves to be funded as such.”

Dayton had her back. At an April 7 press conference, he had vowed to fight for the full $51.4 million increase. As the regular session staggered to a close in late May, he kept his word. Though Dayton compromised with GOP lawmakers on some budget areas, including areas of public safety, for an extended time in the closing weeks, he refused to back down on judiciary funding.

In the end, Dayton did compromise. Gildea’s request, which had included a 3.5 percent per year salary increase for judges and judicial employees, was pared back. She received a $39.8 million budget boost with 2.5 percent per year salary raises. Her $1.7 million request for two new judges in the 7th and 9th judicial districts was approved.

The bill containing the judiciary’s funding passed its final legislative hurdle, a 46-21 Senate vote, on May 22. Dayton signed it on May 30.

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