MN Supreme Court seems skeptical of House GOP’s separation of powers argument

ST PAUL — The Minnesota Supreme Court on Thursday, Jan. 23, appeared skeptical of House Republicans’ argument that the judiciary should stay out of the workings of the Minnesota House.

The six justices hearing the high-stakes case that could determine control of the Minnesota House seemed poised to issue a ruling that would answer a key question: How many House members must be physically present at the Capitol to legally conduct business?

Minnesota House Democrats and Minnesota Secretary of State Steve Simon are suing House Republicans and asking the Supreme Court to find that Republicans aren’t able to elect a speaker or conduct any other business without 68 members present. On the first day of session, Jan. 14, all 66 House Democrats boycotted the session — and have stayed away from the Capitol since — to prevent Republicans from taking control of the chamber.

Simon was the legally prescribed presiding officer on Jan. 14; he ruled that there was no quorum — or the minimum number of members present needed for a legislative chamber to conduct business — and adjourned the session.

Republicans argue that 67 members constitutes a quorum because one seat is vacant. As of now, there are 133 House members, so Republicans argue that 67 members is a quorum.

Attorney Nicolas Nelson, on behalf of House Republicans, spent the majority of his 25 minutes during Thursday’s oral arguments telling the justices — minus associate Justice Karl Procaccini, who recused himself from the oral arguments and won’t be involved in the ruling — that there was no reason for them to get involved in the matter because of the principle of separation of powers.

“Judicial power includes reviewing the validity of statutes. It does not include reviewing the Legislature’s organization of itself or the Legislature’s leadership choices,” Nelson told the justices. “That is the legislative power which our Constitution vests in the Legislature, not in the judiciary.”

The justices, all of whom were appointed by Democratic governors, repeatedly interrupted and rebutted him.

Chief Justice Natalie Hudson noted that the court has ruled on issues of urgency involving the Legislature before and questioned Nelson about why the court wouldn’t get involved now.

“If this isn’t a case where there is an urgency … to step in, what would be?” Hudson asked. “Because what we have is a co-equal branch of government that is completely dysfunctional, that is not doing the will and the work of the people of Minnesota. Isn’t that an instance where, if not the judicial branch, who? Who steps in to resolve that?”

The quorum question

Nelson wasn’t the only attorney to face tough questioning from the court. The justices interrogated Minnesota Solicitor General Liz Kramer, who was representing Simon, about why the court should not apply relevant precedent.

The justices asked about the 1935 case Peterson v. Hoppe, in which the Supreme Court ruled that a majority should be calculated based on the membership of a body that exists after a vacancy.

That precedent could be important because Republicans say a current majority needed to meet quorum is 67 out of 133 — as opposed the usual 134 House members — because of the vacancy in House District 40B. That district has been vacant since a judge ruled Curtis Johnson didn’t meet the residency requirement and he stepped down.

“What do we do with Peterson in particular and precedent along those lines that really seem to undercut the (House DFL and Simon’s) position?” Hudson questioned.

Kramer replied that the Peterson case had to do with the Minneapolis City Charter and a vacancy on the City Council and is unrelated to the Minnesota Constitution.

After Kramer, attorney David Zoll spoke and answered questions on behalf of House Democrats. The justices asked him whether Democrats brought this issue on themselves when they refused to show up to the Capitol.

“Is there argument that the conduct of your clients somehow brings them to this court with unclean hands?” Associate Justice Theodora Gaïtas asked Zoll.

Zoll replied: “It does not. The decision to deny a quorum by the DFL caucus is not an unlawful action. It is not unfair. It’s not unjust. It is a decision that they made in order to ensure that when the House is duly organized, it represents the will of Minnesota voters.”

The justices then questioned whether a ruling from them would solve the dispute, and Gaïtas said the quorum issue could be resolved if Democrats decided to return to the House.

“We have to consider whether we can provide redress for the problem that’s been created,” she said.

Zoll said that if the court rules in their favor and declares that everything House Republicans have done for the last two weeks is invalid, Simon would return to the chamber and declare an absence of quorum until Democrats returned.

“So that could go on day after day after day. Is that right?” Hudson said.

“Your honor, that is how the Minnesota Constitution is set up,” Zoll replied.

Although Nelson spent the majority of his allotted time addressing the separation of powers issue, Associate Justice Anne McKeig asked Nelson a hypothetical to get to the bottom of his quorum argument:

“There was a snowstorm … and nobody in northern Minnesota and no representatives in southern Minnesota can make it in. And so there are 67 members within the Twin Cities who show up. Can they transact business?”

“Yes, those 67 could transact business. They could do things like create committees, elect leadership, schedule readings on bills … that sort of thing,” Nelson said.

Given the urgency of the situation and speed with which oral arguments followed filings, the court is expected to issue an expedited ruling.

Minnesota Reformer is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Minnesota Reformer maintains editorial independence. Contact Editor J. Patrick Coolican for questions: info@minnesotareformer.com.