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Court weighs budget dispute; judge reluctant to make shutdown spending decisions

ST. PAUL -- The courts are not equipped to make state spending decisions, a judge said on Thursday while hearing testimony asking her to do just that if July 1 arrives without a budget in place.

"The courts have been drug into this," Chief Judge Kathleen Gearin of Ramsey County said. "We will do our best."

Gearin, calling the situation a "constitutional crisis," said she likely will rule early next week on whether she will establish a procedure to keep some state programs funded if Gov. Mark Dayton and legislators cannot agree on a budget before a week from today. If there is no budget, most state departments will have no money to spend and a government shutdown would begin.

Even if she allows the state to spend money without a budget, Gearin made it clear the authority would be limited.

During a six-hour hearing, Gearin lectured the governor and lawmakers to complete a budget before July 1 because "we are in a horrible, horrible dilemma."

Attorney General Lori Swanson asked Gearin to allow state officials to decide what programs are so critical that they would continue to be funded. Through his attorney, Dayton told Gearin that he does not need court action; he would make decisions about what to fund on his own, although Dayton also sent a list of suggested programs to remain open.

The Republican-controlled Senate, meanwhile, argued that the courts have no authority to make spending decisions because that is something reserved for the Legislature.

"This is as serious as it gets," Gearin said.

The judge said the 2011 crisis is far different from one in 2001, when a budget was passed at the last minute, and another 2005, when there was a partial government shutdown but many agencies already were funded.

"It is far more extensive," Gearin said. "It is far more serious. ... There never has been such an important impasse."

After former Attorney General Mike Hatch argued in favor of the Minnesota Zoo receiving continued state funding, Gearin said she understood the situation.

"It is real people there who will be losing jobs," she said, but later added that she cannot use that as criteria for allowing funding to continue.

"Is it a core function of government?" she said is the question that would need to be answered, not "whether people will be hurt."

Much of the discussion has revolved around the 2005 solution, when a judge appointed a "special master" to decide what would be funded even without a budget. Several times during the hearing, Gearin brought up the special master concept, but said that if she appoints one it "will have far more restrictive duties."

The judge said that courts do not have needed background to make spending decisions, but legislators and the governor's staff do.

"We can't become the legislative branch, we can't become the executive branch," Gearin said.

High-level meetings for weeks have failed to produce any budget agreement.

Republicans say they will agree to no overall state budget for the two years beginning July 1 that spends more than $34 billion. They also refuse to consider tax increases.

Democrat Dayton wants to spend $35.8 billion, with a $1.8 billion tax increase on the best earning 2 percent of Minnesotans.

The two sides also disagree about how to spend money.

The Republican-controlled Legislature passed its budget before the Legislature adjourned May 23, but Dayton vetoed all but agriculture spending. Dayton said he will call lawmakers back into session if a complete budget deal is completed.

Swanson asked the courts to allow top state officials to decide what is critical enough to continue operating during a shutdown. Dayton told the courts he would make such spending decisions on his own and does not need court approval.

"A single sentence ... does not trump the other protections," Swanson said of the constitutional provision that requires legislators to approve all state spending.

David Lillehaug, representing Dayton, told Gearin that the courts do not have the authority to order spending.

Lillehaug said Dayton fears the court "could become a super Legislature or super governor" if it takes over spending decisions. The attorney said Dayton can take actions to keep critical parts of state government operating in lieu of a budget.

Former Chief Justice Eric Magnuson, representing the House, told Gearin not to decide "what essentially is a political discussion."

Gearin admitted that whatever she decides could be appealed to the state Appeals Court or Supreme Court.

"I know I am a way station on the way to appellate courts," she said.

Gearin said the public is interested in what happens with the budget and urged Dayton and legislators to continue their talks.

The judge said that Dayton and legislators have "responsibility to resolve this constitutional crisis."

Gearin told lawyers representing Dayton and legislators: "The people want them to keep talking. Please keep talking."

Don Davis reports for Forum Communications Co., which owns the Bemidji Pioneer.