Minnesota courts may get final say in government’s constitutional clash

Minnesota’s government is awash in litigation — against itself.

A power struggle at the state Capitol has the legislative and executive branches tied up in the third, the judicial branch. The path forward is murky, and the whole ordeal has some wondering if Minnesota’s reputation for good governance is at stake.

And given the timing, where two key court cases won’t be fully aired until late next week, this clash could last awhile.

Partisan bickering is nothing new at the Capitol. But this year constitutional challenges are at play, and each threatens its own potential domino effect.

“It is fairly unusual to see all three branches involved in partisan politics trying to sort through some sort of political morass,” said Peter Larsen, an assistant professor at the Mitchell Hamline School of Law.

But Larsen said fighting among political parties goes way back, even to Minnesota’s constitutional convention in 1857. Republicans and Democrats couldn’t even agree to meet together, so they held separate conventions.

“We’ve always seen partisanship and polarization being a part of the process,” Larsen said. “Sometimes the courts play a role in trying to sort through that, and sometimes they don’t.”

This year’s session got off to a bumpy start on Tuesday. Secretary of State Steve Simon adjourned the House, ruling that there weren’t enough members present for a quorum after DFLers decided to boycott. 

Republicans chose to ignore his ruling, carrying on in a half-empty House chamber and electing Lisa Demuth as their speaker. Rep. Harry Niska, a GOP leader, argued Simon was overstepping his legal authority.

“The Legislature gets to decide what its quorum rules are going to be. The Legislature gets to decide what its internal rules are going to be. The Legislature gets to decide who its presiding officers are going to be,” Niska said. “The secretary of state doesn’t get to control that.” 

While that scenario hasn’t happened before in Minnesota, Larsen said there are other examples of conflicts between the political branches, as recently as 2017. The state Senate challenged then-Gov. Mark Dayton’s line-item veto of the Legislature’s operating budget, which the Minnesota Supreme Court upheld. 

Larsen said the state’s Constitution provides a pretty robust system of checks and balances.

“The idea is each of those branches is able to exercise their powers independently, but that if they step too far over the line, that the other branches are able to step in and do a course correct,” he said.

Often that means seeking clarity from the courts, as both parties are now doing to resolve the standoff.

Although it feels like chaotic, uncharted territory, Minnesota isn’t the first state where lawmakers have used the political strategy of not showing up.

“There’s a number of times in our history where members of the state Legislature have decided to leave the proceedings in their state capitols in order to deny a quorum,” said Jonathan Hanson, a lecturer at the University of Michigan’s Gerald R. Ford School of Public Policy. 

Hanson said it’s happened most commonly in Texas, Oregon and Indiana, states that require two-thirds of the legislative body to be present for a quorum. In some cases, governors have gotten involved, and even used law enforcement to compel recalcitrant legislators to return, he said.

What’s rare is for one party to plow ahead in defiance of the secretary of state’s ruling, said Devin Driscoll, an adjunct professor who teaches state constitutional law at the University of Minnesota Law School and a senior associate at the Minneapolis law firm Fredrikson and Byron.

“That felt like a particularly unprecedented step in Minnesota and across the country,” he said.

Still, Driscoll said it isn’t necessarily a constitutional crisis. He said constitutions are designed to be flexible, with space to resolve differences.

“We want the political branches, ideally, to be working things out among themselves,” Driscoll said. “The court should be a place of last resort to sort out these questions. But ultimately, when the parties can’t come to a resolution, that’s the appropriate time to go seek clarification from the Supreme Court.”

Simon and House Democrats have asked the state Supreme Court to weigh in and rule Republicans’ move to convene and elect a speaker as unlawful. Republicans say they’ll defend the House from what they view as an attack on the separation of powers. 

The Supreme Court issued an order that sets the timing for all sides to submit written arguments by the middle of next week. A hearing where justices can question attorneys is scheduled for Jan. 23. That means no resolution in the courts is expected before then.

So if things are going to get sorted out sooner, that’ll be up to the feuding factions in the House and the executive branch.

DFL House Leader Melissa Hortman on Thursday released details of her party’s proposed power-sharing agreement, which she says remains on the table. Hortman sent Demuth a letter asking her to accept it or present a counteroffer.

Simon is represented by the attorney general’s office, meaning taxpayers are footing the bill. House Republicans authorized the chamber to pick up the fees to hire private counsel. House Democrats say they’ll use campaign funds to pay their lawyers.

The state Republican Party is also suing Gov. Tim Walz over his decision to quickly call a special election to fill a now-vacant House seat. Taxpayers will be on the hook for legal fees for that as well. The Minnesota Supreme Court will decide that dispute soon.

Mitchell Hamline’s Larsen said he doesn’t think the current conflict is a sign that Minnesota’s reputation for good governance is slipping, and expects the courts will be neutral arbiters of the law. He noted that Minnesota’s 1857 convention resulted in physical blows.

“Until we get to that point, I don’t think that we can say that we’ve reached the worst of Minnesota politics,” Larsen said.

Correction (Jan. 16, 2025): An earlier version of this story misspelled the name of the law firm Fredrikson and Byron. The above story has been corrected.