State Supreme Court weighs what to do about ‘dysfunctional’ Minnesota House

Minnesota’s highest court heard oral arguments Thursday around a pair of cases challenging the legitimacy of legislative sessions involving only House Republicans, who have taken chamber control as Democrats hold out.

“This is a highly unusual situation we find ourselves in,” Justice Anne McKeig said during early questioning of attorneys. Chief Justice Natalie Hudson said both sides in the dispute had brought forward “reasonable” arguments.

Hudson characterized the turmoil as trying to settle a question for a “branch of government that is completely dysfunctional, that is not doing the will and the work of the people of Minnesota.”

House DFLers along with DFL Secretary of State Steve Simon argue GOP leaders overstepped their authority when they brought the chamber to order last week with only 67 members present — all Republicans — rather than the 68 historically needed to conduct business.

GOP members said they did have a majority since one legislative seat in the 134-member body remained undecided, so 67 would be a quorum with 133 members. They turned aside Simon’s protests and elected Republican Leader Lisa Demuth, R-Cold Spring, as House speaker.

Kicking off oral arguments Thursday, Minnesota Solicitor General Liz Kramer, appearing on behalf of Simon, told justices the case comes down to “five words in the Constitution: ‘a majority of each house.’”

She added, “The question is whether a vacancy in either House reduces the number necessary for a quorum, or whether the quorum number is static. Quorum does not change with vacancies in Minnesota.”

David Zoll, an attorney for the House DFL, said needing 68 seats to do business ensures that “at least a majority of Minnesotans are represented in the House chamber” before any important business happens. Each member represents a roughly equal number of constituents.

Nicholas Nelson, the attorney for House Republicans, countered that Democrats were asking for an unprecedented separation-of-powers breach by having the courts intervene.

By boycotting the session, Democrats are “refusing to participate in the legislative process that they were elected to, and Secretary Simon is actively or at least purporting to actively prevent the House from exercising its constitutional authority to determine the presence of a quorum,” Nelson said.

Interestingly, there was no dispute among attorneys or justices that it takes 68 votes to pass a bill in the Minnesota House. The question to be settled then is whether Republicans had the power to choose Demuth as House speaker with 67 votes.

As the justices weigh matters of control and constitutional authority, here’s a more detailed breakdown of the issues.

1) What’s the issue?

Simon and House Democratic leaders argue that Republicans had no ground to overrule the secretary of state and move forward with House business with 67 members present. 

Democrats say there needs to be 68 members in the chamber — a majority in the 134-member body — to convene and do work. Republicans argue they have that majority with 67 votes since there is currently one seat vacant.

Democrats and Republicans came out of the November election tied 67-67 but Democrats lost a prospective member to a residency challenge. 

Republicans argue that a one-vote edge, even if temporary, makes them a majority party. Democrats have disagreed and urged them to enter a power-sharing agreement to share governance, have equal committee membership and require cooperation to advance just about anything. They say that would make them feel comfortable returning to St. Paul.

A special election for that vacant seat was postponed following a court ruling last week. It might not be rescheduled until March, but that’s up to Gov. Tim Walz for now.

Chamber leadership is significant because it determines what gets priority in terms of policy and can give a party additional leverage. Also, if the GOP organizational moves stand, it is possible that will be the structure for the next two years.

2) What do Democrats want the court to do?

The DFL-filed petitions seek to have the Republican moves nullified. They also request that justices block Republicans from taking any further action until the House convenes with 68 members present.

While the cases have been jointly scheduled for Supreme Court consideration, the Simon petition is a tad different. It argues that as secretary of state he had a constitutional duty to preside in the House until the proper organizational steps were taken. His attorneys cited a Supreme Court ruling last week that canceled a special election. Republicans have said they would block him from the chamber if he tried to preside there.

3) How do Republicans respond?

Describing high court intervention as an “attempt at a hostile takeover of the House,” GOP attorneys want the justices to reject the arguments and let the Legislature continue to operate free of intervention from the other branches of government. 

They say the Legislature has authority over its members and its actions that shouldn’t be limited by the courts and stressed their own reading of a quorum. Because of the empty seat, they say the House membership is at 133 right now, meaning the threshold for the meeting rule is lower than the typical 68.

4) What’s the timetable for a decision?

There isn’t one. The Supreme Court operates on its own timetable, sometimes taking days and other times months to decide cases.

But in matters where there is urgency, justices do tend to move faster. They often hand down a cursory ruling within days and follow it up with a detailed explanation months later.

Because the operation of a branch of government is in doubt, expect a faster ruling here.

The range of possibilities — from a full dismissal of legal challenges to a ruling in favor of petitions to something in the middle — leave a lot of room to work.

5) Who is on the court?

There are seven justices on the Minnesota Supreme Court. All were appointed by Democratic governors, but that shouldn’t be seen as a proxy for how they might rule. Just last week, the high court struck down a special election scheduled by Walz, a fellow DFLer.

If there is one to watch, it’s Associate Justice Paul Thissen.

Prior to his appointment to the Supreme Court, Thissen served in the Legislature. He had stints as both minority leader and House speaker during his eight terms. He has a unique perspective among his judicial peers and a mastery of the rules and procedures that could appear in questions and in private deliberations later.

Justice Karl Procaccini, a Walz appointee and the governor’s former general counsel, has indicated he will recuse himself in both cases. The court is unified more than not, meaning a deadlocked decision is unlikely.