Minnesota Capitol
by Steve Timmer
Jun 12, 2017, 9:30 AM

Can you extort an extortionist?

I don’t think so

The relentlessly reasonable Lori Sturdevant had a column in the Sunday Strib exhorting the Supreme Court to come to the rescue in the dust up between the Republican-controlled legislature and Governor Dayton. I don’t know that it should. For a couple of reasons.

First, as Professor David Schultz suggests in his piece posted on his blog and here, it may be a political question. Well, it is a political question, obviously, which courts, generally have been understandably reluctant to resolve.

Second, the complaining party will be the Republicans, who are asking the courts to rescue them after their own bit of constitutional shenanigans, with all of the omnibus budget bills chock-full of policy, violating the single subject bill requirement of the constitution. And also, by trying to remove the governor’s veto power with the poison pill in the agency funding bill eliminating funding for the Department of Revenue if he vetoed the Republican tax bill.

Some of you will remember running up to your mother saying, “He hit me!” And then she said, “Did you hit him first?” And you knew you couldn’t lie to your mother; that it wouldn’t work anyway, and you admitted that you did. Then she told you to just suck it up; it was just deserts.

There is a long, colorful, and frankly funny history of courts refusing to help out plaintiffs who are themselves, to be direct, jerks. This is sometimes called “leaving the parties where we find them.” Sort it out yourselves, in other words. It would be hard to think of a better situation to apply the advice.

Doug Kelley, on behalf of the Republicans, will be wearing sack cloth and ashes and wailing about the governor’s refusal to respect the separation of powers in his line item veto (authorized specifically in the Minnesota Constitution, by the way) of the legislature’s funding. Doug won’t mention, of course, that Kurt, and Ben, and Paul, and Cal tried to deny the governor his constitutional authority to veto bills with the agency funding poison pill bill.

Doug and his client will be in a rather awkward position to argue the “separation of powers.”

It is to laugh. Now, believe me, I have some sympathy for Doug; I know what it is like to have to stand up and make untenable arguments, and then stand there and smile while opposing counsel and the court stick a knife in your chest and twist it. It isn’t fun.

But better Doug than me.

The best part about the Sturdevant column was where she described a call to retired Justice Paul Anderson for a quote supporting the intervention of the Supreme Court.

She didn’t get it.

So we are left with this: an extortionist comes into court and complains about extortion. And maybe the court will quote my Dutch Calvinist grandmother:

When you burn your butt, you have to sit on the blisters.

Update 6/14: But what about the innocents in the legislature? Doug Kelley will say. That is actually pretty easy. The DFL and the disaffected Republican back benchers get together and defenestrate the current leadership and their constitutional shyster management team. The new leaders get together with the governor and make a deal.

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