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Pricey Senate Office Building Also Comes at the High Cost of Never Settling a Serious Constitutional Challenge

As Minnesota Senators and staff begin moving into the new Senate office building this week, here’s a tally of some costsof the building:

  • Building and parking ramp construction: $90 million.
  • Annual lease payments for first two years: $12.9 million.
  • Annual lease payments after two years: $16.4 million.
  • Annual operations and maintenance: $2 million.
  • Avoiding a serious challenge to the constitutionality of how the legislature authorized the Senate office building:PRICELESS.

This last cost is the least well known, but definitely the weightiest to future taxpayers.

One of the now forgotten stories in the drama surrounding the Senate office building is how the whole project was at risk of being scuttled by a serious legal challenge to the constitutionality of how it was legislated.

After the law passed in 2013, Rep. Jim Knoblach, who was not a legislator at the time, filed a legal challenge arguing the statute violates the Minnesota constitution’s requirement that “no law shall embrace more than one subject.”

The single subject rule aims to protect citizens from the legislative practice of logrolling, a practice where unrelated bills are bundled together to gain enough support to pass when the bills could not gain majority support individually.  Properly enforced, the rule guards against legislators tucking unpopular minority special interests into an otherwise popular or necessary bill.

Knoblach lost at the district court level, but was never able to appeal the decision.  Instead, the Minnesota appeals court summarily cut off his legal challenge when it ordered Knoblach to post an $11 million surety bond if he wanted to continue the challenge.  Minnesota statute allows courts to require these bonds to pay the cost of any delays caused by unsuccessful litigation.

By refusing to review the appeals court’s bond requirement, the Minnesota Supreme Court effectively threw out the case.  Like most citizens, Knoblach couldn’t afford to risk $11 million to keep the case going.

While the Knoblach v. State of Minnesota case might be long over and the Senate office building now stands open for business, it is well worth revisiting what happened to help avoid future legislative logrolling mischief.

The price of the Senate office building is pocket change compared to the price of special interests logrolling pricey policies into law in the future.  Just for one example, consider that Minnesotans have already started paying higher electricity bills to fund an unpopular solar mandate that was logrolled into the omnibus jobs bill in 2013.

The main point here is to highlight important things the Minnesota judiciary missed throughout the Knoblach case.  If ignored, the poor performance of the courts in the case will only set a precedent for a similarly poor performance in the future and the public will pay the price.

Courts missed the gravity of the issue

To start, Minnesota courts missed the gravity of the issue before them.  Both the Minnesota Court of Appeals and the Minnesota Supreme Court refused to acknowledge the gravity of putting a multi-million dollar price tag on resolving a constitutional question.  They also never acknowledged the gravity of the question itself.

Ending a legitimate constitutional challenge to the exercise of legislative power without a full and customary judicial review is a very, very serious matter.  But the surety bond shut down the judicial process, which consequently shut down a check in our constitutional system.

“The root idea of the Constitution is that man can be free because the state is not,” according to Eugene V. Rostow a former Yale Law School dean.  In other words, individual freedom depends on not allowing the executive and the legislature to be free and that is the job of the courts.

Minnesota Supreme Court Justice Lawrence Yetka expressed this judicial responsibility concretely in his concurrence to a 1986 case: “The courts of this nation and of the state were uniquely given the authority to prohibit infringements by either the legislative or executive branch of the government of constitutional rights vested in the people and denied those branches of the government. If we do not act to protect the public, who will?”  Notably, this case involved the single-subject rule and marks when the Court began taking the rule more seriously.

Nonetheless, read the court opinions in Knoblach and it seems the judges completely missed the seriousness of their actions.  In a single sentence the Court of Appeals judges assured the taxpayers of Minnesota they indeed read the lawyers’ briefs and mentally engaged in the statutorily required considerations over the substance of the constitutional challenge, but refused to provide Minnesota taxpayers with any legal analysis.   Moving up to the Supreme Court, the opinion denying review was just three short paragraphs.  The Court never acknowledged they shut down justice and, instead, got lost in the trees of the Minnesota Rules of Civil Appellate Procedure.

Courts missed the irony of the bond requirement

The judges also missed the irony of their order to post an $11 million bond.  They required the bond to protect taxpayers, but the lawsuit was also filed to protect taxpayers.  In fact, Knoblach’s right, his standing to bring the lawsuit hinged on the fact that he was a taxpayer fighting to protect all taxpayers from illegal, unconstitutional legislative action taken to pass an unpopular and very expensive Senate office building.

As already mentioned, the possible tax savings go well beyond an unnecessary $90 million Senate office building.  Knoblach’s case could have set precedent to stop special interests from log rolling expensive provisions into future laws.  It’s no exaggeration to say Knoblach could have saved Minnesota taxpayers billions, yet Minnesota’s judiciary shut down justice to ostensibly save taxpayers $11 million in construction delay.

If Minnesota is going to continue allowing courts to require plaintiffs to post surety bonds, courts need to acknowledge the difference between a taxpayer lawsuit pursuing the general interests of all Minnesotans and someone litigating a particularized, personal grievance.

Courts missed how the Minnesota legislature effectively overturned the leading case on this issue

The irony of requiring a surety bond in a taxpayer lawsuit was also lost on the Minnesota Supreme Court back in 1992 when they upheld a $30 million surety bond to likewise protect taxpayers from plaintiffs with taxpayer standing in Pike v. Gunyou, a case in which taxpayers challenged bonding to build airport facilities that was part of the highly controversial Northwest Airlines bailout.  Pike, not surprisingly, couldn’t afford to put $30 million at risk and the case was closed.

However, the irony in Pike was not lost on the 1993 Minnesota Legislature, which quickly moved to amend the surety bond statute to require courts to “consider whether the action presents substantial constitutional issues … and the likelihood of a party prevailing” before requiring a surety bond.

The 1993 Legislature was clearly dismayed by how the Court handled the Pike case and disturbed by the fact the Court never addressed the merits of the constitutional question.  As reported in the Session Summary prepared by the Minnesota House of Representatives, the lead author of the bill in the House, Rep. Howard Orenstein, “said his bill developed out of what he called ‘inherent unfairness’ in current law that required a Bloomington couple to post a $30 million bond to challenge the financial-aid package the 1991 Legislature authorized for Northwest Airlines.”

The Legislature’s response to Pike demonstrates a clear intent to make sure a similar situation never happens again.  In effect, they overturned Pike.  Because the facts in the Knoblach case are so similar to Pike, a strong argument can be made that the 1993 Legislature directed Minnesota’s courts to hear Knoblach’s challenge.  And the set of facts inKnoblach are even more compelling because, unlike Pike, the plaintiff didn’t wait a year to file the case.  Indeed, one of the main reasons for a surety bond is to encourage cases to be filed on a timely basis and Knoblach filed in less than six months after the legislation took effect.

Nonetheless, both the Court of Appeals and the Supreme Court directly cited Pike to support their positions and utterly failed to appreciate the legislative reaction to Pike and how it should inform the application of the statute.  This is an embarrassing oversight.  A basic review of the case law around a statute requires a review of the history of the statute.  The courts did not do this.  To be fair, neither did the litigants.

This brings up a second irony.  No doubt the courts felt they were showing deference to the current Legislature in allowing the Senate office building to move forward.  Yet in doing so, they showed utter disregard for the 1993 Legislature’s directive to the courts to hear cases like Pike and Knoblach.

Supreme Court missed reason to review the lower court decision

Ultimately, the Minnesota Supreme Court ruled Knoblach’s petition did not satisfy the criteria to review lower court opinions as set out in the Minnesota Rules of Civil Appellate Procedures.

However, according to the rules, one of the criteria for reviewing a decision of the Court of Appeals is whether “a decision by the Supreme Court will help develop, clarify, or harmonize the law; and … the case calls for the application of a new principle or policy.”

Prior to Knoblach’s challenge, there does not appear to be any case where a Minnesota appellate court applied the new (as of 1993) policy that courts must “consider whether the [legal] action presents substantial constitutional issues … and the likelihood of a party prevailing” before requiring a surety bond.

While the Court failed to exercise their essential judicial responsibility to review whether the 2013 Legislature unconstitutionally logrolled the new Senate office building into being, they will undoubtedly have the opportunity to review legislative mischief in the future, whether it’s a violation of the single-subject rule or some other constitutional provision.

When that day arrives, the Court must do its job.  Justice Yetka’s admonishment to the Court bears repeating, “If we do not act to protect the public, who will?”

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