As political sound bites and political posturing continue to dominate the public relations between DFL Gov. Mark Dayton and GOP legislative leaders, the countdown to a July 1, 2011 state government shutdown proceeds. We hope that the behind-the-scenes negotiations are more fruitful in avoiding a shutdown than the public shouting appears to be.

As July 1 approaches, there are still basic questions, such as: the scope of services to be deemed essential and the likely public impact, the manner to decide, and the number of briefs filed. All of these questions will ultimately be settled in a courtroom. At Care Providers of Minnesota, we continue to move forward with legal planning on behalf of the membership and keeping all options on the table, but here is a little historical background.

During Minnesota’s only previous shutdown, in 2005, the public effects were minimized by numerous factors, most notably the fact that many budget bills had been signed and passed during the regular legislative session. This time around, only the omnibus agriculture finance bill has been passed and signed, leaving many more budgetary issues on the table. Also in 2005, we had an Attorney General in one party (DFL-Mike Hatch) and a Governor of a different party (GOP-Tim Pawlenty). This year, most observers are expecting a much different set of circumstances. The rumor and speculation in Capitol hallways is that Governor Dayton will petition the court for a much more minimal definition of the essential state services that must be maintained during a government closure than former Governor Pawlenty did in 2005. Also, many observers are wondering how many petitions will be filed this time, with political parties like the Senate Majority (GOP) and House Majority (GOP) and Senate Minority (DFL) and House Minority (DFL) all being considered possible filers.

The 2005 shutdown created a legally awkward situation in which a court-appointed special master approved spending on operations deemed critical to state government. A hearing was held on June 23, and Ramsey County District Judge Gregg Johnson subsequently issued an order indicating that the state Constitution requires core functions to be carried out. Included in those functions: complying with the rights of citizens as spelled out in the state and federal constitutions; and adhering to federal mandates. Johnson appointed former state Supreme Court Justice Ed Stringer as special master; in that capacity, Stringer handled requests to keep certain parts of government funded.

In 2005 a group of GOP legislators proceeded with a lawsuit challenging the court’s authority to continue government operations at all. They pointed to a provision in the Minnesota Constitution: "No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law.” Ultimately, the suit was dismissed not on its merits, but because it was deemed to be filed too late. Certainly current legislators have learned this lesson, and there is a sub-group presently considering a repeat of this legal challenge. In 2005, Care Providers of Minnesota did file an amicus brief supporting the argument that Medicaid providers be considered essential services. Ultimately, the court did hold this to be the case, and services and payment for Medicaid recipients were only mildly interrupted.

Currently, we are anticipating the timeframe to be similar to 2005. It is expected that the Attorney General will file a petition in mid-June. This will start the process of the court setting dates for other petitions to be filed, briefs to be submitted and ultimately hearing dates set and rulings being handed down. The anticipated date of the court ruling is the last full week of June.

With all of that background, and the acknowledgement that while we can learn from 2005, the circumstances in 2011 are far different, Care Providers of Minnesota is planning and moving forward with all potential legal scenarios in mind. We are starting to gather the evidence and information that will support our cause in the various legal possibilities. We will continue to update you in our newsletter and emails as matters move forward and as issues arise. You can also continue to check our website and the countdown to shutdown for periodic updates and information along the way.

If you have any questions feel free to contact Toby Pearson at 952-851-2480, or tpearson@careproviders.org.

Toby Pearson
952.851.2480
tpearson@careproviders.org