Archive for the ‘Judiciary’ Category
After reading this Washington Times article, there’s little doubt in my mind that President Obama will appoint Merrick Garland to the Supreme Court.
First, the article says “Mr. Obama’s moment will come just before noon, in the five minutes that the Senate gavels the 114th Congress out of session and the time the 115th Congress begins. In those few moments the Senate will go into what’s known as an ‘intersession recess,’ creating one golden moment when the president could test his recess-appointment powers by sending Judge Garland to the high court.” It continues by saying “The move would be a legal gamble under the high court’s last ruling in 2014 on recess appointments. That 9-0 decision overturned a handful of Mr. Obama’s early 2012 picks, saying the Senate was actually in session when the president acted, so he couldn’t use his powers. That ruling also said, however, that there’s a difference between appointments made during the annual yearlong session of Congress, dubbed ‘intrasession,’ which Mr. Obama used in 2012, and picks made at the end of the year, after Congress adjourns, which are known as ‘intersession.'”
This statement is downright foolish considering who we’re talking about:
William G. Ross, a law professor at Samford University in Birmingham, Alabama, said Mr. Obama would have the power to elevate Judge Garland. But he said it would be “politically unwise and damaging to the prestige of the court. It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Mr. Ross said.
Anyone that thinks President Obama worries about doing controversial things is kidding themselves. He thrives on those things. That’s why I’m certain he’ll appoint Garland.
The political downside for Democrats is that they’d be required to defend that indefensible decision. Republicans would use that against them in 2018, which is already shaping up to be a bloodbath for Democratic senators. That, however, isn’t a big deal to President Obama. What does he care? He’s already decimated the Democratic Party during his time in office:
Since President Obama took office, there are 12 fewer Democratic governors, 63 fewer Democrats in the US House of Representatives, 12 fewer Democrats in the US Senate and almost 1,000 fewer Democrat state legislators.
Why would President Obama care if Republicans picked up another dozen Senate seats after he’s out of office?
Rachel Stassen-Berger’s article highlights two frightening facts. First, it highlights the fact that Gov. Dayton doesn’t take his oath of office seriously.
In his oath of office, governors swear to protect the state and federal constitution. When asked “Thursday if he believes he signed an unconstitutional law, Dayton said, ‘It’s fine with me if they (the Supreme Court Justices) decide that.'” In other words, Gov. Dayton doesn’t have a problem if the Minnesota Supreme Court rules that he signed a bill that’s unconstitutional.
That’s actually the least frightening thing from the article. The most frightening quote from the article was Ms. Otto’s statement that “This office belongs to the taxpayers and not to the Legislature. Auditing counties is a core constitutional duty of the office. I will not let this go. I must do everything I can to preserve this function on behalf of the people of Minnesota.”
Actually, Ms. Otto’s statement is frightening on multiple levels but mostly because of this part of Minnesota’s Constitution:
What part of the “duties and salaries of the executive officers shall be prescribed by law” doesn’t Ms. Otto understand? Are we to believe that the duties of the State Auditor are defined by state law but that the duties of those that work for the State Auditor are defined by the Minnesota State Constitution? If the Constitution defines the auditors’ responsibilities, which article and which section are those duties found in?
Simply put, Minnesota’s Constitution established the Office of State Auditor, aka the OSA. That’s indisputable. It’s equally indisputable that the duties and authorities of the OSA aren’t spelled out in the Constitution. That’s because they’re assigned by the legislature and approved by the governor. That’s what happened in 2015.
If the Minnesota Supreme Court rules that the 2015 law is unconstitutional, the justices that ruled it unconstitutional should be impeached and replaced with jurists that are faithful to the Constitution, not to the DFL. Let’s hope it doesn’t come to that. Let’s hope that this is so straightforward that it’s a unanimous ruling against Ms. Otto. Otherwise, the Minnesota Supreme Court would essentially rule in the DFL’s favor the vast majority of the time.
That isn’t justice. That’s hardball politics.
Thus far, people have tiptoed around what the judge ruled last Friday in the lawsuit brought by Rebecca Otto. Ms. Otto is quoted as saying “In the decision, the court granted our motion in part and denied it in part,” Otto said. “As we requested, the court recognized the core constitutional function of the Office of the State Auditor to audit counties. The court also held that the Office of the State Auditor may ‘continue to exercise its constitutional authority to audit counties to pay for such audits.’ We are reviewing the opinion and analyzing our options.”
It would’ve been surprising if the court had ruled that the OSA didn’t have the authority to be the state’s main auditor. This isn’t surprising. That’s as surprising as the judiciary finding that the Secretary of State had the authority to monitor elections. Later, Ms. Otto said this:
“Unfortunately, the district court also permitted counties to hire private CPA firms at their discretion to conduct an “initial audit.” We respectfully disagree with this aspect of the district court’s decision. It will result in an unacceptable diminishment of the protection this constitutional office provides on behalf of the taxpayers of this state.”
The OSA already has given some counties the authority to hire CPA firms to do their audits. With that being the case, Ms. Otto’s intellectual fight is flimsy. She’s essentially arguing that she has the authority to give counties the right to hire CPA firms to perform their audit but that the legislature doesn’t have that authority.
Further complicating matters is that Ms. Otto is essentially arguing that the statutes that have assigned specific responsibilities to the OSA and other statutes assigning specific responsibilities to other constitutional offices are constitutional but that this statute, and this statute alone, is unconstitutional.
If the Minnesota Supreme Court rules in Ms. Otto’s favor, then we’ll have verifiable proof that Gov. Dayton stacked that court with judges that will rule in the DFL’s favor no matter what the Constitution says. Let’s hope that these justices aren’t partisans first and jurists second. Here’s hoping that they’re jurists first, last and only.
Earlier this morning, I wrote this post to highlight the fact that Rebecca Otto, Minnesota’s State Auditor, isn’t a constitutional scholar but that she is a sore loser. I quoted the ruling as saying “The Legislature has the power to modify the State Auditor’s duties under State ex rel. Mattson v. Kiedrowski. Modifying who does the initial audit does not transfer her core functioning of auditing counties.”
Briana Bierschbach’s tweet contains similar language from the ruling, saying that “giving counties the right to choose whether a CPA firm performs their audits does not transfer a core function away from the OSA, but merely modifies one of the OSA’s existing duties.”
This isn’t a partisan fight. It’s a fight between the executive branch and the legislative branch. The executive branch prefers setting its own duties and expanding its responsibilities. The legislative branch, however, prefers telling these constitutional offices what their responsibilities are. That’s important to the constitutional principle of checks and balances.
Briana also has Ms. Otto’s response to the ruling:
Ms. Otto has the right to appeal this ruling but it’s essentially over. If she appeals this ruling, she’ll just be foolishly spending the taxpayers’ money going into an election year. That isn’t a wise campaign strategy.
Months ago, Rebecca Otto filed a lawsuit claiming that a bill passed by the legislature and signed by Gov. Dayton was unconstitutional. Since then, Ms. Otto, who clearly isn’t a constitutional scholar, has spent $220,000 of the taxpayers’ money fighting a losing fight. Last Friday, the court ruled with Ms. Otto in part and against her in part.
The key part of the ruling is found on page 9 of the ruling when it says “The County Audit Statute is Consistent with the State Auditor’s Exercise of her Constitutional Authorities.” Later, it states that “The Legislature has the power to modify the State Auditor’s duties under State ex rel. Mattson v. Kiedrowski. Modifying who does the initial audit does not transfer her core functioning of auditing counties.”
Then it says “As noted previously, Article V does not expressly set the terms or duties of the State Auditor as an executive officer. The task of prescribing duties for executive officers is reserved for the Legislature…”
I’ve written about this before. I said the same thing but with different words. For instance, I wrote this in this post:
I’ve read Article V. That’s where the Constitution establishes the office of State Auditor. Nowhere in Article V does it list the auditor’s responsibilities. Article V, Sect. 3 outlines the governor’s responsibilities. That’s the only constitutional officer whose responsibilities are defined in Minnesota’s Constitution.
Ms. Otto will supposedly appeal the ruling, which she’ll lose while spending more of the taxpayers’ money foolishly. Rep. Sarah Anderson issued this statement:
“I’m glad to see this law upheld as constitutional, and know it will mean meaningful savings for counties and property taxpayers throughout Minnesota,” Anderson said. “Judge Marek’s ruling makes clear: this issue is settled, the law is constitutional, and we can put the confusion and hassle caused by Rebecca Otto’s unnecessary lawsuit behind us. Auditor Otto has wasted more than $220,000 in taxpayer money on this frivolous endeavor—I call on her to get back to doing her job, accept the court’s ruling, and apologize to counties and taxpayers for so flagrantly wasting hard-earned tax dollars.”
Ms. Otto, like other Democrats, is a sore loser. She can’t stand the fact that she lost this ruling even though she clearly didn’t have a chance of winning the lawsuit.
There’s no question about whether Gov. Dayton is dishonest. The only question left to determine is how dishonest Gov. Dayton is. I’d say that he’s exceptionally dishonest if I’m using this article to determine Gov. Dayton’s dishonesty.
According to the article, Gov. Dayton ” said that ‘the cost of inaction’ by state lawmakers had caused the price increase.” Gov. Dayton knows that the legislature has nothing to do with the price increase because Adam Duininck told him that the SWLRT project was being put off by the federal government. Commissioner Duininck told Gov. Dayton that “the federal government has no plans to execute a funding agreement until sometime in 2017 because of ongoing litigation regarding the project.”
The “ongoing litigation that they’re talking about is something I’ve started calling the Tunheim Lawsuit. It’s a lawsuit being tried in federal court. The Tunheim Lawsuit won’t start until Sept. 17, 2017. The FTA, aka the Federal Transportation Administration, won’t lift a finger until that lawsuit is settled. The earliest that lawsuit will be settled will be January, 2018.
That’s actually the least of the Met Council’s worries. It isn’t likely that they’ll win the Tunheim Lawsuit. It’s that they have no chance at winning the lawsuit that the Calhoun-Isles Condominium Association might bring. The Calhoun-Isles Condominium Association hasn’t filed a lawsuit yet but if they did, they’d win.
This paragraph is wishful thinking:
The Council, backed by Minnesota Gov. Mark Dayton, has proposed to authorize $103.5 million in debt, with the Hennepin County Regional Real Authority and the Counties Transit Improvement Board contributing a total of $41 million — enough to ensure $900 million in federal dollars for the light rail project.
This isn’t based on reality. It’s based on what the Met Council, the Hennepin County Regional Real Authority and CTIB wish would happen. They know, though, that it won’t. They know it won’t happen because they’ve been told that it won’t happen.
Gov. Dayton and Rep. Thissen would have us believe that Republicans are being pig-headed in their opposition to funding the SWLRT project. Actually, what’s becoming clear is that the Minnesota Chamber of Commerce isn’t thinking clearly while supporting the construction of the Southwest Light Rail Transit project. What clear-thinking organization supports a project that can’t be built before Sept. 17, 2017?
If that date doesn’t mean anything to you, that’s because the DFL and the Twin Cities Media haven’t reported that that’s the starting date for the trial of whether the Met Council went too far. That’s likely the least of SWLRT’s problems. The law firm of Felhaber and Larson was retained by the Calhoun-Isles Condominium Association because the “current plan for the construction of the Southwest Light Rail Transit Line provides for the construction of a shallow tunnel which will be located literally within two feet of the exterior walls of the Association’s high-rise structure, as close as six inches to the foundation of the Association’s parking ramp and within 43 feet of a row of single-family townhomes.”
What part of that description sounds like the SWLRT is anything close to being built? Seriously, that sounds like a start-over point. That’s like the Met Council is saying that they don’t care that the Calhoun-Isles Condominium Association’s buildings are in jeopardy. It’s like the Met Council is flipping the Association the proverbial finger. Would any private property owner sit idly by while this happened to their property? The odds of a private property owner signing off on this project are worse than the odds I’ll get hit with lightning while holding tonight’s winning lottery ticket.
It isn’t because my odds of getting hit with lightning are that high or that my odds of winning tonight’s lottery are high, either. It’s that the odds of a private property owner signing off on this project without massive monetary compensation is exactly nonexistent.
This project needs to be totally rerouted. There’s no chance the Environmental Impact Study for this part of the project will be approved. Couple the Calhoun-Isles Condominium Association’ potential lawsuit with the existing lawsuit. Factor in the FTA’s reluctance to fund SWLRT until the lawsuits are settled. Throw these things together and it’s easy to question Gov. Dayton’s prioritization of the SWLRT project.
Speaker Daudt is right that the Met Council’s legal tactics have pretty much failed whenever they’ve been tried. The potential lawsuit by the Calhoun-Isles Condominium Association by itself could demolish the SWLRT project. This isn’t just about public negotiations. It’s also about the details of these potential lawsuits.
Let’s remember that some of these lawsuits are being brought by staunch DFL activists. These aren’t litigation-foolish people. These activists are skilled at dragging out litigation for years. It isn’t unreasonable to think that these lawsuits won’t be settled before we elect Gov. Dayton’s successor in 2018.
One thing that the Twin Cities press hasn’t covered, at least in the context of the special session negotiations, is that there’s a lawsuit that’s tying up the Southwest Light Rail Transit (SWLRT) project. In fact, Judge John Tunheim’s ruling contains an admonition to the Met Council. FYI- Judge Tunheim is the “Chief Judge” of the “United States District Court.”
Near the end of his ruling, Judge Tunheim wrote “This opinion concludes that the LPA has not shown it is entitled to judgment as a matter of law on the record before the Court. It does not, however, end the case. This action involves complex legal issues and an evolving factual record. The theme underlying these complexities, though, and underlying the cause of action recognized in this Court’s prior Order, in Limehouse, and in environmental regulations like Section 1506.1, is that full and thorough environmental review of a major government project is vitally important. The LPA may not have met its summary judgment burden at this point, but the record – specifically the negotiation process and agreements between the Met Council and various cities and other public entities, and public statements regarding those agreements – shows that, throughout much of this process, the Met Council has had a clear favorite route for the SWLRT.”
Then there’s this:
Indeed, by signing an agreement with St. Louis Park that all but guarantees freight rail will stay in the Kenilworth Corridor, the Met Council has come dangerously close to impermissibly prejudicing the ongoing environmental review process.
This is why the Met Council needs to be overhauled entirely. Presently, the Met Council essentially represents Gov. Dayton and the DFL’s far left agenda. They don’t represent the people of the Twin Cities. Further, they’re more worried about getting Gov. Dayton upset than they’re worried about getting the citizens upset.
We’re supposed to be governed by the principles of one person, one vote and “with the consent of the governed.” The Met Council operates essentially on the principle of ‘thousands of people, no votes.” At no point does the Met Council operate “with the consent of the governed.” It essentially bullies elected governments, commissions, panels, etc. when it wants to achieve its goals.
Coming “impermissibly prejudicing the ongoing environmental review process” is legalese for saying that the Met Council is treading on thin legal ice. That’s just the tip of the iceberg, though. Check back with LFR for more later today.
During the DFL’s bad faith negotiations for a special session, Gov. Dayton and the DFL insisted that the GOP fund the Southwest Light Rail Transit, aka SWLRT, project. Speaker wisely refused. Now we know why it was wise to refuse. On Wednesday, January 13, 2016, Adam Duininck wrote an email to Gov. Dayton and Lt. Gov. Tina Flint-Smith about a variety of topics.
In the 4th paragraph of the second page of the email, Commissioner Duininck said “On the schedule we had been pushing the FTA for a number of weeks to sign off on an aggressive schedule that called for a full funding grant agreement by the end of this year, while President Obama is in office. They have resisted that goal and have said the grant agreement is likelier to come in the middle of 2017.” Later in the email, Commissioner Duininck explains why the FTA is hesitating on signing off.
According to Commissioner Duininck, the FTA is hesitating on signing off because “the reason the FTA refused to move the schedule up is that they are concerned that the litigation risk is still there until Judge Tunheim rules on the Lakes and Park Alliance case.”
Connecting the dots
Judge Tunheim’s dismissal of summary judgement against the Met Council is dated August 4, 2015. Judge Tunheim noted that “The LPA may not have met its summary judgment burden at this point, but the record, specifically the negotiation process and agreements between the Met Council and various cities and other public entities, and public statements regarding those agreements, shows that, throughout much of this process, the Met Council has had a clear favorite route for the SWLRT.”
Judge Tunheim also noted that the case is complex because environmental reviews still need to be approved. That hadn’t happened when he ruled on this motion for summary judgment.
Gov. Dayton and the DFL likely didn’t include SWLRT funding in their bonding bill because of the Tunheim lawsuit. Further, the Kenilworth Preservation Group, through Stuart Chazin, insists that “the Met Council has not made the legally required good faith effort to consider alternatives to the Kenilworth route, and has had secret communication between Sen. Latz and the Met Council that will prove the point.”
There’s no doubt but that this is a tangled legal mess that’ll take time to untangle in the courts. With the outcome still in doubt, funding SWLRT at this point is foolish. That’s likely why the DFL Senate didn’t include SWLRT funding in their $1,800,000,000 bonding bill. Further, it isn’t a stretch to think that the DFL is attempting to paint Republicans as reckless when the truth is that the DFL is trying their best to pander to their urbanist special interest organizations. Finally, it isn’t a stretch to think that Gov. Dayton and politicians like Rep. Thissen are grasping at anything in their attempt to win back the majority in the House.
Today’s DFL are a nasty lot, fully prepared to side with brick-throwing thugs like BlackLivesMatter and the anarchists who attacked Republicans in Minneapolis last weekend. They won’t think twice about sabotaging any project or legislation if they think it’ll help them gain power. That’s who today’s DFL is.
In a PR stunt, Gov. Dayton announced that he’s appealing the ruling shooting down the Next Generation Energy Act, aka the NGEA. It’s a PR stunt because Gov. Dayton said “it’s a matter of protecting air quality.” The Eighth Circuit Court of Appeals disagrees, saying that “Minnesota would need Congressional approval to enforce that section of the 2007 law.”
Gov. Dayton is standing on shaky constitutional ground. He’s argued that the NGEA “doesn’t illegally restrict new coal-powered plants but merely requires that they be offset by reductions at existing plants.” That’s irrelevant. The Interstate Commerce Clause, found in Article I, Section 8, Clause 3 of the US Constitution states “The Congress shall have Power To … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Think of the insanity if this wasn’t the case. If the ICC didn’t exist, North Dakota could pass a law that requires all electricity sold into North Dakota had to be from nuclear power plants. Without the ICC, Minnesota would face a choice of not selling electricity into North Dakota or to generate that electricity at nuclear power plants.
Such laws would demolish state sovereignty. That’s intolerable.
A three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed a lower court’s decision last week that barred Minnesota from enforcing key sections of the Next Generation Energy Act. The court sided with North Dakota utilities and other interests that argued [the NGEA] illegally regulates out-of-state utilities.
As usual, Rep. Pat Garofalo nails it with this statement:
This is an election year stunt aimed at improving turnout with environmental activists. It’s Gov. Dayton’s signal that he’s with them. Sadly, Gov. Dayton didn’t swear an oath to be with them. The oath he took said that he’d uphold the Minnesota Constitution and the US Constitution. As usual, he’s got his priorities all mixed up.