The Minnesota Legitimacy Crisis Goes to Court
Briefs are in!
RECAP ALERT: If you don’t know about the Minnesota Legitimacy Crisis, better start with my previous article: “Legitimacy Crisis? In MY Minnesota Legislature?”
I promise, I did start writing another post about the Minnesota Legitimacy Crisis this weekend. Photographic proof:
See? I started. Then, well… stuff came up. Real life. Obligations that couldn’t be put off.
The thing is, this conflict is moving so fast. From the first day I posted on De Civ about the possibility of disqualifying Mr. Trump from the ballot in Minnesota (Aug 29) to the day somebody filed suit (Sep 21) was nearly a month. From there to oral arguments day was (Nov 2) was another month. It felt like it took over my life, and, quite frankly, it did! Yet I still had 65 days to read and digest all the briefs, write extensively about them, and become deeply familiar with the case law on all sides.
The ingredients in the Minnesota crisis started to fall into place on December 20, when a court declared DFL Rep.-Elect Curtis Johnson ineligible for office due to the state’s residency requirement, but, at the time, even the leaders didn’t seem to have an inkling of the choices they themselves would make over the next three weeks. The DFL made its first threat of a quorum-bust on January 6, eight days before it happened—and, as I confessed last time, the day is started, I really didn’t think it was going to.
The case took another surprise turn when the Minnesota Supreme Court ruled on Friday, that Gov. Walz’s attempt to hold a special election on January 28 (to replace disqualified Rep.-Elect Johnson) was indeed illegal, something I mentioned in passing might happen, but which I didn’t expect at the time.
Instead of 65 days, I’ve had 8. Even I’d been smart, I still only would have had 16. Oral argument is tomorrow. By the time I post this, it will probably be today. It might even be over. I am once again typing very quickly, hoping to beat my deadline of “bedtime,” and once again rushing through without doing proper editing passes. (I once again, then, reserve the right to be wrong, and will make corrections as needed.)
All this is to say: please feel some sympathy for the poor lawyers on either side of this. They are lawyers, so they know a few things, but they probably had to work really hard over a holiday weekend to prepare for a sudden emergency case that they weren’t planning on much more than I was.
Speaking of the lawyers, this case is something of a rematch!
Old Friends, New Arguments
Last year, during the Minnesota Disqualification Suit, Nicholas Nelson conducted oral arguments on behalf of Donald Trump. The local firm supporting Joan Growe, Lockridge-Grindal-Nauen, didn’t conduct oral arguments, but their lawyers Charles Nauen, David Zoll, and Rachel A. Kitze Collins did fine work (IMHO) supporting the case.
In tomorrow’s oral arguments, Nicholas Nelson will represent the (body purporting to be the) Minnesota House, while Nauen, Zoll, and Kitze Collins are all back representing the DFL petitioners. (Zoll is on orals.) Secretary of State Steve Simon, a party to the Trump case, is also a party to this case, although the adorable Assistant Attorney General Nathan Hartshorn is not representing him at orals this time;1 that will instead be Solicitor General Liz Kramer.
Nelson will therefore be in a two-on-one crossfire, but, as I observed last year, he’s a very able litigator who made few mistakes, quickly sensed what the justices wanted, and strove to give it to them. The justices ultimately took it, too: Nelson won the case with a unanimous ruling that followed the logic of one of his arguments. I thought that argument was bad,2 but Nelson’s job that day wasn’t to be right; it was to win, and he did. On the other hand, while I’m a mere hobbyist and haven’t seen Zoll or Kramer on the floor, I’d bet money they’re very able litigators, too.
Case Documents
Now, down to business. Most of what has happened in the case since last week is the posting of documents. Here are all the important ones:
For the DFL: A petition for a writ of quo warranto by Rep. Melissa Hortman and her top allies, seeking a declaration that Lisa Demuth is not Speaker of the House
For the DFL: A second petition for quo warranto, this by Secretary of State Steve Simon, seeking the same thing
For the DFL: A memorandum by Steve Simon in support of his petition
For the GOP: Rep. Demuth’s response to the petitions (TLDR:3 “they’re wrong”)
For the DFL: Sec. Simon’s rebuttal to Demuth, accompanied by a Declaration by his assistant (TLDR: “nuh-uh!”)
For the DFL: Rep. Hortman et. al.’s rebuttal to Demuth (TLDR: “what he said!”)
For the GOP: An amicus curiae brief by Prof. Ilan Wurman, a law professor at the University of Minnesota (an originalist and a conservative)
The full dockets are on Minnesota’s C-Track system, Case #A25-0066 and #A25-0068.4
Oral argument is tomorrow today at 1:00 P.M., courtroom 300, at the state supreme court building in St. Paul. If you can’t be there, you can watch afterward on the Minnesota Supreme Court Oral Argument webpage, likely by around 5:00 p.m.. I do not think I can get off work to attend, so I’ll likely be right there with you on the webpage.
The Best Brief
If you read only one thing about this case between now and oral arguments, read Rep. Demuth’s response to the petitions.
I’m serious. If you don’t have time to read both this post and that PDF, close this tab and read the PDF.
As I said, I was planning to write an article over the weekend, before stuff happened. I did outline that article. Demuth’s argument very nearly matches my outline. However, hers is considerably better, because I am (shamefully) out of my depth when it comes to state law. (I mostly know federal law, and only as a hobbyist.) They made several great arguments I would have missed. Better still, at just under 11,000 words, their brief is just about the same length as a really good De Civ post.5 This is, in short, quite close to the blog post I would have written over the weekend, if I had had both the time and the brains for it.
I will now assume that you have read that brief. The remainder of this article, then, will be some loose observations that I didn’t feel were fully laid out in the Demuth response, gradually losing coherence as I get sleepier until I reach the point where I am forced to give up and press “Send.”
A Winner Emerges
The fact that the Republican brief is “quite close to the blog post I would have written” is a pretty big clue to how I think the Minnesota Supreme Court would [correction: should] rule. That goes double when you recall that I felt instinctive hostility toward the brief’s (presumptive) principal author last year, and triple when you realize that I remain quite fond of the team behind Hortman’s rebuttal.
The sucky thing about being a practicing lawyer is that, sometimes, your clients adopt bad legal position, which means you have to make bad legal arguments. I’m afraid that’s happened here. The DFL’s legal team has made the best of a crap sandwich, and don’t you doubt for a second that they could still win this thing outright.
Nevertheless, in light of reading all the briefs and researching some of the case law over the past week, my views on the case have changed: while I still believe that Sec. Simon exceeded his authority, I think he exceeded it even harder than I used to. Moreover, I no longer think the quorum question is a virtual jump ball; I believe Simon was wrong on the merits, and that Rep. Lisa Demuth is currently Minnesota’s Speaker of the House.
We will see soon enough whether the Minnesota Supreme Court agrees with me.
…or will we?
A Political Question?
Last year, during the Trump Disqualification Suit, I described the political question doctrine this way:
There are certain issues that courts are fundamentally unable to resolve, because the Constitution consigns those issues unequivocally to the “political branches.” For example, if a president were impeached and convicted on a charge of, I dunno, let’s say perjury, that president could not appeal to the courts to argue that he’s innocent, or even to argue that he was deprived of due process protections. The Constitution gives the Senate—and only the Senate—the “sole Power to try all impeachments.”
I then spent many words mocking the deeply unserious idea that the qualifications of a presidential candidate on a state ballot could possibly fall under the political question doctrine. Article II directly assigns plenary power over presidential elections (including ballot preparation) to the states, and the State of Minnesota unambiguously assigned power over election determinations to its own judicial branch. There was no way, shape, or form in which that was a political question.
Then the Minnesota Supreme Court spent the majority of oral argument time grilling advocates about the political question doctrine, taking it very, very seriously. They desperately wanted not to rule on the Trump Disqualification Case, and the political question doctrine looked like a very attractive out. To their credit, they did not take it. The U.S. Supreme Court did instead. Oof.
Lesson learned: courts hate taking sides in intrabranch political squabbles, and they will read the political question doctrine broadly to avoid having to do so.
In this case, the Minnesota Supreme Court does not need to read the political question doctrine broadly. The Minnesota Constitution directly, unequivocally, consigns this issue to the political branches:
Each house may determine the rules of its proceedings.
—Minnesota Constitution, Article IV, Section 7
The rejoinder by the DFL litigants is that the court has sometimes reviewed whether bills have been lawfully enacted and even, on one memorable occasion in 1971,6 ruled on whether the lieutenant governor (who was, under the constitution at the time, ex officio presiding officer of the state senate) had the authority to cast tie-breaking votes in the senate. They ruled that he did not. That voided the senate’s vote on an election contest (which had been tied).
The GOP points out that the Palmer court, by its own admission, acted with extreme reluctance in the case, over a dissent, and, even then, all it did was prevent a ceremonial member of the executive branch from usurping the senate’s power. It did not directly interfere in the election contest, nor in any of the senate’s other “purely internal organizational decisions.”
The GOP then explains (at considerable length) exactly how it is that the DFL litigants deliberately brought about the current sad state of affairs, which, I’m afraid, is indisputable.7 If the Democrats had simply shown up on January 14 like the law instructs, there would have been an unquestionable quorum. Therefore, the GOP argues, the Democrats do not deserve to be rescued by the state supreme court. Turns out, this isn’t just a matter of moral justice, which tolled against the Democrats already, but the doctrine of “unclean hands” makes it a legitimate reason for a court to deny extraordinary writs like the writ of quo warranto.8
The House’s defense under the political question doctrine is not airtight. When the members of the House itself cannot agree that the House currently exists, it may be the case (as the Palmer court decided) that there simply isn’t anyone else who can settle the argument but the courts, so the courts must rule.
Or must they? The DFL members of the House could solve this by simply showing up to work and voting on whether the House currently exists. They don’t want to because they know they would lose that vote, so they are trying to get the Minnesota Supreme Court to rule on the House’s “own proceedings.” SCOMN wanted very much to dismiss the Trump Disqualification Suit as a “political question,” even though it clearly wasn’t. They would be on much, much stronger grounds if they made the same move here.
Standing
I am not a big fan of standing in general. I tend to believe that the invention of standing doctrine in the 1920s was a serious error.9 Nevertheless, it is part of the law of the land right now.
I think Demuth’s response brief pretty much destroyed Hortman’s claim to standing in this case, and Hortman’s rebuttal seems to confirm that by how vaguely it replies—and how quickly it changes the subject.
I don’t think that disposes of the case, though, because it seems to me that Sec. Simon still has a claim to standing. Demuth attacks Simon’s standing by arguing that his role as presiding officer of the House is purely ceremonial. That seems correct. However, if Simon is still presiding officer (as he contends), he still has statutory duties to attend to, even if those duties are purely ceremonial. The Demuth brief tries to lock the doors on him anyway, by arguing that standing requires more of a concrete injury, but I didn’t buy it. A citation to California v. Texas correctly notes that a merely “hortatory” statement in a statute cannot ground standing for one who violates the statement, but ceremonial duties are not purely hortatory, or so it seems to me, anyway.
But, then, I don’t really believe in standing in the first place, so maybe that’s no surprise.
Prejudging the Court?
A very short thought: my strong prior is that partisan supreme courts (in both parties) tend to rule in a partisan way. For this reason, I have been very pessimistic that the House GOP can ultimately win this in Minnesota’s Supreme Court, which is now 7-0 Democrats’ appointees.
However, I am forced to notice that, in the only two Minnesota Supreme Court cases I’ve really followed, the Republican side won, and unanimously at that. Once (in the Trump Disqualification Suit), I thought that was a travesty. In the recent ruling on the District 40B special election, I think they were right. Both times, though, they ruled in favor of the political interests of the out-party. I’m not reversing my belief that partisan supreme courts tend to act partisan, but I am adjusting my prior on it downward a little bit.
Mason’s Manual
My big thing in the last post was the interpretation of Mason’s Manual of Legislative Procedure. I was gratified that Prof. Wurman’s brief devoted three full pages to the topic, which mostly vindicated my position:
Petitioners rely on Mason’s Manual of Legislative Procedure. Rule 5.04 of the rules of the Minnesota House of Representatives provides that this manual “governs the House in all applicable cases if it is not inconsistent with these Rules, the Joint Rules of the Senate and House of Representatives, or established custom and usage.” By the plain terms of this rule, the manual cannot supersede an analysis of the text, structure, and history of Minnesota’s Constitution. But, in any event, it supports respondents’ interpretation. At least since the 1943 edition, probably since the first edition in 1935, [Footnote: Counsel could not locate a copy of the first edition.] and until the 2020 edition, the manual had provided that vacancies are to be subtracted for purposes of computing a quorum. The 1943 edition provided, “The general rule is that a majority of the authorized membership of a body constituted of a definite number of members, constitutes a quorum for the purpose of transacting business.” Paul Mason, Manual of Legislative Procedure for State Legislatures and other Legislative Bodies 316 (Sacramento, CA: California State Printing Office 1943). It then said more specifically: “In reckoning a quorum the general rule is that the total number of all the membership of the body be taken as the basis. When there is a vacancy, unless a special provision is applicable, a quorum will consist of the majority of members remaining qualified.” Id. at 318 (emphasis added). By the 2010 edition, the point was supplied more succinctly: “The total membership of a body is to be taken as the basis for computing a quorum, but when there is a vacancy, unless a special provision is applicable, a quorum will consist of the majority of the members remaining qualified.” Paul Mason, Mason’s Manual of Legislative Procedure 332 (National Conference of State Legislatures 2010).
Yet in 2020, after some eight decades of consistency, the new editors of the manual modified the relevant rule such that there are now “majority” and “minority” rules related to a quorum. The edition now claims that the rule by which vacancies are subtracted from the denominator is the “minority” rule. The “majority” rule, according to the 2020 edition, was for the first time described as follows:
The majority of legislative bodies follow the quorum rule stated by Cushing: “... the number of which such assembly may consist and not the number of which it does in fact consist, at the time in question, is the number of the assembly, and the number necessary to constitute a quorum is to be reckoned accordingly.”
Paul Mason, Mason’s Manual of Legislative Procedure 350 (National Conference of State Legislatures 2020). That is the passage quoted by petitioners in their petitions and briefs. See Pet’r’s Mem. Supp. Writ Quo Warranto 8 (A25- 0066); Pet. ¶ 60 (A25-0068).
As an initial matter, the manual does not say whether Minnesota requires the majority rule or the minority rule; that can only be answered by a textual and structural analysis of the State Constitution’s text, which was supplied above. Moreover, a review of the judicial citations in Mason’s reveals that the true majority rule is in fact the one that had been reported in Mason’s for over eighty years.10 More still, the new edition expressly states that the so-called “majority” rule derives from Cushing, which is a treatise from before the Civil War. The passage in question appears to have first appeared in the 1856 edition. See Luther Stearns Cushing, Lex Parliamentaria Americana: Elements of the Law and Practice of Legislative Assemblies in the United States of America 100 (Boston: Little, Brown and Company 1856). The only authorities for this proposition in Cushing’s text were the then-existing rules of the U.S. House and Senate. Yet whatever the rule may have been prior to the Civil War, there can be no question that the debates in Congress as a result of secession definitively settled the constitutional meaning of the term. It is simply inexplicable why the 2020 editors of Mason’s manual adopted a pre-Civil War rule from an 1856 treatise and altered eight decades of Mason’s own conclusion on the question.
This is excellent and does the hard work of diving into the case citations that I was unable to do.
Two omissions: first, I think [correction: one of] the strongest arguments against applying the current Mason’s Manual in this case is simply that Mason’s 2020 doesn’t apply a rule at all, but rather offers legislators multiple options, [which are left to the legislature to resolve]. Fortunately, Demuth’s brief makes this very argument.
Second, I thought my strongest argument against applying the current Mason’s Manual here was the way Mason’s Manual selectively quotes Cushing. When you read the quotation in full, it is clear that Cushing’s rule does not apply to the Minnesota legislature at all, since our membership is set by statute rather than by constitution.
Or, at least, I thought so. The fact that neither advocate raised what I thought was my strongest argument makes me doubt that I interpreted Cushing correctly. This goes double, because I strongly suspect that Wurman, who filed this brief on behalf of the Center of the American Experiment (among others) was probably aware of my post, since the Center of the American Experiment had discussed my post a few days before.11
So perhaps I was wrong? Since nobody raised the issue in their arguments, it almost certainly won’t be raised by the court at orals, so I’ll just have to figure it out for myself at some future date. Sigh.
Separation of Powers
The biggest thing I overlooked in my last post was the Minnesota Constitution’s separation-of-powers clause. It’s pretty beefy. It gets a whole article to itself:
ARTICLE III: DISTRIBUTION OF THE POWERS OF GOVERNMENT
Section 1. Division of powers. The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.
The Secretary of State is a member of the executive branch. The constitution assigns him no power to preside over, determine the quorums of, or adjourn the House. His authority to temporarily preside over the House comes solely from a statute… and, given the clear terms of Article III, Demuth and the Republicans argue that the secretary’s temporary presidency is necessarily limited to a ceremonial function. If the secretary (a member of the executive branch) ever attempts to intrude on a substantive function of the House, his action is unconstitutional, even if supported by state statute.
Recall that Sec. Simon’s actions on January 14th were not even supported by statute. He correctly convened the House, correctly performed the duties of a temporary presiding officer (leading the Pledge of Allegiance, taking the roll, issuing a preliminary ruling as to the presence of a quorum). Then, in defiance, of the House, he rejected appeals of that preliminary ruling and, in defiance of all known legislative procedure, unilaterally adjourned the House without a motion or a second.12
The separation-of-powers article shows that, even if this authority could be found in the statute, that would only prove the statute unconstitutional. The Secretary does not respond to this argument in his rebuttal. He only says that the court should ignore the argument because it has never been raised before, and suggests that the Republicans’ assent to Simon’s ceremonial role means that they consented to his assumption of a substantive role as well. This doesn’t seem availing to me. The state constitution is pretty clear: Steve Simon, a member of the executive branch, cannot under any circumstances adjourn the House—not even a House that has met with less than a quorum—and is powerless to override the House’s rulings on parliamentary procedure (like questions of quorum) as well.
This adds considerable force to arguments I made previously against Simon’s actions. Even if you agree with Simon on the central quorum question, it was not his to decide. It was the House’s.
Quorum Authorities
Despite all this, this case could still reach the central question: in the Minnesota House, is a quorum based on the total number of members or the total number of seats? Last week, I thought this question was a virtual tie, with good authority on both sides. Two things changed my mind reading these briefs:
First, in the original quo warranto petitions, Hortman and Simon make a number of textual arguments about the meaning of the phrase “majority of the House” in Article IV of the Minnesota Constitution. Several of those arguments boil down to, “The framers knew how to specify when they meant a majority of members, so the fact that they didn’t specify here proves that they meant a majority of seats.” The problem with this argument, once stated plainly, is obvious: it cuts both ways. The framers also knew how to specify when they meant a majority of seats (and their constitution does so specify in some places), so the fact that they didn’t specify here could just as easily prove that they meant a majority of members.
The Democrats get points here for attempting textual analysis, which I know is not their favorite thing, but I just didn’t find their analysis persuasive, on this or other points. (I do think they scored some good hits on the Republicans’ attempt to invoke legislative history in support of their position.) Sometimes, sadly, text is silent with respect to an ambiguity, so the ambiguity must be resolved by other means.
In arguments over ambiguity in text governing legislative operations, that “other means” is ordinarily supposed to be a vote of the legislature itself, not a ruling by the state supreme court.
Second, both sides cited some good precedents. I read the ones on which they placed the greatest weights.
The Republicans cited a case called State ex rel. Peterson v. Hoppe, 260 N.W. 215 (1935), where the supreme court held that a majority of a body meant a majority of its seats if it used the phrase “members elected,” but a majority of its members if it just said “members.” They explicitly linked this distinction to the distinction in the Minnesota Constitution between passages that specify “members elected” and those that do not. This is strong precedent, since the court is quite clear in its opinion that it wants to apply this rule to all legislative bodies, not just the Minneapolis Board of Aldermen. (The Democrats try to resist this, but read the case and I think it’s pretty clear the GOP is right on this point.) The weak point for the Republicans is that the controlling text in the Minnesota Constitution doesn’t say “majority of members,” like the text at issue in Peterson did. The constitution just says “majority,” with no further specification at all. Peterson still seems on-point, but it’s not a slam-dunk. On the other hand, it’s the best precedent anyone cited, IMO.
The Democrats’ strongest case was a Florida state supreme court decision from 1868 (around the time our constitution was framed) which held that the phrase “majority” in a quorum requirement meant a majority of seats. This is also good, and the language is a closer match, but we know (and the DFL has conceded) that state practice on this question is divided, and other states can provide only persuasive authority, not binding precedential authority.
The Dems also cited State ex rel. Eastland v. Gould, 17 N.W. 276 (1883), which held that the Minnesota Constitution’s language requiring a “two-thirds vote” means two-thirds of the overall membership, not two-thirds of members present. But Demuth’s petition explains why the reasoning in Eastland doesn’t apply to the quorum requirement:
It is true that this Court has made one exception to Peterson’s majority-of-members/majority-of-seats dichotomy. Certain of the Constitution’s supermajority requirements refer to a vote of each “house” or the “members of each house,” not of members elected. These were the provisions that this Court addressed in Eastland. The Eastland Court noted that passing ordinary legislation requires a majority of all members elected, and found it would be “absurd” if “a bill could be passed after a veto by a vote less than is required to pass it before a veto.” 17 N.W. at 192. So it concluded that these provisions must refer to a supermajority of all members elected, even though they do not expressly include that language. As the U.S. Supreme Court later put it, Eastland concluded that since “the state Constitution required a vote of the majority of all the members elected to the house to pass a law, the two-thirds vote necessary to override a veto was a two-thirds vote of the same body.” Missouri Pac. Ry. Co. v. State of Kansas, 248 U.S. 276, 285 (1919).
That reasoning doesn’t apply in the case of the quorum requirement, and I read Eastland to be sure. I agree with the Republicans’ characterization of it.
[EDIT 23 Jan 12:16 PM: Also, it’s worth noting that Peterson itself acknowledged, and distinguished itself from, Eastland.]
The DFL’s Sleeper Argument?
The DFL’s best argument might turn out to be one that emerged only since last Friday: Curtis Johnson’s seat in House District 40B is not actually vacant[, the DFL argues], because Johnson—despite formally resigning his election when he lost his court case—was not actually refused a seat in the House by a vote of the House. Therefore, he is still a member of the House until… I’m not actually sure when they think he ceases to be a member, but I guess until his replacement takes office?
If this is correct, then there is a full House of 134 members, and a quorum if 68 no matter how you slice it.
The reason this argument emerged late is because the DFL’s position in the district 40B contest has been that Curtis Johnson actually did vacate his seat when he resigned December 27, allowing Gov. Walz to immediately call a special election without waiting for the House to complete its election contest procedure. The Minnesota Supreme Court struck down Walz’s attempted special election on Friday. However, because SCOMN was acting with such haste, we don’t actually know exactly why they struck it down. They published their order, but their opinion is still pending.
Reading between the lines of the order, however, it seems possible that SCOMN thinks Johnson does indeed have to be formally booted from the House before his vacancy formally takes effect. Demuth’s brief didn’t raise this in response to the quo warranto petitions, presumably because word counts are limited and the petitions didn’t raise the issue (because, as of last Tuesday, Gov. Walz’s legal position was still that Johnson’s seat was actually already vacant). The question is raised instead by the DFL rebuttals, which now treat Johnson’s seat as an “anticipated future vacancy,” not a current vacancy.
However, Sec. Simon has to contend with the fact that he himself told the House on January 14th that he had received only 133 certificates of election, not 134 (and Johnson’s certificate was, indeed, omitted at that time). The House is probably within its rights to have taken Simon at his word.
Still, this issue has the potential to become a major factor in the case. We have only heard from the Democrats on it so far, with no rebuttal from Republicans because it was raised so late, and we are still missing the state supreme court’s own opinion on the question of District 40B. For these reasons, you should assume there are good counter-arguments out there until proved otherwise. Nevertheless, I think there’s something to the idea that only the House itself can formally turf out an elected representative, and therefore Johnson might be a representative today.
…except that he resigned. I don’t believe the House ordinarily has to take any action to make a resignation effective. Hm.
But I can’t look into it now. It’s past bedtime, the trash needs doing, and I need to send this off to you or it won’t reach you before oral arguments happen. I hope this was an interesting update! I hope to post once more about the final conclusion of the case… assuming we get one after SCOMN rules and this doesn’t drag on into a new chapter of legitimacy crisis. Good night!
He was representing Gov. Walz in oral arguments in the District 40B special election case instead.
Because my side lost at the U.S. Supreme Court, I never got around to giving the Minnesota Supreme Court’s final opinion in Growe v. Simon the spiteful drubbing I felt it deserved, but you can nevertheless read it here: Growe v. Simon (2024) Published Opinion. Credit where it is due: they did try to thread the needle I presented in “Minnesota's Supreme Court Heads for the Hills”.
“TLDR” stands for “Too Long, Didn’t Read.” Although it first entered use as a complaint (“TLDR! Learn to edit, OP!”), people who wrote long posts eventually started writing summaries of their posts as “the TLDR version” for people with short attention spans. Today, TLDR mostly means, “This is a summary.”
To those of you who find this so blindingly obvious that it’s weird to see a footnote about it, it recently came to my attention that some older readers of De Civ, who (wisely) did not grow up in the BBS flame wars, had no idea what TLDR meant. And why should they? Now they know. They’re one of today’s 10,000.
Yes, it’s two dockets, because Simon’s case wasn’t formally consolidated with Hortman’s. No, I don’t know why not. No, you still can’t deep-link into C-Track, so all I can do is give you the search page and the case numbers and let you type them in.
That word count includes 21 footnotes, which, again, really gives that authentic De Civ feel.
State ex. rel. Palmer v. Perpich, 182 N.W.2d 182, 184-85 (Minn. 1971).
Hortman, et. al, to their credit, don’t seriously contest this. They just say that their quorum-busting is a “well-trod parliamentary maneuver” and move on. Sec. Simon, however, tries to argue with a straight face that his lengthy series of questionable legal actions, every single one of them essential to protect the DFL from the consequences of its own mistakes in District 40B, acted “transparently” after he “independently studied” the issue and “consulted with non-partisan experts.” (He names exactly one: House Chief Clerk Pat Murphy, although we only hear about Murphy’s opinion secondhand through Simon’s supporting declaration.)
Like, c’mon, Mr. Secretary. If you’d made two questionable rulings that helped your political party and one questionable that helped the other, we could maybe buy this. Instead, you were down the line for the DFL position, and that can’t possibly be because the DFL position was so obviously more meritorious. I repeat: Mike Pence wore it better.
Sec. Simon disputes this, arguing that the “unclean hands” defense is available only in actions at equity, and that quo warranto is an action at law. He might be right. I did not have time to look into it.
I am not convinced of this, and I would need to read a lot more about the pre-1920s history of the standing doctrine’s predecessors to become convinced.
As indicated in an appendix to this brief, of the fifteen cited cases, six do not involve any vacancies at all, but rather involve the question addressed in Gould, whether a majority of a quorum or a majority of all elected members is required. Two other cases are also irrelevant. Of the remaining eight, four support the rule of respondents that disqualified members or vacant seats are not to be counted. Only three do support including vacancies, but only when the language specifies “members elected,” which Minnesota’s Quorum Clause does not include.
I also heard, through a friend of a friend, that a different attorney on this case had also become aware of my post. What that attorney thought of it, I have no clue. But it turns out that, when you write lots of words about relatively obscure local cases, the people involved tend to read them!
As a matter of fact, he purported to “adjourn” the House sine die, apparently forgetting to set a date for the House to reconvene, which calls into question whether or when the House could reconvene if Simon’s adjournment had been valid, which it wasn’t. The funniest outcome of this case would be if the Democrats win, the state supreme court recognizing Simon’s actions as valid and binding… and then proceed to rule that the House is therefore adjourned sine die and may not reconvene until next year.
I do not think this is quite how it works. Adjournment rules are not something I know well. But it would be very funny, and, if this winter has shown us one thing, it’s that you can’t expect the Minnesota DFL not to blatantly violate the law only to be reined in by the courts.
I'm going to laugh pretty hard one of these days when De Civ gets cited in a footnote in some supreme court case (either MN or US)...
Thank you for this! One comment is that I am not emailed when there is an edit to an article, so I didn't see your edits to the previous article until now. Now I am wondering what other addendums to articles I have missed.