Showdown at the Minnesota State House of Representatives

The showdown at the Minnesota State Capitol over partisan control of the House raises serious constitutional questions. The Minnesota Supreme Court has been asked to intervene. It should dismiss the case for reasons that every 1L law student understands.

Anybody who has ever gone to law school is familiar with one of the most famous quotes in law. It is John Marshall’s statement in Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury established the principle of judicial review, a principle applicable not just at the federal level, but at the state level, including in Minnesota.

The showdown at the State Capitol over partisan control of the House raises many important state constitutional law issues. There are questions regarding, for example, what constitutes a quorum under Article four, Section 13 of the state constitution. There are questions regarding whether the Democrats’ decision to boycott the Legislature have violated the oath and duties of legislators (Article IV, section 8). There are also questions regarding whether the Republicans constitutionally selected a speaker of the House, and perhaps whether they can exclude a dutifully elected state legislator after a court has affirmed his election (Article IV, Section 6).

Some of these questions are before the Supreme Court, and some may eventually come before it. They all raise difficult and complex constitutional questions. Under the logic of Marbury, the Minnesota Supreme Court should intervene and answer these questions. These are matters that strike at the very heart of governance in this state.

But there is another equally potent principle of constitutional law 1Ls learn, and it is called the political questions doctrine. Its origin arises out of a dispute in Rhode Island where rival factions in the state were claiming they were legitimately elected and entitled to govern. The question posed before the US Supreme Court in Luther v. Borden was to determine which side was legitimate. The Supreme Court eventually declined to answer, arguing that the question of the legitimacy of governing the state was a question under the Constitution about the constitutional guarantee of a republican form of government for each state. The court said that the determination of this question was political in nature and needed to be resolved by Congress.

The political question doctrine establishes the proposition that there are certain types of cases over which the court should not intervene and of which it should defer to the political process to address. In Minnesota, the Supreme Court has, on occasion, invoked something like the political question doctrine. For example, in State Ex Rel. Peterson v. Quinlivan, 268 N.W. 858 (Minn. 1936), the court refused to act and dismissed a case regarding questions about selection of a regent for the University of Minnesota. In effect, the court crafted a state-level version of the political question doctrine.

The fight over control of the House in Minnesota is different from the issue in Quinlivan and certainly by no means the same as the dispute in Luther v. Borden. Yet it is a question of similar nature, a dispute about quorum and duties of legislators, that is best left up to the Legislature to resolve for itself.

No matter how the Supreme Court acts, if it were to render a substantive decision here, it would do so in a way that improperly intrudes itself into matters that should be left best left up to the Legislature. and perhaps ultimately the voters to decide.

Reprinted with permission of Minnesota Lawyer