How Much Have We Lost?

Thursday, May 22, 2014

Government Shutdowns and Legal Reality

Today's papers were full of headlines about focused on some of my colleagues demands that the Governor explain his legal basis for keeping state government running if the House continues to refuse to compromise on Medicaid.

They issued a letter citing a presentation given by staff attorney's with the legislature's Division of Legislative Services (DLS).  You can read the presentation here if you are curious.

I have received a few calls over the last couple days.  I have not spoken to anyone in the Govenor's Office, nor have I done any heavy duty legal analysis, but it seems pretty simple to me.

If you follow the DLS legal rationale to its logical conclusion, then all state employees must stay home and the state government cannot spend any money after July 1, 2014.  While, I have the utmost respect for DLS' attorneys and they are right most of the time, but the practical reality of their legal conclusion leads to nonsensical practical outcomes, and just like we cannot maintain segregated schools or prohibit interracial marriages (or refuse to implement the Affordable Care Act), there are a few legal obligations, we cannot simply choose to ignore.

The Governor was elected by the people of Virginia to be the CEO of the government and one branch's failure to act, does not tie his hands in a crisis.  The Courts will grant him temporary powers to govern necessary government functions.    Here's why.

Prisons Close Down?
John Goodman escapes prison in Raising Arizona 
The upshot of the DLS analysis is that Virginia would have to close its prisons and release its inmates.  I suppose they could just lock the doors and leave the prisoners inside, but I'm not confident that would work very well.

This would be illegal, unconstitutional, and would probably result in a Federal Judge ordering Virginia to get in line or some very large judgments against the state for violating constitutional rights.

Courts Closed for Business?
The Courts would shut down.  People arrested by police (local governments are still open) would take people to the County jails and the Magistrates (state employees) could not issue arrest process (warrants) or give them bond.  Even if they did get bond, a judge (state employee) could not have a bond hearing to consider a bond motion - plus prosecutors (state employees) would not be working to represent the state and the state is prohibited from appearing in court without counsel.  Again, illegal, unconstitutional, and would result in a Federal Judge ordering Virginia to follow the U.S. Constitution.
Hospitals Shut Down?
Virginia could not send out Medicaid reimbursements.  For some hospitals or nursing homes, this means they close.  Alternatively, it means that they would have to kick Medicaid recipients out of the hospitals and nursing homes.  People would be hurt.  This is probably illegal under Federal Law and would expose the state to some pretty massive personal injury awards or civil rights claims.  Once again, [ENTER STAGE RIGHT: federal judge carrying injunction]

No General Assembly Session
If the DLS analysis is correct and we are actually in a General Assembly Session after June 30, I am not clear how we can meet in the State Capitol.  I would not expect to see Capitol Police on the State Capitol Grounds, I'm not clear how we'd get into our Chambers, and I would not expect to see any employees present except legislators.  Given that we are not really capable of official functioning without staff support, I don't see that happening.

There are some functions of state government that cannot shut down or else people die, laws get broken, the U.S. Constitution gets violated, or people get hurt or maybe die.

The Courts were the Founding Father's political safety valve.  When we cannot adopt a redistricting plan, the Courts will do it for you or give someone else the authority to do it to limit the collateral damage.  When legislatures adopt laws that violate the Constitution, the Courts step in and shut it down.  When governments act illegally, the Courts enforce accountability. The same is true here and the idea that everything has to just completely stop or that the Governor has to sit around and watch prisoners escape, patients die, and criminals walk is legal nonsense.  No judge would enjoin him for taking steps to prevent that.

Legally nonsensical results happen in the real world and require court involvement all the time.  I have clients that draw up contracts that do not make any sense, internally inconsistent, are incapable of enforcement, or are illegal.  When strict readings of the law result in absurd consequences, the Courts step in and use their equitable powers to clarify or resolve a situation.  They derive from the ancient equitable maxims derived from the English Common Law.  Principles that developed over centuries and hold true today:
  • One who seeks equity must do equity (take note legislature - it's not like the Governor hasn't passed a budget)
  • He who comes into equity must come with clean hands (take note legislature - ditto above)
  • Equity aids the vigilant, not those who slumber on their rights (take note legislature - Governor is waiting for the budget)
  • Equity sees that as done what ought to be done 
  • Equity will not suffer a wrong to be without a remedy 
  • Equity imputes an intent to fulfill an obligation
  • Equity abhors a forfeiture
  • Equity does not require an idle gesture
  • Equity will not allow a trust to fail for want of a trustee
In other words, if there is nothing on the books or in the Constitution, then the Courts will step in and grant the Governor emergency powers to keep prisoners in jail, the state from violating Federal Law and the Federal Constitution, and keep people from dying.  For example, the Attorney General seek authority in advance say on June 25ish - and ask a judge to grant the Governor authority to operate certain functions due to the failure of the legislative branch to act.  

So When is D-Day?
Finally, one last thing that no one is discussing.  Under Article V, Section 6 of the Constitution of Virginia, a bill is not final until the Governor signs it or 30 days (if we have adjourned sine die).  The Governor always has amendments to the budget.  They must be acted upon at the Reconvened Session six weeks after adjournment.  If we adopt a budget on Monday, May 28, 2014, Reconvened Session would be July 9, 2014.  The Governor then has 30 days from July 9 sign or veto the budget bill.  However, the budget bill is not law until the Governor signs it.

Alternatively, if we pass a budget and do not not adjourn sine die, the Governor has 7 days to sign, veto, or line item amend.  Then, we have to act on his amendments (or veto).  Then, he has 7 days to sign or veto.  Either way, it seems to me that D-Day is not June 30, 2014, it's more like June 15-20, but what they heck, I'm just a three-term legislator in the minority and no one asks for my opinion.  If we do not have a budget before June 15, then the timing gets really tricky in terms of actually get a law in place that is actual legal authority to spend (if you want to be hypertechnical).  

I do not write any of this to say that this to excuse anyone's behavior.  We have all seen what operating without a budget did to the Federal Government.  However, the doomsday scenarios floating around are not accurate.  

Hopefully, the negotiators will stop the press stunts, sit down and have a serious negotiation to work this out.  I stand ready willing and able to go to Richmond or do whatever is asked of me.  Either way, get ready for a wild ride and watch out for dragons because we are sailing into uncharted waters.

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