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Serving Northern St. Louis County, Minnesota

Legal process moves like a glacier, but its effects can be profound

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Having an insider’s view of two recent lawsuits that went all the way to the Minnesota Supreme Court has been an eye-opening experience for me about the legal process, and it’s unpredictable nature.

Take the case of the St. Louis County School District and the campaign it waged to sell its controversial 2009 referendum. As many readers know, I worked closely with attorney Erick Kaardal on that case, so I’ve followed the twists and turns as closely as anyone. When we first filed that action in November 2010, the prevailing legal framework regarding school districts and their authority to spend taxpayer funds to promote passage of ballot measures seemed pretty clear— such expenditures were not authorized by law. At the same time, what little case law existed (which was minimal) suggested that school districts were not subject to campaign finance reporting, as required of other campaign committees in the state. That made sense if school districts couldn’t “campaign,” but when ISD 2142 stepped way over the line and spent tens of thousands of dollars doing exactly that, it highlighted some of the legal loopholes in place.

After four years of litigation, and some precedent-setting rulings, the situation has changed. We now know, with some degree of certainty, that school districts must file campaign finance reports if they spend in excess of $750 trying to win passage of ballot measures. That’s a significant change from the legal precedent before our case was filed.

But the formerly settled question of whether school districts can expend taxpayer dollars, or even donated funds, on ballot measure campaigns, now appears up in the air, at least according to the state auditor’s office. As we reported last week, the state auditor’s position is that if schools campaign, they must file a campaign finance report. But the auditor’s legal counsel, Mark Kerr, declined to answer the more fundamental question of whether school districts can legally campaign at all. I should note that other attorneys who specialize in school law don’t agree with Kerr’s interpretation. And the Minnesota School Boards Association is, wisely, counseling school districts NOT to campaign with tax dollars.

The issue, obviously, begs for clarity, which is why the Timberjay editorialized last week that the Legislature should make a clear statement whether or not it wants to see tax dollars spent on elaborate and costly campaigns urging voters to support more tax increases. The very idea has appalled citizens and judges alike over the years, which is why case law across the country has consistently said using tax dollars (which belong to all) to wage one-sided or misleading campaigns for ballot measures, is anathema to our system of government.

I had the chance to meet with the auditor and her staff prior to last week’s school board meeting to discuss their determination. And since I was quite familiar with all of the various legal decisions in the case, I challenged Mr. Kerr to show me where he found language to support his suggestion that school district campaigning was now permissible, or at least in a gray area. He offered little of substance, and when I pushed back, he simply said I’m not a lawyer, so he wasn’t going to argue any more.

I always figure that when a lawyer has to resort to such an argument, they know they’re in legal quicksand.

The fact is, most legal opinions are written in pretty plain English, and don’t require a law degree to comprehend. Most are workmanlike, but some are beautifully crafted and a joy to read. Others are just infuriating. Anyone with basic familiarity with the law can argue about the meaning of legal rulings and the peculiarities of wording that lie embedded within them. Behind their robes, judges are just people, after all, and the quality of their legal rulings varies considerably.

In the school district litigation, former Congressman David Minge, who chaired the Court of Appeals panel that heard the case, wrote a solid treatise that made clear their displeasure with what the school district had done, and offered a convincing argument for why school districts should not be campaigning with tax dollars. While you might expect the Supreme Court to perform at an even higher level, in the two cases I’ve followed closely, both opinions from the high court had serious flaws. Alan Page, who penned the majority opinion in the school district case, may have been an All-Pro defensive tackle, but his opinion didn’t live up to “Supreme” billing.

Too often, a judge’s intent isn’t that clear, and that was certainly the case with some of the language in the final ruling in the school district case by the Office of Administrative Hearings. That lack of clarity leaves everyone else to sort it out through additional litigation or changes to the law. It’s unfortunate that there isn’t a more efficient process to clarify opinions when such confusion arises.

Of course, judges aren’t always at fault in such circumstances. Sometimes, as happened in our public information case against Johnson Controls, it is the judges who struggle with the meaning of a law that, itself, could have been written more clearly. In that case, at least, the Legislature responded to quickly repair the damage.

We tend to think of the law as static, but the truth is, it’s in a constant state of evolution and always has been. Each worthwhile case that enters the judicial process tends to shape the law in one manner or another. Public interest attorneys, like Erick Kaardal, routinely use litigation to move the law in a direction they favor, utilizing each case as a building block of a new legal framework. That’s what’s currently happening in the school district case, which is an effort to paint a clear red line that school districts can’t cross while conducting referenda.

Now, given the district’s failure to fully disclose its campaign spending, we’ll be filing a new complaint soon that will further clarify the responsibility of school districts if they choose to exceed their legal authority and spend tax dollars on campaigns. It may seem like endless litigation over small matters, but that’s how change happens in the law. It’s slow-moving, like a glacier, but it’s potential to reshape the legal landscape is no less weighty than a mile-thick sheet of ice.