The disarray in the non-functioning Minnesota House of Representatives comes down to five words in the state Constitution: “A majority in each house,” state Solicitor General Liz Kramer told the Minnesota Supreme Court on Thursday.

“The question is whether a vacancy in either house reduces the number necessary for a quorum or whether the quorum number is static,” Kramer said to the state Supreme Court in her opening comments on behalf of Secretary of State Steve Simon. Quorum refers to the number of members who must be present to conduct business.

Simon’s position, and that of the Minnesota House DFL, is that a quorum is 68 of the 134 House members. Republicans argued they can do House business with 67 members. The GOP attorney also argued the court should stay out of a legislative dispute.

For more than an hour, six Supreme Court justices vigorously questioned attorneys for Simon, House Democrats and Republicans in a highly unusual case that could decide whether the GOP gets to run the Minnesota House for the next two years or must share power with the Democrats.

Chief Justice Natalie Hudson gave no indication of how or when the court would rule, but it’s expected to be soon given the inability of the Minnesota House to pass bills.

The dispute dates to the first day of session, Jan. 14, when the Democrats boycotted the House in an attempt to deny the Republicans quorum. Simon, presiding on opening day, determined a quorum to be 68 members and didn’t convene the House. But the 67 Republican members went ahead and met, selected a speaker and committee chairs.

During the court’s session, Hudson spoke first telling Kramer that the DFL’s interpretation of state law seemed “reasonable,” before adding that the GOP position was “at least equally reasonable.”

Both the GOP and DFL agree on one thing: It takes 68 House members to pass laws. But Nicholas Nelson, attorney for the Republican caucus, said legislators can do all other business with just 67 members.

Justice Theodora Gaïtas pressed Nelson on the requirement of 68 House votes to pass bills. “They can meet, but they can’t pass laws under your own argument. Isn’t that a significant flaw with your argument?”

Nelson said the House can do everything but enact legislation. “There is no grand theory that makes all of this language consistent,” he said.

In questioning Kramer, Hudson mentioned a previous court ruling that raised concerns about a minority of members wielding power over a majority. “That’s a little bit like what’s happening now because the Democrats are not in the majority,” Hudson said.

Kramer said a quorum, the number needed to pass legislation, has to be static. “If the court says the quorum can be reduced when there are vacancies” such as a member dying, “a minority faction would all of a sudden be able to exercise control,” she said.

Asked by Gaïtas to point to the best evidence for the DFL position. Kramer cited two previous cases and past practices as determining the threshold for a 2/3 vote. In those situations, the common denominator was 134, the entire House, Kramer said.

Justice Gordon Moore asked whether the court should steer clear of the dispute so it’s not “viewed by parties as a place to resolve political disputes.”

Kramer countered that the Supreme Court had done so before by entering a 1971 dispute when Lt. Gov. Rudy Perpich, presiding over the state Senate, declined to seat a senator because of an election challenge.

In arguing on behalf of the House DFL, attorney David Zoll opened by saying, “The issue today is neither political nor partisan. It’s a question of constitutional law.” The state Constitution created a House of Representatives with 134 members and a quorum is necessary to take action, he said.

Justice Anne McKeig asked whether the DFL had “unclean hands” given its boycott of the House. She also said, “This court is not going to give weight to returning them to this power-sharing agreement.”

Zoll said the DFL seeks restoration of the status quo that existed before the GOP met on its own and elected Rep. Lisa Demuth, R-Cold Spring, as speaker.

Gaïtas added, “We have to consider whether we can provide redress for the problem that’s been created.”

Zoll said the remedy is to void the actions of the House GOP. Hudson then asked what would happen after that. Zoll said Simon would convene the House if a quorum exists and the House could take action.

The chief said, “So that could go on day after day after day, is that right?” Zoll responded, “That’s how the Minnesota Constitution is set up.”

In his argument, Nelson urged the court not to intervene and said judicial power involves reviewing statutes, not an “alleged quorum problem” that is of the DFL’s own making in the Legislature.

Hudson asked him whether it wasn’t the role of the judiciary to interpret the law on urgent matters. “What we have is a co-equal branch of government that is completely dysfunctional that is not doing the will and the work of the people of Minnesota,” she said.

Nelson responded that it’s the job of the House, not the court, to resolve the dispute.

Gaïtas sounded skeptical about the GOP urging the court to steer clear given its role in interpreting the Constitution. “Isn’t that our thing? Isn’t that what we do as a Supreme Court?” she asked.

Hudson noted that the court had intervened in the 1971 matter involving Perpich and the Senate. Nelson responded that was an “inter-branch dispute.”

The chief countered that in the current matter, Republicans had argued Simon’s determination that a quorum is 68 members was an “egregious overreach” of his authority. Hudson said, “I grant you that it is primarily a legislative dispute” but Simon’s involvement also pulled in the executive branch.

“I don’t know that you can put it back in this little bitty bucket in terms of the House’s internal regulations,” she said.

At one point, Thissen, a former speaker of the Minnesota House himself, told Nelson his argument about statutes was “weird” and Hudson said the Republican arguments circled back to the Constitution.

Six justices heard the arguments. Justice Karl Procaccini recused himself from the dispute and was not present.

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