Is Minnesota House GOP ignoring the courts in dispute over Tabke’s seat? Not really

When is a judge’s ruling, coming after a lengthy trial and hundreds of pages of legal briefing, just a suggestion?

Not very often, as courts usually have a thing about not offering advisory opinions on issues not clearly before them in actual cases.

But in a specific instance of Minnesota state law, the courts have been assigned – and accepted – the job of serving as the investigative agent for another branch of government. When a losing candidate challenges the legitimacy of their defeat, they can file an election challenge. Out of respect for the separation of powers and the state constitution, which gives the Legislature the final authority to judge its own elections, the court has consented to serve as the finder of fact but not the final arbiter.

“Each house shall be the judge of the election returns and eligibility of its own members,” reads Article IV, Section 6 of the state constitution.

The Minnesota House is in the midst of an ongoing dispute between Republicans and DFLers over whether the Republicans have the authority to organize the House with 67 members — one seat short of the 68 needed for a majority in a 134-member House but one more than a majority if a vacancy in a Roseville-area seat results in the current House being considered 133 members.

Related: What does Minnesota law, state constitution say about legislative quorums?

Legal filings with the Supreme Court by DFL House leaders as well as Secretary of State Steve Simon could lead to a court ruling on how many makes a quorum. But in the meantime, the House GOP says they will decide themselves whether Rep. Brad Tabke, DFL-Shakopee, should be seated despite winning an election challenge Tuesday.

Is that legal? Rep. Harry Niska, the Rogers Republican who is the No. 2 leader of the House GOP caucus, said last week that it is the House — not the courts — who make the decision.

“The statute and the constitution are really very clear that the House is the final judge of the returns and eligibility of its members,” Niska said.

Related: Minnesota leads again: No other state has ever begun a legislative session without clear majorities

In her ruling Tuesday that found a GOP challenge to Tabke’s election did not prove that the results should be invalidated, District Court Judge Tracy Perzel made reference to her unusual role.

“Denial of this election contest is recommended and ordered to the extent the Court’s authority in this election contest described in Scheibel v. Pavlak … allows for such an Order,” Perzel wrote in her conclusion.

Her conclusions were good news for Tabke and the DFL.

“Brad Tabke remains the candidate with the most votes legally cast in the 2024 General Election for Minnesota House District 54A,” the judge wrote. “This election is not invalid. Neither an injunction nor a special election is warranted or ordered.”

If Tabke is seated, the GOP will have a 67-66 advantage. If the DFL wins a special election in Roseville later this month, the House will again be tied, 67-67. But if Tabke isn’t seated by the GOP, it will return to a 67-66 GOP majority until a new election is held. While the Roseville seat is in a district dominated by the DFL, the Tabke seat is from the tightest district in the state, one he won by just 14 votes in 2024 but that was won by the GOP as recently as 2020.

Keeping the House GOP from acting against Tabke is one of the primary reasons the DFL House members are boycotting the session, an act they believe denies the House a quorum needed to take any actions. The GOP says they have a quorum, and Tuesday voted to set up a method to decide whether to allow him to be a member.

The entire House – for now just GOP members – will meet as a committee of the whole which “may receive testimony and other evidence, and shall prepare a report for recommendation to the body,” according to rules adopted. “The House must act on a report made by the Committee of the Whole within two legislative days of its receipt.”

The judge’s order, while subject to appeal to the Supreme Court, was sent to the House of Representatives. That is in keeping with a 1979 Supreme Court ruling in another challenge to a House member’s election – ironically coming the last time the House ended an election tied 67-67.

The Pavlak decision, written by then Chief Justice Joseph Sheran, not only laid out the process for handling election challenges but explained why the court was diverging from common practice. Separation of powers, he wrote, should prevent the Legislature from giving any other body control over how the House and Senate are run. He cited state law that says court decisions are sent to the House or Senate, which “establishes procedures to be followed by the Legislature in making the ultimate determination.”

“In short,” Sheran wrote, “we have no jurisdiction to issue a final and binding decision in this matter, and our opinion by statute will be and by the Minnesota Constitution must only be advisory to the House of Representatives.”

But Sheran also noted the courts’ reluctance to offer advice in cases where it does not have final jurisdiction and that the Pavlak case “raises the issue of whether this court may render any opinion on the merits of this dispute without contravening well-established constitutional principles. Courts have traditionally considered themselves foreclosed from offering opinions that were not binding upon the parties.”

That principle goes back to the founding of the United States when the Supreme Court rejected George Washington’s request for its opinion on how to organize the judicial system.

Accepting the Legislature’s decision to assign an advisory role to the courts appeared to grate on Sheran.

“The judicial branch is unconditionally restrained from asserting a constitutional role in such a case and is reduced to carrying out such ministerial functions as the Legislature may request by statute,” he wrote. “Such subordinate status in the fulfillment of a constitutional responsibility emphatically assigned to another branch of government is not in keeping with the rendition of final decisions which is our own separate and co-equal constitutional responsibility.”

Ultimately, however, Sheran decided taking on the role was the best alternative available.

“In spite of the constitutional reservations expressed above, complete withdrawal from the dispute presented to us does not seem an option available to us at this time,” he wrote. The court found that Robert Pavlak, a Republican, had violated fair campaign practice law but left the decision on his fitness to remain in office to the Legislature. After being sworn in and serving for several months, the House removed him on a 67-66 vote. While the House was still tied 67-67, Pavlak was not allowed to take part in the vote, and that gave the DFL a single-vote advantage.

Pavlak ran for the same seat in a special election but lost. Since then, only a handful of challenges have reached fact-finding in the courts and none have been successful until this year’s residency challenge of Curtis Johnson of Roseville.

But the Sheran decision also warned lawmakers that just because the court weighed in on the Pavlak case, it might not in the future.

“We submit the opinion to that body with the understanding that whether the Supreme Court should henceforth decline jurisdiction in legislative election contests covered by (state law and constitutional provisions) is a question reserved for future decision.”

Peter Knapp is a professor at Mitchell Hamline School of Law who studies the state Supreme Court and constitution. While he said he is not an expert on election law, he did say the courts are “notoriously reluctant to issue opinions that aren’t binding on the parties.

“That comes through loud and clear in Chief Justice Sheran’s opinion in Scheibel v. Pavlak, doesn’t it?” Knapp wrote in response to questions about the case. “I think the court’s willingness to overcome that reluctance is probably best explained by four things:

• Unlike many situations where courts refuse to issue advisory opinions, contested elections present a live controversy.
• Courts, and certainly the Supreme Court, have experience resolving election disputes.
• The Legislature, in Minn. Stat. § 209.09, gave (and still gives) the courts a role in legislative election contests, and have provided for appeal to the Supreme Court.
• And, I suspect, there’s probably some feeling of ‘if not us, then who?’”

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Editor’s note: Peter Callaghan wrote this story for MinnPost.com. Callaghan covers state government for MinnPost. 

This article first appeared on MinnPost and is republished here under a Creative Commons license.

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