ST. PAUL -- A judge deciding the fate of a child care providers' union election said Wednesday that Gov. Mark Dayton could have avoided a lawsuit by conducting a less formal survey.
Ramsey County District Court Judge Dale Lindman told Dayton attorneys that the governor only needed to call a commissioner and ask them to survey child care providers to see if they want unions to represent them.
"He still could," Lindman said.
Instead of the unofficial survey the judge suggested, Dayton ordered a state-conducted election of child care workers who provide care in their homes and receive state subsidies.
However, on Dec. 5 Lindman temporarily stopped the election, saying the proposal needed legislative approval. The judge strongly hinted at the time that the election had little chance of passing his muster and on Wednesday his questions indicated his mind had not changed.
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Lindman did not indicate when he would decide if he will permanently ban the election.
Union attorney Gregg Corwin warned in court that the judge's election stoppage could be overturned in an appeals court. He complained that "this court is ignoring" other states and two appeals courts' decisions to establish an election like Dayton wants.
Corwin disputed the judge's assertion that the governor was usurping the Legislature's job in ordering the election.
"It is the court which is legislating ... and interfering with the executive branch," Corwin told Lindman.
"It was never my intent to usurp the governor's power," the judge responded. "I wouldn't have his job."
Corwin represents the American Federation of State, County and Municipal Employees, one of two unions that have worked six years to organize self-employed in-home child care workers to negotiate with the state.
Attorney Thomas Revnew, representing child care workers who oppose Dayton's order, said the election violates the Constitution's provision separating executive, judicial and legislative powers.
One of the child care workers opposed to the election, Heather Falk of Cloquet, said she was surprised by some statements she heard in the St. Paul courtroom.
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"I couldn't believe the untruthfulness coming from some of them," she said about lawyers supporting Dayton's action.
Falk agreed with the judge that Dayton could have avoided the lawsuit. When she and others met with the governor before he ordered the election, they suggested that he do a survey of providers.
Dayton in November ordered a December vote about whether people who care for children in their homes want to join unions. Only those receiving state subsidies would get ballots.
Opponents claim that accepting votes from just 4,300 Minnesotans who receive state subsidies to care for children in their own homes was shutting off the voices of nearly 7,000 other in-home day care providers.
Dayton, on the other hand, has said: "I continue to believe that in a democracy, people should have rights to elections to determine their own destinies."
The anti-vote lawsuit was backed by several conservative organizations and some day care owners.
Davis is the Minnesota State Capitol Bureau correspondent for Forum Communications, which owns the Herald.
