HomeMy WebLinkAboutMsc Correspondence & Term Limit Docs - CITY CIF
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UE ephone: (612) 784-3055
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"Quite Simply the Best' JERRY 1,INKE
Match 6, 1996
•
The Honorable Kenneth J.Fitzpatrick jgai
Chief Judge, Second Judicial District
Ramsey County Courthouse
15 West Kellogg Blvd.
St. Paul.MN 55102
Re: City of Mounds View Charter Commission
Dear Judge Fitzpatrick:
The City of Mounds View is served by a Charter Commission appointed pursuant to Minn. Stat.,, •
Chapter 410. The district court through its Chief Judge,is vested with certain powers in regard to
the charter commission Minn. Stat. 410.05 (1994). As Mayor of the City of Mounds View. I
respectfully request, on behalf of the City Council, your guidance in a matter that has arisen
concerning actions proposed by certain members of the Mounds View Charter Commission.
The Mounds View Charter Commission,by a 8-5 vote,requested the City Council to include in our
charter an amendment adopted by the voters in November 1994. That amendment placed limits on
the number of terms that may be served by the city's elected officials. Subsequent to that election_
a virtually identical amendment was found unconstitutional by the Minnesota Supreme Court in
Minneapolis Tenn Limits Coalition-v.Keefe, 535 N.W. 2d 306 (1995).—In-that decision-the-court
held that such a charter amendment is manifestly unconstitutional and therefore need not be placed
on the ballot The Charter Commission is fully aware of the Keefe,decision and has been informed
by the City Attorney that the Mounds View charter amendment is unconstitutional in light of that
decision. The City Attorney has also advised the City Council that we should not include the
amendment in the charter. Nevertheless, the Charter Commission continues to insist that the
unconstitutional amendment be printed in the charter. A copy of the proposed amendment is
enclosed.
The City Council's concern arises from two issues. First, from a public policy perspective we do
not believe that it is wise to have an unconstitutional provision included in the Charter. Second. we
believe that the Charter Commission's attempts to require the City to publish the unconstitutional
amendment is a violation of their oath of office to •hold the United States and Minnesota
Constitutions. :>. ; - -^
_ 6;
•
The Honorable Kenneth J. Fitzpatrick
March 4, 1996
Page 2
Because the district court is charged with the responsibility for overseeing the Charter Commission,
on behalf of the City Council I respectfully request that you address the following issues and take
any other action which is appropriate:
1. Do charter commission members who knowingly ignore a Minnesota Supreme Court ruling
and willingly participate in efforts to print an unconstitutional charter amendment in the City
Charter violate their oath"of office?
2. If such a violation of a commissioner's oath of office has occurred, is such action sufficient
grounds for the district court to remove a commissioner from office under Minn. Stat.,
410.05, subd. 2?
3. If sufficient grounds exist to remove a commissioner from office under these facts, the
District Court is respectfully requested to take the appropriate action under Minn. Stat.,
410.05,subd.2 to remove any commissioners from office who have violated their office by
voting to request printing of the unconstitutional amendment.
Thank you in advance for your assistance and consideration.
pVe truly yours.
J Linke, Mayor
Enclosure
cc: Mounds View City Council(wto enclosure)
Robert C. Long, City Attorney(w/o enclosure)
Paul Harrington, Interim City Administrator(w/o enclosure)
MOUNDS VIEW CHARTER COMMISSION MINUTES
Regular M ecting: 11-30-95
1. Call tet C)rder-by Chair Risk Warren at 7:1111 p.m. .
2. it I 1 'all -Present: l yen Hwpecc-z:. Virrgil Bewx_lt;rry Linda:.nave l.+ns. Duane McCarty.:arty.lean Miller.
Richard Otnait.Laurie Schley.Rhonda Sntefja.Roger Stigney.Russ Watton. Bill Weiner.Ruth White.
Absent: ((emitted)Julie Trude- 1301 w ilsun.
3. Aunruval_of M ink- Motion by Virgil Beyer and second by l�;n Burgers to approve the minutes of
meeting 11-$-95.mMxrm approved
4. CommissionBusit s-Explanation of decttnlettg.by Richard Oman-Charter draft 95-1 and new
Charter redline. Motion by Laurie Schley and tei%u id l+ykm Linke ut send Clutter draft 95-i to die
City Colwell withoUt the Term Limits and Priretaty Election amendments. Motion by Richard Oman and
second by Ruth White to amend the oririnal motion by keeping the Tenn limits amendment in drat 95-
1.Jerry Linke handed nut a tea I npion rrghinting tont timittt.and there wns di!teats:ehi>e cnaacrning the
proper role of the Council on the term limits amendment The motion was clarified and a Roll Call Vatc
wit requested by the(hair. Question- keep the term limits amendment in charter Draft 95-1.
Yes: Ruth White.Dill Wrenn.Rieger Stigney.Jean Miller.!)emote:McCattt.Virgil Beyer.Richard Mot.
Russ Warm.
No: lthtindat Strieij;t L)ai.t: Long.Jerry Linke.Len Burgers.Luria Schley. MnnON APIROVPI) S to 5.
Motion by Ruth White and second by Duane McCarty to amend the otrigitutt mutein by including the
primary t:lecxion• amendment it the Charter. Discussion centered an die viability ofthitc amendment bait
approved rfby the City Council.and the possibility difcicrtiling the approval oftht;updated Ctarter. .1
roll call vote was requested by the(-hair. Question- keep the prima?elections amendment in C'lbarter
draft 95-1
YEN:: Virgil L3eycr. Len Burgers-Dave tong.Duane McCarty.Jean Milttt,)& 'er Stigney. 13i11 Wermer. Ruth
White.
No: Jerry_Linke.Rich rd Oman. ltheiida Stneija Russ Warren.
Abstain:Jeune Schley. 1tt(IT10N APPROVED 9 to d
There wt then disettssiOrt regarding-time fir final review introduction of ftMhcr amendments. and the
view that we had a goad document in Clutter draft 95.1.It was pointed out by tin Burgers than new
amendments to the Charter can be made any time in the titture.A toil call vote was renowned by the
r'hair. Question- Irti ward Chatter draft 95-t to the City Council for appy vat.
The Russ Warren.l.ntrrir Schley.i:ichard Oman.Loan Surgery.Jerry tMike. nate Long.Rhonda Stnwila.
Nei: Virgil beyer, Duane McCarty_Jean Miller. Roger Stigney.!lilt %Verner.Roth White. MC)rinN
APP1ttWEI) 7 -
5. Adji urn:ten;-Motion by Jerry Linke and st.-t.nnd by neve Lung to adjourn at K•?p p.m..Mt T1'IUN
APPROVED.
R) UNAPPROVED
STATE OF MINNESOTA
SECOND JUDICIAL DISTRICT
KENNETH J. FITZPATRICK
CHIEF JUDGE
April 2. 1996
=rely Linke, Mayer
City of Mounds View
2401 Highway 10
Mounds View MN 55112-1499
RE: CITY OF MOUNDS VIEW CHARIER COMMISSION
Dear Mayor Linke:
Regarding your request for guidance or information as•to actions taken by
the charter commission, it would be inappropriate for the court to comment
either one way or another regarding what position the court might take in
a legal matter.
As in all cases, the court must remain neutral and is not allowed to
prejudge one side or the other. I would suggest you seek advice from your
legal counsel.
Very truly yours,
Kenneth J. Fitzpatrick
Chief Judge
�.€l ?r , _ 350 Courthouse. Saint Paul, Minnesota 55102
t (612) 266-8342
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CURt1R A,PCAeaON
T.2*'SALAfkr
May 23, 1996
The Honorable Kenneth J. Fitzpatrick
Chief Judge, Second Judicial District
Room 1350 Ramsey County Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
RE: City of Mounds View Charter Commission
Dear Judge Fitzpatrick:
On March 8, 1998, the Mayor of Mounds View wrote to you asking for responses to
three questions relating to the activities of the Mounds View Charter Commission
(copy of letter attached as Exhibit A). As you will recall that activity consisted of
continuing efforts of eight of the Commission members to require the expenditure of
public funds to have the City's codification service print an unconstitutional term
limits amendment in the Charter (the name of eight membeersat he seek advice fromare included on Exhibit
thit
B). You responded to the Mayor's letter by suggesting
e
City attorney.
At the May 13, 1998 Mounds.View City Council meeting, I was requested by the
Mayor-and City Councilmembersto-formally request that you exercise your role and
authority as the appointing authority of charter commission member toremovethese —
eight members of the Mounds View Charter Commission. The City believes that these
eight Commission members have violated their official duties by knowingly and
w kingly voting to require the wasteful expenditure of public funds to print a
Charter Amendment which has been ruled unconstitutional by thae Minnesota tSupreme
reme
Court. The City also believes that the willful act of ignoring
Court ruling on the Minnesota Constitution
to onholdh eeight
Mintiesota Commiss on members
is a violation of their oaths of office P
Minnesota Statutes, section 410.05 confers authority upon you as the Chief Judge
of the Second Judicial District to appoint and remove charter commission members.
This request to remove the eight Charter Commission members does not require you
to act in your judicial capacity to rule on a legal matter before the Court as you
indicated in your April 2, 1996 letter (copy of letter attached as Exhibit C). Rather,
this removal request requires you to act only In an administrative capacity in your
71010417118
141J123-36
The Honorable Kenneth .7. Fitzpatrick
May 23, 1996
Page 2
role as the appropriate appointing authority to remove charter commissioners
according to the clear terms and authority granted in the statute.
Minnesota statutes, 1 410.05, subd. 2 states that "[a]ny member may be removed at
any time from office, by written order of the district court, the reason for such
removal being stated in the order." The City's request to remove the commissioners
is made pursuant to this provision.
The City of Mounds View respectfully requests that you issue a written order
removing the eight Charter Commission members for the following reasons to be
stated in the order:
1. Minnesota Statutes, Section 410.05, subdivision 2 requires that each charter
commission member must file, along with an acceptance of the appointment, an
oath of office which requires that members uphold the Constitution of the
State of Minnesota. After having been informed by the City Attorney of
Mounds View that the Mounds View Charter Amendment providing for term
limits for the City's elected offices is unconstitutional based on Minneapolis
Term Limits Coalition v. Keefe, 535 N.W.2d 306 (Minn. 1955), the eight
members o the Mounds View Charter Commission who voted to print the
unconstitutional amendment to the City Charter have chosen to ignore the
ruling of the Minnesota Supreme Court and in doing so have violated their
oaths of office by not upholding the Minnesota Constitution as recently
interpreted by the Court.
2. The eight Charter Commission members who voted to require that the
unconstitutional Charter Amendment be printed in the City's Charter
knowingly acted to cause a misuse and waste of public funds, and thus
violated their official duties as appointed charter commission members. If the
unconstitutional Amendment were to be printed as requested by the eight
Charter Commission members, it would result in the wasteful expenditure of
between $2,000 and 52,500 to have the City's current codification service,
_Sterling Codifiers of Weiser, Idaho, include the unconstitutional amendment
in the City's Charter. Some additional amount of public funds would again be
wasted when Sterling Codifiers would later have to remove the
unconstitutional amendment.
Avoiding such a waste of taxpayers' dollars has been clearly recognized by
the Minnesota Supreme Court. The Keefe decision relies upon earlier
Minnesota Supreme Court decisions which cognize that where a proposed
charter amendment is manifestly unconstitutional, the city is not required to
ut the matter on the ballot because the City should be able to avoid what
would amount to "a total waste of taxpayers' money," Davies v. City of
Minneapolis 318 N.W.2d 498, 504 (Minn. 1982) and what would be "ultimately
cleaned to be futile." Ii11A v. City of Minneapolis, 198 N.W.2d 531, 536
(Minn_ 1972).
3. If the to be
eere C
ity's
Charter, it would mislead the citizens of MunView to part
tof emlimits
119310066
MU/25-36
The Honorable Kenneth J. Fitzpatrick
May 23, 1998
Page 3
applied to city offices. If such a course of conduct were permissible, it would
encourage continuing public deception through official acts by Charter
Commissioners.
The City of Mounds View respectfully requests that you issue a written order
removing the eight Mounds View Charter Commission members for the reasons set
forth above.
Very truly yours,
^(•to
Robert C. Long
City Attorney
City of Mounds view
RCL:jes
cc: Mayor and City Councilmembers (w/o enclosures)
Chuck Whiting, City Administrator (w/o enclosures)
MEMORANDUM
TO: Bob Long
FROM: Dan Grcensweig
DATE: December 19. 1995
RE: Charter Commission
The Legislature "may require that [charter] commission members be freeholders. provide for their
appointment by judges of the district court, and permit any member to hold any other elective or
appointive office other than judicial " Minn. Const. art. 12, § 5. It is not clear, however, whether
the Legislatures powers under this language are subject to the restriction that "the legislature of this
state may provide for removal of inferior officers for malfeasance or nonfeasance in the
performance of their duties." Minn. Const. art. 8, § 5 (emphasis added). This latter constitutional
clause has been construed to mean that an inferior officer may not constitutionally be removed from
office except on these grounds. Jacobsen v. Nagel, 96 N.W 2d 569(Minta. 1959).
There is no doubt that a charter commission member is an "officer." State cx rel. Peterson v.
Fraser, 254 N.W. 776, 780 (Minn 1934). Significantly, appointed municipal officers are more
likely than elected officers to be subject to removal without adherence to constitutional limitations
on such removal. Cf. Sykes v. City of Minneapolis. 144 N.W. 453, 455 (Minn. 1913) Especially
"[wjhere no tenure of office is fixed by law, and no provision is made for the removal of the
incumbent, the power of removal is a necessary incident to the power of appointment." Parrish
City of St Paul,87 N.W. 1124. 1125 (Minn. 1901).
_ Neverthelcss, the right to remove an appomtcd officer is not unfettered. "When a statute creates an
office for a fixed term, the right to remove is not incident to the power to Appoint. State-ex rel: - -
village of Chisholm v. Bergeron, 194 N.W. 624, 624 (Minn. 1923). Particularly when a
commission is clearly meant to have independent authority, an inference can be made that removal
must only be for "cause." Id. at 625: see also State cx rel. Todd v. Essiing, 128 N.W.2d 307, 311
n.4 (Minn. 1964) (after appointment made by executive branch to fixed-term office. removal may
only be for malfeasance or nonfeasance).
Several factors suggest that removal of a charter commission member is restricted to at least some
degree. A chatter commission member is appointed to a fixed term. Minn. Stat. § 410.05, subd. 2
(1994). Moreover, the attorney general has likened that position to a "legislative office." the
implication being that charter commissions should have a good deal of autonomy. Op. Atty.
Gen
358-E-i (1946). Finally, Charter commissions derive made that a charterr origination ddirectly from
member
constitution. Hence, a reasonably strong argument
DJG9?069
Mu125-t1
should indeed be considered an officer for the purpose of the constitutional restrictions on removal
from office.
The question remains. however, whether the constitutional language authorizing the Legislature to
provide for the appointment of charter commission members by implication allows the Legislature
to provide for their removal for other than malfeasance or nonfeasance. As noted. "Cw]here no
tenure of office is fixed by law, and no provision is made for the removal of the incumbent, the
power of removal is a necessary incident to the power of appointment." Parrish, 87 at 1125 In the
case of charter commissions, the constitution does not fix a tenure of office. Furthermore. one
could argue that the constitutional provision pertaining to charter commissions does not provide for
the removal of members. Taken together. this supports the notion that the Legislature has an
incidental power to remove or provide for the removal of those members.
On the other hand,one could argue that there is indeed a provision for the removal of an incumbent
member. namely the constitutional authority to remove a member only for nonfeasance or
malfeasance. If so, the Legislature would not have the incidental power to remove commission
members.
In any event, assuming that the Legislature does have the power to provide for the removal of
charter commission members for reasons other than malfeasance or nonfeasance, the issue is
whether it used that power. The Legislature has provided:
Any member may be removed at any time from office, by written order of the
district court, the reason for such removal being stated in the order. When any
member has failed to perform the duties of office and has failed to attend four
consecutive meetings without being excused by the commission, the secretary of the
charter commission shall file a certificate with the court setting forth those facts and
the district court shall thereupon make its order of removal. . . .
Minn.Stat. §410.05,subd. 2. This statute is far from clear.
To begin with, it seems clear that a charter commission may not be removed entirely at will. since
_the district court is required to state the "reason for. . . removal" in its order.. 1d. The next sentence
of the statute unfortunately creates a conjunctive condition; that is, a member shall be removed
from office if he or she fails to perform the duties of the office and has four consecutive unexcused
absences from commission meetings. Id. (emphasis added).
The problem is that because the court must state a reason for removal, the statute suggests that
removal cannot be for no cause or for bad cause. Nonetheless, it is difficult to conceive of anything
besides failure to perform duties or attendance that reasonably justifies removal. The only way to
reconcile these sentences is to read them as stating that a court_nity remove a member who fails to
attend meetings but does not fail to perform other official duties, or a member who fails to perform
other official duties but does not fail to attend eti other official al a at a court
o rt must remove a member
who both fails to attend meetings and fails to perform
If this is a correct interpretation, though, what the statute really describes is nonfeasance.
DJG98n69
MU125-11
2
Nonfeasance is the "neglect or refusal, without sufficient excuse, to do that which is the officer's
legal duty to do." Jacobsen. 06 N.w.2d at 573.1 The final question is then whether a charter
commission member commits nonfeasance by voting in favor of a clearly unconstitutional charter
amendment.2 The charter commission members arc sworn to "support the constitution of the
United States and of this state and to discharge faithfully the duties of his office to the best of his
judgment and ability.' Minn. Stat. § 3511.05: Minn. Cotist. art. 5, §6. Arguably, they have violated
this oath by insisting upon an expenditure of taxpayer funds even though the purpose for which the
expenditure is being made is clearly unconstitutional.' In practice. though.it is unlikely that a court
would find that this by itself constitutes nonfeasance sufficient to justify removal from office. See
Jacobsen, 96 N.W.2d at 573 (dispute over expenditures of public funds is political issue, not
question of nonfeasance).
My recommendation. in light of this somewhat confusing constitutional and statutory scheme, is to
throw the issue back on thc district court without clearly describing the standard by which removal
of a charter commissioner should be evaluated. Although the statute does not define the procedure
by which a court may be prompted to initiate such a removal. the city could probably use the same
procedure as is used for appointment of a commission, presentation to the court of a resolution of
thc city council requesting such action. Minn. Stat. § 410.05, subd. 1 (1994). l think it would be
best that an attorney draft the resolution on behalf of the city.
Malfeasance "is not susceptible of an exact definition," but refers "to evil conduct
or an illegal deed." Jacobsen, 96 N.W.2d at 573. Nothing in the charter commission
members' activities has remotely approached this standard,
2 I am assuming that the amendment is indeed unconstitutional.
' I would be very careful about pushing rson argument
'bee r moved- from mdo not think we
office simply
want to establish a precedent that p
because he or she votes for an unconstitutional measure.
bh7G98669
WI 5-11
3
1 1
• 306 Minn. 535 NORTH WESTERN REPORTER. 3d SERIES
ed. The conditions udder which additional Gsrdebring.J..sled a dissenting opinion
disbursements were to be made are clearly in which Anderson. J., joined. I
stated in the construction
loan agreement stringer. J.. Sled dissenting opirdon. '
and it cannot reasonably be interpreted to
•
create a mere option. Like the mortgagee in tions �,�
Phelps. (the Bank watts obligationfor 1• Municipal charterproposed amendment is man-
advance the furl of thet of featly then city council may
gin, the. completionrof � theorefuse to plade proposal on ballot
r'� property. That the Bank
the conditions (receipt of Ken waivers) and
Z. Officers and Public Employ/eel X18
relied on others(inspections by Bank person-
nen does not change the priority of its re- Provision of State Constitution allowing
corded mortgage. '. legislature to establish •quatifta
tions"for lo-
. cal government officers refers to dlementa of
. Accordingly. the court of appeals decision performgnyee requiring particular �' of
is affirmed. candidate such as physical agility or edu-
cation level, but does not authorise legisla-
ture to set'eligibility requirements-for pub.i4lc office which have nothing to do with abili-
ty to perforin ditties of office such as age and
rs dem► requirements. and which are gov-
erned
/ by separate constitution /provision
guaranteeing universal eligibilitt for public
r
dike. M.S.A. Const. Air 7.16: Art 12,
MINNEAPOLIS 'PERM LIMN
§ S.
COALITION. et *L. See publication Words and Phrases
' Plaintiffis. for other judicial constructions and def-
initiots9- -
•. tions �145c2�
t 3. Municipal Corpora
Merry KEEFE. et aL Defettdeoyta Proposed amendment to city charter
�C 8137. limiting terms of elected City offi is
would
change e�
I'j supreme Court df Mitmeaotar _ See in violation of constitutional guarantee of
4--1996=---_ ua ►eri+ sal eligiblhity for public office. which
F Aug; ane such changes be Made by eon=
, required
stitutioiial amendment; term limits were not
Bled action in federal court
Association Blemerely "qualifications"Tor local government
seeldng declaratory and iryuncte relief officers which could be established by legisla-
eft'from , ceun�•s refusal to place proposed tion under authority of separate constit on-
.,. term limits amendment to city charter on s.1 provision. M.S.A Const. Art?.it 6; Art
' election ballot. The United States District ie. I s.
f,( Court for the District of Minnesota certified the Court on whether amendment would vio- Sys by
•
bate State Constitution. The Supreme Court, An amendment to the minneapolia city
Keith CJ., held that proposed amendment charter limiting the terms of fecal elected
to city charter limiting WIN of e]ected city officals would violate Article VII. Section 6
#" officials would change "eligibility require- of tete Minnesota Constitution.
menta"for local office in violation of constitu- �-_
tional guarantee of universal eligNlity for
public office. Christopher J. Dietaen, Peter J. Coyle.
Certified question answered in affirms tarkin. Hoffman. Daly & Lindgren. Ltd..
Bloomington, for plaintiffs.
five.
s'
E
MPLS. TERM LIMITS COALITION •• KEEFE
tem. 307 Ii .
Op r OS et•w.ld ass Med. t++si the office of City • ,
eight consecutive years in • I.
westing 0 Smell Brady.City Atty Joseph M.yaBat. Council. � • f
CityAtty..Office of City Atty.. Minns- passage the this ordi- ; I.{'
Ash Keefe. Service prior determining n8 ' }
s � spTls, for Merry ounce shall not .
Minae- length 1•1
'coni A. Reitz, Asst~ County Atty.. Section RUCTION. ' ' `
spoils. for Marge Christianson. •'`
p45 Clerk Is hereby instructed to contact.est �Zi
endue la matin heard. considered and decided by the ly as he would do if so instructed by a I i 1
City o may court en bane. resolution of the Mayor or City Council in i.'
writing, within 30 days after adoption of r'f
ballot. OPINION this order• all state legislators and ��
s+P1�� ®18 members of the United States Conger ; ,
istitntion allowing iO;i i H. Chief Justice. „ l�„e ,ny eob�eate�itlde the city `
s 'for la Thisnae cosies to us on as Order of limiter and � ° it is the •�} 4 f
rticit!ens to dints of Certa$cation issued by the United States Dis- resolute desire of the dticens of the city of ' j ,
ability lrict:Cotirt for the District of 1Kinneeora PIT- Miemeapolis that term limit be enacted by .1:4
:,
Mm limits and the unit. �;,E'4
al authorize or edu- stunt to Minnesota Statutes section 480.061 the kgislata re of um •ji±`.�
(1994) (Uniform Cerllfieation of Questions of ed Stag Conte and that
the�.for w Act). 'Ihe vet fed question is as fol- tive tenure in r `i
ice to do with alb- than six years(three terms)in the
enwhich s: and lis states House or told n
�d are gw- Would an amendment to the Minneapolis (two terms)in the t ,�.,
no
car limiting the terms of local more theethan }�
digedlity n7.§ 6 of United States Senate. and no more }
6 fiat, public ; elected ofti 'cots violate Article the comae y�in either the Miens i'1'
**newts Constitution. to or State House. The i .
?. lh 6: Art 12, Ste a�the question in the awe. tote State Sens
People of the city of Minneapolis y f . ,
eds and PhrasesSince the adoption of its city charter' the instnrd all state and federal i
tractions and d City of Minneapolis has been a home rule represent any of this cit?
to and ` 1
i v
Charter city pursuant to Minnesota Statutes •►idually do the promote tional �tl'•
WW1 ®1�9(Z) Chapter 410. Plaintiff Mildte-eP is Term 1 binding legislation
'term n or a i ; . ,
ent to city tion (`MYLG"l is se nnincorpo- a1endment enacting 1 .
Charter Limits Coalition vras Placea The instruction lints s and
d city officiall cal f- rated asmociation citric ifled in this section
far lozal of proposed amendment to the city charter on resolution shah! io effect for sa i 4 t
national g+a'eoof the November& 1994 general election ballot mem y are reqs to eyed these ; ,
*bleb .. for ase city of being the terrrn+ Changes. and shall so state on its i
pulikie °rave• con- of the mayor and city eountl members m Section & gEVERABIIrtTt. 1f aril► �' •
ager to n net___ t years._individual plaintiffs are them- of this petiti� shall be declared_un- j
mita i On
-_Part-- g1sa11--__- ��
t eottinmttee�— i court. - �
established
loyal by l here of the 994 steering a n constitutlot*al b - andur Call others.
by • August 15. 1994. plaintiffs filed Peso remain in full famei•.
Mini- <<
aon_stftution- '` with the Office of Elections and Voter 1 Fob a recommendation by the .. .,.
Separate toplace their proposedthe pin-
Ata 7.$ 6: Ari. ter amendment
g g1. neapolis Charts Commission p
:mei it on the bat-
th amendment on the Officeoi Electionsry A gidof the city 'i
of and posed amendment ,:
—
yg
.. Voter Registration the that the petition lot. and attorney based on the advice famendmenthcity
Os Court Iron certified that the proposed
•• contained a cient number amendment d h the 1yliaGo' n�� •:
to t the Minneapolis elected voter signatures. The proposedmould violate the Mi.the�
terms of local Section - states: Se not to place the 4 the
city council the ballot.
e Article n. 6 - LIMITS. Notwith- , d later, theends!parr signed the city
ton. Section L 'iEBM
mats standing arty other provision of list to Items resolution. t
�- contrary,no person may file to be a tandi- prber 14. 199d• filed a
J. Coyle. date for election to a term that would ]trot .n U.S.plaintiffstCourt
hetyea. Peter person to serve more than eight verified Comp sari the punt
Sint & Lin$gren. Ltd-, causeosthe aeain the office of Mayor or seeking a declaratory judgment
sing. • consecutive years •
308 Minn. 335 NORTH WESTERN REPORTER, 2d SERIES
tion meets the technical requirements int- Asadsews a Brach. 155 Minn. 38. 191 N.w- eligibility "except
posed by state law and that the dty counci'l's 1012(1923). In the present ase.the Minn- this constitution'
action violated plaintiffs' rights under the :polis City Council. following the advice of timid floor and It
' First and Fourteenth Amendments of the _ the chafer commission and the city attorney. meat of addition:
•• U.S Constitution. Further, on September rejected plaintiffs' proposed chi amend- Citing the court 0
. 23.1994.plaintiffs filed a motion fir prelim went on the ground that it was manifestly v. Grose. 502 N=
nary injunction seeking to enjoin the defen- unconstitutionaL As requested by the Unit- plaintiffs iti>rtlter
dents t from refiring to place the proposed ed States District Court,we consider wheth- contemplated by
• amendment on the city-wide ballot for the er an amendment to the Minneapolis city section 6 is foam
forthcoming election. charter limiting the terms of local elected Under article 10
Following a hearing and a verbal riling o would violate Article VII. Section 6 tore tray kid
3,! from the bench on October 3. 1994. the ifs- of the Minnesota Constitution. organization. ad
's •
trier court filed a memorandum opinion and Article VII. Section 6 of the Minnesota dmisIo' •
said dim
order denying plaintiffs*motion for a pretimi Constitution provides: units
• 11 ns and
fol
naryeert.injunction and certifying the question to Sec. s Visibility to hold office.of this nth the
this court cry person who by the provisions
article is entitled to vote at any election entitied
s Con Artitlo XII.Section 5 a the Minn- and is 21 years of age is eligible for any quiring that cars
sees m Constitution.home mile charter amend- office elective by the people in the district t
meats tory be proposed "by a charter - wherein he has resided so days previous to i t The
t the o local g petition of five patentas of the deter- the election. except as otherwise provided p�langur a
;.i�.� voters of government unit as rises the
in this eotistitntion,ar the constitution and for local offices
:;;. mined by law and shall not become effective law of the united States.
• until approved by the voters by the majorityof these add'stim
required by law." Amendments also may be In Pavlick v. Growc thin court interpreted of sheriff did i
proposed and adopted In any other manner article VII.section 6 as establishing universal elective office u
provided by law." td pursuant to this eon- eligibility few public office: forcefitQy the h ianedots
stitutional authority, the legislature has get This constitutio l si812. 813.514.
forth additional methods of charter amend- press ee an important democratic para edge the
anent Miitnesotg Statutes section 410.12 ple—that all citizens meeting mit nal. nn, addressed
including a certification process for amend- changing requirements are eligible for the enact addition
• meats proposed by a dtirene petition. Un- elective postdates that control torus.govern- plaintiffs nate
• der these provisions. amendments meeting merit. The opinions of this court applying ten."in matte
the-tethnicst requirementashall-be_submit.- Article vil. $ection 6. have consistently rulecihaw
ties h
ted to the qualified voters at a general or held that.as a guarantee of utdveisal eligisessedby the
spetial election and published as in the cast bility for public office, its standards may such power i
of the original charter." Mintt.Stat f 410.12. not be made more restrictive by legislative held." Stota i
sand. 4. authorized by an- Zea
established in other Gonstiittutie on�al�i�ision. 83 t19510.
[i] Nevertheless,it is proposedwell 284 N.W.2d 174. 176 Olian.1979). Crookston. if
• ;` =Pen.5 that when a car De spite this guarantee of universal eligtbil- article XIi. e
amen •� ay r u un�o.Q- plaintiffs argot that home rule charter for office. so
th • ct7 na ro" ity
posal on the ballot. See D avfes It City of cities have been delegated broad power by [21 We di
► Minnettpotfa. 316 N.W2d 498 (Minn.1982): the Iegislature and are constitutionally
u for reasoning
is
• Housing Auth. of Min- rived to impose eligibility requirementsA critical dig
�,iti City of.Redevelopmentthat the fication'for
npnpotis v. of.Minneapolis, 293 Minn- local officials. Plaintiffs first assert
} 227, 198 N-W2d 581 (1972): Stale ex ori. article VII. section 6 guarantee of universal
i i 2. Vic disc
Mitutoaptblis. James?bland. a Minneapolis City Court ease
1. Defendants inr this action invade: Merry r
• Keefe. City Clerk of the City of Minneapolis: Council
Christtnber.n. SupervisoreCof the Elections changeable
' a Joyce of treil. y fDirectorMof theneapo s:Elections Depart- Marge
for Hennepin County: Pat O'Cem• tion. Clan
a'; ) trent . the Gen of the Minneapolis
lis Jackie Cherry. r Ser'tces Dr•ision Manager for r.wcen an e
C' barites. President of the MitJtreapolia City Coup- nor. Taxpayer
til: Sharon Sayles Belton. Mayor of the City of Hennepin County. and Hennepin County eon is ham
.a
COALITION e.
MpT,S• TERM LiMIT3 KEEFE MM- 309 . i.I
rite:ass et wad NG t we& ow A qualification is an de-
ase.
,
except as otherw a provided in meat" for office. a particular de
�. 33. 191 NAV. elig " nq met+k of performance g •`'
tltb cons � � >!nterelY s co ability on the part of perms seelattg the
ase.the Minns- totution for the enact- agility or the a I #
recta
g the advice of t>d !lootuiremetita position. such °f eduhe at-
se cite attot•lsey, in t courttof ppeals'o do in Elbert t�aent of a particular level of educat by
chart r amend- C tg the casrf of appeals°ia°dn 19931. We believe that the leglsi ims a
was manifestly itde. 502 N.W.2d 810 {Minnapp• established
v. contend that the exception the carni of appeals
ed by the Unit. ' tufa VII. gUs�lifirati°"for office and into this o i }:�
consider trhet>ti. conplated by the Iattguage of Ei�requirements.°n theether
►lea l electedd . section 6 is found in artide XII. mon 3-isla- �havelnothing do melte one's ae tyer
of tam! Coder article XII. ty ebon 8. *Ublee perform the duties of the owe in question. i�
e the Sectiot► B hire may provide ni la+► for conthe age and residency require- c
Mk. mgmii�egtion. administration, consolidation. and �shed in article VII. section 5- ,'
n and dissolution of local government me s team d in such as that cae.
f the Mibtteaots tom! a a and appointi'e officers includ'n+g Clearly. * is as �it suc Y requirement be-., • traits tions for off." leterpreling this ex- cause plaintiffs it has sinothing to dol with the particular '• �
told ions of E - the court of appeals •s ability perform 3°b' rather.it
Rovisiotts this tul3onalif7► a statute t e' P based a factorthej ,unrelatedr to 1.
et any election tany atter for the office of slier is a restriction =
eligible ftrr any ifisuccessfidtf caring that candidatescomplete pew off,Nana- job per'f°rman°e' .
ale in the district � �� •� court held that til Applying this �� pres.
.,.
Article I days previous to section 3 autho ent . we conclude that although ;:
1`�1°e provided plain !atone to en • � ai, section 3 of the I °th Cgh Arti1pe �� "`,
_constitution for n the of the to astab 4
` for local affi;, the for ,e o''• locale off•the :a •
:. rAtlons e�bl�
ib
ear
court of sheriff did not violate the Id ,t owe the cure t° des term
hglbili-
'vision universal t
elective office un et erste meta add not a !i
frac Mit8-814. f,oniougstita limit Is alt artiI..
ae1ato'4- t auteor+sed
bion foreef'Ii1iy 812» Sill-81t. thou I�� acre n is no to the ' ;
ieng mini .rind- edge that the court appeals mold XII.section 8 as as excepts a I
article ran- I
sting Inittinasl.un- addrd o�Y whether *maws
a office. � assi,'wer �
pie eligible for the enact additional qualifications for eectian a ore and hold that an I `'
his
their applying
govern- pati dote that under the home r+ S eeetm an m the awe er
his to eo applying tem."in snifters of municipal concern. to the elected offidsls
il
Barre vet l eat]y rule duces have all the legal► _power pa. amendment save as tg e 6 of
its standards sessed by the lestalabite of the ea LY of fall state-
,""''sd Yio a on
p uratic- Mitttsesett`I—�' ( .
eatiin -such -e.ret Teton of Low ti.Citif df t
visio-by tem held. Sfatt. N.w2d gl. GAItDEgRING. Justice (dissets ion I,
stskhotistied by as 2i2 Minn.526.528.91 t To me.fee qti
41
on.19?n. Crookston,
(19581• Plaintiffs assert that under I respectfullydissen of the u tics
-by ° 'a�ahtiaotdt� and of our s;• -
nn.19Z9). C ,,.., , if e-'^� � � tioa�s ble state toriprovisions 3 of the ��-
if universal eligibii' for" xII dry.._ previous . Article XII.Section ' 'i
lame rule charter for !!o too � Miiisteaota Constitsitiatt lnQ°'`� •1,��'i�'
A broad power by �t We do not agree that p t line Loral tritrietia legiglation wafFe t& •'I'.
tslitaitiotialll►avtho- reasoning � dispositive in the present tee- The legfelat� may provide by law I�
Y st'4us•rt.that for A critical distinction exists between a"qay' for : elective and provide
appointivelo1F :
Cirst assert that the {,cosi for office and aft•rehgt'Witl+require- Constitution.Which refers to
universal our own Mint+esotile N ion 6.but refers to ,,
4. a Minneapolis tsrsi�+ .uNgiwn Mi in I.
t ct'tes to s recent f3 S. Suotzme
ti a oMinneCity 2•t;ourt case in support of its proposition the that "qualifications for le VII.
a snick MI r s'�On
"qualification- are e" n Supreme Cot foundIOn
City of Minneapolis: changeable
ale and and "q� �' no similar hedist net c us+dcr the meprovisionsours of the
Division
of the Melons tion.
Clea and that a term f limit is aweight in ciao tote
I n el:An
Pat (Mort- tioa. dearly our analysis o[the distinction�' federal constitution bears no g •' ,�
f)t•nsiori Managerfor
don nis baesed eligibility
on the ny ique language of ted of our discussion
ttuepin 1 .
4 .
NY
�` 310 Minn. NORTH STERN REPORTER. Zd SERIES oiBc> November 8. 1994
elected
, ;•4 tai un ts1 including Sulk qualificationsfor which estabhslnes a 8 6 of the Minnesota l• ordinance,artstonY with the to hold
. (ofn• gnka�t d p , ion is without theualifica IS in h .nth per, late- m by the ptarmic
: limitation;
Ilse proms bon. Rather the tYto vote at s
• (emphasis is does o Say the leg;elaa (S of Article XII. Section g, majority
entitled of age le el
limited to considers tg only educations'(Mali- P A a eXII. c sad arcane ergo Years
oth- engages convoluted distinguishsada "qualifies-
went
elective by the p
` fie spe s.c category.
o . Th or no ment from"eptitigbdity » Nath electswherein he has redid
'There isn be no trio_esthe on. e
mabout whether the legislature can �- mg in the state constitution itself- our be this les rpt
t elected the qualifications cases. aappos'�
. A.-term
Y �� '�°� this ansiys s of the �, of the United
�' n and therefbte the'Pests- We must afford thecharter presumption of 'n• ' t
t� kind hereto a duly 101100ing "goer
is a qusllf'cato � •L.l _, skt irsese
• t do .., o ed t r o tutionality as we would ly to a u std sets
the pous cas t� 1 legislative tute- WZd 188,
this authority to
1n �� P99 N.
' Our previous home rule �extendMinneapolis. In Co"'''"ns .1adin�1� ndents have not even ��n�6,,,a
. State ea eta Twee of Loeaed v City of Csoolc- 'come close to satisfying the substantial bur► The h�o
m'Governing
kind of a4s' rgs:tiu{
stmt. we said: den of woof applicable to thein its this vvoutd solidatiote. divi.Kiot
cask rule is that, in ve constitutional oblation. Therefore.negative. olida on. d urns
imp home the answer the certified question the change of ba
possessedelective died sspP
sll ttea legislative re of the state.save as such power d. The ANDERSON. Justit a (dissenting)- qualification.*o,
. is expressly•
or impliedly 'contrary I join it the dissent of Justice Gardcbring. fer of muntY
94
adoption of any chatter pr at may not uben char
to the Public policy of the state. as peva]
RINGER. Judge. dissenting- - feared urs se
closed by the general laws or its psis dissent. I would answer the d by a antUc
code, is also forbidden I respe� question.
fa„•,� , es to"
cert�e question in the negative.is fts>filled Mit►n-Const art
homeris limited There is no ap Placing like legislature.
It . Coate the Procedural toe+the No- tl or by to 2 b1if
h with snd sub ect to tae � - proper term Lim amendment em I be• Further.
tion fo the state." But these limitations o "saber 8, 199A ballot- COQ °
• te_ettanaazd of constsds- ms Doty that if t
-_ - -- - ----- • of-d+st'�-Pt'o1°'i- - - the-spps'°�
' *ions as to eny subjectIlevetimer is the same as the chaster- to impose 4u '
not forbid the appropriate to the review
fly conduct moi niacipal se ofet. st- apple to a duly enacted legislative stab too does the Cit
those exist- smendmele is presumed ride chartist
mw differ fromute---the proposed 262
though�' See State v. Hama. � [,cruaeu u Cibe v
fats Renes' ' Wed 81.98 (1958) constitutionst.390 Sole' : Hamams a 91 N 11V 2d Si t
(citations
ibn. + 91 N. N W lis 299 N.Wld 188.. Mike gene
(citations osrdtl+ed). Caa+,m�s "' of •►t�,not be municipal cos
• of a home rule 142{Minn.198D). AecordisB1y,
-St
` 21+ar the ed IS
o stricken unless the challenging party demon- at
city ate charter
as fvilao+sthat it is in violation of the consd -
e legish
1) its char provisions must be consis-d beyond a reasonable doubt: See Ham's legislis a U'
} .... with the public policy of the state.and tion2d at 380: In es Tvete�402 N W.2d adoption of
ure of
be in harmo- '�N' City of Richfield it to the pubo
_- ;1 (�xis--�-.-�-- -
tutaon�a Sd 5`1, 553 (Minn.1987): closed by f1
ny with and stated to the rousts Load No. itis. Intl Asan of Firs Fighters.
W2d•42, 45 (Minn.1979). also f by gt�
Leos of the state. 216 N. to tri
`, o • does rot go so far as VII.4 6 of the Minnesota Constitu- cris
liirzt
suggest
>that the proposed.,�limits-ordi- Articlet for determining t tie .
ggestto a plainly un- tion is the starting pOin a home elnst is rdt
Hance is p contrary c whether the City of Minnenpoles, lace • and er ale
public policy- he Minnesota
i ne because rule charter may. vtAS required to p
dersteod Con-
Artuti XII.Section thoef legislature
���, peiiants proposed term limits amendment on the state."
stitution authorizes e
MPLS. TERN LIMITS COALITION v. KEEFE Minn. 311 1
[he it S3S N grad 306(Min& NILS} t-
lected officials, the November & 1994 ballot. Article VII, forbid the adoption of charter provisions as ` 1
h establishes a4 6 of the Minnesota Constitution provides: to any subject appropriate to the orderly i
th the cons
Eligibility to hold o®ce- Every person conduct of municipal affairs.although they
the plain Lan- who by the provisions of this article is may differ from those of existing general (;
3,the rnatiortty entitled to +►ore at any election and is 21 lags. p�°n of Buck a charter is - ( ;t
d $rs years of age is eligible for any office legislation. f ,
Irish "4 - elective by the people in the district Id at 628, 91 N w2d at 88 (quoting Mian.;,-
meats." Nall- wherein he has resided 30 days previous to Const, art nr, § 36) (citations omitted).
itself. nor our the election. esxept as other+e providedMy of departure from the majority is i't'
► analysis. constitution and11
in Chia constitution,or the fust, ata failure to even consider tI►at Appel-
presumption
• !. ,'
moons of thelaw of the United States. !lei•:`
' lams' proposed amendment does not ��•:
ptesursption Minn.Const.art vfl. # 6(emphasis added). ,`£`` .
an eligibility or qualification standard for aa- •`.:
apply to a duly Following the "exception"clause to the reed scoring or holding elective office at all The .,
Gttflliams ay. step.we are lead to Article XII. § 3 of the proposed charter amendprent provides in ` . k!'1';
•
X99 N. .Ed 138. Minnesota Constitution: pertinent part: I ;.;1
• 11
Is have not even legislation affecting- anyother' of
1.oca1 Government; Notwithatattdfng provision► : ::
substantial bus- The legislature may provide by faux for the law to the contrary.no pent'''.++ray}ale to ! :i 1
In in this kind of creation. orgard7atian. adtnird�stratian. con- be a candidate for election to a term that :: l:; 1
aeon. I would sotidation, division and dissolution of local would cause the person to serve more than
t in the negative, government units and their functions. for eight consecutive years in the office of '
the change of boundaries thereof.for their Mayor eight eonsec+rtr►e y in ire , '.
Ming). elective and appointive ofuers including office of City Canna. /;i // : ',
dice Gardebring for of cations se office and for the trans- (emphasis added). 'I'ke plain language of the.,'
fen of county seats. A county boundary �p� simply prohibits "ffi[h+61 to he a
may not be changed or county seat trans- candidate for election * ' ' i a ) t tt t
rating. hib►tioti t , ;
ferrel until approved in each county af- that clearly leaves other avenues open for . ' '
1° d . the fected by a majority of the voters voting on
achieving the office—for example. through
tlla the question. write-in vote or, in some circumstances, by T.
pl�ellantst Minn.Const. art.XII. $ 3(emphasis added). appointment. If the proposed amendment ;.i
a for placing the The legislature.then.has constitutional au- were it~ fad an eu.,.hiiit,v standard in viola- • �+
Imenttwequ on the No- 1 i''?'
nseque:rtly. I thorny to establish am In qualifications eem agreement
elective tion of Minn- Coast a Sill. 1 6. unless ;E
bffiee. nigher.I in agreement with the encompassed by a constitutional exception,it ;; .:.
last the sta d3tr� • maionly that if the 1egislat a has authority would prohibit the taking of office etion, . ! ,
as startdsrd •
to impose qualifications for elective office. so That is not at all the proposal we have here. 5 1
4 legislative slabtoo-does_-the City cf--Minneapolis as ahome amort-- --
r is presumed In Stale ex set Torun of Next,sig the-fate of appellants' .•
Lowellc e.charter dry- ?52 MInm. &26, to obtain a public vote on their proposal.the
u Xart+ls 488 '�.,.z'
KO: Guilliauta u tx City of C�nokatatt. r testy p to narrawty define"quail- '., ;.
91 N.SSt2d 81 (1968). We held Ration" for office under Minn. Const. art.
•
N 2d 1�' jt]he genu rule is that in matters of '
sly.it maynot beXII. § 8 as "az' element perfortnattte re �, e.
ging partydam_ mut�pal concern. home rule cities have guarana a particular ability"of on the part of the 14.1.,1•
in of _ all the legislative power po-�aessed by the
candidate for office. Because the term limits ' 4
o t the cO legislature of the state.save as such poweron does not relate to "s particular t
ou te' See N.W.2Ham . or impliedly withheld. The pro"i„ o concluder.it must be • ii'.:;
4u�2 N.R►2d is a tion otY p ability, so the maj rity 1't
adoption of eny charter provision contrary an ell 'bility requirement. thus falling out-
hr of v to the public policy of the state, as lis- side the parameters of Minn.Covet.art.XII. •t •
.a p'irte Ffghte+s closed by general laws or its penal code,is unconstitutitmal" t i ;a
fi
.1929). conferred upon § 3. and "manifestly I
also forbidden. The power majority's analysis therefore tuns on . .i,
(for oto Constibi- cities to frame and adopt home rale char- the nartro+#entire tion it accords the terms ,`
t for determining term is limited by the provision that"such , :'
"eligible" and "qushfication. �;,({�i...
•
.eapolis, as a home charter shall always be in harmony with meaning of terms "eligible" �,r
'Aired to place cap. and subject to the constitution and laws of plainThe thes the ("rag le" ,Illi;.nits amendment on the state." But these limitations do not and "qualification" sugges ..
.'. .lili
535 NORTH WESTERN REPORTER. 2d SERIES•
ified to be judge i
312 rt Minn. to be chosen: qed ing patient
hS11 n an In itsamendment
recent the and elected proper
' `" and defrdng"qualified"eligible as pathic Ind
virtually intercd the u d. sited: entitled; Web- prem'C .
p
eme 1
diva strildage 'ent
roi
c ess Constitution that Fro , M) (emph a added% see else 1858 nttstyy disch .
C otherwise eligibleonthe
candidateaeral fora Third New Pia D iowarg 3 as menu
rgi
Coag Cosaeana8 onae2v� 2 (3d ed. 1961)(defining ;¢"fitted or and slynaiitaes�•
lot if that candidate of had thalre Uniteddyto be chosen peso
ter terms,the States gtutit�" as"fitted (as by endow- ti+ie
specified to nen
` Wee in terms of defining qualified ors y i> lath ;
i Supreme Court Cfronstitution
the' States meats of accomplishments)
••
"whether the or al titutlon sestils peet tit's of impulses i6 s l
the T pose' competent.
and(3)comb
from• eg to or at in �tutiot�• (emphasiswarrantthe sonelih t
spetSt tea Tera terms simply the
Teem L[�•it.�, 15E, u Thorn-2 two line distinction in definition the major- constitute dt
t United 5 `� __._, 115 5.Ct• 1842. bright {�shtu�t of the
881 (U.S..1995)('mph itY gives lacle t standard. Revert
1847. 131 i the Court exFliatly refers applicable a p?olon to ply a terra limits
ballot
added). qualifications. tb.—U.S. Finally.
term limits asC qualtfi the
�' Mental—.116 S.Ct at 1844 Menu limits.ince dish�a the City
j. aitY otht+.r qUa rateon far Cif". is the of one of tete fight of So tali
sibly restrict the ability of voters tai rig
of regi€c"' B. cotis mote
wham they wish."). re- hiitSee 9
ejl n
peatedly :; nt
lythe Cou+ Da F°ae +
tf6 U. for
ment bear
refer in the U States Goss 86 U.Coto.L Rt►x 47.l0(1956){ & ,fitted.
for membership U�. 115 S.Ct at the history and aitn8 of the uritis di> sons Corot
at
' `- and referring to initiatives as forms that to public
1845 (a S the "a� fishing Any went of chi
U. "—
S. Cotter. art. I. 12. el. 2 (establishing
democracy"). with great caution. �.
ents applicable t0 right sthehouldbe d the tight of the tuba.• thit
�. membership R Wim. ea to to their Z. Not
'House of Representatives); en Costar. The "`"""13ty
voters of the City of Minneapolis I. I a, et 8 (establishing meSenat5� tissue. hieeging Per
.' gsesnetets appli�le to the c'r'ate)): ballots on this imposes sossslity
oiaa id. —U.S. at x, 115 S.Ct. at 1849 d errtrlreatlon on sn all too h arroSP det�nstion
tioFr era'intenttdebates of the term.`01ygr °n
I do
( tis Framers' that the not believe respotsdenm havt•
�"maa3featlltg the 1: be geed den of proof of demonstrating Mumma
• in the _. -- s-reasonablengidoubt.
met their bor.- relatioo
basis added):,is. �ttstltutionaltt)►_�'ot'd_ I Mer. ...
a tlua 11 (S.0 (holding"tsv)e
U.S.at 115 w, a at 1849 e
tottsss custclUde Dow, we in pow tv. heroin
898 U.S.486.89 S.Ct. 1944. 23 tom+,
McCormack allows that. fuses
IFEd.2d 491 (1969)3 that history
Framers in Respondent.
�vitlt re€pect b° Com to establish iceddntt 8. Com• Respo ;o
'' tended the onsittetl)). The ..
y:� q— court ualifications."
holds that the challenged EL Comntittsidner of Human 4. 2
term limits amendment imposes an additional Maria SOrMvi et at, stoner rtts•
�•,. "qualification" upon are
,, and unconstitutional qu Nos. C6 g 95-484-
lw
cantdidate .that would effect a 5-144. C4- to e
CongressionalFederal torrents- 5uFreCoa>� of Miruseso� cot
�^ fundamental chak in
— U.S. at
tt; 4. >�' Del
t3onal framework. Aug- vh
115 S.Ca at 1845• definition of the
5•i Moreover. a incorporates
he tern, "quali- Commissioner of Human Services and
:� terra"fig. e. intlade Dictionary 521• of special
to
Comm
1241 tb s 1 R��ig"eligi le" as"fit count'appealed Roto order
• lYjl1 (6th ed.1990)(
CITY OF MOUNDS VIEW CHARTER COMMISSION
RESOLUTION 96-2
Where as; Councilmember Susan Hankner submitted a letter of resignation effective December 31,
1996 to the City Council on September 23, 1996 and,
Where as; The City Council accepted Councilmember Hankner's resignation by a simple motion adopted
at the regular council meeting on September 23, 1996, and
Where as; The City's Attorney determined the City Charter to be silent in describing the conditions of
vacancies on the City Council and recommended the City Council follow procedures for filling council
vacancies under state law, and
4_ Where .s; The City Council declar-• the vacanc --ted by Coun ' ber Hankn- re-'gnation •
exist now fo •urpo es of the •-neral : lectio o be he d on N. -mber 5, 1996 .•. on Dece be 1,
1996 f• •urposes o •erfo ing the •. of a counci - ber, and
Where as; The City Council ordered that the candidate for city council receiving the third highest
plural vote in the general election on November 5, 1996 as eligible to fulfill the duties of
Councilmember Hankner's remaining two year term of office beginning January 1, 1997, and
Ppc..r,
Where as; The foregoing actions by the City Council afe-nonconforming to the City Charter, and
Where as; The conditions of vacancies in elected city offices are stipulated in Section 2.05 of the City
Charter which states: Sec. 2.05 Vacancies. A vacancy in the council, whether it be in the office of
mayor or councilmember, shall be deemed to exist in case of the failure of any person elected thereto to
qualify, or by reason of the death, resignation in writing filed with the clerk-administrator, removal
from office, non-residence in the city, conviction of a felony of any such person after his/her election,
or by reason of the failure of any councilmember without good cause to attend council meetings for a
period of three consecutive months. In each such case the council shall by resolution declare the
vacancy to exist. , and
Where as; The City Charter requires in Sec. 4.05. Vacancy of Municipal Elected Office. Subdivision 1.
When a vacancy in an elected office of the city occurs with 365 days or more remaining in the term of
the vacated office, there shall be a special election held within ninety days after the vacancy occurs to
elect a successor to serve for the remainder of the unexpired term of the office vacated. , and
Where as; The City Charter requires in Section 4.05 Subd. 5. When a vacancy in an elected municipal
office occurs within 120 days prior to a regular municipal election date, the special election to fill the
vacancy shall coincide with the regular election. If the vacancy occurs within sixty days prior to the
regular election date, the notice of such vacancy shall be published as soon as is practicable. If, within
the 120 day period before a regular municipal election, the vacancy occurs in the office of mayor or in
the office of either or both of the councilmembers whose seats are to be decided in the election, said
vacancy shall be considered not to exist for purposes of the election. However, if such vacancy occurs
in the office of either of the other two councilmembers, the seat shall be filled by the candidate for
councilmember with the third highest vote total, or, in the case of two vacancies, the third and fourth
highest vote totals. Where two vacancies exist, the candidate with the third highest total shall fill the
vacancy in the office having the longest unexpired term. , and
Where as; The Charter does not provide for conditional resignations by elected officials of the city, and
Where as: Minnesota State Law sets forth in Chapter 410.21 Application of general election laws.
The provisions of any charter of any such city adopted pursuant to this chapter shall be valid and shall
control as to nominations, primary elections, and elections for municipal offices, notwithstanding that
such charter provisions may be inconsistent with any general law relating thereto, and such general
laws shall apply only in so far as consistent with such charter.
HIST: (1295) 1909 c 170 s 6 , Which confirms the authority of the city charter over state laws,
and
Where as; The City Council action on September 23, 1996 in accepting Councilmember Hankner's
resignation by simple motion was nonconforming to Charter Section 2.05, Minnesota State Law 410.21
and Charter Section 4.05,
Now Therefore be it resolved, The Charter Commission of the City of Mounds View respectfully notifies
the City Council that council processes on September 23, 1996, regarding the resignation of
Councilmember Susan Hankner, appear nonconforming to requirements of both the Charter and state
law, and
Be It Further Resolved, the Charter Commission commends Councilmember Susan Hankner for her
efforts to avoid the added expenses of a special election, and
Be It Further Resolved, the Charter Commission of the City of Mounds View respectfully suggests
Councilmember Susan Hankner resubmit her resignation effective by November 4, 1996 to ensure
compliance with charter requirements should it remain her desire to avoid a special election.
Those voting in favor of the resolution:
Those voting against the resolution:
Signed:
Secretary
Signed:
Chairman
October 3, 1996
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KENNEDY & GRAVEN
CHARTERED
Attorneys at Law JAMES J.THOMSON
470 Pillsbury Center,Minneapolis,Minnesota 55402 LARRY M.WERTHEIM
ROBERT A.ALSO? (612)337.9300 BONNIE L.WILKINS
BRUCE M.BATTERSON JOE Y.YANG
RONALD H.BATTY Facsimile(612)337-9310 —
STEPHEN J.BUBUL
JOHN B.DEAN DAVID L.GRAVEN(1929.1991)
DANIEL J.GREENSWEIG
DAVID J.KENNEDY OF COUNSEL
CHARLES L.LEFEVERE ROBERT C.CARLSON
JOHN M.LEFEVRE,JR. WRITER'S DIRECT DIAL
ROBERT L.DAVIDSON
ROBERT J.LINDALL WELLINGTON H.LAW
ROBERT C.LONG FLOYD B.OLSON
JAMES M.STROMMEN
CORRINE H.THOMSON 337-9202 CURTIS A.PEARSON
T.JAY SALMEN
October 10, 1996
Chuck Whiting
City Clerk-Administrator
City of Mounds View
2401 Highway 10
Mounds View, MN 55112
RE: Legal Opinion on Charter and Statutory Procedures for Declaring and Filling City Council
Vacancies
Our File No. MU125-38
Dear Chuck:
You have asked for a legal opinion on the procedure for declaring and filling a vacancy on the
City Council under the Mounds View City Charter (Charter) and under state statutes in relation
to the letter of resignation that Councilmember Hankner submitted at the September 23, 1996
City Council meeting. This legal opinion is a formal written opinion setting forth the procedures
that I outlined to you and the City Council verbally before and during the September 23 City
Council meeting.
OPINION
Issue No. 1: Procedure for Declaring a Vacancy
Under Section 2.05 of the Charter, a vacancy in the Council shall be deemed to exist upon the
occurrence of one of several events, including a "resignation in writing filed with the City Clerk-
Administrator." Minnesota Statutes, Section 351.01, subd. 3(b) allows a resignation to be made
expressly to take effect at a future date, as Councilmember Hankner did with her September 23
resignation making it effective December 31, 1996.
Minnesota Statutes, Section 351.055 states that"if a future vacancy becomes certain to occur and
the vacancy must be filled by a special election, the appropriate authorities may begin procedures
leading the special election so that a successor may be elected at the earliest possible time."
RCL111384
MU125-38
Chuck Whiting
October 10, 1996
Page 2
Applying general state law on election matters in a manner consistent with the provisions of the
Charter is permitted by Section 4.03 of the Charter.
Therefore, the City Council could accept Councilmember Hankner's written resignation at the
September 23 meeting and declare a vacancy to exist under the terms of the Charter and state
law. To avoid any procedural questions such as those raised by the Charter Commission
regarding the manner in which the Council accepted Councilmember Hankner's resignation, the
Council should act by written resolution at its October 14 meeting to ratify the action taken by
motion at the September 23 meeting accepting Councilmember Hanker's resignation.
Issue No. 2: Procedure for Filling a Vacancy
The procedure for filling a vacancy that occurs within 120 days prior to a regular municipal
election date is set forth in Section 4.05, subd. 5 of the Charter. That section states in part as
follows:
When a vacancy in an elected municipal office occurs within 120 days prior to a
regular municipal election date, a special election to fill the vacancy shall coincide
with the regular election. If the vacancy occurs within 60 days prior to an election
date, the notice of such vacancy shall be published as soon as practicable. If
within the 120-day period before a regular municipal election, the vacancy occurs
in the office of the mayor or in the office of either or both of the councilmembers
whose seats are to be decided in the election, said vacancy shall be considered not
to exist for purposes of the election. However, if such vacancy occurs in the
office of either of the other two councilmembers, the seat shall be filled by the
candidate for councilmember with a third highest vote total, or in the case of two
vacancies, the third and fourth highest vote totals. (Emphasis added)
Pursuant to Section 4.02 of the Charter, no one may file for a municipal election later than 56
days before the election. Therefore, in the case of Councilmember Hankner's resignation, which
created a vacancy occurring less than 56 days prior to the regular municipal election, the City
Clerk could publish notice of the vacancy as soon as practicable pursuant to Section 4.05, subd.
5 of the Charter and the vacancy would be filled by the third highest vote-getter among the
candidates for the two City Council seats that had been listed on the ballot as set forth in the
procedures under Section 4.05, subd. 5 of the Charter.
Under Minnesota Statutes, Section 205.16, subd. 4, the City Clerk must provide written notice
to the county auditor regarding the offices and questions to be voted on in the election.
Therefore, the ballot would properly indicate that voters should vote for the two city council
offices which had been certified to the Ramsey County Auditor and Election Bureau. However,
pursuant to Section 4.05, subd. 5 of the Charter, the third highest vote getter for these two
council offices would fill the vacancy.
RCL111384
MU125-38
Chuck Whiting
October 10, 1996
Page 3
Conclusion
The Council accepts Councilmember Hankner's resignation of September 23, 1996,by Resolution
and declares a vacancy to exist. State law specifically allows the resignation to take effect at a
future date. The Council vacancy is then filled pursuant to Section 4.05, subd. 5 of the Charter
in which the third highest vote getter for the two council seats listed on the ballot fills the
vacancy.
Please feel free to contact me if youhave any questions.
Sincerely,
Robert C. Long
RCL:j es
RCL111384
MU125-38
' KENNEDY & GRAVEN
f:HARTEREa)
Atturitys ii Lucy 470 Pit%btury(renter.Mum-volts,Minuetota 614)2
(612)3374500 CORRINS R.THOMSON
ROBERT A-ALSOP and JAmt.s J.THOMSON,JR.
$RUG6 ht-$ATTERSON 70R Connerre Bolding,8 East Fourth Street 1.A1:RY M.WERTNEIM
RONALD H.BATTY Saint Fadi,PidinDWPII 55141 BONNIE L WILKINS
STPnim J.BUi6VL (612)225-4438 JOE X-'YANG
RAIN B.DEAN ---
DANIEL J-tMEENBWEIG Bactimite 012)37-9310 DAVID L,(MAVEN(1929-1001)
DAVID J.KENNEDY
CHARLES X.-LEFEYI F c OF COUNSEL
JOHN M.LFSEYRE,JR- WHITe,31E�.Ry'S D RU
CT D1Ai. ROBERTC.CAON
RQSENT J_LINDALL a] X 4sy0 ROBEK C -DAYI�Ji014
Et0$ERT C.LONG WELLINGTON H.LAW
JAMES M.STRom?ifEN FLOYD B.OLSON
CURT A.PEAMISON
T,JAY Sn3.MRN
May 23, 1996
The Honorable Kenneth J. Fitzpatrick
Chief Judge, Second Judicial District
Room 1350 Ramsey County Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
RE: City of Mounds View Charter Commission
Dear Judge Fitzpatrick:
On March 6, 1996, the Mayor of Mounds View wrote to you asking for responses to
three questions relating to the activities of the Mounds View Charter Commission
(copy of letter attached as Exhibit A). As you will recall that activity consisted of
continuing efforts of eight of the Commission members to require the expenditure of
public funds to have the City's codification service print an unconstitutional term
limits amendment in the Charter (the name of eight members are included on Exhibit
B). You responded to the Mayor's letter by suggesting that he seek advice from the
City attorney.
At the May 13, 1996 Mounds View City Council meeting, I was requested by the
Mayor and City Councilmembers to formally request that you exercise your role and
authority as the appointing authority of charter commission members to remove these
eight members of the Mounds View Charter Commission. The City believes that these
eight Commission members have violated their official duties by knowingly and
willingly voting to require the wasteful expenditure of public funds to print a
Charter Amendment which has been ruled unconstitutional by the Minnesota Supreme
Court. The City also believes that the willful act of ignoring a Minnesota Supreme
Court ruling on the Minnesota Constitution by the eight Charter Commission members
is a violation of their oaths of office to uphold the Minnesota Constitution-
Minnesota Statutes, section 410.05 confers authority upon you as the Chief Judge
of the Second Judicial District to appoint and remove charter commission members.
This request to remove the eight Charter Commission members does not require you
to act in your judicial capacity to rule on a legal matter before the Court as you
indicated in your April 2, 1996 letter(copy of letter attached as Exhibit C). Rather,
this removal request requires you to act only in an administrative capacity in your
FE0ioa7s8
14[1125-2&
17/Z 9DVd OEE6LEEZL9'OE 142/WHO 8 1O3MN9M'WO ld b6'60 96-6Z-2-MN
The Honorable Kenneth .1. Fitzpatrick
May 23, 1996
Page 2
role as the appropriate appointing authority to remove charter commissioners
according to the clear terms and authority granted in the statute.
Minnesota Statutes, § 410.05, subd. 2 states that "[a]ny member may be removed at
any time from office, by written order of tin!' district court, the reason for such
removal being stated in the order." The City's request to remove the commissioners
is made pursuant to this provision.
The City of Mounds View respectfully requests that you issue a written order
removing the eight Charter Commission members for the following reasons to be
stated in the order:
1. Minnesota Statutes, Section 410.05, subdivision 2 requires that each charter
commission member must file, along with an acceptance of the appointment, an
oath of office which requires that members uphold the Constitution of the
State of Minnesota. After having been informed by the City Attorney of
Mounds View that the Mounds View Charter Amendment providing for term
limits for the City's elected offices is unconstitutional based on Minneapolis
Term Limits Coalition v. Keefe, 535 N.W.2d 306 (Minn. 1995), the eight
members of the Mounds View Charter Commission who voted to print the
unconstitutional amendment to the City Charter have chosen to ignore the
ruling of the Minnesota Supreme Court and in doing so have violated their
oaths of office by not upholding the Minnesota Constitution as recently
interpreted by the Court-
_ 2. The eight Charter Commission members who voted to require that the
unconstitutional Charter Amendment be printed in the City's Charter
knowingly acted to cause a misuse and waste of public funds, and thus
violated their official duties as appointed charter commission members. If the
unconstitutional Amendment were to be printed as requested by the eight
Charter Commission members, it would result in the wasteful expenditure of
between $2,000 and $2,500 to have the City's current codification service,
Sterling Codifiers of Weiser, Idaho, include the unconstitutional amendment
in the City's Charter. Some additional amount of public funds would again be
wasted when Sterling Codifiers would later have to remove the
unconstitutional amendment.
Avoiding such a waste of taxpayers' dollars has been clearly recognized by
the Minnesota Supreme Court. The Keefe decision relies upon earlier
Minnesota Supreme Court decisions which recognize that where a proposed
charter amendment is manifestly unconstitutional, the city is not required to
put the matter on the ballot because the City should be able to avoid what
would amount to "a total'waste of taxpayers' money," Davies v. City of
Minneapolis, 316 N.W.2d 498, 504 (Minn. 1982) and what would be"ultimately
destined to be futile." HRA v. City of Minneayolis, 198 N.W.2d. 531, 536
(Minn. 1972).
3. If the unconstitutional amendment were to be printed as part of the City's
Charter, it would mislead the citizens of Mounds View to believe term limits
aso104788
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The Honorable Kenneth J. Fitzpatrick
May 23, 1996
Page 3
applied to city offices. If such a course of conduct were permissible, it would
encourage continuix'g public deception through official acts by Charter
Commissioners.
The City of Mounds View respectfully requests that you issue a written order
removing the eight Mounds View Charter Commission members for the reasons set
forth above.
Very truly yours,
C71.1,-tC4-
-1(\f‘e_.\
Robert C. Long
City Attorney
City of Moun-d.s View
Rales
cc; Mayor and City Councilmembers (w/o enclosures)
Chuck Whit;rig, City Administrator (w/o enclosures)
FA0104788
10125-#8
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Phone: (612) 784-3055
JEW Of/LE o f ffiE ay°' Fax: (612) 784-3462
"Quite Simply the Best" JERRY LINKS
March 6, 1996
•
The Honorable Kenneth J. Fitzpatrick
Chief Judge, Second Judicial District
Ramsey County Courthouse
15 West Kellogg Blvd.
St. Paul, MN 55102
Re: City of Mounds View Charter Commission
Dear Judge Fitzpatrick:
The City of Mounds View is served by a Charter Commission appointed pursuant to Minn. Stat.,
Chapter 410. The district court,through its Chief Judge, is vested with certain-powers in regard to
the charter commission Minn. Stat., 410.05 (1994). As Mayor of the City of Mounds View, I
respectfully request, on behalf of the City Council, your guidance in a matter that has arisen
concerning actions proposed by certain members of the Mounds View Charter Commission.
The Mounds View Charter Commission,by a 8-5 vote, requested the City Council to include in our
charter an amendment adopted by the voters in November 1994. That amendment placed limits on
the number of terms that may be served by the city's elected officials. Subsequent to that election,
a virtually identical amendment was found unconstitutional by the Minnesota Supreme Court in
Minneapolis Term Limits Coalition v. Keefe, 535 N.W. 2d 306 (1995). In that decision the court
held that such a charter amendment is manifestly unconstitutional and therefore need not be placed
on the ballot. The Charter Commission is fully aware of the Keefe decision and has been informed
by the City Attorney that the Mounds View charter amendment is unconstitutional in light of that
decision. The City Attorney has also advised the City Council that we should not include the
amendment in the charter. Nevertheless, the Charter Commission continues to insist that the
unconstitutional amendment be printed in the charter. A copy of the proposed amendment is
enclosed.
The City Council's concern arises from two issues. First, from a public policy perspective we do
not believe that it is wise to have an unconstitutional provision included in the Charter. Second, we
believe that the Charter Commission's attempts to require the City to publish the unconstitutional
amendment is a violation of their oath of office to uphold the United States and Minnesota
Constitutions.
PRINTED WITH
�� SOYINK 74(11 L-Iirdhtnimi 1!1 NArvnrnrdc \/ioui u i FG110_1 AOC
zef CITY OF MOUNDS VIEW Agenda Section
REQUEST FOR COUNCIL CONSIDERATION Report Number:
STAFF REPORT Report Date: 10/10/96
' � ' `ihi CITY COUNCIL MEETING DATE
Ar October 14, 1996 Special Order of Bus.
ts.PasineePeS
_ Consent Agenda
Public Hearings
Council Business
Item Description: Review of September 23, 1996 City Council Meeting Minutes and Subsequent
Consideration of Resolutions 5029 and 5030.
Executive Director's Review/Recommendation:
-No Comments to supplement this report
-Comments attached.
Explanation/Summary(attach supplement sheets as necessary)
Summary:.Some questions were raised about whether the City Council should have accepted Sue Hankner's
resignation and the ensuing declaration of vacancy by resolution instead of by motion. Mounds View City
Charter requires that a resolution be passed for this type of action and the Council may want to consider
affirming their actions of the last meeting by adopting resolutions 5029 and 5030 as drafted by City Attorney
Bob Long. Bob and I discussed the appropriate way in which to do this, either by having the Council amend
their minutes of the September 23 actions to reflect the actions as resolutions, or to simply proceed with the
normal adoption of the minutes and then readdress the actions with reaffirming resolutions. The reason for
this is as much consistency with past practice as with anything else.
have also asked Bob to send me a letter outlining the position he stated regarding the Council's appropriate
course of action for accepting the resignation and then declaring a vacancy. As the Council is aware by now,
much of this is being questioned by the Charter Commission, with the essential concern being that without a
special election, voters will be voting for two candidates for three seats. The timing of the resignation, after
the notice of filings close, has the most to do with that situation. I expect to have Bob's letter by Monday and
will forward copies to the Council as soon as possible.
As for Monday evening, I recommend the Council ask Bob to review the option to adopt the two resolutions
at the time the Council is reviewing the Council minutes. If the Council chooses, it can approve the minutes
with the actions as motions as it happened, then add to the agenda the two resolutions reaffirming the actions.
Also, the Council may want to take this opportunity to acknowledge the resolution it received from the
Charter Commission last week.
C/L4(.},a
Chuck Whiting, Cit Administrator
S
• • RESOLUTION NO. 5029
CITY OF MOUNDS VIEW
COUNTY OF RAMSEY
STATE OF MINNESOTA
RESOLUTION ACCEPTING COUNCILMEMBER HANKNER'S LETTER OF
RESIGNATION
Whereas, Councilmember Hankner at the September 23, 1996 Council Meeting
submitted to the City Council and the City Clerk Administrator a written letter resigning from
the City Council; and
Whereas,the City Council approved a Motion accepting Councilmember Hankner's
resignation at the September 23, 1996 Council Meeting.
Now, Therefore, Be It Resolved that the Mounds View City Council hereby ratifies its
action of September 23, 1996 accepting Councilmember Hankner's resignation by Motion and
hereby accepts Councilmember Hankner's resignation by Resolution.
111 Adopted this 14th day of October, 1996
ATTEST:
Mayor Linke
(SEAL)
Clerk Administrator Whiting
•