HomeMy WebLinkAbout2007-03-12 City Attorney Memo to Commission re Oath of Office307715v2 LKT MU210-4
Kennedy 470 US Bank Plaza 200 South Sixth Street Minneapolis MN 55402
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Graven (612) 337-9300 telephone (612) 337-9310 fax http://www.kennedy -graven.com
C H A R T E R E D
SCOTT J. RIGGS
Attorney at Law
Direct Dial (612) 337-9260
Email: sriggs@kennedy-graven.com
MEMORANDUM
Date: March 12, 2007
To: Jonathon Thomas
Kurt Ulrich
Desaree Crane
From: Scott J. Riggs
Re: Oath of office requirements
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It appears that the City Charter Commission may want to remove the reference to an “oath”
in Chapter 5.02 of the Charter in response to issues raised and threatened litigation elsewhere in the
state. The proposed language, as shown below, appears to effectively replace “oath” while
maintaining the intent of the section:
Each separate page of the petition must have appended to it a certificate by the
circulator, verified by oath attested to by the circulator.
The City may be concerned that a failure to file the circulator’s oath will trigger litigation
based on Minn. Stat. § 358.11(a) and § 204C.40. Petitions were brought against former Secretary of
State Mary Kiffmeyer and Governor Tim Pawlenty on similar grounds, but Justice Blatz dismissed
the petitions for failure to allege specific facts that constitute grounds for recall. Cases in Michigan
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and Oregon hold the filing requirement is not a condition precedent to assuming the duties of office.
I was unable to find any cases that found in favor of the party claiming a violation of filing and oath
requirements.
If the City chooses to change the language, no disruption to the effectiveness of the Charter
should occur. In addition, as an alternative to “verified by oath”, altenative language could be
“verified by affidavit” which would be consistent with Minnesota Statutes § 410.12, subd. 2 as to
petitions to amend a charter. If the City chooses to keep the language as it now reads, it appears
unlikely that any action against the “oath” requirement will be successful (although it may consume
City resources).
Please let me know if you require further review or discussion concerning this matter.
SJR:jms