In re Referendum to Amend City of Grand Rapids, Minnesota Municipal Elections Ordinance No. 04-08-11.

In re Referendum to Amend City of Grand Rapids, Minnesota Municipal Elections Ordinance No. 04-08-11. A05-2350, Court of Appeals Unpublished, July 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2350

 

 

In re Referendum to Amend City of Grand Rapids,

Minnesota Municipal Elections Ordinance No. 04-08-11

 

 

Filed July 18, 2006

Affirmed

Toussaint, Chief Judge

 

Itasca County District Court

File No. 31-CV-05-3798

 

 

Chad B. Sterle, Dimich, Swanson & Sterle, 102 Northeast Third Street, Suite 120, Grand Rapids, MN 55744 (for appellant City of Grand Rapids)

 

Gerald J. Brown, Brown, Andrew & Signorelli, P.A., 306 West Superior Street, Suite 300, Duluth, MN 55802 (for respondent Juan Lazo)

 

 

            Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

The City of Grand Rapids seeks review of the district court's order allowing a referendum on a city ordinance that rescinds the use of odd-year elections and establishes even-year elections for city-council members and the mayor.  Because ordering appropriate relief was within the district court's discretion under Minn. Stat. § 204B.44 (2004) and because allowing respondent Juan Lazo an opportunity to cure the petition for a referendum was appropriate relief for the city's omissions, we affirm.

D E C I S I O N

Minnesota law allows a city to hold its general elections in either even-numbered or odd-numbered years.  Minn. Stat. § 205.07, subd. 1 (2004).  A city may change its elections from one year to another by ordinance passed at a regular meeting held before June 1 of any year.  Id. The statute expressly allows for a petition process so eligible voters can request a referendum on an ordinance changing the year of the municipal election.  Id., subd. 3 (2004).  This statutory petition process and the appropriateness of the district court's remedy under Minn. Stat. § 204B.44 (2004) are at issue here.  The construction and application of statutes are questions of law, which we review de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

            On appeal, the city argues that, when a petition requesting a referendum is submitted within the 180-day time period but is determined by the city clerk to be invalid after the 180-day time period has run, the district court abuses its discretion in granting additional time to cure the deficiencies of the  petition.  Lazo argues that omissions by the city entitled proponents of the referendum to appropriate judicial relief under Minn. Stat. § 204B.44.

            Any individual may petition the court to correct a wrongful act, omission, or error committed by an individual charged with any duty concerning an election.  Minn. Stat. § 204B.44.  Once it receives such a petition,

the court shall immediately set a time for a hearing on the matter and order the officer, board or individual charged with the error, omission or wrongful act to correct the error or wrongful act or perform the duty or show cause for not doing so.  The court shall issue its findings and a final order for appropriate relief as soon as possible after the hearing.

 

Id. To determine whether granting an extension to the proponents of the petition for a referendum was "appropriate relief," we first consider the deficiencies both in the petition and on the part of the city.

            The city argues that the petition for a referendum was facially deficient so that Ordinance 04-08-11 automatically became effective 240 days after passage and publication.  Under Minnesota law,

[a]n ordinance changing the year of the municipal election is effective 240 days after passage and publication or at a later date fixed in the ordinance.  Within 180 days after passage and publication of the ordinance, a petition requesting a referendum on the ordinance may be filed with the city clerk.  The petition shall be signed by eligible voters equal in number to ten percent of the total number of votes cast in the city at the last municipal general election.  If the requisite petition is filed within the prescribed period, the ordinance shall not become effective until it is approved by a majority of the voters voting on the question at a general or special election held at least 60 days after submission of the petition.  If the petition is filed, the governing body may reconsider its action in adopting the ordinance.

 

Minn. Stat. § 205.07, subd. 3 (2004).  In allowing for a petition process, the statute expressly sets timelines, the filing officer, the number of signatures needed, and the requirement that those signatures are of "eligible voters."  Id. The statute does not specifically refer to any of the general form requirements as adopted by the secretary of state in Minn. R. 8205.1010, subp. 2 (2003).  The statute is also silent as to a verification process for the petition.

            Here, the petition was filed with the city clerk ten days before the statutory 180-day deadline.  The petition had the following descriptive heading on each page:

The undersigned eligible voters of Grand Rapids, Minnesota, by this Petition request a referendum on Grand Rapids Ordinance No. 04-08-11, which changed elections for mayor and council members from odd years to even years and caused the terms of the mayor and certain council members to be extended.

 

The petition contained more than the requisite number of signatures and included a printed name and address for each signatory.  Notwithstanding the form requirements of Minn. R. 8205.1010 and the verification requirement of Minn. R. 8205.1050 (2003), the filing of the petition suspended the effective date of the ordinance pending the outcome of a referendum vote.

            Petition forms required for any Minnesota election are governed by rules adopted by the secretary of state.  Minn. Stat. § 204B.071 (2004).  Under Minn. R. 8205.1010, subp. 2, petitions must meet nine technical form requirements.  Here, while the petition for referendum met all of the requirements of the statute, it failed to meet five of the nine technical requirements of the rule. This is a significant number of technical deficiencies, but we are reminded that the Minnesota Supreme Court has stated:

Courts can take notice of how difficult it is to prepare and to circulate any petition.  Frequently such petitions are prepared by laymen, not skilled in the technical aspects of the law.  Courts should exercise extreme caution in ruling out, on mere technicalities, such documents [as petitions] which are the result of democracy working at the grassroots level.

 

Bogen v. Sheedy, 304 Minn. 62, 71, 229 N.W.2d 19, 24 (1975).  The district court did not err in exercising such caution.

The district court found that the technical defects of the petition form were offset by technical defects in both the ordinance and the city clerk's failure to complete a timely verification of the petition.[1]  The city clerk also failed to provide a proper receipt to the person who filed the petition.[2]

Under Minn. R. 8205.1050, subp. 2, the filing officer "shall verify each petition."  The filing officer must complete this verification process no later than ten working days after the day on which the petition was filed.  Id., subp. 3 (2003).  Here, the city clerk admitted that he failed to meet the ten-day timeline but attempted to show cause for not doing so.  The city clerk testified that he was confused as to the applicability of Minnesota Rules 8205.1010 to .1050 (2003) to a petition made under Minn. Stat. § 205.07.[3]  Part of this confusion stemmed from the definition of a "filing officer." Compare Minn. R. 8205.1040, subp. 2 (defining filing officer as county auditor or secretary of state) with Minn. Stat. § 205.07, subd. 3 (expressly directing that petition for referendum be filed with city clerk).  The city clerk consulted both the city attorney and the office of the Minnesota Secretary of State to determine whether these rules applied to this petition.  Once it was determined that verification was his responsibility, the city clerk inspected the form of the petition and, with assistance from the city attorney, determined that it did not comply with the general form requirements.  Instead of making his determination by February 28, 2005, he made it on March 2, 2005two days late.

Alternatively, the city argues that the ten-day verification requirement was irrelevant because the city clerk had until February 28, 2005, to verify the petition, but the time for petitioners to file a valid petition ended on February 25, 2005.  Because petitioners were not timely notified of the city's determination that the petition was technically invalid and because the city determined that the time to correct the petition had run out after 180 days, we conclude that the record supports the district court's determination that petitioners were unduly prejudiced.

The district court found that the failure of the city clerk to timely verify the legal sufficiency of the petition "frustrated the will of the people to a free and fair determination of the issues."  We agree.  While courts owe great deference to the legislative judgment of governing bodies such as city councils, "equal deference should by given to the wishes of a large number of voters who are willing to affix their signatures to a petition in order to allow all voters of a municipality to express their views on a very controversial matter."  Bogen, 304 Minn.at 69-70, 229 N.W.2d at 23.  The district court quoted Bogen:

[P]ublic officials rule with the consent of the governed.  What possible harm could result in requiring a referendum on the subject matter of this litigation?  If the voters vote down the ordinance[], it will be the majority of the people themselves and not merely their elected representatives making that decision.  If the voters affirm the council, what greater assurance and encouragement could be given officials required by law to enforce such an ordinance than the fact that such a law has been passed by not only a majority of the legislative body of that city but of the people as well?

 

Id. at 71, 229 N.W.2d at 24.

 

The district court allowed Lazo a brief period of time to cure the technical deficiencies in the petition, relying on language in Minn. Stat. § 204B.44:  "In order to allow the City Clerk to correct the omission, Petitioner may re-file a petition for referendum with the City Clerk."  (Emphasis added.)  Lazo quickly cured the technical defects and re-filed the petition.  The city admits that the technical requirements were met in the re-filed petition.

The district court has the authority to order the election officer charged with an error, omission, or wrongful act "to correct the error or wrongful act or perform the duty or show cause for not doing so."  Minn. Stat. § 204B.44.  The district court was required by statute to issue a "final order for appropriate relief as soon as possible."  Id.  Here, the "omission" was both the city clerk's failure to timely verify the petition and to give notice allowing petitioners to cure the technical deficiencies.  By such omissions, the city frustrated the process in an attempt to avoid the referendum.  The remedy fashioned by the district court allowed Lazo to cure the technical defects in the otherwise statutorily sufficient petition.  We conclude that this appropriate relief was within the district court's discretion. 

Because the re-filed petition was sufficient under Minn. Stat. § 205.07, subd. 3, the city ordinance changing the year of the municipal election is not effective until it is approved in a referendum vote.  Therefore, the city must hold a referendum on the ordinance and elections to fill the seats of the mayor and two city council members, which were due to expire in 2005, as soon as legally possible.

Affirmed.

[1] On its face, the ordinance was in conflict with Minn. Stat. § 205.07.  The ordinance established an effective date immediate upon passage and publication.  Under Minn. Stat. § 205.07, subd. 3 (2004), an ordinance is not effective until at least 240 days after passage and publication.  It is apparent that this defect did not prejudice the petitioners for the referendum because they filed their petition within the 180-day statutory deadline.

[2] Under Minn. R. 8205.1040, subp. 4 (2003), the filing officer is required to provide the person filing the petition with a receipt for the petition.  The receipt must include "the name, address and telephone number of the person submitting the petition."  Id.  Because the receipt provided by the Grand Rapids city clerk did not include any contact information as to the person submitting the petition, the city clerk was later prevented from notifying directly the person who filed the petition that the petition was being rejected.  As an alternative, the city attorney published the notice in the local newspaper.

[3] We note that, if the city clerk and city attorney were unsure whether provisions in rules chapter 8205 applied, ordinary citizens submitting a petition might reasonably be unaware that the technical form requirements found in chapter 8205 applied to their petition.