September 17, 2021

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Beyond law

Yes 4 Mpls. asks state high court to intervene on ballot issue

The political committee pushing a proposal that could replace the Minneapolis Police Department is asking the state Supreme Court to intervene, while awaiting a ruling in a case threatening to kick it off the November ballot.

Yes 4 Minneapolis asked the state’s high court to “grant final approval” of the latest ballot question wording and “prohibit any further actions that may lead to the Proposed Amendment being left off the ballot this November.”

“Questions concerning the legality of a municipality’s power — and now their obligation — to influence voters through ballot ‘explanations’ and otherwise impacting Minnesota’s election systems strike the very core of our democracy and are critical to ensure the order and legitimacy of government functions,” attorney Terrance W. Moore wrote in his filing seeking emergency intervention.

The request came the same day that attorneys squared off in a Hennepin County court, where a trio of Minneapolis residents asked a judge to block officials from using the latest ballot language and to bar them from approving a new version “until a plan exists to implement the new department of public safety.”

“The average voter can’t tell from the ballot question what they’re voting on, and there is confusion at the heart of the ballot question,” argued attorney Joe Anthony, representing the three residents challenging the fairness of the ballot question wording.

The proposal has become a central issue in what many expect will be a historic election as Minneapolis residents prepare for the first municipal races since George Floyd was killed by police. Early voting begins Friday.

The measure changes the Minneapolis charter, removing the requirement to keep a police department with a minimum number of officers. It then requires the city to create a new agency providing “a comprehensive public health approach to safety.”

For more than a month now, city leaders have been embroiled in political and legal fights over how to interpret those charter changes — and what that means for constructing a neutral ballot question. At the center of the latest debate are questions about how much detail should be included on the ballot and whether city leaders must have a transition plan in place before the election. Lawyers also disagree on whether the issue could be pushed to a future election.

Emergency hearing in a.m.

The day began with attorneys squaring off in a virtual hearing over whether Hennepin County Judge Jamie Anderson should block elections officials from using the latest ballot question wording. She struck down versions twice before and is now being asked to do it again.

Minneapolis officials feel like they’re living in something akin to a Goldilocks fairy tale, said assistant city attorney Ivan Ludmer, who asked the judge to leave the latest ballot question in place. Paraphrasing the judge’s rulings, he said the first version was nixed because it contained too much detail and the second not enough.

“I think we’re just here hoping that the court finds this third question just right,” he said.

Three residents — businessman Bruce Dachis, nonprofit CEO Sondra Samuels and former City Council Member Don Samuels — sued the city late last month arguing an earlier version of the ballot question was misleading. Anderson issued an order Sept. 7 siding with them.

“Petitioners have shown by a preponderance of the evidence how the Current Ballot Language is incapable of implementation,” she wrote. “The record does not reflect the existence of any plan the City Respondents have as to what the proposed Department of Public Safety would look like, other than that it would have ‘administrative authority to be consistent with other city departments to fulfill its responsibilities for public safety.”

Minneapolis officials approved new language the same day. Dachis and the Samuels then asked the judge to block officials from using that version, saying it didn’t fix all the problems identified in Anderson’s order.

On Monday, their attorney, Anthony, echoed part of the judge’s Sept. 7 order. He said officials should have a clearer plan for what will happen in early December, when the change would take effect if approved.

“The voter can’t make that decision, because it’s not clearly laid out for them,” he said. “It’s not clearly laid out for them, because the City Council has simply not done its job.”

He painted a dire picture, saying residents would be left without a police response and officers wouldn’t be assured their salaries would be covered. He also accused city leaders and Yes 4 Minneapolis of providing contradictory statements about what the proposal would do.

Attorneys for the city and Yes 4 Minneapolis pushed back, accusing the group of presenting legal interpretations as if they were fact. They cautioned against trying to delve too far into analysis on the ballot itself, saying those debates were better suited for the campaign trail.

Both the city and Yes 4 Minneapolis also took issue with the trio’s statements about what would happen if the charter amendment passes. They said ordinances would allow city leaders to keep a police department in place temporarily to ensure an orderly transition and that other local rules require the city to cover its employees’ salaries.

Moore, the attorney for Yes 4 Minneapolis, said it would be an “error” to require the city to create plans for the new department before a charter amendment passes. That aligns with messages from some elected officials and their staffers, who say they believe guidance from the city’s ethics officer prohibits them from doing some work on a plan before an election.

In a statement Monday, Susan Trammell, the city’s ethics officer, said, “The council members can work behind the scenes with professional staff on developing the framework for and the components of the policies necessary to implement the measure, if approved by voters.”

But, she added, they must be careful not to cross the line into advocacy while using government resources. “Advocacy encompasses a broad arena of actions but generally advocacy consists of acts supporting, defending or arguing for or against a particular cause or issue,” Trammell said.

Examples of advocacy, she said, would include using those city plans “for community engagement in support or opposition of the charter amendment,” or using it to influence voters “by communicating to constituents why they should feel safe in voting ‘yes’ or voting ‘no.’ ”

Emergency request in p.m.

At the end of the hearing, Judge Anderson said she would issue an order “as soon as possible.” She hadn’t ruled as of Monday evening.

Yet on Monday, Yes 4 Minneapolis sent a request to the state Supreme Court, asking justices to intervene. They argued that Anderson overstepped when she struck down the language on Sept. 7 “by basing [her] order on the possible effects of the Proposed Amendment itself, instead of the language of the ballot question.”

Still, Moore asked the justices to “grant final approval” to the ballot language city officials approved that same day “to ensure that the Proposed Amendment is included on the ballot this November.” Ballots with that phrasing are already being printed.

An attorney for Dachis and the Samuels said Monday afternoon they were reviewing the request.

Liz Navratil • 612-673-4994

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