Minnesota Lawyer
Susan Segal
Just two days after Hennepin County District Court Judge Susan Robiner ruled that Minneapolis residents should get to vote on a charter amendment to raise the minimum wage in the city, the Minnesota Supreme Court has agreed to take another look.
The lawyers involved will be working on an extremely tight schedule, with briefs due on Thursday and oral arguments slated for Aug. 30, according to Minneapolis City Attorney Susan Segal, who filed the petition for expedited review from the high court on Tuesday afternoon.
Robiner’s ruling came as a rebuke of the Minneapolis City Council, which voted 11-2 earlier this month to keep the proposed charter amendment off the ballot.
Segal said the city is sticking to its position that the proposed amendment conflicts with a state law — Minn. Stat. 410 — that governs how home rule cities can amend their charters.
“That’s the issue. It’s not an issue of whether the minimum wage should be raised or not,” said Segal. The city wants to “to keep things moving as quickly as we can, mindful that early voting begins in late September,” she added.
Barring reversal from the high court, the proposed amendment — which would phase in the $15 hourly minimum over several years and then index subsequent wage hikes to inflation — will appear on the ballot for the Nov. 8 general election.
If enacted, Minneapolis will become the first Minnesota city to establish a minimum wage above the state minimum.
While Robiner’s ruling induced some heartburn at City Hall, the judge delivered a dose of antacid with a separate ruling on a second proposed charter amendment. That measure would have forced Minneapolis police officers to purchase professional liability insurance, a requirement that backers argued could save taxpayers money in lawsuit payouts and help drive rogue officers out of the department.
Although the Committee for Professional Policing gathered the required number of signatures, Robiner ruled the proposal can’t be put to a vote because it conflicts with several state laws, including Minn. Stat. 466.07, which expressly requires that municipalities defend and indemnify police officers.
Robiner’s twin rulings came less than three weeks after the Minneapolis City Council voted to keep both proposed amendments off the ballot.
Paul Lukas, part of the team of attorneys who worked on the minimum wage issue, praised Robiner’s “thorough” reasoning in arriving at her decision under rushed circumstances.
“I’d been told by my partners who had tried cases in front of her that she was sharp and, boy, was she,” said Lukas, a partner at Nichols Kaster PLLP with a national class-action employment law practice. “Everything we talked about in preparing for the oral argument, she was on it five seconds in.”
Lukas, who was recruited to the case by a Washington, D.C.-based advocacy group, the National Employment Law Project, also heaped kudos on Bruce Nestor, the Minneapolis solo practitioner who led the oral arguments before Robiner on Aug. 9.
In its briefings and at oral argument, the city insisted that the minimum wage ballot question was simply an “ordinance cloaked as charter amendment.” And because Minneapolis’ charter doesn’t explicitly authorize initiative and referendums, the city contended, amendments to the charter should be restricted to topics relating to “the form, structure and functioning of the municipal government.”
In her order and memorandum, Robiner brushed aside those arguments.
“Yes, the charter largely addresses matters of governmental structure and authority. Therefore, the claim that ‘generally speaking’ charters are limited to municipal governmental organization is generally true,” the judge wrote. But that’s just a general principle and not without some glaring exceptions, Robiner added, noting that the city’s extensive rules governing alcohol sales are enshrined in its charter.
While Robiner acknowledged that Minneapolis’ charter doesn’t expressly authorize initiative, she said that doesn’t mean citizens can’t pursue similar aims via a charter amendment.
“Put another way, there is no precedent holding that initiative is the only citizen power to legislate on matters of general welfare and that the power to amend a charter, with its right to citizen access, is something qualitatively different and lesser,” Robiner wrote. “In fact, there is an alternative hypothesis that is not unreasonable: there is no bright line distinction between the ends of the two processes but only a difference in the process — with charter amendments requiring citizen access but also requiring a high petition threshold.”
Because the minimum wage doesn’t conflict with either state law or the Constitution — and because supporters gathered enough signatures — Robiner ruled that the courts have no authority to keep it off the ballot.
Prior to the news of the Supreme Court’s decision to take the appeal, supporters of the minimum wage amendment were buoyed by Robiner’s ruling and the prospects for the amendment’s passage in November.
“We’ll see what the citizens think, but, frankly, I think this issue has a lot better chance with the public than the City Council,” said attorney Lukas on Tuesday.
Champions of the police insurance mandate had less cause to be cheerful.
Tim Phillips, the Minneapolis attorney who represented the petitioners, said on Tuesday he didn’t know whether he would seek further review of the ruling. But with Hennepin County poised to begin work assembling absentee ballots on Friday, he said the timing appears problematic.
On the substance of the ruling, Phillips said the judge disagreed on a key point.
“The judge felt that calling it ‘professional liability insurance’ means that it is primary insurance and covers the same acts that state statute requires the city to cover and, from that standpoint, that it conflicts with state law,” said Phillips.
But Phillips said the insurance requirement is intended to provide coverage for bad faith acts that city is not required to defend and indemnify.
