Second Ward, Minneapolis

This is the public policy forum of Minneapolis Second Ward (Green) City Council Member Cam Gordon and his staff. We use this space to talk about some of what Cam’s working on, explain his positions, and share a little of what life in City Hall is like. Please feel free to comment on posts, within certain ground rules. See our disclaimer, including ground rules, here: http://secondward.blogspot.com/2006/05/disclaimer.html#links

Friday, August 26, 2016

Court Decision on the Minimum Wage Charter Amendment Should Not be Appealed

I was very heartened by the decision by Judge Susan Robiner on Monday that the minimum wage charter amendment should be placed on the ballot in Minneapolis. It was a powerful decision, and echoed many of the arguments that I made when opposing the Council majority's decision to keep this amendment off the ballot.
The City of Minneapolis is doing a real disservice to our constituents and our democracy in appealing this decision as reported in the paper. I want to be clear: there has been no formal Council vote to authorize the appeal. The City Attorney has decided to move forward with the appeal under the authorization of the Council vote on August 5th.
I would strongly prefer that we leave this precedent in place. It's a good, pro-democracy ruling that clears up something that seems to have been confusing: the people do indeed get to decide whether a given issue is appropriate to address in the Charter or not, through the process established by state statute (which the campaign has followed to the letter). The idea that an issue is inappropriate to address in the Charter is a *political* question for the campaign (and counter-campaign) to address, not a *legal* question that the City Council has the right to answer on behalf of the people.
And I want to be clear that by appealing this decision, we are forcing this campaign - a campaign led by grassroots organizations, working on behalf of the poorest people in our community - to spend its limited resources fighting the City in court rather than organizing for a win this fall. I have a problem with that. Every dollar spent on legal fees is a dollar not spent on organizers, literature, and the thousand other things necessary to win this campaign in November. (And, because some of the organizations supporting this campaign have a statewide focus, each of the dollars wasted fighting the City in court could be used for progressive change well outside of Minneapolis.)
I wish that we could have let the strong, well-reasoned Robiner ruling stand, embraced the idea that the people of Minneapolis will get to vote on raising wages for the poorest workers in our city this November, and gotten to work on winning that vote. Unfortunately, that has not happened, and that's one of several disappointments I've had with the City as an enterprise throughout this whole discussion of a local minimum wage.
But I have hope that despite these frustrations and disappointments, we are on the path towards greater economic justice by increasing wages for poor workers in our city.
***
The conclusion of the decision could not be stronger:
"To conclude, the City cannot avoid certain realities that defeat its position:
• No Minnesota case law supports the City’s claim that general welfare legislation may only be proposed through initiative and referendum;
• No Minnesota case law supports the City’s claim that “all local municipal functions” means only “the form, structure, and functioning of the municipal government”;
• Minnesota cases have allowed district courts to enjoin elections only where the proposed charter amendment was unconstitutional or conflicted with state law neither of which are even argued by the City; and,
• For a Court to enjoin a ballot initiative based on its content when that proposal has garnered the proper number of signatures and proceeded properly could reasonably be seen as overreaching its specific role under Minn. Stat. § 204B.44 and its general role in a government that respects separation of powers."

It Is Wrong to Block the Minimum Wage Amendment from Going on the Ballot

This month's conversation about the minimum wage charter amendment has been interesting and sometimes intense and contentious. Despite being on the minority-end of the decision, and having the City Attorney's opinion arguing against my opinion, I still strongly believe that the City Council reached the wrong conclusion when we voted 10 - 2 to block the proposed minimum wage charter amendment from being on the ballot. While in the end we may have moved a little closer to the ultimate goal of raising wages for the lowest-wage workers in Minneapolis through a promising staff direction, if the action on Wednesday is formally approved by the full Council on Friday, the fair, democratic process set out in state law is not being honored. If the committee recommendation is ratified, the voters of Minneapolis will be wrongly prevented from having the chance to vote on an issue that they should have been able to in November and we, as a Council, did not fulfill our responsibility and duty as a City Council.
Given the fact that my opinion represented such a super-minority on the Council, and contradicted the opinion of the City Attorney and chair of the Charter Commission, I wanted to offer more details into how I reached my conclusion.
First, the conclusion: I believe that I, as a Council Member, was obligated to allow the minimum wage question to be placed on the ballot.
The resolution itself, that was put forward to keep the issue off of the ballot included a clause that I considered to be incorrect. It said, "That the City Council finds the proposed charter amendment constitutes the submission of an ordinance to the Council by petition of the electors.. [that] is not a proper subject for a charter amendment." I could not support it and will not vote for it at the Council meeting on Friday.
Early on in my decision-making process, I identified three key things that any citizen/petition proposed charter amendment would have to meet. If these things are met, in my opinion, it would be my legal obligation to approve putting the matter on the ballot and approve ballot language. Here are the three key requirements:
1. The petition itself must have the sufficient number of registered voters signing it and be in the proper format as outlined in state law (Chapter 410 - https://www.revisor.mn.gov/statutes/?id=410.12 )
2. It must conform with state law (Chapter 410) relating to City Charters.
3. The proposed change cannot be in clear violation of federal or state law, or "manifestly unconstitutional."
I think the City Attorney was mostly on target when she wrote in her opinion, "When a citizen petition has been presented with the requisite number of signatures of registered voters, the City Council has a ministerial duty to place the measure on the ballot unless the proposed amendment contravenes the public policy of the state, is preempted by state or federal law, is in conflict with any statutory or constitutional provision or contains subjects that are not proper subjects for a charter under Chapter 410." Although, I think we need to be extremely cautious about attempting to accommodate all public policy of the state or try to guess the intent and spirit of legislation or that we need to be the judge of what is "proper subject matter" to go in a charter. Both seem to leave huge openings for interpretations and for bias and are not clearly outlined anywhere in 410.
So, on my more limited and clear three criteria:
1. The proposed amendment had more than enough signatures, collected in the proper format. The petition needed a number of registered voters equal to at least 5 percent of the total votes cast at the last state general election. For this election that number was 6,869. The $15 Minimum Wage petition contained 17,902 signatures total and 8,418 were validated to be registered voters in Minneapolis.
2. The amendment conformed with state law, it pertained to a "proposed new scheme or frame work of government." and met all the other requirements of Chapter 410.
And, 3., the content of the amendment was not in violation of state or federal law or the state or federal constitutions. There are no laws prohibiting the establishment of Minimum Wages. In fact, the federal and state governments have enacted similar laws and there are NO prohibitions or preemptions against the city passing such a law, in any legislative document, be it a charter or a code of ordinances.
So, this proposed amendment meets all three of these tests. So, it is my "ministerial duty to place the measure on the ballot" and not to block it from appearing on the ballot.
Interestingly enough, in her opinion, the City Attorney appears to be asserting that there is a fourth, perhaps more important test, not included in state statute: whether the proposed amendment is "properly" a charter amendment, or whether it is properly "legislation" which she appears to interpret as being an ordinance vs. a charter provision. In my view, the charter is also legislation. I respect the Attorney's opinion, (and admit that voters and judges might agree with her in the end) but I disagree that this test gives the Council the authority to block the people from amending their city's charter. I'll note that I agree with one of the coalition's attorneys: the City Attorney's opinion is based nearly entirely on a single paragraph in a single court case, which was not even referenced in the decision of that court case. There are not clean statutory definitions of "legislation" or limitations placed on the sorts of topics charters can cover.
The question as to whether an issue is more appropriate for a charter amendment or an ordinance is, in my opinion, an unfortunate distraction. It was proposed as a charter amendment, and thousands of people signed petitions to bring it forward as a charter amendment. Chapter 410 itself says very little about subject matters but does state that a petition must contain a summary of "any proposed new scheme or frame work of government." So, it seems clear that the subject ought to be a scheme or framework of local government. Granting the authority to the Council to set a minimum wage, and defining what that is and how it will regulated is most certainly a scheme of government. So, because it was before us and met the strict legal requirements as I see them, it should be up to the voters to determine if this belongs in the charter. Whether it's something most appropriate to be in the charter is a great point to debate during a campaign, not something the Council had the proper authority to decide.
As I said yesterday, the Council majority and City Attorney have valid arguments, but they are beside the critical points we need to consider and went beyond the legal test that the petition needed to pass.
I might even agree that something like a minimum wage might be better as an ordinance, or that taking more time and drafting it as an ordinance might be a better strategy for getting it, or something like it, passed, but that is not what we were to base our determination on. Also, and clearly, past Minneapolis City Councils and voters have seen fit to include many things in the charter that I and others might have felt were better suited to be ordinances. These included provisions about horses, bread, food and liquor sales at restaurants and more. A few years ago we decided that it would be a good idea to remove some of those from the charter - and we did it. Not by a simple Council vote however. No, we the right way, by putting the question forward to the voters.
Others, including legal experts, have given voice to the ambiguity as to the legality of yesterday's decision, and when there is that level of ambiguity I believe we should err on the side of democracy.
Still, the pressure from this decision and the clear message sent from the thousands of people in Minneapolis calling on us to do something, may have moved us a little closer to taking future action to set a local minimum wage and, in doing so, help address the deep and unjust economic disparities in our city by raising the wages of the lowest-wage workers in Minneapolis.
Seeing it as a needed opening and positive sign is why I then voted in favor of motion to direct City staff to begin work on a Minneapolis minimum wage - a motion which passed 9-3. That is a very important step in the right direction, and a step I don't think we were ready to take before now.
I thank Council Members Frey, Warsame and Bender for putting this staff direction forward. I also thank Council Member Cano for her attempt to make that staff direction even stronger and more specific (which unfortunately failed on a 6-6 tie). It is good to see a clear majority of my colleagues expressing support - new, explicit support - for a Minneapolis wage increase. I look forward to seeing this staff direction pass the Council tomorrow.
And make no mistake: the progress we made this morning was due in very large part to this charter amendment campaign. The organizers - 15NowMN, NOC, CTUL and others - and the thousands of people who signed petitions to place this issue on the ballot, the hundreds who showed up, called and emailed, have changed the conversation in Minneapolis. Before this campaign, the chances of the Council passing a strong minimum wage ordinance before the next municipal election were somewhere between slim and none. Now I am more than optimistic, I am confident that we can pass such an ordinance by next spring.
In September I expect us to get our report back on the effects of raising the minimum wage in Minneapolis and the region. I hope we can use that to further understanding and build more support for a strong city consensus on a fair, reasonable and strong minimum wage ordinance in Minneapolis.
I realize that, depending on if and how the court may end up intervening, we may still end up seeing this on the ballot this November.
But if not, I am ready and eager to work on and vote for a strong and broadly supported $15 minimum wage ordinance as a Council Member in early 2017.
Either way --- if a judge ends up ordering this on the ballot and a campaign follows or if a coalition of Council Members puts together an ordinance next year ---- to pass it we will need the ongoing help of all supporters, advocates, organizers and others who worked on the charter amendment petition effort. And if you gathered signatures, called, carried a sign, signed a petition, sent an email or talked to friends and family about putting the minimum wage on the ballot, that victory will be yours.