Why don’t we get to vote on it?

BY ED FELIEN

On May 25 the City Council voted to accept the legislation that authorized the State of Minnesota to collect $150 million in sales taxes generated in the City of Minneapolis to pay for the construction costs of a new Vikings stadium. The $150 million is just the beginning. The total cost with escalating maintenance costs could run from $675 million to $890 million.

I sincerely believe the City Council acted illegally when it approved that legislation. The Minneapolis City Charter says that only the voters of Minneapolis can approve the expenditure of more than $10 or $15 million for a new sports stadium.

The City Council was required by the city charter to refer that question to the voters at the next general election.

I have tried to present the following writ of mandamus to the clerk of the Hennepin County District Court, but she would not accept it because it was not in the proper form. She said there needs to be a petition to the court for a writ of mandamus and an order of the court demanding that the City Council act. I am not a lawyer and I don’t really know how to fight my way through the legal jargon those elevated souls in the legal system use to communicate with each other. Also, it is possible that a writ of mandamus may not be the most effective legal strategy.

Perhaps it would be better to ask a judge to issue a summary judgment and injunction. Once again, as someone without legal training, I have no way of knowing which would be the better strategy.

Some lawyers have suggested the only way to get this done is to hire a lawyer—which could cost between $10,000 and $60,000. I can’t comprehend raising that kind of money even I could get Papa John Kolstad, Cadillac Kolstad and Willie Murphy to play all night. I agree that it is unfair to expect lawyers to donate their time and energy when that is what they do to make a living. But I also believe it is criminally unfair that ordinary people writing in simple language cannot get a fair hearing before a judge to determine if the City Council exceeded its authority under the city charter.

Here is the writ I tried to file on Aug. 6:
Ed Felien, Petitioner (Writ of Mandamus) Vs Minneapolis City Council, Defendant
Pursuant to Minnesota Statute 586.01 we petition the court to order the Minneapolis City Council to place before the voters of the City of Minneapolis at the next general election, Nov. 6, 2012, the question of whether the City of Minneapolis should contribute one hundred fifty million dollars ($150,000,000) to the construction of a new Vikings stadium. Minnesota Statute 586.01 clearly states that this court may issue a writ of mandamus to any persons acting as a government body to compel the performance of an act that the law specially enjoins as a duty resulting from their office.

The Minnesota Appeals Court has held in Demolition Landfill Servs., L. L. C. v. City of Duluth, 609 N. W. 2nd 278, 280 (Minn. App. 2000), review denied (Minn. July 25, 2000), “To be entitled to mandamus relief the petitioner must show three elements: (1) the failure of an official to perform a duty clearly imposed by law; (2) a public wrong specifically injurious to petitioners; and (3) no other adequate remedy.”

According to the Minneapolis City Charter, the City Council is required to allow the citizens to vote on whether they want to use city tax money to fund a sports stadium. In a legal opinion written for Council Member Cam Gordon, a private attorney, Karen Marty, says: “Minneapolis Charter, Chapter 15, Sections 9 and 13 restrict the city’s authority to incur indebtedness. Under Section 9, if the city will be responsible for more than $15 million of the expense for a stadium project, the City’s Board of Estimate and Taxation may not incur any indebtedness until the project has been approved by “a majority of the electors voting on the question:”

Minneapolis City Charter, Chapter 15, Section 9: “[A]ny such obligations or indebtedness [for a] stadium . . . [that] shall in all phases from inception to completion exceed Fifteen Million Dollars ($15,000,000.00), the Board of Estimate and Taxation shall not issue or sell any bonds or other obligations nor incur any indebtedness for such purpose without the approval of a majority of the electors voting on the question of issuing such obligations or incurring such indebtedness at a general or special election.”

Under Chapter 15, Section 13, “The City of Minneapolis, Minneapolis Community Development Agency, or any city department, agency, commission, or board, shall use no city resources over $10 million dollars for the financing of professional sports facilities without the approval of a simple majority of the votes cast on the question, in a ballot question put to the public at the next regularly scheduled election.”

It is true that the State Legislature granted the City of Minneapolis its charter, and the Minnesota Legislature has the power to change it. It could have struck the two sections that require a referendum be held on a new sports facility costing more than $10 or $15 million dollars. But it did not strike those sections. Those sections remain in force as part of the operating governance of the City of Minneapolis.

The Minnesota Constitution says that any “special legislation” that applies only to one jurisdiction must be approved by that jurisdiction in conformity to that jurisdiction’s charter. [Article XII, Section 2 of the State Constitution says: “The legislature may enact special laws relating to local government units, but a special law, unless otherwise provided by general law, shall become effective only after its approval by the affected unit expressed through the voters or the governing body and by such majority as the legislature may direct.”] So, when the City Council met on Friday, May 25, to approve the legislation from the state, it was required by the city charter to refer that approval to the citizens of Minneapolis at the next general election Nov. 6, 2012. Instead, seven members of the City Council voted to approve and accept the legislation without referring it to the citizens of Minneapolis.

The legislature anticipated a challenge to its attempt to circumvent the city charter, and so it explained the $150 million away by saying it wasn’t there: “Section 4: CHARTER LIMITATIONS, REQUIREMENTS NOT TO APPLY.

Any amounts expended, indebtedness, or obligation incurred including, but not
limited to, the issuance of bonds, or actions taken by the city under this act, are deemed not an expenditure or other use of city resources within the meaning of any law or charter provision. The city may exercise any of its powers under this act to spend, borrow, tax, or incur any form of indebtedness or other obligation for the improvement, including, but not limited to, acquisition, development, construction, or betterment of any public building, stadium, or other capital improvement project, without regard to any charter limitation, requirement, or provision, including any referendum requirement. Any tax exemption established under this act shall be deemed not an expenditure or other use of city resources within the meaning of any charter provision. The recommendations of the implementation committee shall be forwarded to the City of Minneapolis Planning Commission for an advisory recommendation and then to the City Council for final action in a single resolution, which final action must be taken within 45 days of the submission of the recommendations to the planning commission. The City Council shall not impose any unreasonable conditions on the recommendations of the implementation committee, nor take any action or impose any conditions that will result in delay from the time frames established in the planning and construction timetable or in additional overall costs. Failure of the City Council to act within the 45-day period shall be deemed to be approval. The authority may seek de novo review in the district court of any City Council action. The district court or any appellate court shall expedite review to the maximum extent possible and timely issue relief, orders, or opinions as necessary to give effect to the provisions and objectives in this act.”

The $150 million expenditure is not an expenditure? The bonds sold do not represent the city’s indebtedness? The contracts that must be signed do not represent the city’s obligation? The legislature could pass a law that says the sun rises in the west and sets in the east, but its law would not change reality. The sun will still rise in the east and set in the west. If the city spends $150 million, then, that is an expenditure. If it sell bonds, then, that represents the city’s indebtedness. If the city signs contracts to construct a sports stadium, then, that represents obligations to perform under that contract.

The city requested a legal opinion to justify its circumvention of the charter.

Charles N. Nauen and William A. Gengler of Lockridge, Grindal and Nauen argued first that the legislature has the ultimate power over other political jurisdictions within its borders: “Cities exercise these powers at the will of the legislature.

‘Absent constitutional restriction, the legislature may at its pleasure modify or withdraw any powers so entrusted to a city, hold such powers itself, or vest them in other agencies.’ Monaghan v. Armatage, 15 N. W. 2d 241, 243 (Minn. 1944); see also Town of Bridgie, 35 N. W. 2d at 540 (municipal powers ‘are derived solely from the legislature, and they may be enlarged and extended, or abridged and entirely withdrawn by legislative action. There is no constitutional restriction binding the legislature in this respect.’)”

We agree with this analysis. The legislature had the power to change the Minneapolis city charter. It could have eliminated Sections 9 and 13 of Chapter 15, but it chose not to do that. It let those sections stand knowing full well that those provisions would direct the governance of the city. By not changing or eliminating them, the legislature acknowledged their authority. Therefore, we believe it was the legislature’s intent to preserve for the citizens of Minneapolis their right to review appropriations by the city with regard to sports stadiums in excess of $10 or $15 million dollars.

The only question that remains is whether the sales taxes that will generate the $150 million for the City’s share of the construction of a new Viking Stadium is actually City money. Nauen and Gengler correctly point out, “The authority granted to the City under this special law has never been absolute.” Of course. The power of the City to tax, as it is with its power to legislate and govern itself, is ultimately subject to the authority of the State Legislature.

The authorizing legislation says in Section 5: “The city may, by resolution, levy in addition to taxes authorized by other law: (1) a sales tax of not more than 3% on the gross receipts on retail sales of intoxicating liquor; (2) a sales tax of not more than 3% on the gross receipts from the furnishing for consideration of lodging; and (3) a sales tax of not more than 3% on the gross receipts on all sales of food primarily for consumption on or off the premises by restaurants and places of refreshment.” By saying the city MAY levy these taxes, the legislature is acknowledging that the city has the authority to impose these taxes, to consider them part of its budget and to set aside a portion of the revenue from these taxes to pay for a sports stadium. As Nauen and Gengler point out: “See Laws 2012, Chapter 299, Article 3, Section 1 (State revenue commissioner shall deduct amounts sufficient to meet the dtate’s stadium obligations before distributing remaining tax revenues to the city).” In agreeing to Resolution 2012R282 Approving Laws of Minnesota 2012 Regular Session Chapter 299, Article 3, the City Council agreed to go into debt to the State of Minnesota for $150 million to build a sports stadium. The Board of Estimate and Taxation must now issue bonds in that amount to finance the city’s share of construction costs in direct violation of the provision of the city charter that says: “[A]ny such obligations or indebtedness [for a] stadium . . . [that] shall in all phases from inception to completion exceed Fifteen Million Dollars ($15,000,000.00), the Board of Estimate and Taxation shall not issue or sell any bonds or other obligations nor incur any indebtedness for such purpose without the approval of a majority of the electors voting on the question of issuing such obligations or incurring such indebtedness at a general or special election.”

Nauen and Gengler conclude their argument by conceding the dubious validity of the legislature’s attempts to circumvent the Minneapolis City Charter: “For these reasons, we agree with the city attorney’s conclusion that, even ignoring the provisions of the stadium legislation which allow the city to override the charter referendum requirement, the legislation does not trigger the charter referendum requirement.”

They rest their argument that “the legislation does not trigger the charter referendum requirement” on the assertion that city sales tax is not a city resource because the city does not control or use the revenue: “The fact that the tax is on sales in Minneapolis does not mean the revenue is city revenue and, therefore, ‘city resources.’ In order for tax revenue to constitute ‘city resources,’ the city must have the right to possess, control, and use the revenue. As discussed above, under the 2012 amendments, the state—not the city—possesses, controls, and uses the local tax revenue to the extent needed to meet the state’s stadium financing obligations. Local tax revenue collected for stadium financing purposes will never pass through the city’s hands. The city’s right of possession, control and use of local tax revenue is subordinate to the state’s right and is limited to local tax revenue that exceeds the state’s need.”

This argument is specious on many levels. Almost all the money that comes into the city treasury is subject to some kind of restriction or limitation. The city imposes property taxes on the owners of property in Minneapolis, but it can only do so within the restrictions and limitations imposed by the state legislature. Yet, property taxes are the principal revenue in the city budget. Likewise, the federal government periodically gives grants to the city, and these grants are subject to restrictions and limitations, but those funds are still counted as part of the city budget.

But the major fallacy in their argument is that the city did not have “the right to possess, control, and use the revenue.” On May 25 the City Council had before it the question of whether to participate in the construction of a new Vikings stadium. It voted to commit $150 million of city sales tax revenues for the next 30years to the construction of the new stadium. It voted to sell bonds, borrow the money and incur indebtedness for the purpose of building the Vikings stadium. The city council members were not passive victims of the state’s intent, they were active and eager participants. In a public hearing last fall, Doug Growe reported for MinnPost in his Nov. 29, 2011 article, “Stadium slapdown match features state Sen. Michel vs. Mayor Rybak”: “Rybak pointed out to Michel that only one local partner, Minneapolis, ‘is bringing any money to the table.’ ” Clearly Mayor Rybak believed he had possession, control and use of the sales tax revenue, and, equally clear, at the moment the City Council acted to approve and accept its role in the construction of a new Vikings stadium it believed it had possession, control and use of the sales tax revenue. Its resolution earmarked and set aside a portion of that revenue to go to the state as its $150 million share of the cost of building the stadium.

The City Council did not have the authority to make that decision. According to the Minneapolis City Charter, the authority that has the power to approve spending an excess of $10 or $15 million for a sports stadium are the citizens of the City of Minneapolis voting in a regularly scheduled election.

This petitioner is a citizen of Minneapolis, a taxpayer and a voter. I was a signer of both petitions that were approved by a wide margin of voters to make them part of the city charter. The $150 million for initial construction costs for the stadium is only the beginning of the city’s commitment. The city has agreed to pay for maintenance of the stadium at a minimal cost of $7.5 million per year. Estimates of the total cost to the city range from $675 million to $890 million This kind of spending seems profligate when cutbacks in police, fire and street maintenance are severely reducing the quality of life for the people of Minneapolis and property taxes are increasing at a time when the value of homes is diminishing.

This petitioner asks the court to restore the integrity of the city charter. He asks the court to allow the citizens of Minneapolis to participate in this all important decision that will affect their quality of life for many years to come.

There is no other adequate remedy. This petitioner asks this court to order the City of Minneapolis to place on the ballot for the consideration of the citizens of Minneapolis at the next regularly scheduled election, the question of whether the city should authorize the sale of bonds for the construction of a new Viking Stadium in the amount of $150 million.