Independent parks initiative heads to court

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August 31, 2009 // UPDATED 8:34 am - August 31, 2009
By: Cristof Traudes
Cristof Traudes
// The City Council rejected a citizen petition to ask voters in November to make the Park Board a fully independent body. The petitioners promptly filed suit. //

The initiative to make the Minneapolis Park and Recreation Board a financially independent body has landed in court.

A citizens’ group representing a push to reshape the Park Board as a fully separate local governmental unit filed a lawsuit Aug. 28 against the city of Minneapolis, after the City Council voted 11-2 not to place a referendum on the Nov. 3 ballot. The group had just successfully completed a petition drive — gathering 17,086 signatures, of which at least 10,449 were certified — and the issue appeared headed to voters this fall.

But deputy city attorney Peter Ginder told the council that the group’s question could be unconstitutional. It’s not legal, he said, for one local government to create another.

In a 10-page memorandum, Ginder wrote that the petition could be rejected because the issue is preempted by state law and conflicts with state public policy. Furthermore, if the referendum were approved in November, the Park Board would still have to wait until the next legislative session before finding out exactly how their new body of government would operate.

“As the board sits today, they don’t know what they’re creating,” Ginder said.

Council Member Betsy Hodges (13th Ward) said several times before the council’s vote that its decision wasn’t going to be about the content of the petition’s question.

“The question before us is a matter of law,” Hodges said during an emotionally charged meeting. “It’s about law. … We’ve been told in no uncertain terms by our attorney that this is unlawful.”

The petitioners, represented by a citizen group calling itself Citizens for Independent Parks, quickly shot back, promptly filing a lawsuit against the city. They are hoping a Hennepin County District Court will hear their case and rule quickly so the issue can still get before voters this fall. The deadline to get a question on the ballot is Sept. 11.

Former City Council Member Pat Scott, one of the faces of the petition effort, said the council’s decision was disappointing but not surprising.

“It’s unfortunate Pandora’s box was opened,” she said. “But it was opened by them.”

The other side

While Ginder argued the legal, appropriate route to create an independent Park Board would be to lobby the state Legislature, the petitioners said there already is room in state law for more independence.

Their side will be litigated by Fred Morrison, a University of Minnesota law professor who is considered a preeminent mind in local government law. Morrison is expected to argue that because the Park Board’s independently elected board was created in 1883 — before the creation of Minneapolis’ city charter — it can petition for more power. Ginder’s opinion that the referendum would illegally create a new local governmental unit doesn’t apply because technically, the modified Park Board wouldn’t really be new, Morrison wrote in an Aug. 19 letter to the petitioners.

“Your amendment does no more than what the Legislature actually did in 1883 and 1889,” he wrote.

Some council members struggled with what to do. Several appeared to sway, wondering whether to consider Morrison’s side with as much weight as Ginder’s opinion.

Council Member Cam Gordon (2nd Ward) implied several times that it seemed as if the council really was voting on the petition’s content. The city isn’t showing faith in its residents, Gordon said.

Those words set off Council Member Scott Benson (11th Ward), who pointed to Gordon’s opposition earlier this year to put to a citizen vote a charter amendment proposed by Council Member Paul Ostrow (1st Ward) to eliminate the Park Board.

“Nobody had faith in the people to decide that issue,” Benson said.

Ostrow also chimed in, vehemently opposing the ballot initiative.

“This is not legal,” he said. “This is not constitutional. And I frankly think it would be the height of cynicism to put this on the ballot.”

Council members Sandy Colvin Roy (12th Ward) and Gordon dissented.

Already a struggle

Even before the council’s decision to deny the petition, the Park Board’s commissioners were fighting an uphill battle with fellow politicians in Minneapolis.

The Charter Commission, which with citizen petitions usually plays little more than a handing-off role, moved the ballot measure to the City Council with a begrudging attitude. It attached a note to the council recommending against putting the question on the ballot.

Just a week earlier, while drafting a resolution to set out the principles it would follow if voters were to make them independent, the Park Board made several statements that directly attacked the biggest questions its initiative has faced. An early draft said, “It has never been nor ever will be the intent of the Park and Recreation Board to seek unlimited taxing authority.”

That appeared directly targeted at Mayor R.T. Rybak, who several commissioners said was making false claims to campaign against their initiative. Rybak has said the Park Board would gain unlimited taxing authority if the initiative succeeds, while also calling the effort “half-baked” and saying it’s based on “false fears about non-existent threats.”

Board Vice President Mary Merrill Anderson said the unlimited taxing authority argument is part of an “aggressive campaign of misinformation.” The state would set limits for how much the Park Board could tax, she said.

Of course, it would first need a victory in court.

The ballot question

A petition to place a referendum for a fully independent Park Board was rejected Aug. 28 by the City Council, but the question could still end up on the Nov. 3 ballot if its supporters win in court. The charter amendment would read:

“The Minneapolis Park and Recreation board shall be separate and independent governmental unit of the state of Minnesota with an elected board of commissioners. The Park and Recreation Board shall preserve and protect park land, lakes and open spaces as a public trust forever and shall have all powers and rights of a separate and independent governmental unit of the state as determined by the state legislature. The Mayor of Minneapolis shall have the right to veto the Park and Recreation Board’s legislative actions and budget, subject to the ability of Park Board to override a veto by two-thirds (2/3rds) vote.”