ELECTIONS: CITIES; Uniform election day statute applies to charter cities transitional
provisions discussed. Minn. Stat. §§ 205.02, 205.07, 410.015, 410.21.

64f ~
(Cr. Ref. 63b-5)

October 27, 1995

David J. Kennedy
Kennedy & Graven

470 Pillsbury Center
Minneapolis, MN 55402

Dear Mr. Kennedy:

In your letter to Attorney General Hubert H. Humphrey lIl you set forth substantially the
following:
FACTS

The City of Crystal operates under a horne rule charter originally adopted
in 1960 and comprehensively revised in 1993. Chapter 4 of the charter provides
for the conduct and holding of municipal elections in the city. Under chapter 4, a
general municipal election is held on the first Tuesday after the first Monday in
November of the year in which an election is to be held. The staggered terms of
elected officials, a mayor and six council members, are three years; thus an
election is held each year, except for an occasional year when no term expires.
The mayor is elected at large. One council member is elected from each of four
wards and one council member is elected for each of two sections (each section
composed of two wards). A primary election is also provided for where more
than two persons have filed for an elected office.

Laws 1994, c. 646 (thc 1994 Act), as amended by Laws 1995, c. 8 (the
1995 Act) relate, by their titles, to "uniform local election procedures," "c_ity
elections," "making uniform certain local government procedu:‘es” (1994 Act)
and "clarifying terms of office and election frequency in certain cities" (1995
Act) (emphasis supplied).

 

The 1994 Act and the 1995 Act amended Minnesota Statutes,
section 205.'07, subdivision l, to provide that (l) cities must conduct regular
municipal elections on the November date in either an odd or even numbered year
but not both, and (2) the terms of council members must bc four years and the
term of the mayor either two or four years. The 1994 Act extended the
application of Minnesota Statutes, section 205.02` subdivision 2 to
Section 205.07, but excepted section 205.07, subdivision 3 relating to referenda

 

David J. Kennedy
Page 2
October 27, 1995

on ordinances changing the municipal election date. Also, the 1995 Act added a
new subdivision 3 to section 205. 84 relating to elections in wards in statutory
cities. Except for the indirect application of amended section 205. 02,
subdivision 2, there is in the Acts no reference to or usc of the term "home rule
charter city" -- only the term "city" is used -- nor is there a statement that the
Acts apply to home rule charter cities or that there is an intent to modify the
terms of office in home rule charter cities.

The 1994 Act, in sections 26 and 27, contains transition provisions to
implement a change to odd or even year clections, but the term "city" only is
used. The 1994 Act and the 1995 Act amendments to Section 205. 07,
subdivision 1 are effective January 1, 1998 (see Section 29 of the 1994 Act and
Section 5 of the 1995 Act).

You then ask substantially the following questions.

QUESTION oNi-:

Does Minnesota Statutes, section 205.07, subdivision 1, as amended by the 1994 Act
and the 1995 Act, apply to the City of Crystal?

OPINION

Whilc the 1994 and 1995 amendments to section 205.07, subd. 1 are not presently
cffective, it is our opinion that, when those amendments do take effect, section 205.07,
subdivision 1 will apply to both home-rule and statutory cities, including the City of Crystal.

Section 205.07, subd. 1 was amended by Act of May 16, 1994, ch. 646, §6, 1994
Minn. Laws 2492, 2494 (thc 1994 Act) to read, in part, as follows:

'Subdivision 1. -BA-T-E §§1TY ELECT!QN§. The municipal general
election in each statutory city shall be held on the first Tuesday after the first
Monday in November in every even-numbered year. Notwithstanding any
provision of law to the contrary and subject to the provisions of this section, the
governing body of a statutory city may, by ordinance passed at a regular meeting
held before Scptcrnbcr .l_une 1 of any year elect to hold the election on the first
Tuesday after the first Monday in November in each odd- numbered year. A city
whichwasayillageonlanuaryl-WNandbcforethntda-teprowdedfora
systemofbiennialelectionsintheoddnumbercdycvshehconunueteholdits
elections in that year until changed in accordance with this section-

Section 29 of that chapter provides:

Sec. 29 EFFECTIVE DATE.

David J. Kennedy
Page 3
Octobcr 27, 1995

Sections 4, 6, and 17 to 20 are effective on January 1, 1998. Section 2 is
effective for school board members elected after January 1, 1995 .

Act of March 2, 1995, ch. 8, § 5, 1995 Minn. I_aws 46, 50 (thc 1995 Act) further amended
section 205.07, subd. 1 as follows:

Subdivision 1. DATE OF ELECT!ON. The municipal general election
in each city shall be held on the first Tuesday after the first Monday in November
in every even-numbered year Notwithstanding any provision of law to the
contrary and subject to the provisions of this section, the governing body of a city
may, by ordinance passed at a regular meeting held before June 1 of any year,
elect to hold the election on the first _Tuesday after the first Monday in November

in each odd-numbered year. A city may hold elections in either the even-
numbered y@ or the odd- numbered year, but not 19ng When a city changes its

elections from one year to another, and does not provide for the expiration of
terms by ordinance, the term of an incumbent expiring at a time when rio
municipal election is held in the months immediately prior to expiration is
extended until the date foi taking office following the next scheduled municipal
election If the change results in having three council members to be elected at a
succeeding election, the two individuals receiving the highest vote shall serve for
terms of four years and the individual receiving the third highest number of votes
shall serve for a term of two years. To provide an orderly transition to the odd
or even year election plan, the governing body of the city may adopt
supplementary ordinances regulating initial elections and officers to be chosen at
the elections and shortening or lengthening the terms of incumbents and those
elected at the initial election - = - - - ~ - t-
sehedulc-previded-in-sectieHl%-QZ-subdiyision-l. The term of office for the
mayor may be either two or four years. The term of off ge of council memberss is
four ye e.ars Whenever the time of the municipal election is changed, the city
clerk immediately shall notify in writing the county auditor and secretary of state
of the change of date Thereaftcr the municipal general election shall be held on
the first Tuesday after the first Monday in November in each odd- numbered or
even~numbered year until the ordinance is revoked and notification of the change
is made.

 

Pursuant to section 12 of that Act:

Sections 1 to 4, 6, 7, and 9 to 11 arc effective the day following final
enactment. Section 5 is effective January 1, 1998. Section 8 is effective
January 1, 1996.

Thus section 205.07, subd. 1, as it is in effect presently, applies by its terms only 10

statutory cities.l Commencin_i: in 1998, however, the section will apply to "cach city." lt

 

1. Scc discussion under question sevcn, infra

David J. Kennedy
Page 4
October 27, 1995

seems clear that the legislature intended to apply the uniform election day requirements of the
section to home-rule as well as statutory cities. lndced there is no other plausible explanation
for striking the qualifying word ”statutory" from the category of cities to which the subdivision
is addressed.
We are aware of Minn. Stat. §§ 410.015 and 410.21 (1994) which provider
410.015 DEFINITIONS RELATING TO CITIES.

The term ”statutory city“ means any city which has not adopted a horne
rule charter pursuant to the constitution and laws; the words "home rule charter
city“ mean any city which has adopted such a charter. In any law adopted after
July 1, 1976, the word "city" when used without further description extending the
application of the term to home rule charter cities means statutory cities only.

410.21 APPLICATION OF GENERAL ELECTION LAWS.

The provisions of any charter of any such city adopted pursuant to this
chapter shall be valid and shall control as to nominations, primary elections, and
elections for municipal offices, notwithstanding that such charter provisions may
be inconsistent with any general law relating thereto, and such general laws shall
apply only in so far as consistent with such charter.

We do not believe, however, that either or these sections prevents application cf
section 205.07, subd. 1 to the City of Crystal in 1998.

First, Minn. Stat. §200.02, subd. 8 (1994) defines "city" for purposes of the
"Minnesota election law" to mean "a home rule charter or statutory city.” Thus the term as
used in section 205.07, as amended, Qi§ been expressly extended to home rule as well as
statutory cities.

Furthermore, notwithstanding the wording of section 410.21, Minn. Stat. § 205.02 as
amended by section 4 of the 1994 Act provides as follows:

Subd. 2. CITY ELECTIONS. ln all statutory and home rule charter

cities, the primary, general and special elections held for choosing city officials

and deciding public questions relating to the city shall bc held as provided in this

chapter, except that this section and sections 205.065. subdivisoin 2 4 to 7;

205.07‘ to subdivision 3_; 205.10; 205.121; and ZGSTl-'i'-S and 205¢%85 205.17,

subdivisions 2_ M 34 do not apply to a city whose charter provides the manner of
holding its primary. general or special elections.

David J. Kennedy
Page 5
October 27, 1995

This provision as amended clearly specifies that municipal elections in both home rule and
statutory cities are to be held in accordance with chapter 205, with expressly specified
exceptions. To the extent that this mandate is incompatible with the language of
section 410.21, it is our view that the provision of section 205.02 will control. Minn. Stat.
§ 645.26 provides that where general provisions of law conflict with special provisions effect
should be given to both if possible, and, if not, then the special provisions should normally
prevail. Inasmuch as sections 410.21 and 205 .02 both deal with application of general law, as
opposed to chaner provisions in municipal elections, neither would appear to be more general
or special than the othcr. Furthermore, it is not possible to give effect to both. In these
circumstances the result will be controlled by subdivision 4 of section 645.26 which gives
effect to the law most recently enacted. Section 410.21 was apparently adopted in 1909, and
has not been amended. Minn. Stat. § 410.21 (1994), History.

On the other hand, section 205.02, subd. 2 was first enacted in 1983 and most recently
amended in 1994 as noted above. Consequently, we think it clear that the legislature intends
that the uniform election day provisions of Minn. Stat. § 205.07, as amended, be applicable to
all home-rule charter cities when the amendments take effect.

QUES'I`ION TWO
'lf the answer to question no. 1 is in the affirmative, is the amendment to
section 205.07, subdivision 1 in section 5 of the 1995 Act (mandatory four-year

terms for council members, a two- or four-year term for mayor and biennial

elections) a special law within the meaning of the Minnesota Constitution,

Article Xll, section 2, since on its effective date, the amendment will change the

city’s three-year terms to two- and four-year terms?

()PIN`ION

We answer your question in the negative. Minn. Const. art. Xll, § 2 provides in part:

Sec. 2. Specia| laws; local government Every law which upon its

effective date applies to a single local government unit or to a group of such units

in a single county or a number of contigiious counties is a special law and shall
name the unit or, 111 the latter case, the counties to which it applies.

David .l. Kennedy
Page 6
October 27, 1995

(Emphasis added.) The legislative act in question simply does not meet the above definition.
That definition is based upon the government units to which a new law "applies," not merely
upon those which will need to modify past practice in order to comply. On the effective date
of the 1994 and 1995 Acts, the amended version of section 205.07, subd. 1 will apply to "each
city“ in the state. The fact that some, or even most, cities’ terms of office and election
schedule may already conform to the provisions of section 205.07, in no way exempts them
from the acts’ "application."

Consequently, we conclude that the acts in question are clearly not special laws within
the meaning of article 12 of the constitution.

QUESTION THREE

lf the answer to question no. 1 is in the affirmative, are the Acts effective
to require the City of Crystal to take any action prior to January 1, 1998

OPINION

Wc answer your question in the affirmative, but we observe that conformity to the
pertinent laws as written leads to at least one dilemma for which we can offer no satisfactory
solution absent action by the city or legislature.

Sections 26 and 27 of the 1994 Act provide detailed transition schedules which are
apparently designed to phase cities into either an even or odd year election rotation by 1998
when the amendments to section 205.07 take effect. Section 26 applies by its terms to
"political subdivisions that chose before January 1, 1995 to conduct elections in even years."
Section 27 applies to all political subdivisions that did not choose before January 1, 1995, to
hold even-year elections.

From the facts supplied it does not appear that the City of Crystal has formally chosen to

hold its elections in even-numbered years.2 Thus, the city would be required to follow the

 

2. You have indicated that while elections usually occur annually there may be occasional
years in which no election is held because no term expires.

David J. Kennedy
Page 7
October 27, 1995

transition scheduled set out in section 27, subd. 2, g._g;, officials elected in 1996 will serve
until either 2000 or 2002 and those elected in 1997 will serve until 2002, etc.

'lhe potential dilemma we perceive is that these transitional provisions will place Crystal,
for example, on a schedule calling for odd-year elections, in default of an affirmative act by
the city to establish even-year elections. However, the amended version of Minn. Stat.
§205.07, which will take effect in January 1998, requires the City to conduct_cven-year
elections, in default of an affirmative choice by ordinance to conduct them in odd-numbered
years. Thus it would appear that a city which makes no affirmative volitional choice
concerning the timing of its elections is required to follow a transition schedule incompatible
with the future general law for which the transition is intended.

Cities themselves might resolve this contradiction by either affirmatively electing to hold
even-numbered yea~: elections and providing by a resolution or ordinance for an "orderly plan"
of transition as permitted by section 26, subdivision 1 of the 1994 Act, or by adopting an
ordinance, expressly providing for odd-year elections consistent with the transition called for
by section 27. If cities such as Crystal do not take such actions on their own volition,
however, it would appear that they will in 1998 be out of compliance with section 205.07
which will require elections in years when no term will be due to expire in the following
January.

It appears that this difficulty may have resulted from an oversight by the legislature. 'l`o

the extent that is the case it would best be resolved by corrective legislative action.3

 

3. A second possible difficulty arises from the fact that neither transitional schedule
provided in the 1994 Act. nor any modification thereto in the 1995 Act, appears to
specifically address the transitional timing of mayoral terms in a city which chooses to
provide for a two year term for its mayor as permitted by section 5 of the 1995 law. lt
is not clear whether or not that omission is intentional. Hov)ever. it does appear that the
transitional schedules were premised upon four year terms. Depending upon the draw 01
lots by the council, it is possible that a mayor's transitional term could be five ycars.

David .l. Kennedy
Page 8
October 27, 1995

QUESTION FOUR

Does Laws 1995, ch. 8, §6 (adding a new subdivision 3 to
section 205.84) apply to the City of Crystal?

(’)P.lNION
Whilc the matter is not entirely free from doubt, we are inclined to the view that the new
subdivision may be applied in the City of Crystal. That subdivision provides
subd. 3. TRANsi'i'IoN scHEDULE. 'nie governing bray of a city
electing more than one council member in each ward may adopt an orderly
transition schedule to biennial November elections in which only one council
member in each ward is elected in any municipal general election.
As noted above, the unmodified term "city" as used in the election laws refers to both homc-_
rule and statutory cities. The matter is somewhat complicated here by the fact that
subdivision 1 of section 205.84, by its terms, applies only to statutory cities which elect
council members by ward. Subdivision 2 which refers to "the city“ in addressing redefinition
of ward boundaries implies references to the statutory cities referred to in the first subdivision
It might be argucd, therefore, that the entire section including the new subdivision 3 should be
deemed to deal only with statutory cities. We decline to adopt that construction, however.

The reference to a ”a city“ in the new subdivision 3 is not expressly or by necessary
implication, confined to the statutory cities addressed in the first two subdivisions
Furthermore-, in seeking to effectuate the intent of the legislature we should consider both the
occasion and necessity for the law and the consequences of any given interpretation. Minn.
Stat. §645.16(1)(6) (1994). l-lere it appears that the legislature wished to allow cities to
provide for staggering of terms within a given ward so that representation of the ward would
reflect voters’ attitudes on a more timely basis than would occur if two or more representatives
with four-year terms were elected at the same time.

Wc can perceive no reason why the legislature would intend to effectuate that policy only

in statutory cities. lndced it would seem that charter cities arc far more likely to have a

David J. Kennedy
Page 9
October 27, 1995

governmental scheme that would involve two or more council members running in the same
ward. Thus, if we were to interpret the new subdivision as applicable only to statutory cities,
its apparent purpose would not be carried out in, perhaps, a majority of cases in which it could
prove helpful. Consequently, we conclude that section 6 of the 1995 law may be applied to
charter cities.

lt also appears that Crystal’s scheme can be viewed as "electing more than one council
member in each ward." While each ward individually elects only one council member, each
ward also participates in electing, and is represented by, a second member. Therefore, in our
opinion, Crystai may employ the transitional provision contained in section6 of the 1995 Act.

QUESTION FIVE

Does Minnesota Statutes, section 205 .07, subdivision 3 apply to the City
of Crystal'?

OPlN!ON
We answer your question in the negative. Minn. Stat. § 205.02, subd. 2, as amended by
the 1994 Act, expressly provides that section 205.07, subd. 3 does not apply to a city whose
charter provides for the manner of holding elections. The material supplied indicates that the
Crystal charter contains numerous provisions concerning city elections.
QUEST!GN SIX

_ lf the answer to No. 5 is in the negative, is an ordinance changing the
election date in Crystal subject to referendum under the city charter?

OPINlON
The answer to this question depends upon the scope of referendum power granted by the
charter. Since our office does not generally undertake by way of opinions to interpret local

charters4 we are not in a position to determine the scope of the pertinent charter provisions

 

4. _S_e§, t_:_._gm Op. Atty. Gen. 629-a, May 9. 1975.

David .l. Kennedy
Page 10
October 27, 1995

Assuming that the charter is construed to provide for referendum of such an ordinance,
however, a referendum could in our view, be held on the issue. Q_f. qu|d v. Qity of
Bloomiggtgn, 

(Minn. Ct. App. 1986) (upholding a referendum on an
ordinance raising city council salaries).
QUESTION SEVEN
Section 3 of the 1994 Act, amending section 205.02, subdivision 1, was
effective August 1, 1994. lf the answer to question no. 1 is in the affirmative,
does section 205.07 as it existed prior to the 1994 Act apply to the City of
Crystal?
OPINION

We answer your question in the negative. lSection 205.02, subd. 2. as amended.
provides generally that elections in all statutory and home rule charter cities shall be held as
provided in chapter 205. The subdivision then provides home-rule cities express exemption
from certain sections and subdivisions of the chapter. This does not mean that each provision
of the chapter not so exempted is applicable to every statutory and home rule city in all
circumstances Many parts of the chapter are further limited by their own terms. l_:_g_._, Minn.
Stat. §§ 205.075 (towns only); 205.84, subds. l and 2 (statutory cities only). Likewise,
section 205.07, subd. l, as it exists prior to the effective date of the 1994 and 1995
amendments, applies, by its terms, only to statutory cities.

Therefore, while the City of Crystal is not exempted by section 205.02, subd. 2, the lack
of such exemption is, at present, irrelevant. Until the 1994 and 1995 amendments take effect,
section 205.07, subd. 1 does not purport to impose any requirements upon the City of Crystal.

Very truly yours.

HUBERT H. HUMPHREY Ill
Attorney General

KENNETl-l E. RASCHKE, .lR.
Assistant Attorney General