Citizens in Minnesota Find They Have No Say in Franchise Zone Decisions

How much say do residents have in forcing municipal officials in Minnesota to get voter approval before converting from open residential collection to a franchise-type system? None, says a state appeals court.

In 2014, the city of Bloomington, Minn., began a process under the state waste management law to change solid waste collection from an open system to organized collection. Under an open system, residents are free to choose any city-licensed waste hauler. State law defines “organized collection" as an arrangement where “a specified collector, or a member of an organization of collectors, is authorized to collect from a defined geographic service area or areas some or all of the solid waste that is [placed] for collection.”

Living in a home-rule city, Bloomington’s citizens have the power to commence ballot initiatives, referendums, and amendments to the city charter. In March 2015, a group of residents (among them, Joel Jennissen) expressed opposition to the city's plan to implement organized collection. The group petitioned the city for a ballot initiative on an ordinance that would require voter approval before the city could adopt the new system.

The city attorney determined that the state waste management law preempted the proposed ordinance and that a ballot initiative would constitute a "premature referendum"—referring an issue to the voters before the city council actually considered and passed an ordinance. After a public hearing in June, 2015, the city council indicated its intention to proceed with organized waste collection. A few days later, Jennissen and his group sued the city, seeking an order to compel a ballot initiative. Even with the litigation pending, the city council formally adopted an organized collection ordinance and signed a five-year contract with Bloomington Haulers LLC, a consortium of solid waste collectors.

In April, 2016, with no key facts in dispute, the Hennepin County District Court ruled in favor of the city. The district judge concluded that the protest group’s petition was neither a proper initiative nor a proper referendum because it did not actually propose a new ordinance or refer to an ordinance passed by the city council. The court further determined that the group’s goal to limit the power of the city council could only be achieved through amendment of the city charter.

Taking a cue from the district court, the group filed a petition with the city for a proposed charter amendment to be placed on a ballot. Nearly identical to what the citizens had tried before, the proposed amendment read:

On June 27, 2016, the city council rejected the proposed charter amendment, finding it "manifestly unconstitutional" because it (a) impaired the city's contract with the consortium, (b) interfered with the city's "lengthy and thoughtful legislative process," and (c) was preempted by the state law.

The Jennissen group promptly filed a new lawsuit, seeking to compel the city to place the proposed charter amendment on the next general-election ballot. The district court again ruled in favor of the city, this time on the grounds that state law, which spells out the process for a city to establish a system of organized solid waste collection, overrides a citizen-initiated charter amendment requiring advance voter approval. Appellants appealed the judgment, but the lower court ruling was upheld by the state’s intermediate level appeals court.

The Minnesota Constitution allows any local government unit to adopt a home-rule charter. After a city adopts a charter, proposals to amend the charter can be made by the city's charter commission or by petition of five percent of the voters. Upon the filing of a valid petition, the proposed charter amendment must be submitted to qualified voters at a general or special election. However, no charter amendment can contradict state law and state public policy.

As a general rule—in the Gopher State and many other jurisdictions as well—a state law may supersede or invalidate local measures in at least three ways: (a) when the law expressly states the extent to which it overrides local regulation; (b) when the law contains terms that are irreconcilable with local regulation—for example, when a city would permit what the state forbids or vice versa; and (c) when the law intends to exclusively occupy a particular subject matter, allowing no room for local laws attempting to impose different or additional regulation. In the latter case, a municipal law attempting to regulate any aspect of the preempted field is void, even if the local law does not conflict with the state statute.

With respect to how cities must establish organized collection, the appeals court determined that state law has preempted the field, setting out a “detailed and extensive process” a city must follow. “[T]he process ensures input from a variety of professionals and experts, as well as research on environmental, social, and economic issues, the opinion stated. “Further, a uniform process of instituting organized collection fosters an integrated waste management system, because it promotes a statewide system of organized collection where a uniform set of criteria are considered by municipalities,” the opinion continued. “In sum, the [state waste management act] processes advance the [act’s] stated goal to improve waste management in the state while protecting the state's environment. * * * The detailed process spelled out in the [act] is evidence the matter has become one of sole state concern.”

 Last, but not least, the appeals court addressed ballot questions. Citing several statutory provisions endorsing voter approval of city activities and programs, the judges noted that state lawmakers “know how to ensure the electorate's participation ... through ballot questions.” Finding no comparable language in the waste management law, the panel concluded that state law preempts citizen efforts to require, by charter amendment, prior voter consent before the city can establish organized collection.

Joel Jennissen, et al. v. City of Bloomington, No. A17-0221, Minn. Ct. App., Nov. 20, 2017.

Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.