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Why the state Supreme Court should rule that a ballot vote for a $15 minimum wage is legal

The decision to place the $15 minimum wage on the ballot in Minneapolis is up to the Minnesota Supreme Court. And it all comes down to what is considered to be a legitimate local municipal function under state law. If it decides the issue correctly, the court will reject old, wooden, out-dated conceptions of the law and conclude that a legitimate municipal function includes  promoting the public welfare of its citizens through establishing minimum wage laws.

schultz portrait
David Schultz

In her decision ordering the “Vote for 15 MN” charter amendment to be placed on the ballot, Judge Robiner’s decision turned on an interpretation of Minnesota Statutes, §410.07, which declares that permissible content for charter amendments extends to “any scheme of municipal government not inconsistent with the constitution, and may provide for the establishment and administration of all departments of a city government, and for the regulation of all local municipal functions, as fully as the legislature might have done before home rule charters for cities were authorized by constitutional amendment in 1896.”  The City of Minneapolis did not argue that the Vote for 15 MN amendment was unconstitutional or preempted by state law, although that could be an issue central to the Supreme Court’s resolution of the issue.

But the core issue is whether charter amendments should be narrowly construed to address only the structure of government, such as size or powers of the City Council, or can they extend beyond that to address what looks like policy issues normally reserved for ordinances. Thus, what is a legitimate local municipal function?

‘All municipal functions’

Robiner resolved the dispute by resorting to a traditional canon of statutory interpretation in arguing that § 410.07 should be read in a way to give effect to all the words and clauses in the law. To read the breadth of “all municipal functions” as merely repetitious of the content of what charter amendments may do when it comes to addressing “any scheme of municipal government” would fail to give effect to all of the statute’s language. This is good argument, yet her conclusion rendering “all municipal functions” as essentially allowing charter amendments to serve as initiatives or referenda is certain to be met with skepticism by the Supreme Court. A better route would have been to argue that the reading the City of Minneapolis forces on “all municipal functions” is simply outdated.

Take us back to the 19th century. At that time there were two legal principles that guided municipal law. The first was Dillon’s Rule. Dillon’s Rule came from court decisions in Iowa, and it declared that local governments only had narrowly defined powers that were either expressly in or implied by state law. Cities had no inherent powers of their own, as they were legal creatures of the state. These legal propositions were also true in Minnesota. However, Home Rule constitutional and statutory provisions, across the country and in Minnesota have significantly changed if not eviscerated Dillon’s Rule. Now in Minnesota, and across the country, home rule cities enjoy broad powers; in many cases they have acquired similar powers as acquired by state legislatures, unless otherwise preempted by state law.

A second major legal change involves what is considered a legitimate municipal function. More than 100 years ago, housing codes or zoning ordinances were not considered legitimate municipal functions. Providing for sanitation, fire protection or other regulations to serve the public would not have been considered acceptable city functions in the 19th century. The law made a distinction between cities acting in the governmental functions versus their proprietary functions. Maintaining a police department was a city acting in its governmental capacity; running a golf course or a recreation center was not.

Distinction has eroded

Yet nationally this governmental versus proprietary distinction has significantly eroded. In part that has happened because of an overall expansion or recognition in terms of the scope of what state governments may do. States have what is called broad police power authority to regulate to protect the health, safety, welfare, and morals of its people. The police power authority of states has expanded over time such that few would contest that they lack the authority to do things such as regulate workplaces, including setting minimum wages.

Expansion of what is considered legitimate state functions in an era of home rule means that what is considered a legitimate municipal function also has grown. There is no reason to think that cities cannot also legislate to protect the welfare of its citizens. This is a legitimate municipal function.

David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take, where a version of this piece first appeared.   


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Comments (11)

  1. Submitted by Pat Terry on 08/31/2016 - 09:32 am.

    Terrible analysis

    It has just about come to the point with this guy that I don’t even need to read the article to know that I disagree with him.

  2. Submitted by Paul Udstrand on 08/31/2016 - 09:52 am.


    And when elected officials refuse to act in the best interests of it’s citizens direct legislation is a perfectly legal option.

    This isn’t really about $15, MPLS has had a $13 living wage law for years. The problem is they’ve handed out exemptions like candy because it’s a normal ordinance. The effect is an ghost ordinance rather than an actual living wage.

    It’s almost obscene that ordinary citizens have to go to such lengths just to get some basic representation. The elite are showered with new stadiums, tax deals, subsidies, and exemptions while ordinary citizens work for multi billion dollar companies and still qualify for food stamps.

    We’re seeing these initiatives because middle and lower income workers have gotten clobbered while the elite have been capturing 90% of the post recession recovery dollars. The top 5% have seen huge gains while everyone else is losing ground to inflation and struggling to get back to pre-recession incomes (which had already been flat for two decades). This level of inequality and disparity simply isn’t sustainable and since we’ve decimated collective bargaining power people have to choice to but to pursue legislative and referendum action. Employers aren’t going raise wages on their own no matter how profitable they are.

    • Submitted by Pat Terry on 08/31/2016 - 10:56 am.

      Best interests?

      The mayor and council are democratically elected. Every one of them was chosen by the voters. If they aren’t representing the interests of the citizens, vote them out next time. Just because some people are unhappy with what they are doing, doesn’t mean you get to change the rules.

    • Submitted by RB Holbrook on 08/31/2016 - 12:16 pm.

      Not Really the Issue

      The merits of the $15 minimum are not the point here. It’s really about whether a minimum wage should be in the City Charter in the first place.

      I haven’t seen a good argument that it does. Professor Schultz seems to be making the argument that anything that is a proper subject for city legislation constitutes “the regulation of all local municipal functions.” Such a broad interpretation renders the limitation on referenda meaningless.

      For the record, I support a $15 minimum. I just don’t think this is the way to go about it.

  3. Submitted by Paul Udstrand on 08/31/2016 - 01:59 pm.

    Issues and rules

    When billionaires want new stadiums and multi-billion companies don’t want to pay living wages, we change the rules. Required referendums just disappear and companies get waivers so they don’t have to pay. Why is it OK to change rules for the elite but not for ordinary workers?

    Anyways the only people who changed the rules here is the city council who decided that even thought the $15 minimum wage vote met the ballot requirements they were going to keep it off the ballot anyways. No one is asking anyone to change any rules, on the contrary $15 now advocates followed the rules and are simply demanding that the council follow the rules as well.

    Whether or not you or I think we’ve seen a good argument for $15 isn’t the issue. If the matter goes up for a vote the people of MPLS will decide whether or not it belongs in the charter… as per the existing charter. The court will decide who has the best argument and Schultz is simply making his case. We’ll see. There’s nothing unconstitutional about minimum wages, and I remind everyone that MPLS already HAS it own living wage ordinance.

    • Submitted by Pat Terry on 08/31/2016 - 03:18 pm.


      The court just ruled that Schultz is wrong, which was an absolute no-brainier.

      Even if the council had put it on the ballot, there would have been a court challenge and it would have been rejected. This was the inevitable outcome under the city charter.

  4. Submitted by Jim Bernstein on 08/31/2016 - 02:29 pm.

    There Is A Better Way To Promote The Public Welfare

    Professor Schultz notes that “if it decides correctly the Court will conclude . . . that a legitimate municipal function includes promoting the public welfare”. If that is so, then virtually any issue advocated by a group of citizens can be postured to be “promoting the public welfare” and (assuming enough valid signatures) can make its way onto a city ballot. The “public welfare” language is simply too vague. Doing so in this instance would, in effect, establish an initiative process that is not provided for in the Minneapolis City Charter.

    In fact, I don’t think there is much debate that a city government has an obligation to “promote the public welfare”. The Minneapolis City Charter expressly grants the power to make ordinances to the city council and mayor. Giving citizens with a particular ax to grind the power to create an ordinance by initiative through the city charter and avoid the city council and mayor is simply bad governance in my opinion.

  5. Submitted by David Schultz on 08/31/2016 - 04:45 pm.

    No I did not get it wrong

    Yes the Minnesota Supreme Court ruled that the $15 minimum wage should not go on the ballot, but no that does not mean I got it wrong in my op-ed. You folks need to read more carefully what I wrote, , the district court said, and also what the Minnesota Supreme Court actually decided.

    The Minnesota Supreme Court declared that Minneapolis city charter did not allow for amendments related to general policy issues. They are correct on that issue. But note that my op-ed did not address that issue. Instead it addressed the issue raised by the district court when interpreting Minn. Stat. 410 regarding how to read the phrase “all municipal functions.” While the district court offered a reasonable approach I specifically criticized it and said that “ her conclusion rendering “all municipal functions” as essentially allowing charter amendments to serve as initiatives or referenda is certain to be met with skepticism by the Supreme Court.” I got this right in anticipating what the Court would rule.

    What I was arguing in my piece is that if one is trying decide what is considered to be a proper municipal function then determining minimum wage laws is proper. The City Council of Minneapolis could put that issue on the ballot (or even decide it itself) and it would be an appropriate municipal function to do so. And if the issue in this case singularly were to be decided on how to interpret Minn. Stat. 410 language then my argument would have strong legal authority. Ultimately, though, the case was resolved on an issue that I intentionally did not address which is whether the city charter allowed for policy issues to be decided by popular vote.

    Whether ballot initiatives and referenda are good ideas is a matter for a different discussion. On Tuesday, September 6, 2016, the Minneapolis League of Women Voters will be hosting a talk at the Black Forest from 5:30-7:30 pm entitled “Do We Need More Amendments?” I will be the speaker. The talk is open to the public and I invite all of you to attend and hear what I have to say.

    • Submitted by Pat Terry on 08/31/2016 - 07:01 pm.


      I wrote that your legal analysis was terrible, and did so before the Supreme Court reversed the decision. Let me tell you why I thought (and still think) that.

      First, though, I did read your piece. I also read the district court decision and the arguments by both the City and minimum wage advocates. You can see some of the comments I made about it before your piece and the Supreme Court decision here:

      Note my comment “expect a quick reversal.” I know of which I speak here.

      The district court did not, as you say, come up with a reasonable approach. It came up with a laughably bad approach. An approach that was so wrong it had no chance of standing. Reversal was a foregone conclusion. Which is why the Supreme Court issued a unanimous and almost instantaneous reversal. To say that decision was reasonable is poor legal analysis.

      Not addressing the (even intentionally) the issue the court used in deciding the case was also poor legal analysis. Everything else you discuss is irrelevant without considering what the City charter says. The thing you intentionally ignored is the very thing on which I relied in predicting how this would go. And, indeed, it was what the court relied upon as well.

      What you are saying is that you intentionally ignored the argument that ultimately determined the outcome of the case. You think that’s good legal analysis? Sheesh.

  6. Submitted by David Schultz on 08/31/2016 - 10:15 pm.

    Read it one more time Pat

    I yet again admonish Mr. Terry to read my original piece and my response. Nowhere did I make the argument that the district court opinion should be upheld or that the intent of my piece was to argue in favor or opposed to placing the minimum wage proposal on the ballot. First, my original piece raises lots of questions about the district court opinion and does suggest that its logic is something that the Supreme Court would probably not support. More importantly, my main point was far more narrow and subtle–arguing that determining minimum wages for businesses is a legitimate municipal function. I did not say it was or was not a legitimate function for a ballot measure and in fact if you read that piece you will find that I expressed no opinion on the issue. Had I intended to argue the broader point that the ballot measure was legal or that it should appear on the ballot I would have argued the preemption or other issues. Since I was not arguing that point that is why I did not broach those subjects. It is hardly fair to accuse someone of failing to do or argue something they did not intend to do or argue.

    • Submitted by Pat Terry on 09/01/2016 - 10:44 am.

      Nice try

      Your article is called “Why the state Supreme Court should rule that a ballot vote for $15 minimum wage is legal.” The title of your piece is itself bad legal analysis because there is no valid basis for that position. To suggest there is any valid basis is poor legal analysis.

      I acknowledge that you saw flaws in the district court’s reasoning. But you still called her position reasonable. It was not reasonable. It was unconscionably bad. It was the product of gross incompetence. Yet you called it reasonable. Poor legal analysis.

      Finally, by your own admission you deliberately ignored the point relied on by the Supreme Coury in making its decision. Basically you are now saying that you missed the most important and definitive point, but you analysis was still good. In the real world, legal analysis (or any kind of analysis of anything) that fails to consider the most important and definitive argument, is no good. Again, poor legal analysis.

      I’m not accusing you of things you didn’t say. I am using your own words. You said that the court should put it on the ballot. You called the district court’s order reasonable. You stated that you intentionally did not discuss the key point relied on by the court. All of those things are examples of poor legal analysis.

      It sucks to be wrong. I’ve been wrong before (although never on something as obvious as this). My advice is to quit digging and to acknowledge and learn from your mistakes.

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