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Mulder: Recall, injunction difficult challenges for opponents to mount

By Tom Larson

Sun Tribune

Jail opponents seeking to recall Stevens County Commissioner Don Munsterman face a steep challenge, and their efforts to stop a vote on the sale of bonds for the facility could be equally difficult, according to the executive director of the Association of Minnesota Counties.

Jim Mulder said Monday that only one attempt has been made in the State of Minnesota to remove an elected public official by recall since the current statutory requirements were put in place in the mid-1980s, and that case was never litigated.

People opposing government decisions who have attempted to stop them through injunctions typically drop those efforts because courts require that extremely high bonds be posted to deter frivolous filings, Mulder said.

"The standard is so high," said Mulder, who is a University of Minnesota, Morris graduate.

Minnesota Statute 351.14 to 351.23 details the process by which publicly elected officials can be removed from office.

Any registered voter can petition to have an official ousted from office through a removal election. The petition must set forth, "with specificity," facts that support claims the county officials committed "malfeasance or nonfeasance in the performance of official duties" if more than 180 days remain before a general election for that office.

The petition must come with signatures from registered voters that total at least 25 percent of the votes cast in the previous election. Those signing the petition must be residents of the county or district which elected the official.

The county audit receives the petition and must verify that it meets standards for registered voters and voter totals.

One section states that "An elected county official is not subject to a removal election on the ground that misfeasance in the performance of official duties was committed, or on the ground of disagreement with actions taken that were within the lawful discretion of the elected county official."

The process is exceedingly difficult to move forward, Mulder said.

First, to be found malfeasant, it would have to be proved that an official committed an unlawful or wrongful act, such as a felony, which is outside the scope of the official's duties.

Second, to commit nonfeasance, the official would have to willfully fail to perform a specific act which is a required part of the official's duties.

Mulder's example for nonfeasance would be if a county attorney didn't take action that he or she knew would result in endangering a child's life.

If the county auditor finds a petition meets requirements, it is sent to the clerk of appellate courts, who submit the petition to the chief justice. The chief justice would review the petition, throwing it out if it is determined it doesn't support claims of malfeasance or nonfeasance, or assigning it to a "special master" for a public hearing if the justice determines there is factual support for the claims.

There are several procedures and timeframes which must be satisfied for the removal petition to move forward to an election. The process and timelines, in connection with proving malfeasance or nonfeasance, makes it onerous, Mulder said.

Previous to 1985, the state governor could be petitioned to remove an elected official. The statute was change to it current state at that time, and only one recall case was ever pursued.

John Remington Graham, then Crow Wing County Attorney, faced a recall in the early 1990s, but the case was never litigated, Mulder said.

The recall efforts took about 18 months, and it became clear it would take about another year for a final resolution, pushing the case up to election day. Graham did not run for reelection.

"They waited him out," Mulder said.

"Even though the law is there, the chances of completing it are very, very slim," he said.

Injunctions also have been attempted in a couple of cases, but the requirements for performance bonds make it a costly and risky endeavor, he said, adding that he's seen bonds set at anywhere from $300,000 to $3 million. In addition to the possibility of forfeiting bond, those seeking an injunction face the potential of also being responsible for court costs and the possibility of paying expenses for the county's outside counsel since county attorneys most likely would not be involved because of conflicts of interest, Mulder said.

"(The law) is based on the fact that this is a representative democracy," Mulder said. "We elect them with the expectation that they will vote their conscience every time."