Legalectric

Hot off the press — RECALL CITY HALL LAWSUIT IS WITHDRAWN!

It was voluntarily dismissed, AND their attorney withdrew from the case. It’s “without prejudice,” meaning they can refile if they want to. That, however, would be a phenomenally bad idea.

Well, that’s good news. But I was looking forward to duking it out with them, because they need to be slapped upside the head. You can’t try to pull off a recall election, using bogus rationale, because they don’t like how the Council voted, particularly where they voted 6-1 to fire the police chief.

Prior Legalectric posts:

Red Wing VOTERS Intervention Filed in Recall City Hall lawsuit

RW Council Meeting, and Recall lawsuit in Roch PB

Overland Comment on Recall Petition to City Council today

Frivolous Recall Lawsuit Filed

Dean Hove 2” Recall Petitions

Tonight – Red Wing Recall again

Recall Petitions here!

Recall the Recall? Hove again!

RW Council Mtg – RECALL NOT!

Recall? (SNORT!) NO! NO! NO!

You say there’s gonna be a recall…

“Recall” on Charter Commission agenda?!?

Red Wing VOTERS has filed a Petition for Intervention in the Recall City Hall lawsuit that was filed August 6th, and a Stipulation to Intervention has been circulated to the Recall and City attorneys:

Here’s the short version, from the intro:

This Motion is made the grounds of Red Wing VOTERS’ interest in the fundamental right to vote and preserving the integrity of open, free, and fair elections, specifically, the City of Red Wing elections of 2018 and 2020.  Red Wing VOTERS is an association of voters in Red Wing who oppose the recall effort, representing voters who elected Red Wing City Council members and their interests.  Red Wing VOTERS has a defense to Petitioners’ claim for “correction of ballot error M.S. A. §204B.44,” which, if Petitioners prevail, would have the detrimental impact of invalidating the 2018 and 2020 elections through a recall of six of seven duly elected City Council members and disenfranchising the voters who elected these City Council members.  If Petitioners prevail, Red Wing VOTERS would suffer irreparable harm.  Red Wing VOTERS has an interest in those issues focused on the broad rights of citizens and voters under the Charter and correct interpretation thereof, an interest distinct from the interests of, and not represented by, the City of Red Wing.

Recall is an extreme remedy — it’s not for those times when you don’t like what City elected officials do, how they vote, even when you REALLY don’t like it. Recall is the remedy for malfeasance and/or nonfeasance.

If you look at Recall City Hall’s Petition to the District Court, search for “procedural,” and you’ll see repeated insistence that their Recall Petitions are “procedurally sufficient.” And they don’t address “malfeasance” except to say that the state definition of malfeasance shouldn’t apply! There’s nothing addressing the need of their Recall Petition to be both procedurally and LEGALLY sufficient. And action by the City, scheduling a recall election, is only triggered by a finding that their petition is sufficient:

“If the petition or amended petition is found sufficient…” Is that so hard to understand?

In addition to “sufficiency,” the Recall Petitioners argue that the City SHALL schedule an election if their petition is (just) procedurally sufficient (and no addressing legal sufficiency).

There are many voters here in Red Wing who are fed up with this divisive Recall City Hall effort.

Prior to the August 9, 2021 City Council meeting, and it turns out before the City was served, I sent this review of their Petition:

Letter-to-Council-Overland-Comments-on-Petition

Exhibit-A_Recall-Flyer

Exhibit-A-1_Why-a-Recall

Exhibit-B_250-Word-Statement

Exhibit-C-_Certification-of-Recall-Committee-Hove_4-9-2021

Exhibit-D_-Certification-of-Recall-Committee-Hove-Not-Certified

Exhibit-E_Letter-5-16-2021-Petitions-Invalid

Exhibit-F_Certification-of-Recall-Committee-Wards-1-2-DEAN-HOVE-Received-6_7_2021

I’m looking forward to this. There’s a scheduling conference on Friday, and by then I’ll know if the Recall attorney and City attorney will stipulate to our intervention or whether we’ll have to have a hearing.

Census Bureau hasn’t updated its page yet (they’re busy?!?!) and says they WILL release info, so here’s the press page with future info (!) and lots of links:

Census Bureau Press Page (with lots of options)

Here’s the Demographic Map Viewer

Goodhue County’s populations went up 3%:

It’ll be easy to get lost in this. And the full census info has yet to be released!

Naaaaaah, not that type… THIS TYPE, the type that can substitute for transmission, yes, that is NOW a realistic alternative to transmission lines:

Batteries are helping California make up for lost hydro power

John Wellinghoff, former FERC Chair, testified extensively in a Deposition in Wisconsin’s Cardinal-Hickory Creek transmission docket (05-CE-146, go HERE for docket fiings) about use of battery storage, its viability as alternative to transmission, and cost recovery under the FERC cost recovery scheme:

Citizens Utility Board’s witness Mary Neal noted in Surrebuttal that transmission is an “outdated narrative,” and that batteries offered choice by changing the need for transmission:

And just now, George Nygaard fired off a missive about energy losses associated with battery storage. Oh my, something that hadn’t occurred to me before, a rare occurrance, and, well, it’s a big DOH!

And yes, it’s an issue, and it’s time to dig in and learn about storage. Best about this is that it’s yet another argument for siting near load:

Grid-Scale Battery Storage: Frequently Asked Questions

And this is the part that blows my dress up:

And from the U.S. Energy Information Administration:

Battery Storage in the United States: An Update on Market Trends

Losses are addressed in “round trip efficiency” which with battery storage is at 95%, hard to beat. From NREL’s Energy Storage: Days of Service
Sensitivity Analysis, here’s a comparison with hydrogen:

And here’s where it gets interesting — also from NREL’s Energy Storage: Days of Service Sensitivity Analysis:

Efficiency rules… and transmission loses in this calculation.

Last night’s meeting was disappointing. No action on the Recall legal action. And few showed up. Not what I was expecting!

On the other hand, Mayor Wilson wanted Kent Laugen, who has been actively involved in the Recall effort, to be appointed to the Port Authority. As with his attempted appointment of Janie Farrar, another Recall proponent, that Laugen appointment motion failed for a second.

Here’s the missive I sent to the City Council yesterday:

Overland Comment on Recall Petition to City Council today

And here’s the Petition that was filed on Friday:

Frivolous Recall Lawsuit Filed

In the Rochester Post Bulletin, linked, about the Recall City Hall lawsuit:

Red Wing recall takes next big step with lawsuit

Suit seeks remedy for city council not approving special recall election after group gathered the required signatures.

Written By: Brian Todd | 9:08 am, Aug. 10, 2021

RED WING — Late Friday afternoon, the Recall City Hall committee in Red Wing took the next step in its efforts to bring six members of the city council to a special election.

The lawsuit, filed on behalf of Red Wing residents George Hintz, Peter Lang, Judith Kjome, Stephen Lind, Betty Kalember and Sheryl Voth, asks the 1st District Court “for correction of a deliberate ballot omission or, alternatively, for a Writ of Mandamus directing the City of Red Wing to hold an election for the recall of six city councilmembers in accordance with the strictures of the municipal charter.”

The petition points to what it calls several undisputed facts. They include that in each ward or wards at least 20 percent of registered voters signed petitions to recall council members Becky Norton, Evan Brown, Erin Buss, Andy Klitzke, Dean Hove and Laurel Stinson. However, the city council voted 6-1 – with all six council members up for recall voting no, and council member Kim Beise voting yes – on multiple occasions not to hold a special election.

In the petition, Greg Joseph, a Waconia, Minn.-based attorney representing the recall group, notes how the Red Wing City Charter states, “the clerical officer shall transmit it to the Council without delay and shall also officially notify the person sought to be recalled of the sufficiency of the petition and of the pending action. The Council shall, at its next meeting, by resolution provide for filing dates and other provisions necessary for the holding of a special recall election not less than 45 nor more than 60 days after such meeting.”

Joseph said it’s that directive to order an election that the city council has rejected, and that is the reason for the lawsuit.

However, not every resident of Red Wing sees it the same way.

Carol Overland, a local attorney who has expressed her support for the city council and its actions, said the public does not have a legal right to a recall election, and a firm case of malfeasance or nonfeasance – the justification for a recall – is absent in the recall effort.

[Original – since corrected: The idea that the petitioners who ran the recall efforts could determine what meets the legal definition of malfeasance or nonfeasance, she said, is absurd.] [Correction, I said “voters” because that’s what they’re arguing, that the voters should decide in an election whether there’s been malfeasance or nonfeasance, so insert “voters” here — it’s fixed now.]

The idea that the voters could determine what meets the legal definition of malfeasance or nonfeasance, she said, is absurd.

Council President Becky Norton agrees.

“The (Red Wing City) Charter and the Minnesota Constitution are clear that elected officials can only be recalled for malfeasance or nonfeasance,” Norton wrote in response to questions from the Post Bulletin. Norton went on to cite a case from 1959, Jacobsen v. Nagel. “The Minnesota Supreme Court has held that the same malfeasance and nonfeasance standard that applies to state officials applies to council members of a charter city.”

If the conduct of the council members does not constitute malfeasance or nonfeasance, Norton concluded, there is no obligation to schedule a recall election, which is why the city council was justified in its action.https://www.postbulletin.com/news/government-and-politics/7144940-Red-Wing-recall-takes-next-big-step-with-lawsuit

Kent Laugen, another local attorney not directly connected to the case, said while the lawsuit does not focus on whether the burden of malfeasance or nonfeasance has been reached, there is precedent from the courts saying that decision is left up to the voters.

[Precedent? Show us! It doesn’t exist][“not directly connected to the case” but DIRECTLY connected to the Recall — see quotes in other PB articles]

Whether or not there is a special election, the next election the six council members face is going to be tough, Laugen said.

The court has yet to set a hearing date for the lawsuit.