Saint Paul City Attorney's Full Remarks on Amending the Rent Control Ordinance

[From the City Council meeting yesterday.]

The Pioneer Press has the best coverage of the meeting yesterday with the City Council and the City Attorney's office, on the legal avenues for change to the proposed rent control ballot initiative. There are certainly legal takes from both the pro- and anti-rent control campaign, that are aimed mostly at the election. The City Attorney, on the other hand, should offer a relatively neutral perspective. If anything, you would think they would be trying hard to ensure that Mayor Carter's plans for a community process and quick amendment would be legally supported. (Spoiler: they do not make that case.) 

At any rate, for those who don't want to watch the video, here's a transcript:

Council President Amy Brendmoen: There’s some confusion about whether or not the City Council has the ability to change a referendum that has come to us in this manner in the chance that it is passed.

City Attorney Tierney: Thank you CP Brendmoen, I have a colleague with me here, he’s going to dig into the differences between Minneapolis and Saint Paul. I think that will be helpful. 

Attorney Steven Ernest:  My name is Steven Ernest speaking on behalf of the City Attorney's Office. There are two points before answering the question about how the rent stabilization how we got to this place. The first clarifying point is that there is a difference between an initiative and a referendum. The power of initiative is the power to have voters petition to have an ordinance placed on ballot; A referendum is kind of the opposite, voters are acting to repeal and act of Council, after the City has already acted. The ordinance in this case has been brought through the power of initiative. 

I make that distinction because the Minneapolis charter does not give initiative to their voters, but Saint Paul does. 

The second point is about Municipal leg. Power. It’s important to review it to set up why the rent stabilization came from the voters as opposed to City Council  In Minnesota there are have as our document that grants and defines power of our city government, the charter it’s like the constitution. Statutory cities are different, their uniform statuary code that’s in the Minnesota statutes. In contrast, charters can be different, which is why the charter in Saint Paul is different from the charter in Minneapolis  In general home rule charter cities with reference to local matters have all of the power the state legislature possesses w/r/t statewide matters, except when the legislature has expressly said “no," you cities cannot legislate in this area. So the default rule is home rule charter city have very broad power except when they’ve been preempted by the state in this case the city of Saint Paul very likely has the power to adopt a rent stabilization ordinance pursuant to its police powers but you can’t because the state has said in [the rent control law] that no city can adopt a rent stabilization or rent control ordinance that relegates private rents. Prior to the enactment of that law the city could have done rent stabilization but now it can’t. 

There are two exceptions to that rule, the City Council can propose an ordinance or charter amendment that gives the city council the power to authority to adopt a rent stabilization ordinance, but it’s not the ordinance itself, it gives the City Council the power to adopt the ordinance at a later date but that amendment or ordinance has to first be approved by the voters and once they approve it then the City Council can adopt the rent stabilization ordinance if they choose to. The 2nd exception is that voters themselves can petition to have the ordinance placed on the ballot, as long as the city charter gives them that power. Once its on the ballot as long as its approved, it becomes law there’s only 1 step required to meet that 2nd exception, but in the 1st exception its a 2 step process. 

In Saint Paul because we have that initiative power, once it's approved its lawfully enacted not withstanding the general prohibition. In the case of Minneapolis because their charter does not provide for the power of initiative the charter amendment gives the City Council that power. Thy’ve just pursued the 1st exception. 

Council President Amy Brendmoen: it’s definitely complex. I can understand the complexities there. It sounds like Saint Paul could have done the other route and Minneapolis had a way to do the version in Saint Paul but opted not to do that. Are there any other specific questions.

Council Member Jane Prince: Can we ask the question about whether or we are able to amend the ordinance? Is that coming up?

Council President Brendmoen: I hope so that’s one fo the questions that we ask the City Attorney's Office and that has been circulating and confusing people that would be good to understand what are the limits given this I we have in front of us. 

City Attorney Tierney: In Section 804 of our charter it says the ordinance cannot be repealed within 1 year of its approval by the voters. The ordinance can’t be repealed. The question is one that does not have a clear answer in law. We can’t repeal it, but that does not speak to whether we can amend it. 

I can tell you there is a very skinny case law about what we’re able to do, so I can only speak generally. And say that we likely have the ability to amend the ordinance or supplement the ordinance but the more substantive changes we make the more likely we are to have a risk of litigation and the more likely a court is to overturn that action. Our plan in the City Attorney's Office we will review any proposed changes and look at them for whether or not they are substantive, with the goal of looking in the lens of whether or not we have altered the will of the voters. That’s kind of the lens we will look through. 

Council President Brendmoen: [discusses substantive v. Nonspbustantive / typographical changes]

Council Member Rebecca Noecker: Understanding your point, there isn’t much case law here, I do think its important to be clear about this I’ve heard questions from residents. I’ve read the mayor talk about making changes quickly about what really can be changed, leaving aside switching As to Bs or Ands to Ifs any substantive change, because this is coming to us fully formed, any change could be seen as altering the will of the voters. The voters are voting on exact language. I just trying to figure how how your office would evaluate any changes that are more than ands to ifs to know if it was altering the will of the voters. And if you have any specific case law that shows cities being successful or not on litigation in this. 

City Attorney Tierney: Boy, do I wish there was specific case law I could point to that would give us some guidance. It simply isn’t out there. What I can say is that obviously in order to give this ordinance meaning we’re going to do a significant amount of work creating an infrastructure for the ordinance. You asked your question you used the word change. I don’t think if we were to characterize something as a change it would have an increased risk of litigation. We’ll take a look at everything, at what other states and cities have done. We will look at what other rent stabilization ordinances do ones that are similar to ours and what they look like. We’ll have to engage in some kind of comparative process and a risk analysis. I wish I had better clearer answers. We’re in a unique circumstance here. It’ll be a matter of rolling up our sleeves and reading some tea leaves to some extent. 

Council Member Chris Tolbert: Talk about the rule making process, what the city will be necessitated to do if this passes the voters rule making and implementation.

City Attorney Tierney: I’m not the best person to answer these questions Office of Financial Empowerment have been looking at what this ordinance might look like. We’ll need to create a board. You use the term rule making. We don’t have a clear process. The City Attorney's Office we have some recommendations for how departments should do rule making. Rules are under subservient to the ordinance itself. The rules can provide breadth but can’t be in conflict with the ordinance at all. With reference to what the process will look like I can’t say. That’s a much better question for [someone?]. More information about what other jurisdictions have done. He and the office of finance are working on how many staff would need to be hired and those kind of issues.

Council President Brendmoen: one other question about effective dates what is effective dates and how that relates to the 1 year piece.

City Attorney Tierney: I’m feel like I’m coming here with a lot of non answers. Under our charter an ordinance takes effect immediately after its adopted. The effective date on this ordinance is May 1, 2022. I think it is likely that a court would find this ordinance takes place immediately as a practical matter we won’t have the infrastructure in place to meaningfully enforce the ordnance but there is a private right of action in the ordinance and a court may interpret that that private right of action takes effect immediately. We don’t have any case law to guide us in this area we only have what our charter says.

The "effect date" is certainly a surprise. I'm not sure much has changed since I put up my "outcome odds" the other day. I'd say the most likely outcome - litigation clusterf**k - seems about right.