John Nephew

Maplewood City Council Policy & Politics


Thursday, March 29, 2007

Our Long-Eared House Guest

We recently brought a temporary resident into our home, and his name is Astro!

Astro is a foster bunny from the Minnesota Companion Rabbit Society, an organization that Michelle and I have been involved with since its inception. Besides giving MCRS monetary support, Michelle and I have both volunteered our time — Michelle was the past editor of its newsletter, I served on its Board of Directors, and Astro is just the most recent of the many rabbits we've fostered.

We've chosen to support MCRS for a number of reasons. It's a small, local organization, entirely run by volunteers, and we have personally seen (and benefitted from) its success and effectiveness. We know that our support makes a meaningful difference, whether it's giving money that helps MCRS promote its educational mission and so improve the lives of pets and their owners, or giving a rabbit a second chance by providing a temporary home before adoption (there's only so much room in the Twin Cities' animal shelters, and MCRS serves as an "overflow" outlet for the crunch times when more rabbits are surrendered or confiscated by animal control authorities than there is space). Animal welfare is important to me because I believe we are stewards of our world and the living creatures within it; I think we have a moral responsibility to care humanely for the animals domesticated by our ancestors over the past thousands of years — animals that are now dependent upon us.

I especially admire MCRS because of its pragmatism. One of the most innovative and successful programs it has worked on is a partnership with PETCO. At an increasing number of PETCO stores in the Twin Cities — seven of them now, including the one here in Maplewood — adoptable rabbits are featured in the store, and cared for by both PETCO employees and MCRS volunteers. Near the rabbits are educational materials about rabbits as pets. Special "adoption day" events are also held in the stores, when more adoptable rabbits are brought to the store and lots of volunteers are on hand to educate and answer questions. In fact, Astro is staying with us as a break after spending a month in the Roseville PETCO store.

Some animal advocates see corporations like PETCO as the enemy, because of policies that activists would like to see stopped (such as buying from rabbit breeders to sell to the public, thus encouraging overpopulation; rabbits are the #3 animal surrendered to shelters after dogs and cats). While some activists shunned PETCO, MCRS recognized an opportunity.

The reality is that keeping rabbits for sale is a lot of work, responsibility, and expense for a pet store, and not really profitable in itself. The rabbits are perceived as a service to pet shoppers, as an attraction (isn't it fun to go into a pet store and see cute furry animals?), and as a way to land the real business, which is the pet food, supplies, etc. MCRS found that PETCO was delighted to stop selling rabbits, and instead to feature adoptable rabbits, to utilize the knowledge and time of MCRS volunteers in caring for the animals, and to benefit from the good public relations exposure. In fact, the PETCO Foundation (a charitable foundation funded by the corporation) has now become an important donor to MCRS. They are directly aware of the good that comes of this program, which is also becoming a model for similar programs elsewhere in the country. The president of MCRS has been a featured speaker at national conventions, to talk about how this program works so others can emulate it.

I've been wanting to write about MCRS, not just as an aspect of my biography for this campaign website, but because I think it illustrates some important principles that guide my view of politics as well. There's a purist way of thinking that says people who don't live up to your criteria (whether that be political ideology, or "litmus test" issues, or whatever) should be shunned and rejected and locked out. In contrast, it seems to me that it's terribly important to engage with the people that are sometimes labeled "the enemy" by partisans and activists. Too much devotion to abstract principles can prevent parties from agreeing on a common course of action that might actually benefit both of them. The fact is that different individuals and organizations often have principles and goals that we might say are competing, but not actually contradictory.

By engaging with an organization that has a different set of priorities, and finding a practical course of action that serves them both, MCRS and PETCO have both come out winners — as have the rabbits, the new rabbit owners (who have been educated to ensure that they're more happy with their new pets), and even the local animal shelters (since those educated pet adopters are less likely to surrender their animals).

If you or someone you know would like to learn more about rabbits as pets, please visit the Minnesota Companion Rabbit Society website at You can see a list of some of the currently adoptable Twin Cities rabbits in the care of MCRS at Petfinder — and for that matter, if you're interested in any kind of pet, Petfinder is a wonderful resource for finding animals of all species that need homes. And if you visit the PETCO up by the Maplewood Mall, be sure to see the adoptable bunnies in person!


Wednesday, March 28, 2007

Separation of Powers

Yesterday afternoon I went to the Ramsey County Courthouse to watch arguments over a couple of motions in the case of John Banick et al. v. Maplewood.

One motion was to amend the complaint to add additional parties — joining Banick and the Maplewood Confidential & Supervisory Association will be the Metro Supervisory Association, which is another city employee bargaining unit. Apparently four other individuals have expressed interest in joining the suit as well, while yet another individual who was expected to join the suit has reached a separate settlement with the city.

The more contentious motion was a request for a writ of mandamus. On the face, it's pretty simple. At their meeting on February 5th, the Police Civil Service Commission ordered that Banick be reinstated as an employee of the Maplewood Police Department. The city refuses to recognize the authority of the PCSC to issue that order. Thus, Robert Fowler (Banick's attorney) asked the District Court to compel the city to execute the PCSC's decision.

Not surprisingly, the city asked the court to turn down Fowler's request. Pam VanderWiel, the city's lead attorney for this case, presented two sorts of arguments. The first was that a writ of mandamus was procedurally inappropriate (the city argued that mandamus should not be requested as a motion in an ongoing action, and in addition that the requirements for mandamus are not met in this case). The second group of arguments concerned the substance of the PCSC's action (namely, the city's contention that the PCSC lacks the authority to do what it did).

At the start of her argument to the court, VanderWiel invoked a phrase that I remembered her using at the January 16th TRO hearing as well: separation of powers. She characterized a writ of mandamus as an extraordinary action that would threaten our constitutional separation of powers by having the court meddle with the executive branch of the city.

This argument is, with all due respect, bogus. The logical end of this argument is that no court should ever have the power to overrule any decision of any executive branch, on the grounds that it would violate the separation of powers for one branch to overrule to decisions of another. However, that's clearly absurd; the point of separation of powers is not to establish three sovereign and insular governments over these same United States; it is to establish independent yet interrelated branches that check and balance each other, so that the rule of law can be upheld when one branch oversteps its bounds.

In the case of Maplewood's city government, we have a city council that effectively is both executive and legislative — creating the ordinances and policies and enforcing them. The PCSC holds a curious position in this separation of powers. Like many courts, it is filled with appointees who have been confirmed by another branch of government (the city council appoints its members for definite terms of service). It considers disciplinary cases and can issue judgments and penalties (such as demoting a police officer). Also like a lower court, its decisions are subject to appeal — and those appeals are not decided by the city council, nor even by the district court, but rather by the Court of Appeals. The PCSC is a court of record, in terms of creating a judicial record that an appelate court can review. Thus, within its narrow purview (personnel matters in the police department), the PCSC functions as the judicial branch of Maplewood city government.

So it seems to me that separation of powers is very much the issue at stake, but not in the way that the city has argued. The majority that controls the hybrid legislative-executive branch of Maplewood has decided not to follow the decision of this court of record because the council majority doesn't like it. (They also decided petulantly not to reappoint one of the three PCSC members, even though there were no other legally qualified applicants to fill the seat.) Rather than appealing the PCSC's decision to an appelate court, they decided just to ignore it. If this were on a different scale of government (like when Andrew Jackson simply refused to enforce the U.S. Supreme Court's Worcester v. Georgia decision, leading to the tragic and infamous Trail of Tears), we would call this a "constitutional crisis."

I guess in the context of Maplewood under our current council majority, this is now just business as usual.

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Thursday, March 15, 2007

Hagen Homes v. Minnetrista

The word on the street (hat tip to RC for passing along the news) is that the Minnesota Supreme Court has just overturned the appellate court on Hans Hagen Homes Inc. v. City of Minnetrista.

What does this have to do with Maplewood? It bears directly on the lawsuit against Maplewood by CoPar, the developer who had plans for south Maplewood around Fish Creek. Last year the city refused CoPar's plans, and then established the current development moratorium for a study of land use south of Carver Avenue.

CoPar has filed a motion for summary judgment in the suit (you can read CoPar's memorandum on Maplewood Voices). Basically, Minnesota law says that when a governmental body such as the city council denies a zoning or land use application like CoPar's, they have to provide a written denial, including reasons, within 60 days after the application. If they don't, the application is automatically approved. CoPar asserted that the court can issue a summary judgment, since the facts are not in dispute, just the interpretation of the law.

The city of Maplewood admitted that "it did not fully satisfy all of the literal duties" of the statute. However, the city contends that it "complied with both the spirit and the intent," since the matter was decided within the necessary time frame, representatives at CoPar were present at the meeting where the decision was made and reasons were provided, the minutes of the council meeting in which the decision was made are available on the city's website, etc. In other words, the matter was decided expeditiously, and the decision was obviously communicated to the applicants in a timely fashion, even if not in the precise manner laid out by the statute.

CoPar's memo cites numerous appellate court decisions that upheld a very strict reading of this law, including for example a case (Veit Company v. Lake County) where a written denial was provided -- but it did not state reasons for the denial, so the court granted automatic approval anyway. Looking at the way cases like this have been decided over the past decade, CoPar's argument for summary judgment on the basis of this technicality appeared to be very strong.

There was one really big wrinkle, however: the case in Minnetrista, which the Minnesota Supreme Court last year agreed to review. Responding to the summary judgment memo, Maplewood's lawyers wrote (again you can read the city's whole 18-page memo in the Maplewood Voices archives), "The court should either deny the motion or defer its ruling to await the Supreme Court's forthcoming decision in Hans Hagen Homes Inc. v. City of Minnetrista, argued January 10, 2007."

The lower courts in the Hagen/Minnetrista case had gone with the previous tradition of a very strict reading that granted automatic approvals. By overturning the lower courts, the Supreme Court has set a new precedent that automatic approval won't always result from a failure of local government to provide a written statement of reasons for denying an application.

I don't understand all the details of the CoPar suit (nor, for that matter, the details of the Supreme Court's Minnetrista ruling and whether it has any particulars that may affect how it applies to Maplewood's situation), and I'm sure this case is far from over, but the Supreme Court decision is in any case a very significant development. It looks to me like it makes it very unlikely that the court will grant CoPar the summary judgment they seek.

Update, 3/16, 10:27 AM: I found the Supreme Court's opinion posted on its website.


Wednesday, March 14, 2007

Council Meeting Notes, Mar. 12

I attended Monday's city council meeting and took extensive notes, which you can now read on the Maplewood Voices site. (We'll get them added to the archive here eventually, too.)

Tuesday, March 13, 2007

City Pages Article

This week's City Pages (which should be available in the usual places in print tomorrow, but is already on their website) features a cover article about Maplewood. It provides a good narrative of the story so far. Even as someone who has put a lot of time into studying Maplewood over the past year, I found it full of vignettes and details that I had not encountered before.


Wednesday, March 07, 2007

My Company's History

Shannon Appelcline of has been publishing a series of articles about the histories of game companies. This week's installment is a history of Atlas Games, the publishing company that I founded in 1990 and still run today.


Sunday, March 04, 2007

Council Retreat

This past Thursday morning (March 1), the city council held a retreat at the Gladstone fire station. It was an open meeting (as required by law, since a quorum was present and they were discussing city business), but the idea was for the council get together in a more informal setting to hash out some of their issues -- sitting around a table, rather than in the environment of the council chambers with cameras and all. The meeting began at 8:00 AM, but I didn't arrive until a little after 9:00. Present were Mayor Diana Longrie; councilpersons Will Rossbach, Rebecca Cave, and Erik Hjelle; and city staffers Greg Copeland and Karen Guilfoyle. Two observers were present — yours truly and Paul Demko, a reporter from City Pages who is working on an article about Maplewood. Kathy Juenemann was not there, due to a scheduling conflict.

Late in the meeting, the subject turned to Gladstone, where the comprehensive plan amendment recently failed (it requires a 4-person supermajority, but only got 3 votes). Partway through this discussion, Mayor Longrie had to leave for a conference call. I think credit really has to go to Hjelle, Cave and Rossbach for hashing things out and really listening to one another. Hjelle asked Rossbach to explain his issues with the current Gladstone master plan, to see if compromise could be achieved. Rossbach took the opportunity to articulate some of his concerns about urban planning in general and Gladstone in particular, and said he was trying to lay a good foundation for redevelopment in the neighborhood 50-100 years into the future. Ultimately, they found that they were not so far apart after all — the changes that Rossbach wanted did not pose a problem for Cave and Hjelle. In turn, Rossbach accepted the changes recommended by the Planning Commission which the council majority had already endorsed.

This is not a "done deal," however; as I said, the mayor had to leave before the discussion came to its conclusion, and Juenemann was not present. At least one of them will also have to sign on to the compromise for it to take effect, since four votes are still needed for a comp plan amendment. It's even possible that the vote could be unanimous.

A similar council retreat is planned for April, if I heard correctly.


Thursday, March 01, 2007

Gladstone Savanna Contamination

Besides the Planning Commission meeting, last week I also attended the Parks & Recreation Commission meeting. One topic brought up by city staff at the meeting was news of heavy metals in the Gladstone Savanna. (Not a buried collection of Mötley Crüe albums, no, we're talking about arsenic and lead.) The city planned a public meeting to talk about the environmental consultant's findings and possible remediation plans.

Today the agenda and packet for the meeting, which will be held at 6 PM this coming Monday (March 5) in council chambers at City Hall, was posted to the city website. It includes some basic Q&A and a map of the site with the locations and results of various soil tests.

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Snow Day!

Now I remember what winter is supposed to be like in Minnesota!

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