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John Nephew

Maplewood City Council Policy & Politics


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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I just stumbled across your blog. After reading your "About the Blog" I was amazed at the similarity of circumstances as to how I started my website. I too initially set up a website to run for City Council. Once I took office I revamped the site to make public information that was not getting to the public before. This pissed off a lot of city officials and "good-ole-boys," but I've kept it up.

Keep up the good work.

David Johnson
Councilman, City of West Branch

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