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Bloomington residents sue city over garbage rights

By   /   October 26, 2015  /   News  /   No Comments

Citizens suing to put garbage collection on the ballot in Bloomington finally got their day in Hennepin County District Court.

The legal challenge follows a city council vote in June to discard residents’ option of choosing between seven solid waste haulers in favor of an “organized collection” system that dictates price and provider, starting April 2016. Traffic disruption, potential wear and tear on roads and air quality issues drove the decision.

But a dispute that started with a call for “hands off our cans” has evolved into a cry of “hands off our city charter,” amid concerns the right to challenge local authorities through initiative and referenda have gotten trashed in the process.

“People don’t have a say in much of the things that regulate their life,” Mike Drysdale, an attorney representing the plaintiffs, said at Wednesday’s court hearing.

“The whole idea of initiative and referenda was to preserve some sliver of popular control. And what I found most striking about the city’s briefs on this matter was the sense that politics, and letting the people weigh in on this, is somehow improper, somehow beneath us.”

Bloomington is one of 107 cities functioning under a home-rule charter, which serves as a “local constitution,” according to the League of Minnesota Cities. “Home rule charter cities can exercise any powers in their locally adopted charters as long as they do not conflict with state laws.”

The Bloomington city charter provides for initiative, referenda and recall. Yet City Hall maintains the critics behind the garbage petition are essentially usurping the local government’s prerogative by trying to force a vote on an administrative issue best left to city staff and their elected representatives.

City photo

PREEMPTED: Bloomington officials say state law on organized collection of garbage preempts citizen participation through initiative or referenda.

“That’s not the way representative government works,” George Hoff, an attorney representing Bloomington, told the court. “Representative government works by the elected representatives, for their minor salary in most cases, taking a vote on that, making the tough decisions. That’s what they’re supposed to do. Advisory elections are not allowed in Minnesota.”

Opponents put the onus on city attorney Sandra Johnson. The city charter instructs a city attorney to approve a petition or “put it into a form which is legally sufficient for its intended purpose.”  But Johnson did neither, rejecting the organized collection petition twice.

“I did put the proposal in a form that would pass muster under the Charter and Minn. Stat. Sec. 115A – the Waste Management Act, it was simply unacceptable to the petitioners,” Johnson said in an email following publication of this story.”The insinuation that I sat back and failed to do my job is not based in fact; the truth of the matter is that I followed the law -as I interpreted it to the best of my ability.”

Johnson suggested this wording, according to the plaintiff’s attorney, Mike Drysdale.

“Only the following language would put your proposal in a form that is legally sufficient: Any ordinance or ordinance amendment purporting to regulate solid waste collection in the City must be in accordance with Minnesota Statutes Chapter 115A, as amended from time to time.”

But in the same email, Johnson said the plaintiffs “must also change the language on your Ballot Question Petition/Initiative.”

“I do not consider that to be a serious attempt at reforming the language,” attorney Drysdale said in response.

A core group of residents went ahead anyway, collecting some 1,500 signatures on an unofficial petition this summer, more than enough to qualify with a valid petition.

“We’re not even suing to stop it,” Reichert said. “We’re simply suing to ask the city attorney to do her job, which was to certify and accept our petitions, so we could go out and gather signatures to allow the citizens of Bloomington to decide if we want to go down this path of organized collection.”

RELATED: Taxpayers oppose city decision to forgo bond referenda

In refusing to validate the petition, Johnson cited a state law governing organized garbage collection that overrides local jurisdiction in this case, among other legal objections.

“Initiatives and referendum were developed as devices by which the voters of a jurisdiction could address supposed evils of legislation,” Johnson wrote in a June advisory opinion to guide city councilors. “It encourages single-issue politics…and simplistic proposals…and creates opportunities for conflicting or overlapping legislative proposals, confusing voters.”

“It’s appropriate in many contexts, a lot of good ordinances can come from citizens’ initiatives,” Johnson said after the hearing. “In this context, it’s not appropriate.”

The plaintiffs’ attorney chided the city over the 38 exhibits entered into the court record.

“That’s why we said, look, all these exhibits you provided the court, about everything you’ve done, and all the money you’ve spent…” said Drysdale.

“…are just solid waste,” said Hennepin County District Court Judge James Moore, finishing the sentence. “I got a chuckle out of that.”

“As long as we’re on solid waste, Your Honor, just to be clear,” Hoff said. “What we filed, we filed to give the court an example of what we were doing, but it was also electronically filed…We didn’t dump a bucket of paper on your desk.”

The court has up to 90 days to rule on the case. Meanwhile, a consortium of solid waste companies continues to work toward an agreement on how to divide up service to the city and consumers.

“Things are moving along and that’s why this lawsuit is somewhat unusual,” Johnson said.

“It’s less about garbage at this point, and more about just reestablishing our right as citizens to do what’s outlined in the city charter,” said plaintiff Joel Jennissen.

This story was updated October 27. 

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Tom formerly served as staff reporter for Watchdog.org.