Is it possible to recall a Senator?

[bvar22]

I am serious. I can't live with the embarrassment of Normie.
I believe that there is enough anger and activism in the liberal grassroots in Minnesota to recall Norman if it is legally possible.

Does anyone know?

[Lizzie Borden]

1. I'm sorry I don't know about Minnesota but

you can in WI. It's probably in your state constitution. Google it.

[Lydia Leftcoast]

2. Recall is decided on a state by state basis.

Some states have it, some don't, but I believe that Senators are considered Federal officials, and the Federal government does not have recall. :-(

[bvar22]

3. The Minn State Constitution has provisions for STATE officials,

but so far, I haven't found anything about US Senators.

I haven't even found a historical precedent for US Senator being recalled.

I have found this:

Some have argued that U.S. Senators are not subject to recall. Recall opponents (the media) give vague reason and reference to “Federally Elected Officials.” Senators are clearly state elected officials that are selected to represent state interests on a federal level in state elections.

The unsuccessful attempts by states to enforce term limits have been argued as precedent against the recall of Senators. This is an inaccurate assumption. The 17th amendment transfers the electoral power to the people from the state legislature for the selection of U.S. Senators. The recall is the exercise of the electoral power of Arizona citizens, the people not the legislature. The term limit laws of the states need to be put into place by the people not the legislatures.

The 17th Amendment goes on to describe the process on how to fill seats in the Senate when they become vacant. Clearly, it is expected that seats will become vacant for whatever reason. Removal from office by the will of the people is a valid reason that is not prohibited by any language in the 17th Amendment.

Recall opponents will then try to argue that the term period (six years for Senators) is so firmly established in the Constitution that it can not be affected by the will of the people. Opponents to recall will also cite Article 1, Section 5, Clauses 1 & 2, which empowers each house of congress to be the judge of elections, returns and qualifications of its members and grants them the ability to expel a member with a 2/3 vote. This assumes that the power “to expel” lies solely with each body of congress and is exclusive of the will of the people.
Three other Amendments give the recall effort of the people of Arizona the right to fix the problems with a lack of representation in the Senate:

Article I.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article X.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The U.S. Constitution does not prohibit the recall. Think about it, would the framers of the constitution want to restrict the electoral power of the people so much that they could not fix a problem with a non-representative Senator?

http://www.recallmccain.org/LegalFront.htm

I'm going to keep looking. I can't believe that in 200 years, no one has tried it.

I wish being an "International Embarrassment" was an impeachable offense.

[Eric J in MN]

4. This webpage implies Minnesota only has recall for state officials.

http://www.house.leg.state.mn.us/hrd/pubs/recall.htm

[dpbrown]

5. Mention of a recall of a US Senator

http://www.unc.edu/student/orgs/di_phi/reference_desk/docs/reckford/chapter26.htm

[dpbrown]

6. Minnesota Constitution Article VIII, Sec. 6

ARTICLE VIII
IMPEACHMENT AND REMOVAL FROM OFFICE
****
Sec. 6. RECALL. A member of the senate or the house of representatives, an executive officer of the state identified in section 1 of article V of the constitution, or a judge of the supreme court, the court of appeals, or a district court is subject to recall from office by the voters. The grounds for recall of a judge shall be established by the supreme court. The grounds for recall of an officer other than a judge are serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime. A petition for recall must set forth the specific conduct that may warrant recall. A petition may not be issued until the supreme court has determined that the facts alleged in the petition are true and are sufficient grounds for issuing a recall petition. A petition must be signed by a number of eligible voters who reside in the district where the officer serves and who number not less than 25 percent of the number of votes cast for the office at the most recent general election. Upon a determination by the secretary of state that a petition has been signed by at least the minimum number of eligible voters, a recall election must be conducted in the manner provided by law. A recall election may not occur less than six months before the end of the officer's term. An officer who is removed from office by a recall election or who resigns from office after a petition for recall issues may not be appointed to fill the vacancy that is created.

http://www.house.leg.state.mn.us/cco/rules/mncon/Article8.htm

[bvar22]

12. Hey, DP.

You're busy.
I believe the above refers to State Reps and State Senators.

[dpbrown]

15. It refers to officers elected by the state

The argument is that since the 17th Amendment acknowledged the power of the people to popularly elect Senators, that they then fall within the constraints of the recall provisions of Minnesota State law - since there is no contrary provision in federal law and the structure of the federal system (amplified by the 10th Amendment to the Constitution) leave to the people all the rights not specifically granted to the federal and state governments.

___________________________________
U.S. Constitution: Tenth Amendment
Tenth Amendment - Reserved Powers

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
___________________________________

Since there is no federal provision for recall, but there is a Constitutional Amendment recognizing the right of the people to popularly elect US Senators, and since there are specific Minnesota State Constitutional and Legislative provisions governing recall of officials elected by the citizens of the state, therefore the Minnesota Constitutional and Legislative provisions relative to recall apply to the federal office of United States Senator representing the people of Minnesota.

That's my story and I'm sticking to it.

Dan Brown
Saint Paul, Minnesota

[bvar22]

17. That was the gist of the argument...

...against the recall of McCain in Arizona.

The site in Post #3 provides a counter argument.
I don't know how credible it is. I'm waaaay over my head here.

http://www.recallmccain.org/LegalFront.htm

[dpbrown]

19. And the Minn. Const. provision is not SPECIFIC to state senators only

"Sec. 6. RECALL. A member of the senate or the house of representatives..."

NOT:

"Sec. 6. RECALL. A member of the state senate or the state house of representatives..."

Hey, the law is a fuzzy thing, but you do with it what you can to produce justice, right?

DPB

[dpbrown]

7. Minn. Stat. 211C.01

Minnesota Statutes 2004, Table of Chapters

Table of contents for Chapter 211C

211C.01 Definitions.

Subdivision 1. Application. The definitions in this
section and in chapter 200 apply to this chapter.

Subd. 2. Malfeasance. "Malfeasance" means the
intentional commission of an unlawful or wrongful act by a state
officer other than a judge in the performance of the officer's
duties that is substantially outside the scope of the authority
of the officer and that substantially infringes on the rights of
any person or entity.

Subd. 3. Nonfeasance. "Nonfeasance" means the
intentional, repeated failure of a state officer other than a
judge to perform specific acts that are required duties of the
officer.

Subd. 4. Serious crime. (a) "Serious crime" means a
crime that is punished as a gross misdemeanor, as defined in
section 609.02, and that involves assault, intentional injury or
threat of injury to person or public safety, dishonesty,
stalking, aggravated driving while intoxicated, coercion,
obstruction of justice, or the sale or possession of controlled
substances.

(b) "Serious crime" also means a crime that is punished as
a misdemeanor, as defined in section 609.02, and that involves
assault, intentional injury or threat of injury to person or
public safety, dishonesty, coercion, obstruction of justice, or
the sale or possession of controlled substances.

Subd. 5. State officer. "State officer" means an
individual occupying an office subject to recall under the
Minnesota Constitution, article VIII, section 6.

HIST: 1996 c 469 art 2 s 2

Copyright 2004 by the Office of Revisor of Statutes, State of Minnesota
http://www.revisor.leg.state.mn.us/stats/211C/01.html

[dpbrown]

8. Lessons from the attempted recall of Kiffmeyer

STATE OF MINNESOTA
IN SUPREME COURT

A04-83

In re Proposed Petition to Recall
Secretary of State Mary Kiffmeyer.

O R D E R

            A proposed petition for the recall of Secretary of State Mary Kiffmeyer has been filed with the office of the secretary of state.  That office determined that the proposed petition meets the signature requirements of Minn. Stat. § 211C.04 (2002), and on January 16, 2004 forwarded the proposed petition to the clerk of appellate courts in accordance with that statute. <1>  Minnesota Statutes § 211C.05, subd. 1 (2002) requires the chief justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const. art. VIII, § 6, and Minn. Stat. § 211C.02 (2002).  If the allegations are insufficient, the proposed petition is dismissed; if they are sufficient, the chief justice appoints a special master to hold a public hearing.  Minn. Stat. § 211C.05, subd. 1.

            A previous petition to recall Secretary of State Kiffmeyer alleging grounds similar to those alleged in the present petition was dismissed on November 14, 2003, because it alleged no specific facts concerning the grounds for recall.  In re Kiffmeyer, 671 N.W.2d 172 (Minn. 2003).

            The grounds for recall of a state officer other than a judge are “serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office for a serious crime.”  Minn. Const. art. VIII, § 6; Minn. Stat. § 611C.02.  The petition states two grounds for the recall of Secretary of State Kiffmeyer.  First, the petition alleges legal defects in the wording of the oath of office she signed on January 6, 2003.  Secretary of State Kiffmeyer’s signed oath of office comports with the oath requirements of Minn. Const. art. V, § 6, for officers in the executive branch. <2>  Further, a legal defect in the oath of office is not a basis for recall under article VIII, section 6 of the constitution because it is neither malfeasance nor nonfeasance.

            The second ground for recall stated in the petition is nonfeasance in the performance of official duties by Secretary of State Kiffmeyer in relation to the filing of the oaths of office of members of the legislature.  Nonfeasance is defined by statute as “the intentional, repeated failure of a state officer other than a judge to perform specific acts that are required duties of the officer.”  Minn. Stat. § 211C.01, subd. 3 (2002).  Nonfeasance under the recall statute thus requires not merely a failure to act, but a failure that is (1) intentional, (2) repeated, and (3) involves the failure to perform “specific acts that are required duties of the officer.”  Minn. Stat. § 211C.01, subd. 3; see In re Hatch, 628 N.W.2d 125, 126 (Minn. 2001) (nonfeasance under recall statute requires repeated failure to perform specific acts).  Additionally, under the constitutional recall provision the nonfeasance must be “serious.”  Minn. Const. art. VIII, § 6.

            The petition asserts that the oaths of office of members of the legislature were not filed with the secretary of state as required by Minn. Stat. § 358.11(1) (2002), but instead with the chief clerk of the house of representatives and the secretary of the senate.  The petition further asserts that four requests of the secretary of state’s office to inspect signed oaths were denied and the requestor was referred to the chief clerk’s office; and that this violated the requirements of the Minnesota Government Data Practices Act relating to requests for access to data.  See Minn. Stat. § 13.03, subd. 3 (2002).

            Section 358.11(1) provides:

Except as otherwise provided by law, the oath required to be taken and subscribed by any person shall be filed as follows:

(1)if that of an officer of the state, whether elective or appointive, with the secretary of state<.>

This statute requires that certain oaths be filed with the secretary of state but does not specify who must file the oath with that office.  The act of filing the oath with the secretary of state is not among the “specific acts that are required duties of” the secretary of state.  Minn. Stat. § 211C.01, subd. 3.  There is no allegation that the secretary of state refused or failed to file oaths tendered for filing by members of the legislature.  In addition, even if the statute did impose a duty upon the secretary of state to file the oaths, the petition fails to state specific facts which, if proven, would establish that the failure to act was intentional or that any nonfeasance on her part was serious.  Minn. Stat. §§ 211C.01, subd. 3; 211C.02; Minn. Const. art. VIII, § 6.

            The Government Data Practices Act provides that upon request to the “responsible authority” of a government agency, <3> “a person shall be permitted to inspect and copy public government data.”  Minn. Stat. § 13.03, subd. 3(a) (2002).  This statute imposes a duty upon any officer or office of the state.  Minn. Stat. § 13.02, subd. 17 (2002).  However, if the facts alleged in the petition were proven, Secretary of State Kiffmeyer would not have violated this statute by failing to produce for inspection data which was not in the possession of her office.

            The petition fails to address specific facts that, if proven, would constitute grounds for recall.  Accordingly, it is dismissed.

            Petitioners also submitted a request that the undersigned recuse from participation in this matter, based on administration of the oath of office to members of the legislature and being a member of the legislature from 1979 to 1994.  These facts do not provide a basis for concluding that the impartiality of the undersigned “might reasonably be questioned” in a recall petition that alleges defects in the wording of an oath and nonfeasance by the secretary of state in relation to the filing and production of oaths of office occurring in 2003.  See Minn. Code Jud. Conduct, Canon 3.D(1). 

            Based upon all the files, records and proceedings herein,

            IT IS HEREBY ORDERED that the petition for recall of Secretary of State Mary Kiffmeyer be, and the same is, dismissed for failure to allege specific facts that, if proven, would constitute grounds for recall.

            Dated:  January 22, 2004
                 
    /s/                                                       
                                                                                    Kathleen A. Blatz
                                                                                    Chief Justice
_____________________________
Lessons:
      A petition to recall Governor Tim Pawlenty, based on allegations similar to those made in the present petition, was also filed with the secretary of state and forwarded to the clerk of appellate courts.  See In re Pawlenty, No. A04-84 (Minn. Jan 22, 2004).

      To the extent the asserted defect in the oath is based on a challenge to the validity of the Restructured Constitution of 1974, a recall petition is not the proper avenue for raising or deciding such a challenge.

       A “responsible authority” in a state agency is the official responsible for the collection, use and dissemination of government data.  Minn. Stat. § 13.02, subd. 16 (2002).

[dpbrown]

9. Lessons from the attempted recall of Pawlenty

STATE OF MINNESOTA
IN SUPREME COURT

A04-84

In re Proposed Petition to Recall
Governor Tim Pawlenty.

O R D E R

            The secretary of state has referred a proposed petition to recall Governor Tim Pawlenty to the chief justice for review.  See Minn. Stat. § 211C.05, subd. 1 (2002).  The statutory review process requires the chief justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const. art. VIII, § 6 and Minn. Stat. § 211C.02 (2002).  Minn. Stat. 211C.05, subd. 1.  If the allegations are insufficient, the proposed petition is dismissed; if they are sufficient, the chief justice appoints a special master to hold a public hearing.  Id.

            The grounds for recall of a state officer other than a judge are “serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office for a serious crime.”  Minn. Const. art. VIII, § 6; Minn. Stat. § 611C.02.  The petition alleges three grounds for the recall of Governor Pawlenty:  (1) nonfeasance in filing an oath of office while a member of the legislature prior to his election as governor; (2) legal defects in the wording of the oath of office of governor he signed on January 6, 2003; and (3) nonfeasance in the performance of his constitutional duty to “take care that the laws be faithfully executed,” Minn. Const. art. V, § 3.

            The first ground alleged in the petition is not a basis for recall.  The constitution provides for “recall from office by the voters” of an officer on the ground of “nonfeasance during the term of office in the performance of the duties of the office.”  Minn. Const. art. VIII, § 6 (emphasis added).  Under this provision, recall from an elected official’s current office is not permitted for alleged nonfeasance while previously holding a different office.

            As in In re Kiffmeyer, No. A04-83 (Minn. Jan 22, 2004), filed herewith, the second ground alleged in the petition – legal defects in the oath of office – is not a basis for recall under article VIII, section 6 of the constitution because a defect in the wording of the oath is neither malfeasance nor nonfeasance.  Also as in that case, Governor Pawlenty’s signed oath of office comports with the oath requirements of Minn. Const. art. V, § 6, for officers in the executive branch. 

            The third ground alleged in the recall petition relates to the assertion that the oaths of office of members of the legislature were not filed with the secretary of state as required by Minn. Stat. § 358.11(1) (2002), but rather with officers of the two houses of the legislature. <2>  This assertion is discussed in In re Kiffmeyer, in which the undersigned determined that the petition failed to allege facts that, if proven, would constitute grounds for recall of the secretary of state for nonfeasance.  The petition in this matter does not state facts indicating that Governor Pawlenty even knew of an alleged violation of section 358.11(1); that any failure to act on his part was intentional or repeated, as required by section 211C.01, subd. 3; or that any such failure was serious, as required by article VIII, section 6 of the constitution.

            The petition fails to state specific facts which, if proven, would constitute grounds for recall.  It is, accordingly, dismissed.

            Petitioners also submitted a request that the undersigned recuse from participation in this matter, based on administration of the oath of office to Governor Pawlenty and members of the legislature, and being a member of the legislature from 1979 to 1994.  The same request was made in Kiffmeyer.  As in that case, the request is denied.  See Minn. Code Jud. Conduct, Canon 3.D(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”).

            Based upon all the files, records and proceedings herein,

            IT IS HEREBY ORDERED that the petition for recall of Governor Tim Pawlenty be, and the same is, dismissed for failure to allege specific facts that, if proven, would constitute grounds for recall.

            Dated:   January 22, 2004
                                                                                        
                                                                                   /s/                                                       
                                                                                    Kathleen A. Blatz
                                                                                    Chief Justice
____________________________
Lessons:
       To the extent the asserted defect in the oath is based on a challenge to the validity of the Restructured Constitution of 1974, a recall petition is not the proper avenue for raising or deciding such a challenge.

       The petition goes on to assert that because the oaths of legislators were not so filed, all members and officers of the legislature are disqualified to hold or exercise the powers of office; they should be prosecuted for usurpation of office; the governor signed legislation that the members of the legislature had no authority to enact; and the governor “refused to rectify this unconstitutional and illegal activity.”

[dpbrown]

10. Lessons from the attempted recall of Hatch

STATE OF MINNESOTA
IN SUPREME COURT

C8-01-990

In Re Proposed Petition to Recall
Mike Hatch, Attorney General.

O R D E R

The Secretary of State has referred a proposed petition to recall Attorney General Mike Hatch to the Chief Justice for review. See Minn. Stat. § 211C.05, subd. 1 (2000). The statutory review process requires the Chief Justice to review the proposed petition to determine whether it alleges specific facts that, if proven, would constitute grounds for recall of the officer under Minn. Const. art. VIII, § 6 and Minn. Stat. § 211C.02 (2000). Minn. Stat. § 211C.05, subd. 1.

The grounds for recall set forth in the Minnesota Constitution and the recall statute are "serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office of a serious crime." Minn. Const. art. VIII, § 6; see Minn. Stat. § 211C.02. The petition states as grounds for recall both malfeasance and nonfeasance based on the same conduct, that "Mike Hatch has failed in his duties as Attorney General and as a lawyer to defend the constitutionality of Minnesota Statute Section 609.293 in Hennepin County District Court Case No. MC?01?489, resulting in a District Court Order striking down the crime of sodomy as unconstitutional." Petitioners claim that among the duties of a lawyer and of the Attorney General is the duty to provide a vigorous legal defense of statutes enacted by the Minnesota Legislature.

A threshold question is whether the same conduct can provide the basis for a finding of both malfeasance and nonfeasance. The recall provision in the Minnesota Constitution lists both malfeasance and nonfeasance as separate bases for a recall election. Minn. Const. art. VIII, § 6. The legislature adopted very distinct definitions of malfeasance and nonfeasance in the recall statute, the former describing wrongful or unlawful action and the latter describing a failure to act. Malfeasance is defined in the recall statute as:

the intentional commission of an unlawful or wrongful act by a state officer other than a judge in the performance of the officer’s duties that is substantially outside the scope of the authority of the officer and that substantially infringes on the rights

of any person or entity. Minn. Stat. § 211C.01, subd. 2 (2000). Nonfeasance is defined in the recall statute as "the intentional, repeated failure of a state officer other than a judge to perform specific acts that are required duties of the officer." Minn. Stat. § 211C.01, subd. 3 (2000). As malfeasance requires the intentional commission of an unlawful or wrongful act, the focus is on action taken by the official. In contrast, nonfeasance focuses on the official’s failure to act.

In addition to the distinction between affirmative conduct and a failure to act, the recall statute establishes another express difference between malfeasance and nonfeasance. Specifically, under the recall statute nonfeasance is the repeated failure to perform specific acts, whereas there is no requirement of repetition in the definition of malfeasance. Minn. Stat. § 211C.01, subds. 2, 3.

To allow an allegation of a failure to perform a duty to state a claim for malfeasance as well as nonfeasance would render meaningless both the recall statute’s distinction between action and nonaction and its express requirement of repetition in the case of nonfeasance. The canons of statutory construction require that all provisions of a statute be given effect. Minn. Stat. § 645.17(2) (2000). To give effect to legislative intent apparent in the definitions in the recall statute, a determination of whether the petition alleges facts that, if true, constitute either affirmative misconduct or a failure to act is necessary.

The stated basis for the petition in this case is the failure to defend the constitutionality of a statute, which on its face appears to state a claim of nonfeasance rather than malfeasance. The court has previously rejected a party’s attempt to characterize nonfeasance as malfeasance in the context of tort liability of a public official. See Giefer v. Dierckx, 230 Minn. 34, 40 N.W.2d 425 (1950). In Giefer, the plaintiff brought a negligence action against a public official based on the failure of the officer, after placing a barrier on the west side of a bridge washout, to place a barrier or warning on the east side of the washout. Id. at 37, 40 N.W.2d at 426-27. The plaintiff attempted to characterize the act as affirmative misconduct, as opposed to nonfeasance, in order to fall under a rule from a previous case. Id. at 38, 40 N.W.2d at 427. The court held that despite the plaintiff’s characterization, the allegedly negligent conduct was the failure to place a sign on the east side of the washout, which constituted nonfeasance, and not malfeasance or misfeasance. Id.

Similarly, in this case, despite the language of the petition indicating a claim of both nonfeasance and malfeasance, petitioners’ claim is one of nonfeasance. Petitioners focus exclusively on the Attorney General’s failure to defend the constitutionality of the statute making sodomy a crime. See Minn. Stat. § 609.293 (2000). They allege multiple deficiencies in the response of the Attorney General to a motion for summary judgment in the case. As in Giefer, the focus is on what the actor failed to do. 230 Minn. at 38, 40 N.W.2d at 427. Given petitioners’ focus on the Attorney General’s alleged failure to perform a duty, the petition is properly characterized as one alleging nonfeasance rather than malfeasance.

Therefore, the issue is whether petitioners allege facts that, if proven, would establish an "intentional, repeated failure of a state officer * * * to perform specific acts that are required duties of the officer." Minn. Stat. § 211C.01, subd. 3. Petitioners allege that "Mike Hatch has failed in his duties as Attorney General and as a lawyer" to defend the constitutionality of the statute.

Petitioners’ allegation concerning duties "as a lawyer" is not included in the legal standard for recall. Both the constitutional and statutory recall provisions are based on malfeasance or nonfeasance in the performance of the duties of the office. Minn. Const. art. VIII, § 6; Minn. Stat. § 211C.02. Neither provision makes any reference to the duties of a lawyer, and therefore allegations of failure in the duties as a lawyer are not valid grounds for recall of a public officer.

Petitioners also allege failure in the duties as Attorney General, in particular the duty to defend the constitutionality of the sodomy statute. Petitioners argue that this duty to defend arises from the inherent duties of the Office of Attorney General and separately from the Minnesota Rules of Professional Conduct.

The Rules of Professional Conduct cannot provide a legal basis for a recall petition for several reasons. To the extent petitioners rely on the Rules of Professional Conduct to support the allegation of failure in duties as a lawyer, their reliance is unavailing because, as indicated, failure as a lawyer cannot be the basis for a recall petition. To the extent petitioners rely on the Rules to support the allegation of failure in the duties as Attorney General, this reliance fails as well. Neither the constitution nor the recall statute addresses an official’s failure to abide by professional norms as a basis for recall. In addition, the Rules of Professional Conduct themselves establish that they are intended to serve only as a standard of conduct within the regulation of the practice of law:

Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. * * *. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.

Minn. R. Prof. Conduct, Scope. Just as the rules are not designed to be a basis for civil liability, they are also not designed to provide a basis for recall of a public official. Moreover, to allow the recall process to be used as a means of enforcing the Rules of Professional Conduct infringes on the Supreme Court’s exclusive authority to discipline attorneys. See In re Daly, 291 Minn. 488, 490, 189 N.W.2d 176, 179 (1971) (holding that ultimate determination governing discipline of attorneys is vested in the court); In re Lord, 255 Minn. 370, 372, 97 N.W.2d 287, 289 (1959) (holding that despite Attorney General’s status as executive officer he is subject to discipline process and that unethical conduct in court "involves something resting entirely with the judicial branch"). Because the recall statute does not address a public official’s duties as a lawyer, because the Rules of Professional Conduct are intended only as a basis for professional regulation, and because using the professional rules as a basis for recall would infringe on the court’s exclusive authority to discipline attorneys, those rules cannot form the basis of a recall petition.

Petitioners allege that separate from his duties under the Rules of Professional Conduct, the Attorney General is "duty bound" to defend the statute, presumably relying on duties inherent in the office. In response, the Attorney General relies upon the broad discretion afforded the Attorney General when representing the state, citing Head v. Special School District No. 1, 288 Minn. 496, 503, 182 N.W.2d 887, 892 (1970), overruled on other grounds, Nyhus v. Civil Service Bd., 305 Minn. 184, 232 N.W.2d 779 (1975); Slezak v. Ousdigian, 260 Minn. 303, 308, 110 N.W.2d 1, 5 (1961); and State, ex rel. Peterson v. City of Fraser, 191 Minn. 427, 432, 254 N.W. 776, 777-78 (1934). The Attorney General also relies on cases from other jurisdictions holding that the Attorney General may even challenge the constitutionality of statutes when the Attorney General determines the statute is unconstitutional. See, e.g., State v. Chastain, 871 S.W.2d 661, 665 (Tenn. 1994); State, ex rel. Landis v. S.H. Kress & Co., 155 So. 823, 826 (Fla. 1934) (superseded by statute).

Here there is no need to reach the issue of whether the duties of the office require the Attorney General to defend the constitutionality of statutes because the petition fails for a separate reason. Under the nonfeasance provision of the recall statute the petition must allege facts that if true, constitute a repeated failure to act. Minn. Stat. § 211C.01, subd. 3. The requirement in the statute that the failure to perform be repeated indicates the legislature did not intend an official to be subject to recall for a single failure to perform a required duty. The legislature’s intent is apparent from the noticeable absence of the term "repeated" in the definition of malfeasance. Minn. Stat. § 211C.01, subd. 2. Additionally, in the statute regarding recall of county officials, which based on its similarities appears to have been the model for chapter 211C, the legislature did not require repeated failure to act in the definition of nonfeasance. Minn. Stat. § 351.14, subd. 3 (2000). Therefore, the legislature’s clear intent that a failure to act be repeated before the official is subject to recall for nonfeasance in office must be given effect. Minn. Stat. § 645.17(2) (establishing presumption that the legislature intends the entire statute to be effective).

The petition alleges only a single failure of the Attorney General to defend the constitutionality of a statute. While the petition alleges multiple deficiencies in the Attorney General’s response to a motion for summary judgment, the fact that the defense of the statute in one case was allegedly deficient in more than one way does not satisfy the requirement of repeated failure "to perform specific acts that are required duties of the officer." Minn. Stat. § 211C.01, subd. 3. Because the facts as alleged by petitioners do not establish repeated failure to perform the asserted duty to defend the constitutionality of statutes, the conduct alleged does not satisfy the legal standard for nonfeasance in the recall statute. Therefore, the petition does not satisfy the requirements for referral by the reviewing Chief Justice to a special master.

Now therefore, based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the proposed petition for recall be, and the same is, dismissed.

Dated: June 25, 2001

                                        BY THE COURT:

                                        Kathleen A. Blatz
                                        Chief Justice

[bvar22]

14. These appear to be protections "spelled out"

...in the State Constitution that specifically apply to State Officials. So far, I haven't found anywhere that the Minnesota Constitution extends this to officials elected to Federal Office. OTOH, I could be completely wrong (wouldn't be the first time).
It may be there, or may be implied. I don't know; I'm not a lawyer, but I did pass Civics in high school!!!


I'm looking for more info on the reference to the North Carolina Senator that was recalled, but no luck yet.

Thanks for the work.
It is interesting to entertain the idea of recalling that asshole!

Our time and activist efforts would probably be better served in building a powerhouse support network for Mark Dayton. The bush* machine is gonna come at him with all they got!

Rubberstamp Norman will be crushed in due time, but I'm going to keep looking.

[Lydia Leftcoast]

11. In Oregon, you can recall any state official simply through petition

and if you get enough signatures, the official has to face a recall election. It is not necessary to give a reason. You can sign the petition simply because you don't like the candidate's teeth or because he misquotes the Bible.

However, this ease of recall is not a good thing, in my opinion.

Some wing nuts out there tried to recall Governor Barbara Roberts (1990-94 or thereabouts) three times, including while her husband was dying of cancer.

I was curious about why they were trying to recall her, since while she was a so-so governor, I couldn't think of anything particularly bad that she had done. When I saw some people gathering signatures, I asked them what their reasons were. They started listing their reasons, such as cost overruns during the remodeling of the state capitol ("But most of the remodeling was completed during the previous administration," I said), bans on logging old growth forests ("That's federal policy," I said), the recession ("That's the governor's fault?" I said. "What about other states that are having recessions?") and so on and so on.

Finally I said over my shoulder as I walked away, "Admit it, you don't have a reason. You just don't like Democratic women in positions of power."

"Feminazi!" one of them screeched at me.

Yes, I have been called a feminazi by some of Oregon's most retrograde proto-freepers. I consider it a badge of pride. :-)

P.S. Barbara survived the recall attempts, but served only one term. I suppose she decided, "Who needs this?"

[dpbrown]

13. US Constitution, XVII Amendment - States Elect Senators

U.S. Constitution: Seventeenth Amendment
Seventeenth Amendment - Popular Election of Senators

Clause 1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Clause 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

http://caselaw.lp.findlaw.com/data/constitution/amendment17/

[dpbrown]

16. The History of Recall Elections

What Is the History of Recall Elections?
By Joshua Spivak
Mr. Spivak is an attorney in New York, and received a Master's in History from Brooklyn College. His Master's thesis explored the history of the recall.


Even though 26 states authorize the recall in some form, Gray Davis is only the second governor in U.S. history to face a recall vote. Despite its infrequently usage, the recall has a long, if spotty, history in America.

The recall has always been at the forefront of a fundamental question about the role of an elected officials, namely whether the official should act as a trustee and vote his own opinion or perform as a delegate and vote according to the wishes of his constituency. This long running debate continues to this day with criticism of poll-driven politicians. This clash of ideologies was much in evidence during the debate about the recall's place in the new U.S. Constitution.

The actual origins of the recall is shrouded in conjecture. Its modern day creator, Dr. John Randolph Haynes, claimed that it was "derived historically from Greek and Latin sources...." However, the authors of many of the works on the practice cite Haynes as expropriating the idea from the Swiss.

While the first instance of the recall can be found in the laws of the General Court of the Massachusetts Bay Colony of 1631, and again in the Massachusetts Charter of 1691, the recall gained a firm footing in American politics with the democratic ideals that burst forth from the American Revolution. After declaring their independence, 11 of the 13 colonies wrote new constitutions, and many of these documents showed the new spirit of democracy. They specifically spelled out the laws in their constitution, which was a sharp departure from the unwritten British constitution. Most lessened the power of the executive and strengthened the legislature. Some opened up the right to vote to a larger portion of the population. And a few states wrote the recall into law as a method of controlling their elected representatives.

The states which adopted the recall were mainly concerned with the power of the representatives who served the states in the national government's congress. Unlike its modern day counterpart, the seventeenth and eighteenth century versions of the recall involved the removal of an official by another elected body, such as a state legislature recalling its United States senator. While this form provides a different relationship between the elected official and the general population the principles and the debates that engulfed the issue had not substantially changed.

The Revolution's success led the states to form a government under the Articles of Confederation, which were finally ratified in 1781. The government under the Articles was weak and at the mercy of the individual states. Unsurprisingly, the recall was included in the Articles of Confederation. According to recall proponent and New York delegate John Lansing, the recall was never exercised by any of the states throughout the brief history of the Confederation.

As the Articles of Confederation government proved a failure in leading the new country, some of the brightest lights in America met in Philadelphia in 1787 and drafted the new Constitution. There is a plethora of materials on the Constitutional Convention, the debates surrounding its adoption, and its eventual impact. However, the issue of the recall has been mostly ignored, despite the fact that the idea was discussed. It was proposed by Edmund Randolph in his presentation of the Virginia Plan on May 29. The plan would have allowed the recall of the members of the first house of the legislature, who were directly elected by the people. On June 12, the convention passed Charles Pickney's motion to strike out the recall. The only other mention of the procedure in Madison's notes on the convention was a speech by future Vice President Elbridge Gerry exploring how the convention exceeded its mandate.

The argument for the recall was a strong component of the anti-federalist attack. The American Revolution was in many ways an attack on the existing power structure, or as Carl Becker said it was not just about home rule, but who rules at home. The new Constitution, in the view of many leading anti-federalists, was a conservative reaction to the American Revolution. One of the major opponents of the Constitution, Luther Martin, stressed the absence of a recall for senators, and the freedom from popular control that this absence represented, as a reason to reject the document. Martin was opposed to granting senators, who were elected by the state legislators and were seen as representing the more traditional aristocratic population, a large degree of freedom. He feared that senators would disregard their position as delegates of the people, and be free to work against the interests of their own states. Martin said: "Thus, sir, for six years, the senators are rendered totally and absolutely independent of their states, of whom they ought to be the representatives, without any bond or tie between them."

The idea of tightly binding the senators to their states was strongly opposed by the Federalists, most notably Alexander Hamilton. The topic gained new life when the Constitution was sent to the states to ratify. Each state elected a ratifying convention to approve or disapprove of the Constitution. Nine of the thirteen states votes were required for ratification. The topic took up several days of debate in the New York Ratifying Convention and was also proposed in the Massachusetts Convention. Using arguments that opponents of the recall would still be making more than a century later, Hamilton feared, that the recall "will render the senator a slave to all the capricious humors among the people."

In New York's Ratifying Convention on June 24, 1788, Gilbert Livingston introduced a measure calling for the recall of senators by state legislatures. Livingston was concerned that states would have "little or no check" on senators who have a six year term of office. John Lansing, an opponent of the new Constitution, said in words that echoed more than a century later, "they (the Senators) will lose their respect for the power from whom they receive their existence, and consequently disregard the great object for which they are instituted."

Hamilton denied the premise that the state legislatures would be more in tune with the will of the people, and argued that the recall would prevent the senators from being able to make difficult decisions. Hamilton said "… in whatever body the power of recall is vested, the senator will perpetually feel himself in such a state of vassalage and dependence, that he never can posses that firmness which is necessary to the discharge of his great duty to the Union."

By the time the New York Convention finally ratified the Constitution, enough states had ratified to form the government. However, there were still attempts to bring up various amendments to the new Constitution. Rhode Island, the last state to ratify in 1790, proposed 21 amendments, including granting state legislatures the power to recall their federal senators. However, the recall did not have the backing to continue as a major topic of debate after the failure of the anti-federalists. The recall of senators came up twice more, as the legislature in Virginia attempted to bring the topic up as a constitutional amendment in 1803 and 1808. The 1808 amendment was met by resolutions of disapproval from six states.

The recall received a considerable degree of support in America's early years. However, its proposed use as a weapon against the power of federal government officers failed to generate sufficient excitement to push its way through to adoption. With the Federalists' victory, the recall went into hibernation. It was not until the early part of the twentieth century, when the country was faced with a very different set of circumstances, that the recall reemerged as a viable political option. By that time, the field of debate had shifted to the state level, with the people themselves possessing the power of the recall. But the focus of the debates and the nature of the arguments had remained the same.

http://hnn.us/articles/1660.html

[bvar22]

18. So, DP.

What's your opinion of the recall of Norm?

Just kidding.
Thanks for the work.


Don't you have anything better to do on a Sat. night?
:hippie:

[dpbrown]

20. Beddy-bye time

It's always interesting to try to pull together a bit of a brief on a subject so interesting as this.

I wonder what the AZ Attorney General's opinion on this is going to be. That was the gist of the website you found about McCain - they were waiting for the AG to tell them if they could go ahead or not.

I think there's a possibility that a US Senator could be held to state recall standards in the absence of clear federal law to the contrary.

DPB

[ISUGRADIA]

21. Under the federal constitution US Senators are elected for 6

year terms. State law and constitutions have no precedence when there is a clear point such as this in the Constitution concerning federal officials. States can make election laws but not laws regarding terms of service.

[bvar22]

22. See Post # 3 for an interesting counter argument.

(N/T)

[dpbrown]

23. Federal law is silent on the issue of recall

Simply stating the length of a term of service is insufficient to preclude the implementation of measures to remove an elected official. The US Constitution mentions means by which other federal officers can be removed by impeachment. The US Senator is the state's representative to the federal congress. The 17th Amendment leaves to the state's citizens the election process. Federal law is silent on the means by which a criminal, insane, or dangerous US Senator may be removed. Prior to the passage of the 17th Amendment, a state's legislature could recall a Senator home. Therefore it's reasonable to argue that the state, already in control of the means of popularly selecting their US Senator, may also be empowered to describe means by which the population, now in control of the electing of Senators, may, as state legislatures did when they were in control of selecting US Senators, recall that Senator to Minnesota.