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The original item was published from 8/20/2021 4:34:00 PM to 8/20/2021 4:36:15 PM.

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Posted on: August 20, 2021

[ARCHIVED] Recall Petitioners’ Attorney Files Notice Withdrawing Lawsuit for Recall Election

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For Immediate Release

August 20, 2021

Contact: Laura Blair Johnson

Title: Public Information Officer

Department: Administration


(August 20, 2021, Red Wing, Minn.) On August 6, 2021, Recall Petitioners filed a lawsuit challenging the Red Wing City Council’s decision not to call a recall election. The Council decided not to call a recall election on the basis that the recall petition did not include alleged conduct that rose to the level of malfeasance or nonfeasance, which is a requirement for a recall election under the City Charter. The lawsuit was brought against

(1) the City of Red Wing;

(2) City Council members in their official capacities;

(3) the City clerk in her official capacity.

The City Attorney represents the Council as the governing body of the City. Part of the City Attorney’s job is to defend the City’s interests in lawsuits where the City, the Council, or elected officials or employees are sued in their official capacities. The City has a duty to defend its elected officials and employees when they are sued for actions taken as part of their official duties. The reason that the City Attorney represented all of the named Respondents in this action is because the action was, in effect, an action against the Council based on its decision not to call a recall election. A majority of the Council made that decision. No individual action of any Councilmember was at issue in the lawsuit and no Councilmember was sued in his/her individual capacity.

There have been social media comments that the City threatened to sue the Petitioners. That is not accurate. To the contrary, the City was sued and defended itself. As explained at several public Council meetings and in public Council packets, the Council’s decision not to call a recall election was based on Minnesota Supreme Court decisions.

  • The allegations of malfeasance in the recall petition were based on allegations of violations of the Open Meeting Law (OML).
  • No court has ruled that any Councilmember violated the OML, and thus, the recall petition was not based on any established violations of the OML.
  • The Minnesota Supreme Court has long held that even repeated violations of the OML do not constitute malfeasance as a matter of law.
  • Without any legal support, the lawsuit appeared to assert that this malfeasance standard only applies to state officials and that citizens of a charter city should be able to decide for themselves whether the malfeasance standard is met by voting.
    •     However, the Minnesota Supreme Court ruled that the same malfeasance standard that is in the Minnesota Constitution applies to charter cities. Citizens cannot decide through voting in a recall election that a different standard of malfeasance applies in Red Wing.
    •     If repeated violations of the OML do not constitute malfeasance as a matter of law, the City’s position is that there is no legal basis that mere allegations of OML violations could constitute malfeasance.

The City Attorney advised the recall attorney that the City planned to serve motion papers requesting sanctions in the form of reimbursement of the City’s costs incurred in defending itself given the City’s position that there was not a good faith basis for the lawsuit. The City Attorney notified opposing counsel of this plan before serving motion papers so that the Petitioners could decide whether to withdraw the Petition. It was up to the Petitioners and their attorney to decide whether to move forward. If a motion for sanctions had been served and the Petition was not withdrawn, the judge in the same lawsuit, which was brought by the Petitioners and not the City, would have decided whether sanctions were warranted.

There have also been social media comments that the Councilmembers at issue were recalled. That is not accurate. Petitions were filed seeking to call a recall election related to certain Councilmembers, but no recall of the Councilmembers occurred.

The City received notification late on Wednesday that the Petitioners’ attorney had filed a notice to withdraw the Petition and that the Petitioners’ attorney was withdrawing from the case. The scheduling conference for today was cancelled.

The City of Red Wing is dedicated to creating a sustainable, healthy, accessible, resilient, and equitable community where every person feels at home.

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