• July 20, 2018

Photo by Lenny Baker

Update (July 20, 2018): This past Wednesday, the Minnesota Supreme Court had no problem affirming the Minnesota Court of Appeals, which had affirmed the district court. They all held that unhappy constituents cannot accumulate public officials’ open meeting law (OML) violations and bring a single action to oust public officials for “three OML violations.” Furthermore, constituents cannot simultaneously bring three separate lawsuits, each claiming OML violations, to reach the three-strike threshold and oust public officials.

“Three strikes” means “three strikes” and you cannot pitch three balls at once.

The decision is no surprise. The only mystery is why the Supreme Court accepted the petition for review of the Court of Appeals decision but presumably at least someone on the Supreme Court, at some point, thought this issue needed further review and analysis.

Original post (February 7, 2018): Some citizens of Victoria, Minnesota did not like their local elected officials (that is, the mayor and certain council members) and they wanted the elected officials thrown out of office. These citizens brought several actions against these public officials for violations of Minnesota’s Open Meeting Law (“OML”), Minn. Stat. §§ 13D.01–.07.

The statute provides that one forfeits elected office if one is found to have violated the OML three times “in three or more actions.”

What if the unhappy constituents covertly accumulated or “banked” OML violations and brought three separate legal actions at the same time?

Wouldn’t this essentially short-circuit the policy of the statute that public officials get two “free passes,” and are only thrown out of office on the finding of third violation?

This is at issue in Funk v. O’Connor. At the trial court and the intermediate court of appeals, the judges found that the trial court could properly consolidate the unhappy constituents’ lawsuits into one and that the OML violations would be treated collectively only as “strike one.”

The OML plaintiffs argue, however, that this was legal error. They have successfully petitioned the Minnesota Supreme Court for review of the Court of Appeals’ decision (here, linked, is the petition, here, linked, is the response).

On the one hand, accumulating OML violations and then bringing three simultaneous separate actions to vindicate ones’ rights seems to be an end-around the statutory scheme. On the other hand, some would see consolidating several actions into a single action as an end-around the statutory scheme from the opposite direction.

We are not OML experts and we take no sides except to suggest some obvious points: it does seem to be at cross-purposes with a statute that has a “three-strikes” rule to allow someone to bring a single action to adjudicate three violations at once. On the other hand, the open meeting law is not all that complicated or onerous but yet it seems that these public officials inexplicably found the law very difficult to follow.


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