~tate of jJlf[innesota

3Jn tbe ~upreme

Q[ourt

Warren Limmer, Steve Cottwalt, Dan Hall, Steve Drazkowski, Sean Nienow, Paul Oazelka, Julianne Ortman, Peggy Scott, Michelle Benson, Ernie Leidiger, Bob Dettmer, Glenn Gruenhagen, Bob Gunther, Joyce Peppin, and Mike Benson, all individuals, registered voters, and Members of the Minnesota Legislature; John Heimberger, an individual and a registered voter; and Minnesota for Marriage, an association of individuals and registered ballot committee, Petitioners, vs. Mark Ritchie, in his official capacity as Secretary of State of the State of Minnesota, and Lori Swanson, in her official capacity as Attorney General of the State of Minnesota. Respondents.

PETITIONERS' BRIEF AND APPENDIX

Erick Kaardal (Minn. 229647)**
MOHRMAN KAARDAL, P .A.

Cleta Mitchell (D.C. 433386)"'''*
ACTRIGHT LEGAL FOUNDATION

33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Austin R. Nimocks (Tex. 24002695)*
ALLIANCE DEFENDING FREEDOM

2029 K Street NW, Ste 300 Washington, DC 20006 Telephone (202) 683-9405 Facsimile (888) 815-5641 cmitchell@actright.com

2029 K Street NW, Suite 300 Washington, DC 20006 Telephone: (202) 393-8690 Facsimile: (480) 444-0028 animocks@telladf.org

COUNSEL FOR PETITIONERS *Pro Hac Vice Motions Pending /\ Lead Counsel ** Local Counsel (Additional Counsel on Inside Cover)

TABLE OF CONTENTS TABLE OF AUTHORITIES ISSUES PRESENTED.. STATEMENT OF THE CASE.................................................................... STATEMENTOFTHEFACTS ARGUMENT Introduction 1. The Secretary Violated the Separation of Powers Doctrine under Minnesota Constitution, Article III, Section 1, by Attempting to Substitute His Ballot Title in Place of the Ballot Title Adopted by the Legislature......... A. B. The Legislature Has the Exclusive Authority to Propose Constitutional Amendments. The Secretary's Ministerial Authority to Provide a Title Does Not Authorize Him to Substitute His Judgment for the Legislature's. Any Authority Vested in the Secretary to Title an Amendment Was Superseded By the Legislature When It Titled The Marriage Amendment. The Governor's Symbolic "Veto" Has No Legal Effect on a Proposed Constitutional Amendment and Does Not Transfer Power from the Legislature to Another Executive Branch Official.
11

1 2 3 6 6

7 9

11

C.

12

D.

13

II.

The Secretary's Ballot Title Is Not Appropriate Because He Misstates or Ignores the Recognition of Marriage in Minnesota.

16 19 21

CONCLUSION CERTIFICATION OF BRIEF LENGTH

1

TABLE OF AUTHORITIES

MINNESOTA CONSTITUIONAL PROVISIONS Minn. Const., art. IX, § 1 Minn. Const., art. III, § 1 STATE STATUES Minn. Minn. Minn. Minn. Minn. Stat. Stat. Stat. Stat. Stat. § 204B.44 § 204D.15 § 517.01 § 517.02 § 517.03 CASES Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971) Brayton v. Pawlenty, 768 N.W.2d 357 (Minn. 2010) Breza v. KifJmeyer, 723 N.W.2d 633 (Minn. 2006) Clark v. Pawlenty, 755 N.W.2d 293 (Minn. 2008) Commitment of Giem, 742 N.W. 422 (Minn. 2007) Hassler v. Engberg, 233 Minn. 487,48 N.W.2d 343 (1951) Irwin v. Surdyk's Liquor, 599 N.W.2d 132 (Minn. 1999) Matter of Welfare of RA V, 464 N.W.2d 507 (Minn. 1991) Sharood v. Hatfeld, 210 N.W.2d 275 (Minn. 1973) State v. Duluth & Northern Minnesota Railway Co., 102 Minn. 26, 112 N.W. 897 (1907) State v. Johnson, 514 N.W.2d 551 (Minn. 1994) State ex rel. Marr v. Stearns, 72 Minn. 200, 75 N.W. 210 (1898) Weiler v. Ritchie, 788 N.W.2d 879 (Minn. 2010)
11

1,3,6, 9, 10 1, 7, 8

1, 2,4,10,11,

1,3, 7 12, 13, 15 2,6,18 2 2, 18

18 8 17 n.3 15 11 11 1, 8 13 8 12, 15 12 1, 10, 14, 17 n.3 17

MISCELLANEOUS S.F. 1308, ch. 88, §§ 1-2, 87th Leg., Reg. Sess. (Minn. 2011) Op. Att'y Gen. 86-a (Nov. 12, 1946) Op. Att'y Gen. 213-C (Mar. 9, 1994) passim 15 5, 14-15

111

ISSUES PRESENTED Article III, section 1 delineates the powers of the three branches of government and bars any branch from assuming or asserting any expressed or inherent powers that properly belong to the others. Article IX, section 1 gives the Legislature expressed authority to propose and refer to the people amendments to the Constitution. The legislature passed the proposed Marriage Amendment with a ballot question title. The Secretary of State unilaterally changed the ballot question title. (1) Whether the Secretary of State and the Attorney General exceeded their authority when the Secretary proposed, and the Attorney General approved, a substitution for the Legislature'S duly passed and chosen ballot question title of the Marriage Amendment to the Minnesota Constitution. Apposite Constitution Provisions, Statutes and Cases: Minn. Const. art. IX, § 1; Minn. Const. art. III, § 1; Minn. Stat. § 204B.44; Irwin v. Surdyk's Liquor, 599 N.W.2d 132, 141 (Minn. 1999).

(2) If the Secretary did have authority to adopt such a ballot title, whether the title proposed by the Secretary is an "appropriate" title for the Marriage Amendment. Apposite Constitution Provisions, Statutes and Cases: Minn. Const. art. IX, § 1; Minn. Const. art. III, § 1; Minn. Stat. § 204B.44; Minn. Stat. § 204D.15; State ex reI. Marr v. Stearns, 72 Minn. 200, 75 N.W. 210 (Minn. 1898), rev 'd on other grounds, 179 U.S. 223 (1900).

1

STATEMENT

OF THE CASE

In May 2011, consistent with the codification of marriage in Minnesota Statute §§ 517.01-.03, the Minnesota Legislature passed a proposed Marriage Amendment and with it, as required by Minn. Stat. § 204 D .15, a ballot title for that amendment: "Recognition of Marriage Solely Between One Man and One Woman." As has been seen from the marriage votes in 32 other states from 1998 to 2012, marriage is not a partisan issue. Rather, marriage has consistently been affirmed in every political, cultural, religious, and geographical section of the United States. 1 Almost 13 months after Governor Dayton's symbolic "veto" of the Legislature's act, Respondent Secretary of State Mark Ritchie ("Secretary") denounced the Legislature's ballot title for the Marriage Amendment by unilaterally substituting his own version, changing the form and substance of the Legislature's expressed will and right. Respondent Minnesota Attorney General Lori Swanson ("Attorney General") agreed with the Secretary and opined to the effect of the Secretary's action giving him a "legal basis" for which none exists or existed. However, with the Secretary's unilateral action to substitute his own version of the Legislature's ballot question title, he has exceeded his constitutional authority and breached the wall of the separation of powers doctrine. These errors and omissions are

lOver a 15-year period, from 1998-2012, the following states (in no particular order) have popularly voted to affirm marriage as the union of one man and one woman: Alaska, Hawai'i, California, Oregon, Arizona, Nevada, Utah, Colorado, Idaho, Montana, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Texas, Louisiana, Arkansas, Missouri, Wisconsin, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, Virginia, and Maine. 2

the cause for the instant Petition under Minnesota Statute § 204B.44. The Petitioners2 seek reinstatement of the Legislature's original ballot title to the proposed Marriage Amendment and all other just and equitable relief necessary to ensure the proposed Marriage Amendment reaches the people to adopt or reject as the Legislature has provided under Article IX, section 1. STATEMENT OF FACTS In 2011, the Minnesota Legislature sought to formalize the state's long-standing statutory definition of marriage in the Minnesota Constitution through a proposed constitutional amendment under Article IX, section 1. The entire text of the Marriage Amendment reads as follows: An act proposing an amendment to the Minnesota Constitution; adding a section to article XIII; recognizing marriage as only a union between one man and one woman. BE IT ENACTED BY THE LEGISLATURE MINNESOTA: OF THE STATE OF

Section 1. CONSTITUTIONAL AMENDMENT PROPOSED. An amendment to the Minnesota Constitution is proposed to the people. If the amendment is adopted, a section shall be added to article XIII, to read: Sec. 13. Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota.

2 "Petitioners" refers collectively to Warren Limmer, Steve Gottwalt, Dan Hall, Steve Drazkowski, Sean Nienow, Paul Gazelka, Julianne Ortman, Peggy Scott, Michelle Benson, Ernie Leidiger, Bob Dettmer, Glenn Gruenhagen, Bob Gunther, Joyce Peppin, and Mike Benson, all individuals, registered voters, and Members of the Minnesota Legislature; John Heimberger, an individual and a registered voter; and Minnesota for Marriage, an association of individuals, and a registered ballot committee. 3

Sec. 2. SUBMISSION TO VOTERS. (a) The proposed amendment must be submitted to the people at the 2012 general election. The question submitted must be: "Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota? Yes . No " (b) The title required under Minnesota Statutes, section 204D.15, subdivision 1, for the question submitted to the people under paragraph (a) shall be "Recognition of Marriage Solely Between One Man and One Woman." S.F. 1308, ch. 88, §§ 1-2, 87th Leg., Reg. Sess. (Minn. 2011) ("Chapter 88, Senate File 1308") (Appendix at A-I). As seen in Section (2)(b), the Legislature specified that the ballot question title "shall be 'Recognition of Marriage Solely Between One Man and One Woman.'" Id. (emphasis added). Although constitutional amendment resolutions are not subject to the governor's veto powers, Governor Mark Dayton issued what he referred to as a "symbolic veto" of SF 1308 and urged voters to reject the amendment. (Letter of Governor Mark Dayton to Senate President Michelle Fischbach (May 25, 2011) ("Governor's Veto Letter") (Appendix at A-2).) None of the governor's actions or words indicated any form of belief that his "veto" was anything other than symbolic. This "veto" cannot be found in the official record of Chapter 88, Senate File 1308. See Minnesota State Legislature, SF1308 Status in House for Legislative Session 87, https:llwww.revisor.mn.gov/revisor/pages/ search_status/status_detail.php?b=House&f=SF1308&ssn=0&y=2012. No legislator,

4

public official, newspaper, or other Minnesotan ever spoke or indicated anything that reflected a belief that the governor's "symbolic veto" carried any force of law. Approximately 13 months later, on June 15,2012, the Secretary sent a letter to the Attorney General requesting approval of his decision to omit the ballot title adopted by the Legislature and to substitute a new title for the Marriage Amendment: "LIMITING THE STATUS OF MARRIAGE TO OPPOSITE SEX COUPLES." (Letter of Secretary of State Mark Ritchie to Attorney General Lori Swanson (June 15, 2012) (Appendix at A-4).) On June 19,2012, the Attorney General responded via letter approving the Secretary's proposed new title, explaining: "a veto of a bill containing proposed constitutional amendment together with matters of ordinary legislation is effective as to the legislation, but does not affect the proposed constitutional amendment." (Letter of Attorney General Lori Swanson to Secretary of State Mark Ritchie (June 19,2012) (Appendix at A-5) ("AG Letter") (citing Op. Atty. Gen. 213-C (March 9, 1994) (Appendix at A-14.) The Secretary's letter and the Attorney General's response did not become public until almost two weeks later, on June 28, 2012, less than two months before the ballots are printed. (See Letter of Secretary of State Mark Ritchie to Chief Justice Gildea of the Minnesota Supreme Court (June 25, 2012) and Affidavit of Gary Posner, League of Women Voters Minnesota v. Ritchie, No. A12-0920 (filed June 25, 2012) (Appendix at A-7) (explaining that a decision on the constitutionality of a ballot question must be reached by August 27,2012).) These Executive Officers of the State of Minnesota have
5

acted in a manner outside the scope of their constitutional authority, and are attempting to unlawfully interfere with the power vested in the Minnesota legislature to adopt and refer to the people of Minnesota amendments to the Minnesota Constitution. ARGUMENT Introduction
In 2011, pursuant to Article IX, Section 1 of the Minnesota Constitution, the

Minnesota Legislature approved a constitutional amendment to be referred to the voters of Minnesota at the 2012 General Election. This amendment mirrors the statutory definition of marriage, Laws of Minnesota, Chapter 441, sec. 1; Minn. Stat. § 517.01. If approved by the People, it would amend the Minnesota Constitution to read that "only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota." (the "Marriage Amendment"). Chapter 88, Senate File 1308 (Appendix at AI). Included in the Marriage Amendment to be considered by the voters on November 6, 2012, is the following ballot title as determined by the Legislature: "'Recognition of Marriage Solely Between One Man and One Woman. '" The Minnesota Constitution vests sole authority to amend the State's constitution in the Legislature and the People, and not the Executive Branch. Nevertheless, the Secretary exceeded his authority as a member of the Executive Branch and attempted to impose a ballot title upon the Marriage Amendment different in form and substance than that voted upon and passed by the Legislature. The Secretary unilaterally substituted the Legislature's ballot question title with his own: "LIMITING THE STATUS OF

6

MARRIAGE TO OPPOSITE SEX COUPLES." The Minnesota Attorney General in tum, approved this change. These Executive Officers have acted in a manner outside the scope of their constitutional authority and are attempting to unlawfully interfere with the power vested in the Minnesota Legislature to adopt and refer to the people amendments to the Minnesota Constitution. Because of the Secretary's erroneous actions, the Petitioners seek reinstatement of the Legislature'S original ballot title to the Marriage Amendment and an order from this Court directing the Secretary to ensure that the ballots accurately and completely reflect the original language provided by the Legislature in the Marriage Amendment. I. The Secretary Violated the Separation of Powers Doctrine under Minnesota Constitution, Article HI, Section 1, by Attempting to Substitute His Ballot Title in Place of the Ballot Title Adopted by the Legislature. Pursuant to Minn. Stat. § 204B.44, any individual may file a petition for the correction of errors, omissions, or wrongful acts which have occurred or are about to occur including (a) an error or omission in the placement or printing of the name of any question on any official ballot, (b) any other error in preparing or printing any official ballot, or (c) any wrongful act, omission, or error of the secretary of state, or any other individual charged with any duty concerning an election. Respondents erred in two respects. First, the Secretary has omitted the ballot title duly enacted by the Legislature and has erred in exercising power he does not possess in attempting to unilaterally substitute a title of his own. The Attorney General is complicit in the Secretary's theft of legislative power by approving the Secretary's actions. Second,
7

even if the Secretary possessed the power to create a ballot title for the Marriage Amendment, he erred by selecting a title that is false as a matter of law and will mislead, prejudice and confuse the voters. Again, the Attorney General has erred in approving the Secretary's false, misleading, prejudicial, and confusing language. The separation of powers doctrine is familiar with this Court, but bears repeating because of the significance of the doctrine's role in this controversy: "Under the Separation of Powers Clause, no branch may usurp or diminish the role of another branch." Brayton v. Pawlenty, 768 N.W.2d 357,365 (Minn. 2010); see Minn. Const., art. III, § 1. The Minnesota Constitution states in Article III, Section 1 that "[t]he powers of government shall be divided into three distinct departments: legislative, executive and judicial, No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution." (Emphasis added.) Article III bars any department from assuming or asserting any "inherent powers"-powers given-that properly belong to either of the others. not "expressly"

Because the separation of powers doctrine is the central principle of Minnesota's state government, this Court has been steadfast in respecting that principle. See e.g., Irwin
v,

Surdyk's Liquor, 599 N.W.2d 132, 141 (Minn. 1999). In Sharood v. Hatfeld, this Court

struck down as unconstitutional a statute that required attorney registration fees be diverted to the state's general fund based on the separation of powers doctrine: "if it is a judicial function that the legislative act purport to exercise, [this Court] must not hesitate

8

to preserve what is essentially a judicial function." 210 N.W.2d 275,279 (Minn. 1973). Likewise, this Court should preserve what is essentially a legislative function. Passing a proposed constitutional amendment pursuant to Article IX, section 1 is exclusively a legislative function. Inclusive in the passage of the proposed Marriage Amendment is the Legislature's determination and command (note the word "shall") of the ballot question title-"Recognition of Marriage Solely Between One Man and One Woman." With the Secretary's unilateral substitution of this ballot title for his own and the Attorney General's approval of the same, they have erroneously injected themselves into the legislative process. A. The Legislature Has the Exclusive Authority to Propose Constitutional Amendments. The Legislature's authority to propose amendments to the Minnesota Constitution is set forth in Article IX, section 1: "A maj ority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election." This provision does not specify the form or manner in which such amendments are to be submitted, but this Court has long understood the power to establish such form and manner to be "left to the judgment and discretion of the legislature, subject only to the implied limitation that they must not be so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit the law to a popular vote."

9

State ex rel. Marr v. Stearns, 72 Minn. 200, 218, 75 N.W. 210, 214 (Minn. 1898), rev'd on other grounds, 179 U.S. 223 (1900). In contrast with this constitutionally-granted authority vested in the Legislature,

there is no mention of the Executive in Article IX. Instead, any authority held by the Executive Branch regarding the proposing of ballot questions is not constitutional, but purely by the permission of the Legislature in giving the Executive the right to perform a ministerial role where the legislature does not exercise this power themselves. For example, Minnesota Statute § 204D.15, provides that the "secretary of state shall provide an appropriate title for each question printed on the pink ballot." But here, the Legislature itself fulfilled the title requirement found in § 204D.15, which it may do at its discretion and, by so doing, left the Executive Branch with no role in the titling process. The Legislature'S authority to provide a title is constitutional, and the Executive has no authority absent the express and unrevoked permission of the Legislature, which does not exist here. While the Secretary is authorized by statute to draft a title for amendments, the Minnesota Constitution has reserved the Legislature's right to exercise its own constitutional authority to determine the ballot title and description of proposed constitutional amendments, as it did in this instance. When the Legislature has given the proposed amendment a title and directed that the title appear on the ballot, there is no authority retained by or vested in the executive to dictate a different title for proposed constitutional amendments.

10

B. The Secretary's Ministerial Authority to Provide a Title Does Not Authorize Him to Substitute His Judgment for the Legislature's. The Secretary cannot substitute his own ballot question title in place of the one provided for and passed by the Legislature. Any authority delegated to the Secretary through § 204 D .15 cannot include the power to choose a title different from one which was adopted by the Legislature in the proposing legislation. As this Court has explained, "[w]hile the legislature cannot delegate legislative power it may delegate legislative functions which are merely administrative or executive." Hassler v. Engberg, 233 Minn. 487,515,48 N.W.2d 343,359 (Minn. 1951) (citations omitted). This Court has "long

recognized that where the constitution commits a matter to one branch of government, the constitution prohibits the other branches from invading that sphere or interfering with the coordinate branch's exercise of its authority." Commitment ofGiem, 742 N.W. 422, 429 (Minn. 2007). Because the Secretary's ballot title authority is legislatively granted, and not constitutional, the Secretary has only a ministerial authority to propose a ballot title where the Legislature has not exercised that power itself. Here, the Legislature has approved a ballot title, the Secretary has erred in attempting to substitute his own ballot title for the Legislature's adopted title, and the Attorney General has erred in approving the Secretary's proposed title. For the statute to authorize the Secretary to override the express designation by the Legislature would require an impermissible delegation of legislative power.
An analogous situation may be found in the relationship between the Legislature

and the Court in the making of procedural rules. Since 1956, the power to enact court

11

rules lies solely in the judiciary whereas such power was previously granted to the Legislature. State v. Johnson, 514 N.W.2d 551,553-554 (Minn. 1994). But when the Legislature had constitutional authority, this Court still had an "inherent power to establish rules of procedure" which "was exercised where the legislature had not provided necessary procedures." Id. at 554 n. 4. And since the amendment which transferred constitutional authority to the judiciary, this Court has still allowed statutory rules to stand "in an area not already governed by a rule." Id. at 554 n. 5. Such must be the relationship created by § 204 D .15. The Legislature must retain its constitutional powers to title ballot measures, and any authority granted to the Secretary to provide such a title must be limited to situations where the Legislature has not dictated its own title. C. Any Authority Vested in the Secretary to Title an Amendment Was Superseded By the Legislature When It Titled The Marriage Amendment. The general power granted under Minnesota Statute § 204D.15 is necessarily superseded by the Legislature's specific act in drafting and approving its own title for the Marriage Amendment. As this Court has recognized, one Legislature cannot bind its successors in prescribing the form and substance of questions submitted to the populace. State v. Duluth & Northern Minnesota Railway Co., 102 Minn. 26, 30, 112 N.W. 897, 898 (Minn. 1907). Such impermissible binding would occur if this Court were to read § 204D.15 as authorizing the Secretary to override and to deliberately omit from the ballot the title which the Legislature designated for the proposed amendment as the Secretary is attempting to do here. Reading the statute in this manner would mean that the Legislature that enacted the statute has effectively restricted the ability of the present 12

Legislature (and any subsequent Legislature) to prescribe the form of any proposed constitutional amendment, something this Court has previously rejected. Because § 204D.1S would be constitutionally problematic if read to override the Legislature'S continuing power to create the titles of its own choosing for proposed constitutional amendments, this Court should instead seek to construe the statute narrowly in order to avoid the constitutional question. E.g. Matter of Welfare of RA V, 464 N.W.2d S07 (Minn. 1991). Such questions can be avoided if the statute is read as retaining the Legislature'S inherent authority to dictate a title to the Secretary and thereby removing any discretion the Secretary might otherwise have to draft his own title. It could also be accomplished by simply recognizing that when the Legislature dictates a title, that title is the only one which is "appropriate," and hence the only one which the Secretary can include on the ballot. Minnesota Statute § 204D.IS must be read as providing the Secretary with no discretion but to use the title provided by the Legislature in the preparation of the pink ballot, where the Legislature has seen fit to exercise its authority and thereby vested its authority to dictate the ballot title of proposed constitutional amendments. D. The Governor's Symbolic "Veto" Has No Legal Effect on a Proposed Constitutional Amendment and Does Not Transfer Power from the Legislature to Another Executive Branch Official. In approving the Secretary's ballot title, the Attorney General's office indicated that rejecting the Legislature'S title was permissible because Governor Dayton had "vetoed" Chapter 88, Senate File l308, the Marriage Amendment. (AG Letter, Appendix at A-S.) But in fact, the Governor did not veto any part of the Legislature's act. Despite
13

acknowledging that a governor has no veto authority over a proposed constitutional amendment, the Attorney General nonetheless claims, wrongly, that the purported "veto" had the legal effect of 'vetoing' the Legislature's ballot title. Relying on a 1994 Attorney General's Opinion which held that the veto of a bill containing both a proposed constitutional amendment and matters of ordinary legislation would be effective as to the legislation but would not affect the amendment, the Attorney General has apparently treated the ballot title of the Marriage Amendment as "ordinary legislation." See Op. Atty. Gen. 213-C (March 9, 1994) (Appendix at A-17). Since the Governor did not exercise any veto authority in this instance, the Attorney General's opinion relied upon is not only inapplicable, but has no legal basis. The Attorney General's reasoning is inherently flawed and erroneous. The Legislature's approved title of a constitutional amendment ballot measure is not "ordinary legislation," but is part and parcel of the ballot measure itself. The Governor, therefore, has no authority to 'veto' any part of the proposed amendment. The Governor himself understood that his veto was purely symbolic and would not prevent the Marriage Amendment from being placed on the ballot. (Governor's Veto Letter, Appendix at A-2.) As discussed herein, the constitutional authority to refer to the voters amendments to the constitution is vested solely in the Legislature without any role for the governor or other officers of the Executive Branch. Minn. Const. Art. III, Sec. 1. That authority has long been interpreted as including the power to set the form and manner in which such amendments are submitted. Stearns, 72 Minn. at 218, 75 N.W. at 214. As this Court has observed, "a practical construction of the constitution, which has been adopted and 14

followed in good faith by the legislature and people for many years, is always entitled to receive great consideration from the courts." Clark v. Pawlenty, 755 N.W.2d 293, 306 (Minn. 2008). While Minnesota courts have not directly confronted the impact of a gubernatorial veto of a proposed amendment, the same Attorney General opinion cited by the Attorney General's letter also noted that "the approval or disapproval of the governor would have no bearing upon submission of the amendments to the people." Op. Atty. Gen. 213-C (Appendix at A-19) (citing Op. Atty. Gen. 86-a). Moreover, this Court has explained that the power of the Legislature in "prescribing the form and substance of the question to be submitted" is vested in individual legislatures. See Duluth & Northern Minnesota Railway, 102 Minn. at 30, 112 N.W. at 898. The Legislature itself cannot bind its successors' use of this authority, and even the courts cannot intervene unless "the question is so framed as to be a palpable evasion of the constitution." Id. These limitations would be rendered meaningless if this constitutionally-mandated could be voided by a gubernatorial veto. There is no basis for treating the Legislature's approved title for a ballot measure as "ordinary legislation." The title is simply a component of the ballot description which has long been held to be within the Legislature's exclusive purview. There is no constitutional distinction between the title of a proposed constitutional amendment and the rest of the ballot description. Had § 204 D .15 not been enacted, the Legislature would still be vested with the sole power to propose constitutional amendments, including the titles thereof. 15 function

Allowing a gubernatorial veto of ballot language to reverse a decision of the legislature is tantamount to allowing a gubernatorial veto of the proposed amendment itself, in direct contravention of the constitutional construct of the State of Minnesota. There is no authority whatsoever to support this new scheme attempted to be put in place by the Executive Branch officers to thwart the Legislature's authority to propose constitutional amendments and, in this case, the Marriage Amendment. This Court has never articulated any such authority for a gubernatorial veto to trump the Legislature's ability to refer to the people a ballot measure constitutional amendment. To now allow such a veto would vest in the governor the power in the constitutional amendment process that simply does not exist in the state's constitution. Such an interpretation conflicts with the constitutional structure of ballot measures described in this Court's prior opinions, and has never before been recognized. This Court should disregard the governor's veto as a purely symbolic gesture and must not allow the Secretary and the Attorney General to somehow give legal weight to this well-known symbolic act. The Court should require the Secretary to correct his error, and to reinstate the amendment title which was given to it by the Legislature. II. The Secretary's Ballot Title Is Not Appropriate Because He Misstates or Ignores the Recognition of Marriage in Minnesota. Alternatively, whenever the Secretary may propose a ballot title, he has a statutory duty to propose an appropriate title. Here, not only has the Secretary usurped the constitutional authority of the Legislature by omitting the Legislature's title and creating one of his own, but the title the Secretary has proposed to substitute is not appropriate. 16

Whether the Secretary's chosen title is "appropriate" should be weighed according to a preponderance of the evidence standard. See Weiler v. Ritchie, 788 N.W.2d 879, 883 (Minn. 2010).3 Comparing the title provided by the Legislature-"Recognition Between One Man and One Woman"-with of Marriage Solely

the Secretary's proposed title-LIMITING the latter's

THE STATUS OF MARRIAGE TO OPPOSITE SEX COUPLES-highlights inappropriateness.

The underlying amendment states that: "Only a union of one man and

one woman shall be valid or recognized as a marriage in Minnesota." The Legislature'S title, using the very key words found in the Marriage Amendment, accurately and appropriately describes it. In contrast, the Secretary's title uses words and phrases not found in the Marriage Amendment itself, such as "limiting," "status," and "opposite sex couples." These words do not accurately and appropriately describe the Marriage Amendment. Fundamentally, the Secretary's use of the word "limiting" in his proposed title renders his proposed title inappropriate because it falsely indicates that the Marriage Amendment will limit the existing understanding of marriage. But the Marriage Amendment will do nothing to "limit" marriage. Rather, the Marriage Amendment will

While prior cases analyzing the propriety of ballot language have imposed much higher burden for petitioners; see, e.g,. Breza v. Kiffmeyer, 723 N.W.2d 633,636; this Court in those cases gave broad deference to the "judgment and discretion of the legislature," because it holds the constitutional authority to determine "the form and manner of submitting the question of a constitutional amendment to the people." Breza, 723 N.W.2d at 636 (quoting Stearns, 72 Minn. at 218, 75 N.W. at 214). Such deference is inapplicable to the Secretary's actions as he has only statutory authority to provide an "appropriate" title.
3

a

17

maintain the definition of marriage as it has always existed in Minnesota, as the union of one man and one woman. The Marriage Amendment seeks to amend the Constitution to reflect the preexisting statutory and judicial construction of marriage in Minnesota. In 1971, the Minnesota Supreme Court held that defining marriage as it has always been understood was constitutional. Baker v. Nelson, 191 N. W.2d 185 (Minn. 1971). The Court found that the statute "which governs 'marriage,' employs that term as one of common usage, meaning the state of union between persons of the opposite sex. It is unrealistic to think that the original draftsmen of our marriage statutes, which date from territorial days, would have used the term in any different sense." Id. Five years later, in 1976, the Minnesota Legislature codified what the Minnesota Supreme Court had confirmed, amending Minnesota Statutes to read "Marriage, so far as its validity in law is concerned, is a civil contract between a man and a woman." Laws of Minnesota, Chapter 441, sec. 1; Minn. Stat. § 517.01. In 1997, the Legislature followed Congress' lead and enacted its own version of the Defense of Marriage Act ("DOMA"), Laws of Minnesota 1997, Chapter 203, Article 10, which clarified that "lawful marriage may be contracted only between persons of the opposite sex." Minn. Stat. § 517.03. Since then, all legislative efforts to alter the definition of marriage have failed. Thus, throughout its history, Minnesota's elected representatives' have remained committed to the fundamental understanding and legal definition of marriage as existing validly only between one man and one woman. However, the Secretary's title denies this 18

fact. It falsely implies that the current definition of marriage is somehow broader than that proposed by the Marriage Amendment, and that the Amendment will "limit" the current definition of marriage. The Secretary's title is not just inappropriate; it is misleading, if not false, and politically motivated. Therefore, it does not comply with the statutory requirement that all ballot titles be "appropriate." Thus, the Secretary erred in proposing this title, and the Attorney General erred in approving it. CONCLUSION Petitioners respectfully request an entry of judgment in their favor and against Secretary of State Mark Ritchie in his official capacity as the chief election official of the State of Minnesota and Lori Swanson, the Attorney General of the State of Minnesota, finding that they erred in substituting and approving the proposed ballot title, respectively; Ordering the Secretary to print the ballot as specified in the Marriage Amendment, Chapter 88, Senate File 1308, including the title "Recognition of Marriage Solely Between One Man and One Woman;" and any and all other such relief as may be just and equitable.

19

This 9th day of July, 2012. Respectfully submitted,
~~

Erick Kaardal (Minn. 229647)**
MOHRMAN KAARDAL, P.A.

CletaMitchell (D.C. 433386Y"*
ACTRIGHT LEGAL FOUNDATION

33 South Sixth Street, Suite 4100 Minneapolis MN 55402 Telephone: (612) 341-1074 Facsimile: (612) 341-1076 kaardal@mklaw.com Austin R. Nimocks (Tex. 24002695)*
ALLIANCE DEFENDING FREEDOM

2029 K Street NW, Ste 300 Washington, DC 20006 Telephone (202) 683-9405 Facsimile (888) 815-5641 cmitchell@actright.com Kaylan L. Phillips (Ind. 30405-84)* Eric C. Bohnet (Ind. 24761-84)* Zachary S. Kester (Ind. 28630-49)* Noel H. Johnson (Wisc. 1068004)*
ACTRIGHT LEGAL FOUNDA nON

2029 K Street NW, Suite 300 Washington, DC 20006 Telephone: (202) 393-8690 Facsimile: (480) 444-0028 animocks@telladf.org

209 West Main Street Plainfield, Indiana 46168 Telephone (202) 683-9405 Facsimile (888) 815-5641 kphillips@actright.com ebohnet@actright.com zkester@actright.com njohnson@actright.com COUNSEL FOR PETITIONERS *Pro Hac Vice Motions Pending 1\ Lead Counsel ** Local Counsel

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CERTIFICATION

OF BRIEF LENGTH

I hereby certify that this brief conforms to the requirements of Minn. R. Civ. App. P. 132.01, subds. 1 and 3, for a brief produced with a proportional font. The length of this brief is 5,007 words. This brief was prepared using Microsoft Word 2010.

Dated: July 9, 2012 Respectfully submitted,

Erick Kaardal (Minn. 229647)** Attorney for Petitioners

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INDEX TO APPENDIX Description S.F. 1308, ch. 88, §§ 1-2, 87th Leg., Reg. Sess. (Minn. 2011) Letter of Governor Mark Dayton to Senate President Michelle Fischbach (May 25,2011) Letter of Secretary of State Mark Ritchie to Attorney General Lori Swanson (June 15,2012) Letter of Attorney General Lori Swanson to Secretary of State Mark Ritchie (June 19,2012) Letter of Secretary of State Mark Ritchie to Chief Justice Gildea of the Minnesota Supreme Court (June 25, 2012) and Affidavit of Gary Posner, League a/Women Voters Minnesota v. Ritchie, No. A12-0920 (filed June 25, 2012) Attorney General Opinion 213-C (March 9,1994) Page Number A-I A-2 A-4 A-5 A-7

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LAWS of MINNESOTA for 2011

Ch. 88

CHAPTER 88-S.F.No.

1308

An act proposing an amendment to the Minnesota Constitution; adding a section to article XIII; recognizing marriage as only a union between one man and one woman. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: Section 1. CONSTITUTIONAL AMENDMENT PROPOSED. to the people. If the

An amendment to the Minnesota Constitution is proposed amendment is adopted, a section shall be added to article XIII, to read:

Sec. 13. Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota. Sec. 2. SUBMISSION TO VOTERS. (a) The proposed amendment must be submitted to the people election. The question submitted must be: at the 2012 general of one

"Shall the Minnesota Constitution be amended to provide that only a union man and one woman shall be valid or recognized as a marriage in Minnesota? Yes No . "

(b) The title required under Minnesota Statutes, section 204D.15, subdivision for the question submitted to the people under paragraph (a) shall be "Recognition Marriage Solely Between One Man and One Woman. " Filed with the Secretary of State May 25, 2011

1, of

Copyright © 2011 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved.

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STATE OF MINNESOTA
Office of Governor Mark Dayton
130 State Capitol. 75 Rev. Dr. Martin Luther King Jr. Boulevard. " May 25, 2011 Saint Paul, MN 55155

The Honorable Michelle L. Fischbach President of the Senate 226 State Capitol St. Paul, Minnesota 55155 Dear Madam President: I have vetoed and am returning Chapter 88, Senate File 1308, an act proposing an amendment to the Minnesota Constitution; adding a section to article XIII; recognizing marriage as only a union between one man and one woman. Although I do not have the power to prevent this divisive and destructive Constitutional Amendment from appearing on the Minnesota ballot illNovember 2012, the Legislature sent it to me in the form of a bill. Thus, symbolic as it may be, I am exercising my legal responsibility to either sign it or veto it. Without question, I am vetoing it; and I urge Minnesotans to reject this mean-spirited, divisive, un-Minnesotan and un-American amendment. . One of the founding principles of our country, embodied in the First Amendment of the United States Constitution, is the separation of church and state. Therefore, the religious definition of inarriage should be the province of each established religion, without interference from government. However, the civil, or legal, realm of marriage is the province of government; and it must conform to the protections and guarantees afforded every American citizen under our Constitution. The Fourteenth Amendment says, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ... nor deny to any person within its jurisdiction the equal protection of the laws." In other words, all American citizens are entitled to equal rights and protections under the law. That would clearly include the right of a Citizen to marry legally the person he or she loves. The path of social progress in this country' has been to expand our founding principles to everyone. Even before the writing of the Constitution, even before their freedom was won, this country's founders established the core principle of our

Voice: (651) 201-3400 or (800) 657-3717 Website: http: ( (governor.state.mn.us

Fax: (651) 797-1850
15% post consumer material and state government

MNRelay
printed

An Equal Opportunity

(800) 627-3529 Employer

Printed on recycled paper containing

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The Honorable Michelle L. Fischbach May 25, 2011 Page 2

democracy: "We hold these truths to be self-evident, that all men (and women) are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted .... " The authors and signers of the Declaration of Independence thus intended that governments be formed to secure every citizen's rights, not to selectively deny them or take them away. Of course, they overlooked women, African Americans, and others in their application of those equal rights. The path of social progress has been to include everyone, fully and equally. This path of social progress, of human compassion and understanding, would be tragically reversed by this amendment. Minnesota is better than this. Minnesotans are better than this. I urge Minnesotans to rej ect this' amendment. Sincerely,

Governor

cc: Senator Amy T. Koch, Majority Leader Senator Thomas M. Bakk, Minority Leader Senator Warren Limmer ., Representative Kurt Zellers, Speaker of the House Representative Paul Thissen, Minority Leader Representative Steve Gottwalt The Honorable Mark Ritchie, Secretary of State Mr. Cal R. Ludeman, Secretary of the Senate Mr. Albin A. Mathiowetz, Chief Clerk of the House of Representatives

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STATE OF MINNESOTA Office of the Minnesota Secretary of State Mark Ritchie
June 15, 2012 The Honorable lori Swanson Attorney General 102 State Capitol 75 Rev. Dr. Martin Luther King Jr. Blvd. St. Paul, MN 55155 Dear Attorney General Swanson, A constitutional amendment related to marriage will appear on the November result of the legislature's passage of Laws 2011, chapter 88. Minnesota Statutes, section 2040.15, Subd. 1 states: ballot as a

Subdivision 1. Titles for constitutional amendments. The secretary of state shall provide an appropriate title for each question printed on the pink ballot. The title shall be approved by the attorney general, and shall consist of not more than one printed line above the question to which it refers. At the top of the ballot just below the heading, a conspicuous notice shall be printed stating that a voter's failure to vote on a constitutional amendment has the effect of a negative vote. The title I have chosen to appear and which I hereby submit to you for your approval is: LIMITINGTHE STATUS OF MARRIAGE TO OPPOSITE SEX COUPLES Please review this title and respond with your determination Thank you for your assistance in this matter. at your earliest convenience.

MARK RITCHIE Secretary of State

180 State Office Building I 100 Rev. Dr. Martin Luther King,Jr. Blvd. I Saint Paul, MN 55155-1299 Phone: 651-201-1324 or 1-877-600-8683 I Fax: 651-215-0682 I MN Relay Service: 711 E-mail: secretaty.state@state.mn.us I Web site: WWW.sos.state.mn.us

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STATE OF MINNESOTA
OFFICE OF mE AlTORNEY GENERAL WRISWANSON
ATTOllNEY GENJ!IW.

June 19, 2012

SUITE 1800 «5 MINNESOTA STREET ST.l"AUL, MN 55101-2134 TElJIl'HONE: (651) 297-204lI

The Honorable Mark: Ritchie Secretary of State 180 State Office Building . 100 Dr. Martin Luther King Jr. Blvd.
Sl Paul, MN 55155-1299 Re: Title for Constimtional Minn. Laws 364 Amendment - Chapter 88 - Senate File 1308, 2011

Dear Secretary Ritchie: In your letter dated June IS, 2012, a copy of which is attached, you state that you have chosen a title for a proposed constitutional amendment that will appear on the pink ballot at the November 2012 general election pursuant to chapter 88 - Senate File No. 1308, 2011 Minn. Laws 364. . Minnesota Statute section 2040.15 (2012) provides that the Secretary of State "shall provide an appropriate title" for each constitutional amendment and further provides that "the title shall be approved by the attorney general." Chapter 88 - Senate File 1308, 2011 Minn. Laws 364 provides, in pertinent part, as follows: (b) The title required under Minnesota Statutes, section 2040.15, subdivision 1, for the question submitted to the people ... shall be "Recognition of Marriage Solely Between One Man and One Woman." By letter dated May 25, 2011, Governor Mark Dayton vetoed and returned chapter 88, Senate File 1308. Accordingto a 1994 Attorney General Opinion, a veto of a bill containing a proposed constitutional amendment: together with matters of ordinary legislation is effective as to the legislation, but it does not affect the proposed constitutional amendment, Op, Atty. Gen. 213-C (March 9,1994). The title you have chosen pursuant to Minn. Stat. § 204D.15 is "LIMITING THE STAWS OF MARRIAGE TO OPPOSITE SEX COUPLES,"

An Equal Opportunity

TrY: (651) 282·2525 • Toll Free Lines: (BOO)$1-3787 (Voice), (SOD)3664812 (TTY) • www.ag.state.mn.us Employer Who Values Divemity ~'" OPrlntai an SO% recyded paper (lS~ post consumer content)

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The Honorable Mark Ritchie
June 19,2012 Page 2

On behalf of the Attorney General's Office, your proposed title is hereby approved.

Ve:ry truly yours,

CHRISTIE B. ELLER Deputy Attorney General (651) 157-1440 (Voice) (651) 297-1235 (Fax) Enclosure
AG: #3031849-\'1

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STATE OF MINNESOTA
Office of the Minnesota Secretary of State Mark Ritchie

June 25, 2012 The Honorable Chief Justice lorie Gildea Minnesota Supreme Court 25 Rev. Dr. Martin luther King Jr. Blvd. st. Paul, MN 55155 Re. League of Women Voter Minnesota, et al. v. Mark Ritchie Appellate Case No. A12-0920 Dear Chief Justice Gildea, The Court asked for the date by which a decision is necessary in order to modify the ballots. If the court wants to ensure that the ballots used by all voters in the state general election-both absentee and in person-are uniform as to whether and how the proposed Constitutional Amendment appears, it is necessary to have the decision by Monday, August 27, 2012 and would be ideal to have it by Tuesday, August 21, 2012. Please see the attached affidavit from State Elections Director Gary Poser, which explains the rationale for these dates.

~~4
MARK RITCHIE Secretary of State Enclosure cc: Counsel of Record {via email and U.S. Mail)

180 State Office Building Phone: 651-201-1324

I

100 Rev. Dr. Martin Luther King, Jr. Blvd. or 1-877-600-8683 I Fax: 651-215-0682

I I

Saint Paul, MN 55155-1299 MN Relay Service: 711

E-mail: :;ecretary.statc@state.mn.usl\Xiebsite:\vww.sos.state.mn.us

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STATE OF MINNESOTA IN SUPREME COURT No. A12-0920 In re League of Women Voters Minnesota, et al. v. Ritchie STATE OF MINNESOTA) COUNTY OF RAMSEY ) ss. ) AFFIDA VrT OF GARY POSER

Gary Poser, being first duly sworn, deposes and says the following: I am Director of Elections for the State of Minnesota in the Elections Division

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of the Office of the Secretary of State. I have held this position since January 2007. I also have extensive prior experience in election administration, having served as the

supervisor responsible for elections in Washington County from 1988 to 1995, as the supervisor responsible for elections in Anoka County from 1995 to 2005, and with the Hennepin County Elections Division in 2006 before assuming my current position. 2. My current duties include supervising all election administration duties of the

Office of the Secretary of State. In my past positions, my duties included the oversight of elections in the counties of Washington and Anoka. 3. As a result of my current position and previous county positions, I am very

familiar with the steps entailed in the process of preparing ballots.

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4.

The decision of whether a Constitutional Amendment appears on a ballot has

a significant impact on the layout of the ballot. 5. In accordance with Minnesota Rules 8250.1810, proposed Constitutional

Amendments appear after the state legislative races and before local races, which usually places them on the front of the ballot. 6. In 2008, the constitutional amendment took up three column inches on the

ballot (not including the section title and instructions to voters). 7. In some jurisdictions, whether or not the constitutional amendment appears on

the ballot will determine whether some of the local races that follow are printed on the front or the back of the ballot. 8. In some cases, it may determine whether a longer ballot or even a second

ballot will be required. In accordance with Minnesota Statutes, section 204D.ll, subd. 6 and Minnesota Rules, section 8250.0375, when there is not enough room for all of the races and questions to be printed on one ballot, the judicial races must be printed on a separate second ballot. 9. County auditors are responsible for laying out the ballots for state elections.

They cannot make much progress on the layout of the ballots or the programming of the ballot counters or assistive ballot markers without knowing what will appear, where the races will appear, the length of the ballot, or the number of ballots. 10. County auditors begin the task of laying out the ballots and arranging for the required programming in earnest after the results of the State Primary have been certified by the State Canvassing Board, which will meet on Tuesday, August 21st•
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11. Most county auditors finalize their ballots and send them to vendors to be programmed and printed on the day after the period to file a contest in the State Primary ends, which this year will be Monday, August 27, 2012. 12. Absentee ballots may be sent to voters who have applied for them as soon as they are available. They must be sent at least 46 days before the state general election, which in this case will fall on Friday, September 21,2012. (2010). 13. The State Primary and the date of the State Canvassing Board for the State Primary were moved to August by Minnesota Laws 2010, Chapter 184, so that the State could comply with the federal Military and Overseas Voter Empowerment Act (Subtitle H of the National Defense Authorization Act for Fiscal Year 2010 (H.R. 2647, Pub.L. 111-84, 123 Stat. 2190)), which requires that ballots be sent to military and overseas voters covered by the Uniformed and Overseas Citizens Absentee Voting Act at least 45 days prior to each federal election. States that fail to meet this deadline are subject to oversight and enforcement measures from the U.S. Department of Justice. 14. The ballots and the formula for rotating the candidates' names (in races in which that is required) are provided to a ballot vendor, which then provides proofs for the county auditors to approve. County auditors provide this proof to other local jurisdictions with races and/or questions on the ballot to review and approve. Once county auditors have made any necessary corrections and signed off on the proofs, the vendor or county staff will begin doing the necessary programming for the assistive ballot marking devices and ballot counters, as well as printing the ballots. The ballot vendor who provides
3 A-tO

See Minn. Stat. § 203B.081

services to the majority of Minnesota counties has informed the Office that this process takes an average of three weeks. 15. Tuesday, August 21,2012, is the date on which the State Canvassing Board will meet to certify the results of the state primary, thereby providing official guidance on which names must appear on the ballot in nearly all races. For those jurisdictions that will elect officers to hospital district offices this fall, August 21 is also the last day on which candidates can file to run for those offices. August 21 is also the deadline for nonmajor party candidates to submit petitions to run for president and vice president. 16. State statute limits changes to the ballot information after this date to the following circumstances:
i. if non-major party presidential candidates petitions are certified, their

names would need to be added; ii. if there is a recount or an election contest in a primary race, one of the names on the ballot could change; iii. if a candidate for hospital district board member withdraws from office, there may be fewer candidates; and
IV.

the names of the major political party nominees for president and vice president are not required to be certified until Monday, August 27,2012.

17. However, all of the circumstances listed above that could require changes to the ballot after Tuesday, August 21,2012, would have only a minor effect as to the layout of the ballot. Even if the names of the major party presidential candidates have not been certified, county auditors will reserve space on the ballots for them. Even if there is a
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recount or contest in a primary race, it may determine which name appears on the ballot, but is unlikely to change the amount of space needed for that race. Even if a candidate for hospital district board member withdraws, it will only have a minor impact the amount of space required for that race, which regardless comes towards the end of the ballot, and therefore would not have a large "ripple effect" as to where other races are placed on the ballot. 18. As of the close of business on Monday, August 27,2012, county auditors will almost certainly have all of the information that they need to finalize the ballot layout. 19. When there was a recount of a primary contest in 2008, election officials conducted the recount so that the results could be certified by the State Canvassing Board for the State Primary on the day before the end of the contest period (the analogous date in 2012 would be Sunday, August 26th). 20. While it is possible for an election contest to be filed on a State Primary race, such an occurrence would be highly unusual. To my knowledge, since 1959 there have only been two such reported cases: one in 1996 and one in 1983. 21. As such, it would be preferable to have a decision about the proposed constitutional amendment by Tuesday, August 21,2012.
It is necessary to have such a

decision by the close of business on Monday, August 27,2012, so that county auditors can proceed with the printing of the ballots. 22. If the Court decides to grant the petitioner's motion after the ballots have been printed with the proposed question about the Constitutional Amendment on them, voters

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would have the opportunity to mark their ballots, but local election officials could be ordered by the court not to tabulate the votes in this contest.

Further your affiant saith not:

Dated: June 25, 2012

Subscribed and sworn to before me on this 25th day of June, 2012.

NOTARY PUtBL

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Minn. Op. Atty. Gen. 213-C, 1994 WL 80906 (Minn.A.G.) Office of the Attorney General State of Minnesota
213-C (Cr. Ref. 86-a)

March 9, 1994 GOVERNOR: LEGISLATION: CONSTITUTIONAL AMENDMENTS: Amendments proposed by legislative action are not subject to gubernatorial approval or veto. Minn. Const. art. IV,_§.§_1], 4; art. IX, § 1. 2 The Honorable Arne H. Carlson 130 State Capitol 75 Constitution Avenue St. Paul, MN 55155 Dear Governor Carlson: In your letter to our office you ask substantially the following questions: QUESTION 1. Must proposed amendments to the Minnesota Constitution be presented to the governor for signature or veto? OPINION We answer your question in the negative. Minn. Const. art. IX,_§.l, provides: A majority of the members elected to each house of the legislature may propose amendments to this constitution. Proposed amendments shall be published with the laws passed at the same session and submitted to the people for their approval or rejection at a general election. If a majority of all the electors voting at the election vote to ratify an amendment, it becomes a part of this constitution. If two or more amendments are submitted at the same time, voters shall vote for or against each separately.

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The plain wording of this section indicates that amendments may be proposed by "a majority of the members elected to each house" and submitted to the "people" for approval. This provision makes no mention of the governor. However, as you note, Minn. Const. art. IV,_§_2], provides in part: Every bill passed in conformity to the rules of each house and the joint rules of the two houses shall be presented to the governor. If he approves a bill, he shall sign it, deposit it in the office of the secretary of state and notify the house in which it originated of that fact. If he vetoes a bill, he shall return it with his objections to the house in which it originated. His objections shall be entered in the joumal.... Any bill not returned by the governor within three days (Sundays excepted) after it is presented to him becomes a law as if he had signed it, unless the legislature by adjournment within that time prevents its return. Any bill passed during the last three days of a session may be presented to the governor during the three days following the day of final adjournment and becomes law if the governor signs and deposits it in the office of the secretary of state within 14 days after the adjournment of the legislature. Any bill passed during the last three days of the session which is not signed and deposited within 14 days after adjournment does not become a law. If a bill presented to the governor contains several items of appropriation of money, he may veto one or more of the items while approving the bill. Section 24 provides: Each order, resolution or vote requiring the concurrence of the two houses except such as relate to the business or adjournment of the legislature shall be presented to the governor and is subject to his veto as prescribed in case of a bill. *2 You are concerned with the issue of whether one or both of these "presentment" clauses applies so as to require that proposed constitutional amendments per se be presented to the governor and subjected to gubernatorial approval or veto. While we are not aware of any Minnesota court case directly on point, our office has previously considered the question and concluded that proposed constitutional amendments are not subject to approval or veto by the governor. See, e.g., Ops.Atty.Gen. 86a, November 12, 1946; 213~, April 1, 1922, and March 10, 1947 (copies attached). As pointed out in the 1946 opinion, the U.S. Supreme Court in 1878 determined that constitutional amendments proposed by Congress are not subject to presidential veto, despite language of Article 1, Section 7, in the U.S. Constitution [FNll which is similar to that contained in Article IV, Sections 23 and 24, of the Minnesota Constitution quoted above. Rather "the negative of the president applies only to ordinary cases oflegislation; he has nothing to do with the proposition or adoption of amendments to the Constitution."See Hollingsworth v. Virginia, 3 U.S. f3 Dall.) 378, 380 (1798); See also Consumer EnergY. Council of America v. F.E.R.C., 673 F.2d 425 (D.C.Cir.1982). The majority of authorities in other states also appear to conclude that presentment language such as that contained in our constitution does not apply to constitutional

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amendments proposed by the legislature for approval by vote of the people. See, e.g., OQinion of the Justices, 261 A.2d 53 (Me.l970); Op. (Arkansas) Atty.Gen. 93-068, March 19, 1993; Op. (Nebraska) Atty.Gen. 87072, May 12, 1987; Op. (Pennsylvania) Ag. 84-3, December 28, 1984. There is a case to the contrary in which the Supreme Court of Montana held presentment language similar to that in our constitution to be unambiguous and mandatory; subject only to the exceptions contained in the presentment section for such things as adjournment and internal business matters of the two houses. Consequently, the court invalidated a purported amendment proposal which had not been presented to the governor. As noted above, however, that result appears to be in the minority. Furthermore, in an analogous situation, our Supreme Court declined to hold the presentment language unambiguous and all-inclusive. In State ex reI. Gardner v. Holm, 241 Minn. 125, 62 N.W.2d 52 (1954) the court held that action of the "legislature" in fixing judicial salaries in accordance with Article VI, Section 6 of the Minnesota Constitution, [FN21 was not subject to approval or veto by the governor. While acknowledging the broad implications of the presentment provisions of the constitution, the court concluded nonetheless: [I]t is clear that not all acts of the legislature must be submitted to the governor. As an example, regents of the University of Minnesota are appointed pursuant to R.S.1851, c. 28.State ex reI. Peterson v. Quinlivan, 198 Minn. 65, 268 N.W. 858.The selection of regents must be made by the vote of the joint session of the legislature, but the governor has no control over such selection. *3 It is also clear that there is a vital distinction between the exercise of the lawmaking function and the exercise of those other functions delegated to the legislature which are not strictly speaking lawmaking. That the framers of our constitution did not intend to grant to the governor a veto over all acts of the legislature is apparent from an examination of art. 5, § 4, dealing with the powers and duties of the governor. With respect to the veto power, this section reads: "*** He [the governor] shall have a negative upon all laws passed by the legislature, under such rules and limitations as are in this Constitution prescribed." (Italics supplied.) Implicit in this language is an exception in those cases where the constitution itself provides that the legislature, quite aside from the exercise of the lawmaking function, shall act without the concurrence of the governor. That, it appears to us, is the situation here. Id. at 131,62 N.W.2d at 56-57.[FN3] We believe that similar reasoning would be applied in the case of proposed constitutional amendments. For the foregoing reasons, we conclude that proposed amendments to the constitution are not required, as a matter of law, to be presented to the governor nor are they subject to his approval

****

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or veto. [FN4] QUESTION II In the case of a proposed constitutional amendment which is part of a larger bill containing statutory changes and/or appropriations what is the effect of a governor's veto of that bill. OPINION In our opinion, a veto of a bill containing a proposed constitutional amendment together with matters of ordinary legislation would be effective as to the legislation contained in the bill and the provisions so vetoed would not become law unless the veto were overridden. However, as noted in response to Question I above, the veto would not affect the proposed constitutional amendment which must be voted upon at the next general election in accordance with Minn. Const. art. IX,_§.l, and Minn.Stat. § 3.20 (1992). In Wass v. Anderson, 312 Minn. 394, 252 N.W.2d 131 (1977), our Supreme Court addressed a claim that a proposal for a constitutional amendment was a "subject" in and of itself and thus could not be contained in a bill with other legislative action without violating the "single subject" rule. [FN51 There the court said: Plaintiffs concede that the constitution imposes no requirement as to the form a proposed constitutional amendment must take. That it might be preferable for the legislature to propose amendments separately rather than to include them in bills containing other provisions is a matter addressed to legislative discretion and not judicially cognizable. Id. at 399, 252 N.W.2d at 135.Thus, it seems clear that a constitutional amendment may legitimately be proposed by the legislature in the context of a "bill" which also contains ordinary legislation. We see no reason, however, that the inclusion of a proposed constitutional amendment should, in any manner, interfere with the constitutional authority of the governor to approve or veto either the bill itself or items of appropriations therein to the extent that it contains ordinary legislation. Minn. Const. art. IV,_§..11, clearly gives the governor authority to veto bills and items of appropriation contained within bills. While we conclude above that a constitutional amendment proposed by the members of the legislature is to be presented to the people for adoption without respect to gubernatorial action, the rationale and authorities supporting that result also clearly recognize the authority of the governor to review and approve or veto ordinary legislation which is not to be presented to the people for approval. Indeed, we can conceive of no rational basis upon which to conclude the constitutional drafters would have intended to permit the legislature to insulate general legislation from exposure to veto simply by including it in a bill containing an amendment

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proposal. *4 Consequently, we conclude that the governor retains authority to review and approve or veto a bill containing general legislation presented by the legislature as well as items of appropriation, where appropriate, notwithstanding that the bill may also contain a proposed amendment. The effect of that action would be that the legislation contained in the vetoed bill or the vetoed appropriation items would not become law unless the veto is overridden in accordance with Article IV, Section 23, of the Constitution, but the proposed amendment will be presented for a vote of the people and, if approved by them, become part of the Constitution. Very truly yours, Hubert H. Humphrey III John R. Tunheim Chief Deputy Attorney General [FN11. That section provides in part: Every bill which shall have passed the house of representatives and the senate shall, before it becomes a law, be presented to the president of the United States; if he approve, he shall sign it;, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.... If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return; in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the senate and house of representatives may be necessary (except on a question of adjournment) shall be presented to the president of the United States, and, before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the senate and house of representatives, according to the rules and limitations prescribed in the case of a bill. [FN21. The applicable language is now contained in Minnesota Constitution Article VI,_§_j. [FN3l- The quoted language from Article V, section 4, was deleted in the 1974 "structure style and form" amendment to the Constitution. However, that amendment was not intended to have any consequential changes in legal effect. See Act of April 10, 1974, §§ 2-3, 1974 Minn.Laws at 81920.

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[FN41. It is our understanding, however, that bills proposing constitutional amendments have generally been presented to and approved by the governor in the past. As noted in Op.Atty.Gen. 86-a, November 12, 1946, however, the approval or disapproval of the governor would have no bearing upon submission of the amendments to the people. [FN51. Minn. Const. art. IV, §_ll, provides: "No law shall embrace more than one subject, which shall be expressed in its title." Minn. Op. Atty. Gen. 213-C, 1994 WL 80906 (Minn.A.G.) END OF DOCUMENT

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