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A Fourth Branch: Legal Arguments

by
Francisco J. Gonzalez, J.D.
(Text of presentation made on January 21, 2008 at
The Equality Campaign's
Public Hearing,
Concordia University.
Additional information regarding this proposal follows)

"In order to lay a due foundation for that separate and distinct exercise of the different powers of
government, which to a certain extent, is admitted on all hands to be essential to the
preservation of liberty, it is evident that each department should have a will of its own: and
consequently should be so constituted that the members of each should have as little agency as
possible in the appointment of the members of the others" --James Madison, The Federalist
Papers/No. 51, (1788).

The constitutional amendment proposed by the Equality Campaign to create a Forth Branch of
government here in Minnesota is part of a well-established trend in US and International
constitutional theory and practice. Administrative, Ethics and Oversight bodies independent (to a
greater or lesser degree from the traditional branches of the Executive, Legislative and
Judiciary), have been active in the United States for decades.

Many such agencies, such as Securities and Exchanges Commission, the National Labor
Relations Board were created during Franklin D. Roosevelt’s New Deal era, expanding the role
of the central government in economic affairs and in promoting social and economic rights for
citizens.

In addition, arguments have been raised about certain government entities constituting a separate
branch or government under the US constitution. A very interesting precedent, which was widely
reported in the press during the summer of 2007, is the argument raised by Vice President Dick
Cheney that the Office of the Vice President is a unique entity with both executive and legislative
branch duties, and thus exempt from certain oversight procedures imposed on the executive.
http://www.time.com/time/nation/article/0,8599,1636435,00.html

Other states also have separate independent regulatory entities created by constitutional
amendments. For example, in 1986, Rhode Island voters adopted a constitutional amendment
creating an independent, non-partisan ethics commission to investigate ethics laws’ violations
and to impose penalties, including removal from office, on state and municipal elected and
appointed officials.
http://www.ethics.ri.gov/Commisssion_and_Staff/Commission_and_Staff.htm

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Here in Minnesota the University of Minnesota has a special constitutional status within the state
government. According to a 2004 legal analysis prepared by the House Research Department,
under the legal principle of constitutional autonomy the University of Minnesota is
“a separate department of government, not merely an agency of the executive or
legislative branch. A university with this status is subject to judicial review and to the
legislature’s police power and appropriations power. However, its governing board has a
significant degree of independent control over many university functions.”
http://www.house.leg.state.mn.us/hrd/pubs/umcnauto.pdf

In their ruling on Star Tribune v. University of Minnesota Board of Regents, 683 N.W.2d 274
(Minn. 2004), the Minnesota Supreme Court further described the special status enjoyed by this
institution as follows:
“[t]he University and its Board of Regents indisputably enjoy special constitutional
status; the University is not just a typical state agency. As we have recounted on several
occasions, the University was originally chartered by an act of the territorial legislature in
1851. See, e.g., Winberg, 499 N.W.2d at 801. The act created a board of regents for the
purpose of governing the University. Id. When Minnesota achieved statehood in 1857,
the constitution confirmed the establishment of the University and provided that “[a]ll the
rights, immunities, franchises and endowments heretofore granted or conferred are
hereby perpetuated unto the said University.” Knapp, 125 Minn. at 198, 145 N.W. at 968
(citing Minn. Const. of 1857, art. VIII, § 4). Thus, the University Charter of territorial
origins was given constitutional status within the state government.”

Other countries have also adopted or considered adopting expanded branches of government. For
example, the administration and governance of the European Union rests in five bodies
belonging to four distinct branches:
• European Commission - executive
• European Parliament & Council of the European Union - legislative
• European Court of Justice - judicial
• European Court of Auditors - auditory
http://europa.eu/abc/panorama/howorganised/index_en.htm

In Australia, the Honorable James J. Spigelman, Chief Justice of the Supreme Court of New
South Wales, has proposed the creation of a fourth branch of government based on Chinese
historical precedents, equivalent in significance to the legislative, executive or judicial branches.
This new branch, which he calls the “integrity branch”, will “ensure that each governmental
institution exercises the powers conferred on it in the manner in which it is expected and/or
required to do so and for the purposes for which those powers were conferred, and for no other
purpose.”
http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_
290404

The precedents just reviewed clearly establish that there are no prohibitions, under either the
Minnesota or US constitutions, against creating additional independent branches of government.

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The Equality Campaign has put forth a compelling set of examples identifying deficiencies in
Minnesota’s current efforts to enforce human and civil rights. However, I would like to add two
final thoughts on this matter.

Brian K. Landsberg, a former lawyer in the Civil Rights Division of the United States Justice
Department has stated that
“[t]he black poverty level continues to be more than twice the white poverty level;
housing segregation persists, reinforcing school segregation. In my view racial
discrimination is a core disease in this country, and the future of civil rights enforcement
requires that combating racial discrimination continue to occupy a central priority in the
Division’s work.”
http://judiciary.senate.gov/testimony.cfm?id=2837&wit_id=6547

"I think in part, this state has a false image of itself ... that we [are] different from the rest
of the U.S., and we're not. We're as racist as the red hills of Alabama." Chief Judge Kevin
Burke, Hennepin County District Court.
--Quoted in William E. Martin and Peter N. Thompson, Judicial Toleration of Racial
Bias in the Minnesota Justice System, 25 Hamline Law Review 235-270, 236-240
(Winter, 2002).

I want to close my remarks by again quoting James Madison's Federalist 51: “the separate and
distinct exercise of the different powers of government … be essential to the preservation of
liberty”. Truly, an independent and autonomous Human Rights & Civil Rights branch is essential
to the preservation of our liberty.

Thank you.

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Equality Campaign
Prepared by Edward McDonald for the Social Development Training and Action Center
Contact: 651-770-9364 and SDTAC1@aol.com
Visit: WWW.SDTAC.ORG

Draft Minnesota Human and Civil Rights


Enforcement Reform Proposal

A New Minnesota Constitutional Departments (Branches)

Human and Civil Rights

Executive Legislative
Judiciary

The purpose of these recommendations is to strengthen the State of Minnesota’s Human and
Civil Rights Laws, Operational Structure, Administrative Operations, and Enforcement Approach
to ensure Equality in all areas of life. The implementation of the following recommendations will
create the necessary check and balance system to ensure accountability with the administrative
application of civil and human rights laws in the state of Minnesota thereby ensuring equality in
all areas of Minnesota’s life.

Operational Structure Reforms

• Amend the State of Minnesota Constitution to create a fourth government department


(branch) to be called Human and Civil Rights,

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• Replace, rename and transfer all of the current functions of the Minnesota Department of
Human Rights to the new constitutionally established Minnesota Department of Human
and Civil Rights,

• Create a citizen oversight body to govern the administrative and enforcement operations
of the new Department Human and Civil Rights through an appointment system that
select qualified persons and who are representative of the state’s diverse population or
through an election process that select representative that match the state’s diverse
population,

• Replace local Human Rights Commissions with Regional Human and Civil Rights
offices that are managed by the new Minnesota Department of Human and Civil Rights

Administrative Operations and Enforcement Approach Reforms

1. Require the new Minnesota Department of Human and Civil Rights to do the following:

• Carryout all of the statutory functions in Minnesota Statute 363A ( priority is currently
given to only three),

• Train businesses seeking incorporation in the State of Minnesota in Minnesota’s human


and civil rights laws,

• Conduct proactive audits of institutions and corporation’s compliance with federal and
state human and civil rights laws,

• Conduct human and civil rights impact analysis on judiciary decisions, proposed
legislation, rules and executive orders,

• Conduct human and civil rights audits on institutions and corporations that have had three
complaints filed against them in a year,

• Contract with the federal government to investigate and prosecute hate crimes and
investigate discrimination complaints filed by businesses, groups, geographic
communities and persons,

• Review and clear all procurement contract for compliance with human and civil rights
laws,
• Prosecute offenders of the administrative application of human and civil rights laws
under Minnesota Statute 609,
• Publish annual human and civil rights reports, and
• Publish impact analysis and audit in all areas of Minnesota’s public life.

2. Fund the operation of the new Minnesota Department of Human and Civil Rights at a level to
fulfill all of its obligations.

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Justification for Reforms

Acts of discrimination (intentional or unintentional) not detected, prevented, stymied, and


punished perpetuates inequality. Inequality perpetuates economic, class, race, and place
disparities. Disparities create a learned culture of acceptable disparity and inequality. If the
growing acts of discrimination are not addressed, they will continue to erode our communities’
quality of life. The Equality Campaign has discovered many issues related to our state’s
human/civil rights enforcement approach that at best creates a dysfunctional system feeding acts
of intentional and unintentional discrimination, which is eating away at many residents’ quality
of life.
Specifically, our examination has discovered the following:

Federal
• There has been little effort, since the seventies, on the part of policy makers at the federal
government levels to strengthen human/civil rights protections and enforcement.

• The last four Presidents have produced a net regression in human/civil rights protections and
enforcement decisions.

• The regression can be attributed to lack of effective advocacy work of progressives and the
effective advocacy work of the Federalist Society, an organization of extremely conservative
lawyers which expounds a philosophy they call "federalism," has gained tremendous power
and influence in the current administration and in the federal courts. This is a little
understood but dangerous movement. Federalist aspires to create a state-based system of
government - returning to a pre-civil rights movement, pre-New Deal, even a pre-Civil War
vision of "states' rights" jurisprudence, rendering the national government impotent to act in
many areas of domestic concern.

• In some recent federalism decisions, the Supreme Court has cut back on Congress' powers,
saying Congress may not grant any greater or different civil rights protections than the Court
itself has recognized under the Equal Protection Clause.

• The Supreme Court has held that discrimination must be intentional while Congress has
recognized the so-called "effects" test as well, making illegal actions that have the effect of
discrimination even if unintentional.

• The results of these decisions have lead to less appropriations, enforcement, and policies of
human/civil rights at the national level.

• The Federal Commission on Civil Rights in a 2005 study found that in the pasts five years,
the net increase in funding to agencies that enforce human/civil rights protections was less
than the previous three federal administrations.

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State of Minnesota

• The Minnesota Human Rights Statute 363A carries the name of the United Nations Human
Rights Declaration but does not align with the declaration or all aspects of United States
Civil Rights laws making the name deceptive.

• The Minnesota Human Rights Department’s only mandate is to receive discrimination


complaints, investigate those complaints, and monitor affirmative action requirements on
procurement contracts.

• There is no local avenue for businesses to file complaints of discrimination.

• State and Local Human Rights Departments and Commissions budgets have decreased each
year over the past ten years.

• There is no coordination beyond affirmative action enforcement between the Department of


Human Rights (MN Stat. 363A) and the Department of Administration (MN Stat. 16B and
16C) even though both have human and civil rights enforcement authority.

• There is no proactive approach to analyze human and civil rights impacts related to
legislative, administrative or judiciary actions.

• There is no approach to audit the administrative application of human and civil rights laws to
ensure their application at the local and state levels.

• Fifty-seven local human rights commissions have no formal relationship with the Minnesota
Department of Human Rights. In addition, their services are not consistent with statutory
requirements of MN Statute 363A.

• The political influence in the administrative application of human/civil rights laws– the
various governors ideology over the years regarding human/civil rights enforcement and his
appointees - has produced reports that are critical of procurement operations, equal
employment opportunity and affirmative action compliance. This is also true of local
communities.

• The Minnesota Department of Human Rights (DHR) has not received a net increase in
funding in over 15 years even though it receives approximately 18,000 to 20,000 formal
contacts each year from residents who believe their rights have been violated.

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• A 1996 evaluation of the DHR by the Office of the Legislative Auditor found that:
 On average, DHR takes over 14 months to investigate and close discrimination cases,
 More than 3/4 of the department’s cases are dismissed or withdrawn,
 Nearly all state contractors have affirmative action plans approved by DHR, but the
department is not monitoring the implementation of those plans, and
 DHR functions should be assigned to a larger agency or be adequately funded to
perform its statutory mandates

• A 1998 disparity study of the State of Minnesota procurement activities showed that there are
significant disparities in the utilization of minority and women business enterprises.

• The Organizing Apprenticeship Project’s Minnesota Legislative Report Card on Racial


Equity assesses the performance of the Minnesota Legislature and the Governor during the
2005-2006 biennium’s on policies that address and strengthen racial equity and opportunity
in the state. It also assesses legislative efforts that strengthen American Indian tribal
sovereignty. The report, in part, found the following:

 The Legislature received an F- None of the civil rights/criminal justice bills considered
for the report became law. Economic equity bills had greatest success with an 80 percent
(4/5) pass rate. American Indian tribal sovereignty bills had a 33 percent (1/3) pass rate,
and
 The governor received a grade of C - Governor Tim Pawlenty received a C- overall for
his support for racial equity bills. This grade reflects his support for seven of ten bills
considered for the report that reached his desk. The governor received an F (50 percent)
in the education section, a B- (80 percent) in economic section and full support for the
one health bill and one American Indian bill that reached his desk.

• Recognizing that actual bias and the perception of bias are severely damaging to the courts,
the 1990 Minnesota Legislature and the Supreme Court undertook to examine the extent to
which racial bias exists throughout the state's judicial system. The examination, in part, found
the following:

 The need to hire more people of color throughout our court system and to ensure that
those we hire, whatever color, are culturally sensitive to all the people we serve; the need
to begin systematically keeping race-specific records,
 The need for more and better training in cultural awareness/cultural diversity, and others,
 Counties do not keep thorough information on crimes, victims, and case dispositions by
race,
 People of color are arrested in numbers that greatly exceed their proportion of the
population,
 Little data is kept on crime victims, and generally does not include race,

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 Many people of color and a significant percentage of prosecutors, judges, public defense
lawyers perceive the court system as biased against people of color in the setting of bail
and pretrial release on a statewide basis,
 There is very little cultural-diversity training required of prosecutors, defense lawyers and
investigators on both sides,
 Jury pools rarely are representative of the racial composition of a community, and
 People of color often choose not to go to trial because of the perception that they will not
receive a fair trial.

Local Communities

• The city of Saint Paul during the period of 2001 –2004 made a 50% cut to its Human Rights
Department budget and did not appoint a full complement of oversight commissioners to
conduct business for nearly three years.

• A November 2007 performance review of the city of Saint Paul’s Departments of Planning
and Economic Development and Housing and Redevelopment Authority (PED/HRA)
administrative application of human and civil rights laws found:

 A lack of monitoring and enforcement procedures and practices on PED/HRA contracts,


both those PED/HRA processes itself and those processed by the Department of Contract
and Analysis,
 Effective monitoring and enforcement are essential to the credibility of the City/HRA’s
inclusion efforts,
 Those who do business with the City/HRA need to know that the City and HRA are
serious about their inclusion policies, and that compliance is not just a “paperwork”
requirement,
 No one takes responsibility for monitoring and enforcement of the Vendor Outreach
Program (VOP) and Affirmative Action requirements of contracts processed by HRA,
and
 The HRA does not require a business with which it contracts to either demonstrate before
the contract is signed that it has made arrangements with certified disadvantaged,
minority and women vendors to meet participation goals, or to document it has and will
take the very specific steps prescribed by the City of Saint Paul’s VOP ordinance for
outreach designed to meet the participation goals.

• The city of Minneapolis has had four directors overseeing their Civil Rights Department in a
three-year period and has not provided a net increase in its operational budget for 10 years.

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• A review, by an arm of the University of Minnesota found city departments sometimes are
not helping the city's own Civil Rights Department enforce requirements the city of
Minneapolis has to penalize its private contractors for failing to meet civil rights goals
designed to ensure minorities and women get a share of the work.

• The City of Minneapolis has a strategy plan that forecasts the elimination of its civil rights
department by 2010.

• Ramsey County, which has a race neutral approach to contract procurement, has a joint
powers agreement with the City of Saint Paul to coordinate certain aspects of it procurement
activities even though the City of Saint Paul has a race and gender specific procurement
approach.

• Minnesota has 57 Human Rights Commissions charged with reviewing human rights
complaints but many areas of the State do not have a commission or staff to serve their
communities and most of the commissions operate with volunteers and limited budgets.
These commissions often operate independent of the Department of Human Rights with no
monitoring, auditing or accountability for their work.

Questions for House Research


1. What would be the legal barriers to the above recommendations, if any?
2. What steps are required to accomplish the above recommendations?
3. Is there a recommended alternative to the above recommendations?
4. If this restructuring were achieved, would it be unique to Minnesota?
5. Are there other things to consider?

HOUSE RESEARCH RESPONSE TO


THE EQUALITY CAMPAIGN PROPOSAL
Mime-Version: 1.0
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Subject: Equality Campaign/DHR Proposal
Date: Fri, 7 Dec 2007 11:18:05 -0500
Message-ID: <47592B92.A5E7.00AA.0@house.mn>
From: "Matt Gehring" <Matt.Gehring@house.mn>
To: "Karen Clark" <Karen.Clark@house.mn>
Cc: "Brooke Bordson" <Brooke.Bordson@house.mn>
Content-Type: text/plain; charset=utf-8
Content-Language:
Content-Transfer-Encoding: quoted-printable
Content-Disposition: inline

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Representative Clark:

You asked for some thoughts and review of the Equality Campaign's proposal regarding the Minnesota
Department of Human Rights. What follows are some suggestions for issues you may want to consider
as you determine how you would like to proceed:

(1) Fourth Branch of Government. Creating an entirely autonomous fourth branch of government to
address Human and Civil Rights issues is theoretically possible, though I am unaware of any other
governmental structure in a state or nation that has this type of setup. As you know, creating a new
branch of government would require a constitutional amendment, which would need to be submitted to
Minnesota voters at the next general election (Fall 2008, if the proposal were to be approved this
session).

(2) Checks and Balances. The checks-and-balances structure proposed by the Equality Campaign is
problematic, both from academic and practical governmental-structure standpoints. The concept of
"checks and balances" means that each branch of government has unique independent and balanced
powers granted through the constitution, and is able to overrule (keep in check) the other branches
through those powers. For example, the legislature's check on the executive governor is its ability to
override a governor's veto. The executive's check on the legislature is the power to veto legislation. The
judiciary can check both the executive and legislature by declaring laws unconstitutional. One way the
judiciary can be checked is by the legislature (and the voters) approving a constitutional amendment. It is
not clear from the Equality Campaign's proposal how the existing three branches of government would be
able to check the newly created Human and Civil Rights branch. (In fact, it appears from the arrows on
their chart that there is no check on the new branch).

(3) Governance. The Equality Campaign proposes that the new branch be governed by a citizen oversight
body. They also further propose that the oversight body be "representative of the state's diverse
population.” Unless "diversity" is limited to "diverse geographic location," the oversight body would need
to be selected through some form of appointment process; it would not be consistent with constitutional
principles of equal protection and due process to require voters to elect individuals based on their racial,
ethnic, religious, or other similar categorical backgrounds. An appointment process could also address
some of the checks-and-balances concerns described above.

(4) General Comments. While it may be possible to craft a constitutional amendment to set up the new
branch of government proposed by the Equality Campaign, I might suggest that you also consider
whether it would be preferable to maintain the department's status as an executive branch agency, as
many of the existing (and proposed) functions of the department are, fundamentally, executive branch
tasks. (For example, enforcement of laws is traditionally a role placed within the executive branch). I
suggest this because it is unclear to me what unique role would be played by the proposed new branch
within the existing governmental structure (Generally, the legislature enacts laws, the executive enforces
laws, and the judiciary interprets laws. What role would the new proposed branch undertake?).

If concerns over partisanship is an issue, it would be possible establish a board to govern the department
of human rights, and create a statutory requirement that the board members be appointed in such a way
as to represent the state's diverse population. Statutory changes could grant the board more explicit (and
powerful) enforcement mechanisms, and make other changes to the duties and scope of the
department's authority more consistent with your interests. One possible model for such a board setup
would be the Campaign Finance and Public Disclosure Board - this group is appointed the governor, with
the approval of 3/5 of both the House and Senate. The board overall is required to maintain a specified
balance of representation from multiple political parties. The CFPD board is granted authority to conduct
investigations, including issuing subpoenas as necessary, and exists to implement and enforce the
campaign finance and lobbying provisions of Chapter 10A of the Minnesota Statutes.

Many of the remaining suggestions of the Equality Campaign could, again, be accomplished through
statute and avoid the need for a comprehensive modification of the state's constitutional and

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governmental structure. (Though, if the proposed "impact analysis" on judiciary decisions, proposed
legislation, and executive rules and orders is meant to have some form of "veto" or modification power
over these documents, constitutional issues would arise). You may also want to consider the potential
fiscal impacts at play: It would likely be far more expensive to set up a new branch of government than it
would be to modify the role and duties of the existing Department of Human Rights through statute.

On the other hand, as noted, it is possible to undertake the project of amending the constitution and
creating a new branch of government. As noted, this would need to be approved by the voters. Though it
is impossible to know exactly how the branch would function in practice, it is conceivable that an
independent and completely autonomous branch of government may be able to oversee the state of
human and civil rights in Minnesota more effectively than a department within the existing governmental
bureaucracy.

I hope this is helpful; feel free to let me know if you have questions or would like further clarification or
comment on any of these issues.

Matt Gehring

**********
Matt Gehring
Legislative Analyst/Attorney
Research Department
Minnesota House of Representatives
600 State Office Building
St. Paul, Minnesota 55155
651-295-5052
matt.gehring@house.mn

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TO: Representative Cy Thao
FROM: Sheree Speer, Assistant Revisor
RE: Three options for how to proceed with the Equality Campaign’s Proposal
DATE: December 14, 2007

Representative Thao,

Pursuant to my conversation with your legislative assistant, I have prepared the following memorandum
discussing three different ways of approaching the Equality Campaign’s proposed legislation. If you
would like me to proceed with any of these options, please contact me at your convenience.

Sincerely,
Sheree Speer
Assistant Revisor
651-297-2948

Create a new “Human and Civil Rights” branch of government.

Overview

The Equality Campaign proposes a bill that would abolish the present Department of Human Rights and
transfer the powers and duties under Chapter 363A to a fourth government branch to be called Human and
Civil Rights. A citizen oversight body would govern the administrative and enforcement operations of the
department through an appointment system that selects individuals based on their diverse backgrounds.
The proposal also recommends replacing local Human Rights Commissions with Regional Human and
Civil Rights office that are managed by the Human and Civil Rights Branch. Additional reforms are listed
that would add duties and responsibilities to bolster the enforcement powers of the branch.
Analysis

This proposal is the extreme approach to the problem of reforming the duties of the present Department of
Human Rights. I agree with the assessment of Matt Gehring from House Research that there are
significant constitutional barriers to setting up a separate branch of government dedicated to the
enforcement of civil rights laws.

Constitutional principles of separation of governmental powers forbid interference of


one governmental branch with another within their respective spheres.

By the constitution [Art. 3, § 1], the power of the state government is

divided into three distinct departments, legislative, executive, and judicial.

The powers and duties of each department are distinctly defined. The

departments are independent of each other to the extent, at least, that

neither can exercise any of the powers of the others not expressly provided

for. This not only prevents an assumption by either department of power not

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properly belonging to it, but also prohibits the imposition, by one, of any

duty upon either of the others not within the scope of its jurisdiction; and 'it

is the duty of each to abstain from and to oppose encroachments on either.'

Any departure from these important principles must be attended with evil.

In re Application of Senate, 10 Minn. 78 (1865) (emphasis added). Enforcement of


civil rights laws is the purview of the executive branch, and the establishment of a
fourth branch that also enforces laws would be offensive to our state’s constitution.
Furthermore, there are unique checks and balances questions posed- what checks
are in place to the powers of this new fourth branch? Based on the proposal
diagram it appears the intention is that there is no check on this new branch of
government, something that would run afoul of basic constitutional principals.

Recommendation

In light of the almost certain constitutional challenges this approach would entail, I do not recommend
this approach. To circumvent constitutional challenges an amendment to the state’s constitution would be
necessary altering the fundamentals of separation of powers and checks and balances, an option most
legislators would find unsavory at best.
Mandate a citizen advisory group that oversees the performance of state human rights law and
make substantial statutory amendments to present DHR law.

Overview
A second, less extreme possibility would be to amend the existing Department of Human Rights (DHR)
statutes so there are more duties imposed and more accountability of the commissioner and regional
commissions.1 First, a Citizens Advisory Board would be created to govern administrative and
enforcement operations of DHR. Second, the Advisory Board would be given much of the same duties
presently entrusted to the commissioner, with additional duties as suggested by the Equality Campaign.
This approach would include the Equality Campaign’s proposal to replace local Human Rights
Commissions with Regional Human and Civil Rights offices that are managed by DHR/the Advisory
Board.
Analysis
This approach represents a means to the ends of strengthening the enforcement powers of DHR. While
less radical than the first approach above, it would require a substantial overhaul of existing statutes and
administrative rules. However the following reforms suggested by the Equality Campaign might be
implemented:
• Eliminate the priority of duties performed in 363A.06 so that all duties are given equal priority;
• Establish and administer a human and civil rights training requirement for all new businesses seeking
incorporation in Minnesota;
1
Originally I had suggested to Mr. McDonald that perhaps we could set up a quasi-government agency similar to the
Metropolitan Council; however, upon closer review this does not appear feasible because the Metropolitan Council
is a political subdivision of the state, defined as “a county, city, town, school district, or other local government
jurisdiction to which the state provides state aids or on which the state imposes state mandates.” This does not
appear conducive to what is ultimately still an executive function.

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• Conduct audits of institutions and corporation’s compliance with federal and state laws, including
additional audits for institutions with three complaints filed in a given year;
• Conduct impact analysis on judiciary decisions, proposed legislation, rules and executive orders;
• Review all procurement contracts for compliance with human and civil rights laws;
• Publish annual human and civil rights reports;
• Publish other impact analysis and audits in other areas as needed; and
• Transfer prosecutorial powers of offenders of human and civil rights laws under chapter 609 to the
Advisory Board.

Recommendation
This approach represents a substantial change of law without the constitutional issues arising out of
option #1. It would require a sizable appropriation, one that might not come easily in a non-budget year.
However, it is feasible and seems to meet most of the goals the Equality Campaign is trying to meet. I
would suggest drafting a bill that selects the members of the Advisory Board, for example, one member
from each of the following organizations:
Minneapolis Urban League
Sabathani Community Center
Indian Affairs Council
Council on Black Minnesotans
Office of the Ombudsman for Older Minnesotans
Council on Asian-Pacific Minnesotans
Minnesota State Council on Disability
Commission to End Poverty
Any other organization deemed appropriation

Another option would be to have the members chosen from the above list approved by 2/3 majority of the
Senate or House. To make the legislation more palatable, I would suggest leaving much of the details to
the Advisory Committee; for example, directing the Advisory Committee to develop a plan to transfer the
duties listed above from the commissioner to the Advisory Committee. This leaves the decision-making in
the hands of those most able to implement. I would suggest granting considerable latitude to the Advisory
Committee including granting them the full use of staff and ability to hire additional staff (especially for
the new prosecutorial functions) and enter into contracts.

Create a Human Rights Board Advisory Board Task Force to study the issue during 2008 and
present legislation in 2009.

Given the complexity of the proposal and political environs of a non-budget year, you might find the most
success creating an Advisory Committee Task Force composed of the same members from Option #2. The
Task Force would be charged with researching the issue and presenting a report and recommendations to
the 2009 legislature. The benefit of this option is largely budgetary; however it accomplishes the goal of
funding a more thorough investigation of the issues facing such an extensive statutory change. It also
allows the relevant players sufficient time to voice their opinions and uniquely craft the legislation to their
n

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Educational Hearing on Human/Civil Rights Enforcement in the
Twin Cities Metropolitan Area
Prepared by Equality Campaign
December 15, 2007

Purpose: The hearing will allow public and private entities in the metropolitan area to formally
report to state legislators on their efforts to enforcement human/civil rights and allow community
stakeholders to report on the effectiveness of human/civil rights enforcement in the metropolitan
area.

Coordinating Entities: The MLK Celebration Organizing Committee and the Equality
Campaign

Private and Public Entities to give 3 to 5-minute presentations:

1. The State Councils (Black, Asian, Disability, Indian Affairs)


2. Minnesota Department of Human Rights
3. Minnesota Department of Administration
4. Cities of Saint Paul and Minneapolis
5. Human Right Commissions representing various communities in the Twin Cities
Metropolitan Area
6. State Human Rights Commission
7. Minneapolis and Saint Paul School Districts
8. Minnesota Bankers Association
9. Minnesota Private Colleges
10. State College System

Stakeholders to give 3 to 5-minute presentations:

1. Minneapolis and Saint Paul NAACP Branches


2. Minneapolis and Saint Paul Urban Leagues
3. Ethnic Chambers Of Commerce
4. The Women Consortium
5. MICAH
6. ISAIAH
7. National Lawyers Guild
8. Organizing Apprenticeship Project
9. Labor Unions
10. Roy Wilkins Institute
11. Institute on Race and Poverty
12. National Association of Minority Contractors
13. Equal Access Working Group
14. Equality Campaign

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15. Greater Twin Cities United Way
16. Minnesota Tenants Union
17. General Community

Date/ Time: January 21, 2008 from 1:00 to 4:00 PM

Agenda

1. 1:00 Introduction of Legislators

2. 1:10 Overview of the Hearing and Purpose

3. 1:15 Private and Public Entities Presentations

4. 2:30 Stakeholders Presentations

5. 3:45 Wrap up

6. 4:00 Adjourn

Budget: $1500 to 2000 for marketing and rental

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Equality Campaign
Draft Press Release Draft Press Release
For more information contact:
Stacie Cormier at 612-600-0502
Edward McDonald- 651-770-9364
draft

Group wants state to be nation leader with the advancement of equality

Saint Paul, Minnesota, January 2, 2008 - The Equality Campaign today announced the need for a
Fourth Branch of Government; this new branch will focus on ensuring the administrative application of
Human and Civil Rights laws by private and public institutions, and the judiciary, legislative and
executive branches of state government.

The Equality Campaign is a training and policy advocacy initiative that is seeking reforms to MN
Human/Civil Rights enforcement approach. During an exhaustive three month training and research
effort a group of diverse citizens, representing communities across the metro area, found the following
an more:

• The Federal Commission on Civil Rights in a 2005 study found that in the pasts five years, the net
increase in funding to agencies that enforce human/civil rights protections was less than the
previous three federal administrations.
• An evaluation of the Minnesota Department of Human Rights found it does not perform its statutory
duties.
• A Minnesota Legislature and Supreme Court examination showed racial bias exists throughout the
State's Judicial System.
• A Disparity study of the State of Minnesota procurement activities showed under-utilization of
minority and women business enterprises.
• An Organizing Apprenticeship Project’s Minnesota Legislative Report Card on Racial Equity gave the
Legislature an F and the Governor a C- for their support for racial equity bills.
• A Minnesota Legislature and Supreme Court examination showed racial bias exists throughout the
state’s Judicial System.
• The city of St. Paul during the period of 2001-2004 made a 50% cut to its Human Rights Department
budget.
• A performance review of the city of Saint Paul’s administrative application of human and civil rights
laws found a lack of monitoring and enforcement procedures and practices on PED/HRA contracts
• The city of Minneapolis has had four Directors overseeing their Civil rights department in a three-
year period and has not provided a net increase to its operational budget for ten years.
• The City of Minneapolis has a strategy plan that forecasts the elimination of its civil rights
department by 2010.
• Ramsey County, which has a race neutral approach to contract procurement, has a joint powers
agreement with the City of Saint Paul, which has race and gender specific procurement approach,
to coordinate its procurement activities.

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• Minnesota has 57 Human Rights Commissions charged with reviewing human rights complaints but
many areas of the State do not have a commission or staff to serve their communities and most of
the commissions operate with volunteers and limited budgets.

The Equality Campaign believes that a lackadaisical culture has developed throughout our system of
government with the enforcement of human and civil rights laws. As a result, our communities are
experiencing rapidly growing disparities eating at a once superior quality of life in Minnesota and the
nation. The following recommendations can reverse this trend and move our state toward actual
equality and position Minnesota once again as a nation leader with the advancement of equality. The
purpose of the recommendations is to strengthen the State of Minnesota’s Human and Civil Rights Laws,
Operational Structure, Administrative Operations, and Enforcement Approach to ensure Equality in all
areas of life. The recommendations are:

• Amend the State of Minnesota Constitution to create a fourth government department (branch) to
be called Human and Civil Rights,
• Replace, rename and transfer all of the current functions of the Minnesota Department of Human
Rights to the new constitutionally established Minnesota Department of Human and Civil Rights,
• Create a citizen oversight body to govern the administrative and enforcement operations of the
new Department Human and Civil Rights through an appointment system that select qualified
persons and who are representative of the state’s diverse population or through an election process
that select representative that match the state’s diverse population, and
• Replace local Human Rights Commissions with Regional Human and Civil Rights offices that are
managed by the new Minnesota Department of Human and Civil Rights

Hear more details at

Date: January 21, 2008


Time: 1:00 pm-4:00 pm
Location: Concordia University
Buetow Music Auditorium
300 Hamline Avenue
St. Paul, MN

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