02-24-2025 CC Agenda Packet - Laserfiche WebLink

Home Browse Search

27-CV-25-2808 Filed in District Court State of Minnesota 2/15/2025 12:08 PM appointment was made on December 13, 1922. Relator qualified and is the present incumbent of the office."); State ex rel. Carlson v. Strunk, 18 N.W.2d 457, 459 (Minn. 1945) (stating that one who is appointed "h[o]ld[s] his office as of right." (quoting Martin v. Dodge Cty.,178 N.W. 167, 168 (Minn. 1920))); State ex rel. Childs v. O Zeary, 66 N.W. 264, 265 (Minn. 1896) ("a prospective appointment to fill a vacancy sure to occur in a public office, made by an officer who, or a body which, as then constituted, is empowered to fill the vacancy when it arises, is, in the absence of a law forbidding it, a valid appointment, and vests title to the office in the appointee."). 85. Thus, Ms. Berrett holds "title to the office" to which she has been appointed, and that "title" cannot be taken away by a declaration ordering an election. Only upon a "vacancy" can a special election be ordered. 86. Nonetheless, Orono Resolution No. 7554 purports to call for a special election for the city council seat to which Ms. Berrett was appointed. This is equivalent to declaring a vacancy that does not exist. This is unlawful. 87.It has been clear for the entirety of Minnesota's existence that a vacancy can only arise under specific circumstances provided for by the legislature. Compare Gen. St. ch. 9, §2 (1866),6 with Minn. Stat. §351.02 (2024). 88.As the Minnesota Supreme Court has expressly held: The `power to fill does not confer power to declare a vacancy.' Throop, Public Officers, p. 422, §437; `and a vacancy must exist before an election to fill it can be ordered and an election to fill an anticipated vacancy is not valid unless expressly authorized by the charter or statute.' 1 Dillon, Mun.Corp., 5th Ed., p. 721, §414. 6 Available at https://www.revisor.mn.gov/statutes/1866/cite/9/pdf (last accessed Feb. 14, 2025). we, 74