The URL can be used to link to this page

270623 l �� M�H17E - CITV CLERK � PINK - FINANCE COUIICII ��'�,,,r BLUERV - MAVORTMENT GITY OF SAINT PAiTL File NO. �,� � uncil Resolution Presented By Referred To Committee: Date — Out of Committee By Date WHEREAS, an initiative petition, proposing an ordinance to amend Chapter 74 of the Saint Paul Legislative Code by deleting the words "affectional or sexual preference", has been filed with the Office of the City Clerk on January 17, 1978; and WHEREAS, the petition purported to contain 7, 150 signatures; and WHEREAS, the City Clerk has reported to the Council that her office has checked the petition and signatures for compliance with the requirements of Chapter 8 of the Charter of the City of Saint Paul; and WHEREAS, the City Clerk has reported that the petition con- ' tains the valid signatures of 6, 160 registered voters of the City of Saint Paul; and WHEREAS, th.e Charter requires such a petition to be signed by registered voters equal in �.umber to eight per cent of those who voted for the office of mayor in the preceding city election; and WHEREAS, eight percent of 70,305 votes cast for the office of mayor in the last preceding city election would be 5,624; now, therefore, be it � ` RESOLVED, that the Council of the City of Saint Paul, pursuant to Section 8.03 of the Charter, hereby determines that said petition is suff icient. , _ � . �, - COUNCILMEN � Yeas Nays Requested by Department of: Butler Hozza [n Favor ' Hunt " Levine _ � _ Against BY — — _.�A�;s,. S ylvester Tedesco ��Q ' R Form Appr d by City A rney Adopted b ouncil: Date — –�$— ^ -� Ce ied Pass }� Council Secr ary BY . Appro by Nlavor: D �— M� � �978 Approved by Mayor for Submission to Council gy -- BY �uaLlsHED ��IAP 1 � 197$ � ` " CITY OF SAINT PAUL 4° �� bTY OA �,`� ,{y a � t� 9 ,h'�� .�� Roae Mix o ` "'°�`�` '� Albert B. Olsao ao�. City Clerk and �, �`-'-�`�="�"�p`�.� Council Recorder Council Secretar�/ �s �y�°'�,� -o.� OPFICE OF THE CITY CLERK BUREAU OF RECORCS �88 City Hall St.Paul,Minnesota 5610� Phone�98-k�'�1 February 2, 1978 Report of the City Clerk To the Members of the City Council An initiative petition to change or amend Chapter 74 of the St. Paul Legislative Code by deleting those portions of the Code which prohibit 'discrimination of affectional or sexual preference` which was passed on July 16, 1974, as Ordinance ��15653, has been filed in this office January 17, 1978 with a total of 7,150 signatures. The petition has been checked by this office and was found to have �- -°___°_= �e# 6,160 valid signatures of registered voters in the City of St. Paul. Eight percent of the 70,305 votes cast for Mayor at the last City Election would require 5,624 valid signatures. Very truly yours, ��/�� ^ � Rose Mix City Clerk O CITY OF SAINT PAUL 4;�:��`��*�r� °`�Y °� REC��/ED �� " '--�q`� Rose Mix 'o s�,��;;�„'fi Albert B. Olson �c:;s:�� nr.s== r City Clerk and �',� =�, a F6 8 � �� Council Recorder Council Secretary v'�, h� ..� c�n a�r��Y v- OFFICE OF THE CITY CLERK BUREAU OF RECORDS ,"�i'`� ; 388 City Hall St.Paul,Minnesota 65102 Phone 298-.4��1 February 7, 1978 Ms. Harriet Lansing City Attorney Room 647, City Hall St. Paul, Minnesota Dear Ms. Lansing: The City Council today adopted a motion requesting that you prepare the appropriate resolution declaring that an initiative petition to change Chapter 74 of the St. Paul Legislative Code has the sufficient number of signatures required by the Charter. Very truly yours, � Y'Ul�.�, City Clerk � ABO:dcr O • • ' , . :��/�/�`�r � `'TY o° CITY OF SAINT PAUL .��' s a : `' -� � x OFFICE OF THE CITY ATTORNEY L ••�I»:i;�: ,; ,�� . �� .... HARRIET LANSING, CITY ATTORNEY George Latimer Ciry Hall,Saint Paul,Minrtesota 55102 Mayor 612-298-5121 February 15, 1978 � Robert Sylvester Council President Seventh Floor City Hall , Saint Paul, Minnesota 55102 Dear Councilman Sylvester: You have requested an o�inion of this office as to whether the so-called "initiative petition" to amend St. Paul' s human rights - ordinance is properly labeled an "initiative petition". Specif- ically, you have asked whether the petition before the Council is an initiative or referendum and whether the petition is proper � in its present form to achieve its stated purpose. i FACTS The rights of initiative and referendum are given to the citizens of St. Paul by Section 8.01 of the Charter, which provides as follows: "Sec. 8.01. Initiative, Referendum and Recall. The people shall have the right to propose ordi- nances, to require ordinances to be submitted to a vote, and to recall elective officials by pro-� cesses known respectively as initiative, referendum, and recall." The Charter speaks more specifically to initiative in Sec�ion 8.04, which states as follows: "Sec. 8.04. Initiative. Any ordinance may be proposed by a petition which shall state at the head of each page or attached thereto the exact text of the ordinance sought to be proposed. If � the council fails to enact the ordinance without change within sixty days after the filing of the � Councilman Sylvester Page Two February 15, 1978 petition tiaith the city clerk, it sha11 be placed on the ballot at the next election occurring in the city. If no election is to occur within 120 days after the filing of the petition, the council shall, within such 120 day period call a special electian on the ordinance. If a ma.jority of those voting on the ordinance vote in its favor, it shall become effective immediately." ' The Charter also speaks specifically to Referendum in Section 8.05, which states as follows: "Sec. 8.05. Referendum. Any ordinance, or reso- � lution passed pursuant to subdivisions 5 or 6 of section 6.03.3 of this charter, may be subjected to referendum by a petition filed within forty- ' five days after its publication. The petition shall state, at the head of each page or in an attached paper, a description of the ordinance or resolution involved. Any ordinance or resolu- tion upon which a petition is filed, other than an emergency ordinance, shall be suspended in its operation as soon as the petition is found suffi- cient. If the ordinance or resolution is not thereafter entirely repealed, it shall be placed on the ballot at the next election, or at a special election called for that purpose, as the council shall determine. The ordinance or resolution sha11 not become operative until a ma.jority of those voting on the ordinance or resolution vote in its favor. If a petition is filed against an emergency ordi- nance, the ordinance shall remain in effect, but shall be placed on the ballot at the next election or a special election called for the purpose, and shall be repealed if a ma.j ority of those voting on the ordinance vote to repeal it." The petition f iled with the City Clerk is in the form of an initia- tive petition in that it is entitled "Initiative Petition", it pur- ports to propose an ordinance, and the exact text of the proposed ordinance is attached to each page. In essence, however, the Councilman Sylvester Page Three < February 15, 1978 petition is not proposing netia law but is removing "affectional or sexual preference" as a protected class from Chapter 74 of the St. Paul Legislative Code. Chapter 74 of the Legislative Code was first adopted as Ordinance No. 13706 in 1967. At that time, discrimination on the basis of "affeetional or sexual preference" was not included in the ordinance. In 1974 Chapter 74 was amended to prohibit discrimination on the basis� of "affectional or sexual preference". No petition was filed requesting a referendum within forty-five days of the passage of Ordinance No. 15653 amending Chapter 74. The major issues raised by this set of facts are: Z. W'hether repeal of part of a section of the Legislative Code � can be accomplished by the power of initiative in spite of the availability of the referendu.m procedure and the fact that the referendum procedure was not utilized. � 2. Whether the repeal of the so-called "gay rights" provisions of Chapter 74 of the Legislative Code �vould constitute illegal "state action" for purposes of the Fourteenth Amendment. These issues shall be discussed in the order they are listed above. LAW 1. Repeal or Amendment of Existin� Law by Initiative. An analysis of the St. Paul Charter, Minnesota Statutes, and case law in Minnesota and other jurisdictions leads to the con- clusion that repeal and amendment of existing law can be accomplished by initiative irrespective of the availabiiity and/or use of ref- erendum. The Charter provisions of the Charter of the �ity of St. Paul relating to initiative and referendum were enacted pursuant to the authority given by Minn. Stat. � 410.20 which provides as follows: . "410. 20 RECALL AND REMOVAL OF OFFICERS; ORDINANCES. Such commission ma.y also provide for the recall of any elective municipal officer and for his removal by vote of the electors of such city, and ¢iay also provide for submitting ordinances to the council by petition of the electors of such city and for the repeal of ordinances in like manner; and may also ��'�� Councilman Sylvester Page Four February 15, 1978 provide that no ordinance passed by the council, . except an emergency ordinance, shall take effect within a certain time after its passage, and that it, during such time, a petition be made by a certain percentage of the electors of the city pro- testing against the passage of such ordinance until the same be voted on at an election held for such purpose, and then such ordinance to take effect or not as determined by such vote." Neither Section 8.04 of the Charter nor Section 410.20 state that ordinances may not be repealed or amended by in}tiative. To the � contrary, Section 8.04 speaks of the fact that 'any ordinance" may be proposed and Section 410. 20 does not distinguish between initiative and referendum, but refers to "submitting ordinances . . . ' and . . . the repeal of ordinances in like ma.nner." Minnesota has no case law directly on point. However, any analysis of the case law in other jurisdictions and the general rules concerning statutory construction and initiative and referendum leads to the conclusion that the power of initiative extends to all legis- lative matters. ' The general rule has been stated as follows: "Generally, then, by the initiative the people ma.y enact laws on which the legis- lature has not acted and may amend or even repeal laws already enacted by the legislature. . .". 42 Am.Jur. 2d, Initiative and Referendu.m § 9. Similarly, it is stated: "Ordinances �are repealable, as a rule, by the proper exercise of initiative or re er�en�um. However, under some statutes, initiative proceedin s cannot be used to repeal existing legislation." �Emphasis added) . 5 McQuillin, Municipal Corporations (3rd ed. ) , p. 209, § 21.11. The majority of jurisdictions have so held. For example, in State ex rel. Shar e v. Hit�, 155 Ohio App. 529, 99 N.E.2d 659 � , t e 0 io upreme ourt upheld the use of initiative to repeal an �ordinance authorizing the use of parking meters. The rationale of the Ohio court was as follows: CounciZman Sylvester Page Five February 15, 1978 "This and other cour�s have declared that consti- tutional, statutory or charter provisions for municipal initiative or referendum should be liberally construed in favor of the power reserved so as to permit rather ,than preclude the exercise of such power, and the �.object elearly sought to be attained should be promoted rather than prevented or obstructed. State ex rel. City of Middletown v. City Comm. of City of Middletown, 140 Ohio St. 368, 44 N.E.2d 459; 62 Cor us Juris Secundum, Municipal Corporations, � 451(b�, page 870. . It is interesting to note that neither the Consti- tution of Ohio nor the statutes place any definite limitations on the use of the initiative. And the • obvious purpose of the initiative as it affects municipalities is to reserve to the people of those municipalities the right to exercise their inherent or political power over the council or other legis- lative body as to local legislation. Moreover, expecially in the light of Section 2, Article I of the Constitution, providing that 'Al1 political power is inherent in the people' , the adoption of the initiative and referendum as a part of the Constitution evidenced a firm resolve on the part of the people that the legislative branch of the state or local government shall be subject to the control of the people with respect to legislative measures, except as otherwise provided. �. .._ .�_ ,. .. .. Even though this opinion suggests an overlapping use of the initiative and referendum, we are confident it sustains the intentions and purposes of the people in making the initiative and ref- erendu.m a part of their organic law. Of course, � the referendum is not as wide in scope or range as the initiative, the former, by its very name, being restricted to the referring of legislative measures to the electors for their acceptance or � rejection." 99 N.E.2d at 662, 664. Councilman Sylvester Page Six February 15, 1978 , The Court of Common Pleas of Ohio, Cuyahoga County, has followed the �Shar�e case and upheld the use of initiative to propose the repea-I o�a zoning ordinance. Store ard v. Board of Elections of �Cu yah__o�a Count , 22 Ohio Misc. , . . , e to��e ar ecision also cited the following rationale from Dub ak v. oT�vach, 164 Ohio St. 247, 252; 129 N.E.2d 809, 813 (1955� "This court held that, since the initiative applies to ordinances and other measures which can be en- acted by a city council, and since such council has the power to pass an ordinance repealing a previous . ordinance, such a repealing ordinance can be sub- mitted to the electors under an initiative petition. It would seem there can be no question of the sound- • ness of this rule." 255 N.E.2d at 882. Moreover, the Store ard decision specifically stated that the fact that the charter an state legislative code made distinctions between initiative and referendum and the fact that the charter requires more signatures to a referendum petition than to an initiative petition are of no significance. 255 N.E. 2d at 882. The California Court of Appeals has used similar reasoning in upholding use of the power of initiative to repeal an ordinance establishing a m�nicipal golf course. Duran v. Cassid , 28 Ca1.App.3d 582, 104 Cal. Rptr. 793; (1972) . Speacing irect y on point, the court stated: "The power to legislate, by implication, includes the power to amend or repeal existing legislation. (Johnston v. City of Claremont, supra, 49 Cal. 2d 826, 834, 323 P. 2d 71; Blotter v. Farrell, 42 Ca1. 2d 804, 812-813, 270 P. 2d 481; 6 McQuillin, Municipal Corporations (3d ed. ) � 21. 10. ) As to respondent' s contention that petitionErs' � sole remedy would have been a referendum petition to reverse the 1966 legislative action of the council and board of supervisors, which under state law would have had to be filed within 30 days of the legislative act (Elec.Code, � 4051) , we � can only respond that we f ind no authority, and respondent cites none, for the proposition that the failure to assert a referendum petition within the time allowed by law forecloses the power to seek a change in legislative policy by the ini- tiative process. To so hold would thwart the initiative go�aer." 104 Ca1.R. at 799. : � Councilman Sylvester Page Seven : February 15, 1978 , The Supreme Court of California has similarly held. Blotter v. Farrell, 42 Ca1. 2d 804, 270 P. 2d 481 (1954) . Cases in New Jersey are a so directly on point. In Smith v. Townshi of Livin ston, 106 N.J. Super. , 256 A.2d 85 (19 , it was e t at t e avai a- bility of .referendum did not limit the use of initiative, although in the particular case the Zoning Code was held to limit both initiative and referendum. The court held as follows: "Under N.J.S.A. 40:69A-185 the voters also have _ the power of referendum, which is the power to approve or reject at the polls any ordinance passed by the council against which a referendu.m. � petition has been filed. If, within 20 days after final passage and appraval of an ordinance, a , petition protesting the passing of such ordinance � is filed with the municipal clerk bearing the re- quired number of signatures as therein provided, the ordinance is suspended from taking effect until proceedings are had as provided for in the subse- quent sections of the statute. However, the fact that the voters have not exercised their power of referendum within the 20-day period which necessarily suspends the ordinance from taking effect does not ` preclude the voters at a later date from proposing an ordinance covering the same subject matter by way of initiative. Section 184 of the Fav.lkner Act does not limit the power of initiative to only those areas of municipal concern which have never been the subject of favorable council action. When there is either a change in the circumstances or in � the will of the people, it ma.y be highly desirable to amend a long-standing ordinance. In such a case, when the governing body fails to act, the initiative procedure provided for by section 184 is available to the voters. Hence, I find no merit in the argument that plaintiffs' petition is in effect one for a referendum and is out of time." 256 A. 2d ' at 88. Other state courts have ma.de similar holdings. See, Meridian Develo ment Co. v. Edison Townshi , 91 N.J. Super. 31��. 2d �T�T�196 ; E war s v. r , S.W.2d 470 (Tex. Civ. App. 1953 State ex rel. GaSSe'rt v. acQueen, 82 W.Va. 44, 95 S.E. 666 (1918). Councilman Sylvester Page Eight ` , February 15, 1978 Two states appear to have contrary law to the ma.jority rule al- though close examination of the cases reveals that at least one state' s cases can be distinguished. See, Hu hes v. Br an, 425 P. 2d 952 (Okl. 1967) ; _W�att__v. Clark�99 . c� 1956) ; Heider v. Common Counci�of Git o auwatosa, 37 Wis. 2d 466, . . ; an t v. Cit o isconsin Dells, 30 Wis. 2d 470, 141 N.W. 2d 245 (1 Bot an t an Hei er o d that an ordinance may not be repealed by use o� initia'tive. However, these cases are based upon Wisconsin statutes and legislative hi�story. The Landt decisio n explains the legislative history of the state statute authorizing initiative and points out that Wisconsin statutes used to provide for referendum, but the refer- . endum provision was repealed by the legislature and was not re- enacted. The key to the reasoning of the Wisconsin courts is found in the following language: � "No art of resent sec. 10.43, Stats. is � com�ara e to t e re eren um proce ure con- tained in sec. ��'� . The legislatiwe history makes it clear that the legislature intended to eliminate the referendum provided by sec. 39 j , and leaves no room for the contention that the legislature intended to authorize repeal of existing ordinances or reso- lutions by resort to the initiative under sec. 10.43, Stats." (Emphasis added) 141 N.W. 2d at 248. Thus, the ma.in basis of the opinions is that Wisconsin has no refer- endum procedure. Therefore, the Wisconsin cases ar e not applicable to Minnesota law and St. Paul law since we have both a power of initiative and referendum. Thus, only Oklahoma appears to pro- hibit the use of initiative to repeal laws. However, their case law is somewhat confusing. In W att v. Clark, su ra, it was held that an initiative petition was insu icient wher�e petition sought to repeal large portions of the charter without stating � verbatim the portions to be repealed and without proposing new law in place of the repealed pr-ovisions. The reasoning was as follows : • "Following this line of reasoning to a logical conclusion, it is determined that the people of , a municipality have reserved to them the power to �?�� Councilman Sylvester Page Nine February 15, 1978 : repeal a law or part of a charter only by complying with the procedural requirements and invoking the power of referendu.m or by making such repeal an ancillary step in proposing a conflicting law or amendment under the power of the initiative. The soundness of such a conclusion is readily apparent when consideration is given to various situations which might possibly arise. Confusion would be rampant if the people of a community could repeal those sections of the laws which establish the police department or the off ice of mayor or any other vital office without, at the same time pro- posing some form of amerzdment to effect the per- formance of the dutzes placed upon those officers." � 299 P. 2d at 802. In commenting upon the W att decision in Hu hes v. Br an, �su�ra_, the Supreme Court of Ok�ma stated the ru e in yatt as �ol�ows: "This court held an initiative petition covering solely the proposed repeal of existing ordinances and not including proposed new legislation or amendments to existing ordinances to be insuf- f icient as it did not involve a subject reserved . to the people under the initiative and refer- endum provisions of the Oklahoma Constitution." 425 P. 2d at 954. ' Since the above statement of the rule in W_�a�___t�t does not distinguish between initiative and referendum, it is u-nc ar whether, even Oklahoma law forbids the use of initia�ive to repeal in all circum- stances. The state of the law in Oklahoma. is further confused by the fact that an earlier case, which does not appear to be expressly overruled, held that initiative ma.y be used to repeal a charter. See List v. Reick, 104 P. 2d 248 (Okl. 1940) . In addition to the above case law on point, the conclusion that initiative can be used to accomplish what is basically a repeal of ' part of an ordinance is reached by the rules of construction con- cerning initiative. The general rule is that provisions for initiative are to be liberally construed to effectuate their pur- poses and that doubts as to the validity of initiative petitions should be decided in favor of their validity. See, e. Ba less v. Limber, 26 Cal. App. 3d 468, 102 Cal Rptr. 6-� 6�(1 , Councilman Sylvester Page Ten ' February 1S, 1978 Farle v. Healey, 62 Ca1. Rptr. 26, 431 P.2d 650, 652 (1967) ; B otter v. �arrell, 42 Cal. Rptr. 2d 804, 270 P. 2d 481, 484 ; war s v. �Mur�h�, 256 S.W.2d 470, 475, 477 (Tex. Civ. App. 195 . t is a s-I o generally held that a limitation on the power of referendum or initiative will not be implied. The scope of initiation has been stated as follows : "It is restricted to legislation within the power of the municipality to enact or adopt. A limi- tation of the power by general law may either be express or arise by implication, but the limita- tion will not be implied unless the limiting . provisions are clear or compelling. At least, the power extends to all ma.tters of local concern other than those excluded by express or necessarily � implied exceptions contained in charter, statutory, or constitutional provisions. The generality of the phrase "any proposed ardinance" in an initia- tive and referendum statute does not make it void for uncertaint ." 5 McQuillin, Municipal Corpora- tions (3rd ed.� � 16.54, p. 209. See also 42 Am.Jur.2d Initiative and Referendum � 9; Ba less v. �'imber, su ra, 26 Ca1.App.3d at 650; McKinle v. Cit o raser, �b�b�lich�, 114 N.W.2d 341, 343 (1 ; tate ex re . u ic Service Commission of Montana v. Brannon, 8 ont. , , , ; ass v. mit , Tex. 632, 244 S.W.2d 645 (1952) . There is no Minnesota case law directly on point, however, there are three cases dealing with initiative and referendum`which serve to indicate the attitude of the Minnesota court in this area. In Housin and Redevelo ment Authorit of Minnea olis vs. Cit of innea o is, inn. , N.W. , t e court up e en�oining an election on proposed charter amendments be- cause the charter amendments would grant the right of referendum to "any action" taken by the city council, not limited to the � adoption of ordinances. Although the court expressed reluctance at enjoining such an election, it held that it was clear that Minn. Stat. � 410. 20 limited referendum to ordinances. 19$ N.W.2d at 53b-7. In Bogen v. Sheedy, 304 Minn. 62, 229 N.W.2d 19 (1975) Robert Sylvester Page Eleven ; _ February 15, 1978 a referendwm. petition tieas brought to repeal obscenity ordinances. The district eourt determined that the petition was insufficient because it covered two ordinances. In reversing the district court, the Supreme Court stated the following: "Moreover, public officials rule with the consent of the governed. What possible harm could result in requiring a referendum on the subject matter of this litigation? If the voters vote down the ordi- nances, it will be the majority of the people themselves and not merely their elected representa- tives ma.king that decision. If the voters affirm . the council, what greater assurance and encouragement could be given officials required by law to enforce : such an ordinance than the fact that such a law has � been passed by not only a majority of the legislative body of that city but of the people as well? Courts can take notice of how difficult it is to prepare and to circulate any petition. Frequently such petitions are prepared by laymen, not skilled in the technical aspects of the law. Courts should exercise extreme caution in ruling out, on mere technicalities, such documents which are the result of democracy working at the grassroots level." 229 N.W. 2d at 24. A f inal Minnesota case is closer to the point. That case, G.E.M. v. City of B�_loomin�ton, 274 Minn. 471, 144 N.W.2d 522 (1966 , is ased on tF-ie fo�owing facts. Bloomington approved an. ordinance prohibiting certain business on Sunday. The ordinance was challenged and the Council repealed it. The Council then passed a new "Sunday Closing" law and a petition for referendum was submitted challeng- ing the law. The petition was ultima.tely found sufficient and the Council repealed the law. However, subsequent tio that repeal a new Sunday closing ordinance was submitted by initiative and sub- sequently adopted by public vote. An action was brought challenging, ' among other things, the manner in which the ordinance was established. In upholding the ordinance, the Minnesota Supreme Court stated as follows : , � _.__ Councilman Sylvester - Page Twelve � � � February 15, 1978 "The power of the municipal corporation acting pursuant to its charter to submit the ordinance here involved to the voters in response to an initiative petition was not affected by the council's repeal of the ordinances previously enacted by it. There was no attempt here to nullify provisions of a municipal charter by council action -- a procedure disparaged by dictum in Megnella v. Meining, 133 Minn. 98, 157 N.W. 991. The vacillation of the city council in adopting and repealing ordinances on a spe- cific subjeet should not, we feel, foreclose municipal action through the initiative pro- cedures for which provision has been made in the city' s charter." In essence, the court appears to be saying that prior events are not to affect the power of initiative given to the people. These three Minnesota cases appear to indicate that the Minnesota Supreme Court will not interfere with the exercise of initiative or refer- endum as long as the subject of the petition is a ma.tter of legis- lative concern -- as opposed to a resolution or administrative matter. 2. Repeal of Human Rights Provision as "State Action". It has been suggested that repeal of a provision such as the "gay-rights" provisions of the City' s Human Rights ordinance would constitute state action, and, thus, discrimination in violation of the Fourteenth Amen.dment to the United States Constitution. The case of Reitman v. Mulke , 387 U.S. 369, 18 L. Ed. 2d 830, 87 S. Ct. l is cited in support of this proposition. There are several problems with this analysis . First, it is not estab- lished, as a matter of federal law that discrimination against gay persons is prohibited by the Fourteenth Amendment or the Federal Civil Rights Act. Moreover, it is the general rule that state action does not include state inaction and the state or local government is not under an obligation to take positive action. See 15 Am.Jur. 2d Civil Ri�ht�s § 10 and cases cited therein. If a municipality is un ecTr—no o�6Tigation to pass a particular ordinance, the repeal of such ordinance is not improper. The Reitman case, cited above, involved a very special set of facts. i�rst of all, it dealt with racial discrimination which is clearly covered by the Councilman Sylvester : Page Thirteen February 15, 1978 , Fourteenth Amendment. Secondly, it involved an amendment to the California state constitution which created a right to discrimi- nate in the sale and rental of real property. The amendment, entitled Proposition 14, read in relevant part: "Neither the State nor �"any subdivision or agency thereof shall deny, limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease or rent any part or all of his real property, to decline to sell, leas'e or rent such property to such person or persons as he, in his absolute discretion, � - chooses." 18 L. Ed. 2d at 842. In upholding the California court's finding that Proposition 14 was unconstitutional, the U. S. Supreme Court carefully distinguished the situations involving mere repeal of laws or neutrality as it stated: "(The California court) did not read either our cases or the Fourteenth Amendment as establishing an automatic constitutional barrier to the repeal of an existing law prohibiting racial discrimina- tion in housing; nor did the court rule that a State ma.y never put in statutory form an existing policy of neutrality with respect to private discriminations. What the court below did was first to reject the notion that the State was re- quired to have a statute prohibiting racial dis- criminations in housing. Second, it held the intent of � 26 was to authorize private racial discriminations in the housing market, to repeal the Unruh and Rumford Acts and to create a consti- tutional right to discriminate on racial grounds in the sale and leasing of real property. Hence, the court dealt with § 26 as though it expressly . authorized and constitutionalized the private right to discriminate. Third, the court assessed the ultimate impact of § 26 in the California environment and concluded that the section would encourage and significantly involve the State in private racial discrimination contrary to the Fourteenth Amendment. � �� r ,��,. Councilman Sylvester Page Fourteen • February 15, 1978 The California court could very reasonably con- clude that � 26 would and did have wider impact than a mere repeal of existing statutes." 18 L. Ed. 2d at 835. For the above reasons, the Reitman decision is clearly distinguish- able from the present case. CONCLUSION The initiative petition repealing the provisions relating to "affec.tional or sexual preference" in the Huma.n Rights ordinance . should be allowed to go on the ballot. Neither the Charter of the City of St. Paul nor Minn. Stat. § 410.20 contain any limitations on the right of initiative except that it only applies to ordi- . nances. The general rule is that the power of initiative is to be liberally construed. The vast majority of states which have considered the question have held that ordinances may be repealed by initiative as well as by referendum. Repeal of these provisians of the Human Rights ordinance does not constitute "state action" as the United States Supreme Court has construed state action. Re pectfully submitted, �-c�� HARRIET LANSING City Attorney � � �� BERYL . NORD Assistant City Attorney BAN:jr • cc: Mayor George Latimer Members of the Council Rose Mix, City Clerk - . � � , ` '�, �1 ` �; _ - �► � �` , ��,� � ; { „ . , � �� y ` _ ,�I � � ,� �, r �' 4 '1 , . :� ; � $ 5 ` t . , � �� r� � ti� , ` ; :� � �' l ;� . �. , •+� , _ •�� i 1j � .' , ,, �,� . , '- � ' . .. . � . .. ,.', . : . . � ` _ . ;.� . . ,. ._ � ,,, . .. . .. ' �-�� . �-i�, . �.� ,�e�� ,. .... ,t._ ` , , � � _ � - . . . - _ 4 ,t • y ` _ _ �� _� . . . .. , .. _ . '. ,� , � � -:� '' : � . �i. . . . . ,: � �'. 1-. i . , �� /:.. '),' , . . ` ' "-' , . . . ��.�' . . . .,.. ,. . , r, .,,"' .. '.... �;-..: ! '^-, , � ... .-. . , . . i _ . . .. .. :.;� �•- . � ' .' i i� i ^ - �a > , . �_. � : � .,. ,,+ , ... , ,� , . . :I,` � , � . ., . .�, I , r ,f'�� . �� Y.: � ,. . . . .� � � �: • y ' . „ �_� , e . . .. . . , .� • - .. .:. ,r. . - � ' .� . } . � � . .�. „'-.. . .; _ . "d' j � ��t�s�� #�� i _ , , . � . . � , . , _ . ; , . � - . � ._ , , , . . z �� , , � � ,��- , , ,, ; , . . ;. : �. � , � .t. .. . . . t. i � .f . '� t � , \ . . '\ d .. �r.�� 1�1�1�l�=�� ` � t� � ... . ��W��:�T�'Ar`kwrwy�� . � ` �. � '� >� k ri �i `� ;i � f7M�� '��iMlri�� h ' � ` ` i �v.'; �$; ��'�d►t�3.t �C�teoit� � . � r�� ,, � � � � '� ,, `j- . � . .��:��t�� . ' \` F k ti � �!�►M ��' 'Co�+��:, �d$Y'`1td�,►i�`� �L°1Mm1�',��sA ;s�"�QYr�;1C3�L�.t�. �►'�1 �s�►�!;� - i �� ,. � 'dI�P��'�te,�es+n��t�.oc► ,��d�� `1�ai,t :+if�k� �ttf.i�►�i�:°p��.'�'�t. � ; , { ' � ; f `.L'�pl�' ?4:'�f:��5�. �'i�v1� 3.�gi�1+Re�.�+ �iF��s` �a�:��!�t°�tr�.,a�i':' ' •�:' � x , ` si�u�k�t��► x��d bj� tAe �ta�:' � � ,_ < T ��.� �� , , � i � f t , � ' :�� ri.�. '�Il�r� �� _ .1 , .. . . � , . .. - �- � .. . : . .. � � .. . . . ,.- . . `. ., .. . . . . . . .��. . , � . . -. ` .. � .' � . ' . .. � �. 'ti' 1 '_ . .. • . . � l ` / 'J` ,' ' ` '.. i � r. ...� . , �. .� ' . , . .. . . , �.. . , ° . .. , , • . . , . . . ��. -. . ,. . . .. . �,. .,� . . �. .- �. __ . . , �. .. . _ , �_ .. ;. . ' .�:" . � .. �- ,M��,Vl;l�, . .: ' I� r� „ . . .; . . .. ... .,- , . , .: . . :.. . , .�.� .�, '• , .�� .. . . . .,..� . . .� . . , . :.� . . . : ,. '._� , . , . , , �. . . ��. -� , . �� i ,-� ��. i A�3t�t � � t '` � � . r� - ,. � . , . , � . . = , . . . .� . ' .r, i+i ��' . , � . . .� , . . : . . � . . �� . . . ... r , .• . ..; .,� � . . . . . . . .. ' '�. , y {� ... . . . . . . -• - ..)$ .. ' . . � �4. !�. . � . 'Y f � .iF�. � !, � ' � ^' ��' } } ✓ .l. t ' � . � .i�. � �-i. ��"� t� 4 � t 1� . �� ': / .1� `e d. � ,^ G . f � , .�... ... � � . �� i � l y J '1`- }� ( . - . .7 .`t `A ` �� . ' � � . . . � � - 1 �, �5� i� _ � �� y_ "'— ',� �� a�, i � " � . , . . -t � .,. � `t y . ' . .. . � �;� � . , . � . .; '�: • �i � ,. . , . �... . . ., ., . , . .. . �� '� . . - :. 1 �: � :�� 'f. ....,, , �.." �1 ' ,: , . ��. ... .: .� . . � ��. �� , ' `x �yJ . � _, r �� . � 1 ; ,- .� l' . r . ��. , .-. . . , � : ', . . . ., . '�: �._� :�� R : r.:.. . ... .. . ::�. . . . . i ..� . . . . ..-.. .. . . . . . � � ....:... . ..� . _.. ...... .. ....''. . ...._ . -