ST. PAUL CITIZENS, ETC. v. CITY COUNCIL, ETC.

• Decision Date: 10 August 1979
• Docket Number: No. 48919,48939.,48919
• Parties: ST. PAUL CITIZENS FOR HUMAN RIGHTS, Appellant, Carla Messman and Craig Anderson, Plaintiffs, v. The CITY COUNCIL OF the CITY OF ST. PAUL, et al., Respondents, and Citizens Alert for Morality (CAM), Intervenor, Respondent.
• Court: Minnesota Supreme Court

289 N.W.2d 402 (1979)

ST. PAUL CITIZENS FOR HUMAN RIGHTS, Appellant, Carla Messman and Craig Anderson, Plaintiffs, v. The CITY COUNCIL OF the CITY OF ST. PAUL, et al., Respondents, and Citizens Alert for Morality (CAM), Intervenor, Respondent.

Nos. 48919, 48939.

Supreme Court of Minnesota.

August 10, 1979.

Connelly & Heffernan, Donald J. Heffernan, Scott F. Tilsen, and Carolyn F. Rusch, St. Paul, for appellant.

Suzanne Flinsch, City Atty., and Terry Sullivan, Asst. City Atty., St. Paul, for the City Council.

Dorsey, Windhorst, Hannaford, Whitney & Halladay and Roger J. Magnuson, Minneapolis, for Citizens Alert for Morality.

Heard, considered, and decided by the court en banc.

TODD, Justice.

Plaintiffs appeal from a judgment of the Ramsey County District Court refusing to enjoin the St. Paul City Council from placing an initiative question repealing the St. Paul Gay Rights Ordinance on the ballot of the April 25, 1978, election. The issues raised by this appeal are: (1) Whether St. Paul voters can repeal an ordinance by initiative; (2) whether the ballot question was improperly drafted; (3) whether the St. Paul Human Rights Ordinance as amended conflicts with the Minnesota Human Rights Act; and (4) whether plaintiffs are deprived of their constitutional rights to due process and equal protection by repeal of the St. Paul Gay Rights Ordinance. We affirm.

In July 1974, the St. Paul Human Rights Ordinance was amended to prohibit discrimination based on "affectional or sexual preference."¹ St. Paul Legislative Code, chapter 74. In late 1977, a group of St. Paul residents circulated an initiative petition to repeal the St. Paul Gay Rights Ordinance by deleting from the St. Paul Human Rights Ordinance all reference to "affectional or sexual preference" and the provision that the requirement of religious membership be applied to all applicants by religious institutions. The petition was filed with the St. Paul City Clerk on January 17, 1978. The city clerk certified the petition to the city council which determined that the petition was sufficient and voted to place the petition on the April 25 election ballot.

Plaintiffs, an unincorporated association, filed suit on March 8, 1978, seeking to enjoin defendants from placing the petition question on the ballot and for a declaratory judgment that the petition was insufficient and that the ordinance could not be repealed by initiative. The district court denied plaintiffs' motion for summary judgment and granted defendants' motion for summary judgment on March 27, 1978. We denied plaintiffs' petition for temporary relief, pending appeal on March 31, 1978.

The amended ordinance was approved at the April 25 election. Plaintiffs' motion for a temporary restraining order preventing the city council from certifying the election results was denied on April 28, and this appeal followed.

1. Plaintiffs contend that voters in St. Paul cannot use the initiative process² to repeal an ordinance; they claim that council action or a referendum are the only means by which an ordinance can be repealed. Defendants argue that the power to legislate includes the power to repeal, that there are no restrictions on the power of initiative, and, thus, that an initiative can be used to repeal an existing ordinance. Whether or not voters have the power to repeal an existing ordinance by initiative is a question of first impression in Minnesota.

Municipal ordinances are enacted either by action of the city council or by the initiative process. 5 McQuillan, Municipal Corporations (3d ed. 1969 rev. vol.), § 16.01. The power to enact ordinances generally implies the power to repeal them. 6 McQuillan, Municipal Corporations (3d ed. 1969 rev. vol.), § 21.10. The city council repeals existing ordinances by enacting new ordinances. See, 6 McQuillan, Municipal Corporations (3d ed. 1969 rev. vol.), § 21.09. The voters of St. Paul are, therefore, also able to repeal existing ordinances by enacting new ordinances through the initiative process unless the grant of authority provides otherwise. See, 6 McQuillan, Municipal Corporations (3d ed. 1969 rev. vol.), § 21.11.

The St. Paul City Charter³ grants the people "the right to propose ordinances, to require ordinances to be submitted to a vote, and to recall elective officials by processes known respectively as initiative, referendum, and recall." St. Paul City Charter, § 8.01. It also provides that "any ordinance may be proposed by initiative petition * * *." St. Paul City Charter, § 8.04. These two provisions indicate that the city charter commission intended the voters to be able to repeal or amend existing ordinances by initiative.⁴ See, State v. City of Wheeling, 146 W.Va. 467, 120 S.E.2d 389 (1961), in which the court emphasized that the term "any proposed ordinance" must include a repealing ordinance.

2. Plaintiffs allege that repealing the clause relating to religious institutions in the provision regarding discrimination in education would allow the membership requirement to be used to discriminate on the basis of race, sex, or any other protected classification. Plaintiffs claim that under this interpretation the ordinance conflicts with the Minnesota Human Rights Act, Minn.St. c. 363, and is, therefore, invalid. A municipal ordinance will be upheld unless it is inconsistent with the Federal or State Constitution or state statute. We have established four general principles for determining if a municipal ordinance conflicts with a state statute:

"(a) As a general rule, conflicts which would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other.

"(b) More specifically, it has been said that conflict exists where the ordinance permits what the statute forbids. Power v. Nordstrom, 150 Minn. 228, 184 N.W. 967, 18 A.L.R. 733.

"(c) Conversely, a conflict exists where the ordinance forbids what the statute expressly permits. Power v. Nordstrom, supra. A part of the holding of that case was that an ordinance requiring the closing of movie theaters on Sunday was not inconsistent with the state Sunday closing statute since the latter, while not specifically forbidding theaters to open, did not expressly permit them to either.

"(d) It is generally said that no conflict exists where the ordinance, though different, is merely additional and complementary to or in aid and furtherance of the statute. This rule is illustrated in State v. Clarke Plumbing & Heating, Inc., 238 Minn. 192, 56 N.W.2d 667. That case dealt with an ordinance requiring a license and permits to install heating systems. Defendant was denied a permit because his plans were not prepared by a registered engineer, as required by the ordinance. The court held the ordinance valid despite the existence of a similar statute that did not have as broad a coverage as the ordinance, saying that the city could well have determined that greater restriction was necessary in a community of its size. This was consistent with the statute." Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 352, 143 N.W.2d 813, 816-817 (1966).

In the present case, the Minnesota Human Rights Act forbids discrimination in education because of race, color, creed, etc. Minn.St. 363.03, subd. 5. The act, however, also provides that "it is not an unfair discriminatory practice for a religious or denominational institution to limit admission or give preference to applicants of the same religion." Minn.St. 363.02, subd. 3.

The St. Paul Human Rights Ordinance as amended appears on its face to be the same as the state statute. It does not forbid what the statute permits or permit what the statute forbids; nor does it contain express or implied terms that are irreconcilable with the statute. Mangold Midwest Co. v. Village of Richfield, supra. We do not believe that the state statute or the ordinance as amended would be construed so as to permit discrimination by a religious institution on the basis of race, sex, or any other protected classification. We therefore find no inconsistency between the state statute and the ordinance as amended.

3. Plaintiffs also claim that the ballot question repealing the St. Paul Gay Rights Ordinance was improperly drawn because it actually contained two questions.⁵ The first question dealt with deleting all reference to "affectional or sexual preference" from the St. Paul Human Rights Ordinance, and the second question dealt with deleting the clause "provided such requirement is placed upon all applicants" from the provision which permits a religious institution to require membership in its denomination as a condition of enrollment.⁶

A municipal ordinance must contain only a single subject. See, St. Paul City Charter, § 6.04. An ordinance violates this proscription only when it contains subjects which are so dissimilar as to have no legitimate connection. See, City of Duluth v. Cerveny, 218 Minn. 511, 16 N.W.2d 779 (1944), where we held that an ordinance providing for the forfeiture of intoxicating liquor did not violate the Duluth Charter provision that no law shall embrace more than one subject because the question of forfeiture had a logical and material connection to the subject of regulating the sale of intoxicating liquor. The purpose of such a charter provision is to avoid the possibility of logrolling, deceit, or voter confusion. See, Bogen v. Sheedy, 304 Minn. 62, 229 N.W.2d 19 (1975), where we held that a referendum petition concerning two ordinances was valid despite the fact that it contained two questions, because the ordinances had been debated together, considered together, were passed at the same council meeting, and dealt with the same subject matter.

In the instant case, both questions concerned the same subject matter — the St. Paul Human Rights Ordinance. Given the public debate on the initiative, there was little possibility of deceit, voter confusion, or...