by Steve Timmer

May 27, 2020, 2:30 PM

Recall Governor Walz! Part Two

A group of stalwart citizens (hereafter the “Yankee Doodles”) filed an application for an order to circulate a petition to recall Governor Walz in a special recall election. I wrote about the process to do that in Recall Tim Walz! Part One. A copy of the petition can be found here as posted by Fox Channel 9 News’ Theo Keith. Here’s the language of the petition that was tacked up on the Secretary of State’s door. It was forwarded to the Chief Justice of the Supreme Court for disposition.

The specific grounds upon which the state officer is sought to be recalled and a concise, accurate, and complete synopsis of the specific facts that are alleged to warrant the recall on those grounds, are as follows: Governor Walz (hereinafter “Walz”) exceeded his authority under Minn. Stat. ch. 12 and, in doing so, violated the rights of the citizens of the State of Minnesota under the U.S. Constitution. On March 25, 2020, Walz issued Emergency Executive Order 20-20. Claiming that Minn. Stat. §12.21, subd. 3(1), was unfettered authority to regulate all commerce and intercourse within the State of Minnesota, Walz proclaimed “[he] may ‘make, amend, and rescind the necessary orders and rules to carry out the provisions’ of [Minn. Stat. ch. 12).” Walz failed to recognize, in both his order(s) and in the execution of his office, that Minn. Stat. §12.21, subd. 3(1) restricted his authority to actions “within the limits of the authority conferred by [Minn. Stat. §12.21].” The Legislature merely authorized Walz to “cooperate with the president and [other federal agencies and sister state officers] in matters pertaining to the emergency management of the state and nation.” Minn. Stat. §12.21, subd. 3(7). This authority “include[s] the direction or control of … the conduct of persons in the state, including entrance or exit from any stricken or threatened public place, occupancy of facilities, and …   public meetings or gatherings . . . .” Order 20-20, at 2. The term “cooperate,” which is undefined in Minn. Ch. 12, must be given its ordinary meaning and cannot be considered surplus. Verba cum effectu sunt accipenda. Generally, cooperation is defined as “an association of individuals who join together for a common benefit.” Black’s Law Dictionary, pg. 384, 9th Ed. (2009). Walz went far beyond the definition and interpreted the term as granting him broad authority over the everyday lives of Minnesota residents including: unlawfully shuttering of its citizens’ property interests (under the 14th and 5th Amendments), unlawfully restricting its citizens’ liberty interests (under the 14th and 5th Amendments), unlawfully infringing on its citizens’ freedom of assembly (under the 14th and 1st Amendments), unlawfully infringing on its citizens’ freedom of religion (under the 14th and 1st Amendments), and infringement on Interstate Commerce (U.S. Const. Art. 1 §8). Most egregiously, Walz expanded the existing criminal sanction threat (Order 20-20 at 19), beyond what was authorized by the Legislature, by adding: “[a]ny business owner, … who requires or encourages any of their employees to violate this Executive Order is guilty of a gross misdemeanor and upon conviction must be punished by a fine not to exceed $3,000 or by imprisonment for not more than a year.” Order 20-33, ,i9.  This language has appeared in each subsequent order (20-48, at 110; 20-56, at 110). Minn. Stat., ch. 12, does not authorize this criminal sanction. Creating a criminal sanction, absent legislative action, is historically the behavior of a wannabe dictator waiting only for a Reichstag fire. Nulla poena sine lege. Factual violations of rights: one petitioner was prohibited on multiple occasions from attending his regular religious services; two petitioners were denied their protected property interests by a prohibition on employment in a “non-essential” job; two petitioners were denied the free exercise of interstate commerce, when the Woodbury police department, acting on Walz’s orders, prohibited their prospective Wisconsin customer from travel through the state of Minnesota due to his “non-essential” job; one petitioner’s right of free assembly was infringed upon when he elected to not attend protests since April 17, 2020 (see Ex parte Young, 209 U.S. 123 (1908); every petitioners’ liberty interests by requiring they remain in their homes, unless conducting business arbitrarily deemed “necessary” by Walz. Walz’s continuing malfeasance in office as evidenced by his propensity to assume authorities not granted by the Legislature, and the unlawful deprivation of protected rights these assumptions have had, and prospectively will have, on Minnesota’s citizens make a recall legally sound & necessary. (Emphasis added.)

I just love it when the Yankee Doodles start spouting Latin. Here they use it to buttress their sophomoric – it isn’t that good, really – interpretation of Minn. Stat. § 12.21 (2019).

Before we get to that, though, it must be recognized that the governor’s authority to adopt a peacetime emergency order is derived from another section of chapter 12, Minn. Stat. § 12.31 (2019), specifically, Subdivision 2. When a peacetime emergency arises and the governor declares a peacetime emergency, under § 12.31, we go back to § 12.21 to see what a governor may do. The powers, incidentally, are provided for both national security emergencies and peacetime emergencies. Subdivision 3 of that section provides a laundry list of powers of the governor: things the governor “may” do, not “must” do. A governor could do any or all of them under the statute.

The Yankee Doodles seem to be suggesting that all Tim Walz can do it talk on the telephone to Donald Trump, a/k/a, Donnie the King of Corona. This is where bullshit, pidgin Latin will get you in trouble every time.

The Yankee Doodles next complain that the peacetime emergency orders create an unlawful criminal sanction. Minn. Stat. § 12.45 (2019) specifies that “Unless a different penalty or punishment is specifically prescribed,” violation of chapter 12 or an order promulgated pursuant to it is a misdemeanor.

Here is a link to Executive Order 20-20, made by the governor on March 25^th; it’s the original shelter in place order. It’s also the first one referred to by the Yankee Doodles. I invite you to fire up the search function in your pdf reader and see if you can find the term “gross misdemeanor.” You can’t. You can find the word misdemeanor, twice. But, here’s where this all leads to, according to the Yankee Doodles:

Creating a criminal sanction, absent legislative action, is historically the behavior of a wannabe dictator waiting only for a Reichstag fire. Nulla poena sine lege.

– o O o –

This application for a recall petition is a complete and hideous mishmash, fraud, and libel of the governor. It brings odious obloquy on anyone who had anything to do with it.

And yes, there will be a part three.

Addendum

Gross misdemeanor sanctions are provided in E.O. 20-48 for, inter alia,  employers compelling employees to go to work in contravention of the public emergency order. The order is part of the process of “opening up.”

Any business owner, manager, or supervisor who requires or encourages any of their employees, contractors, vendors, volunteers, or interns to violate this Executive Order is guilty of a gross misdemeanor and upon conviction must be punished by a fine not to exceed $3,000 or by imprisonment for not more than a year.

As stated above, Minn. Stat. § 12.45 permits adoption of a sanction greater than a misdemeanor. This order is obviously aimed at situations where employers threaten their employees to violate the emergency order. So, it’s specifically provided in a special case.

Update 8/24: Well, there won’t be a part three after all. The chief justice has rather summarily dismissed the petition make to recall Governor Walz, and a second one, too.