The City Council decides one question: whether to place both certified petitions on the November 3 ballot. The agenda allows no public comment. Come anyway — fill the chamber. And be heard the way that is still open: email and call your councilors today (addresses below).
Both petitions are certified for the November 3 election — but it took a fight. When we delivered the petitions in June, we knew the count had left many valid signatures on the table for the 230-acre parcel petition: hundreds of sheets set aside, uncounted. So we spent a week fighting to get every valid signature counted — and on Friday, July 17, the clerk's office informed us it had found more than one thousand additional valid signatures. That put the petition at 4,220 — well above the 3,683 the Charter requires — and certified for the ballot, alongside the Lake 9 petition at 4,049.
That was fun for about fifteen minutes. Then the City told us that because it believes our petitions are illegal, it wasn't going to put them on the ballot anyway. We're still in court on that one (Bernstein v. Denham, St. Louis County File No. 69DU-CV-26-1924) — and the council still has the chance to do the right thing Thursday and put our petitions on the ballot.
On Wednesday, July 22, the petitioner in Bernstein v. Denham sent the letter below to all nine councilors, with the City Attorney's Office and the City Clerk copied. It is reproduced here in full.
Re: Thursday's special meeting — the two certified Lester Park initiative petitions
Dear President Nephew and Members of the Council:
I write as the petitioner in Bernstein v. Denham, St. Louis County File No. 69DU-CV-26-1924, and as a Duluth voter, on one subject only: the action before you Thursday evening. I am copying the City Attorney's Office and posting this letter publicly. I would welcome the opportunity to discuss this with any or all of you before Thursday's vote — with the City Attorney's Office present or with its consent, which this letter also serves to request of that office. Unless and until that consent is given, this letter is the whole of what I will say to you before you vote.
The administration has said state planning law forbids placement of the two petitions. Briefly, and with respect, here is why that is wrong. The planning act is an enabling law: it prescribes how a city zones — planning commission review, published notice, a public hearing, a council vote — and nowhere says whose assent completes the city's act. That has always been charter ground. Duluth's mayor has held a veto over ordinances — zoning included — since 1956, nine years before the planning act existed, and in the sixty years the two have coexisted no one has ever claimed that approval breaks the act. Since 1955, state law itself has required a seven-eighths council vote before Duluth conveys parkland — the state's own extra safeguard, layered on the same field. The U.S. Supreme Court upheld a city charter requiring voter approval of zoning changes as “power reserved by the people to themselves.” City of Eastlake v. Forest City Enterprises (1976). The one Minnesota case the administration relies on condemned a referendum — an attempt to unmake a completed rezoning that a second statute, applicable only in the Twin Cities metro, had required — and in the same opinion expressly reserved to municipalities the right to make “substantive determinations as to land use and zoning.” These petitions unmake nothing and skip no statutory step; they add the electors' approval, prospectively, for one category of land the City holds in trust for its residents. And the Minnesota Supreme Court has twice sent to the voters a charter measure requiring voter approval before a city implemented a decision reached under a detailed statutory process. Jennissen v. City of Bloomington (2018, 2020).
Whether that analysis ultimately prevails is for the district court, where the question is pending and fully preserved. But Thursday's vote does not require you to decide it — and under Minnesota law you may not: from Davies v. City of Minneapolis (1982) forward, certified measures go to the voters unless manifestly invalid — invalid beyond serious dispute. A theory that must be argued is, by definition, a theory for the courtroom, not a reason to withhold a ballot line.
Two further considerations, offered candidly. The City's own materials already state the governing principle: the Board & Commission Handbook, published last September, instructs the City's appointed boards and commissions that “ultimate power is reserved to the voters by way of Charter provisions for recall, initiative, and referendum.” And whatever the Council decides Thursday will resolve nothing legally. A council's vote on a certified petition's validity receives no deference; the district court decides that question de novo, and it is already positioned to do so. A vote to reject therefore cannot keep off the ballot measures the law places there. What it can do is produce a sequence in which the Council votes to keep its constituents from voting, and a judge then puts the questions back on the ballot — a sequence I would find confusing as a voter, and I suspect many of your constituents would as well. If any member is uncertain, tabling the rejection resolution refers the question to the court while adjudicating nothing.
I have sought no attorney's fees, costs, damages, or monetary relief of any kind in the litigation, and I seek none. The only relief anyone has requested, anywhere, is a ballot line.
I repeat the offer made above: I am available to meet with any or all of you, today or tomorrow, at the Council's convenience — through the City Attorney's Office.
I respect the commitment and dedication each of you brings to Duluth. We may disagree about particular issues of policy, but I don't doubt that all of us are trying to do what we think is best for this city's future.
Respectfully,
Michael “Bernie” Bernstein (MN Bar No. 0401630)
Petitioner, appearing on his own behalf