Rep. Marion O’Neill, left, and Sen. Mark Koran filed suit seeking to block the 2020 collective bargaining agreement with state employees.


Ramsey County judge finds O’Neill and Koran lack standing; an appeal is planned


A Ramsey County judge has dismissed a lawsuit filed by two GOP lawmakers who tried to undo negotiated union contracts that gave state employees 2.5% pay raises in 2020.

Judge Lezlie Ott Marek approved Minnesota Management and Budget’s motion to dismiss a complaint filed on Dec. 30 by Rep. Marion O’Neill, R-Maple Lake, and Sen. Mark Koran, R-North Branch.

Marek found that O’Neill and Koran lacked standing to sue, either as legislators or taxpayers. Their petition, she writes, “must be dismissed on this threshold ground alone.”

James V. F. Dickey, an Upper Midwest Law Center attorney representing the lawmakers, said an appeal is planned “in the near future.”

“We respectfully disagree with Judge Marek’s decision,” he said in an email to Session/Law. “It’s unclear how any taxpayer in Minnesota could ever challenge illegal government spending based on the decision.”

The legislators asked for a declaratory judgment that MMB implemented an illegal cost of living pay hike for state workers, with additional merit pay for a little more than half of them.

O’Neill and Koran also demanded a writ of quo warrant, blocking MMB Commissioner Jim Schowalter from implementing the agreement negotiated under his predecessor, former Commissioner Myron Frans.

The lawmakers claimed the 2020 collective bargaining agreement (CBA) was invalid because it never passed into law. The implemented agreement was approved only by the DFL-led Minnesota House. The Senate didn’t ratify that bill.

Instead, the Senate took up and amended a different bill. It ratified the union contracts, but added language that delayed pay raises until July 2021. That bill was then sent to the House, but the House never took it up.

In the end, the chambers never agreed on a unified bill, nor did the governor ever sign one. But Frans announced he would implement the CBA anyway, because each chamber had voted—in one form or another—for ratification.

Among their arguments, O’Neill and Koran said Frans’ actions nullified their votes—O’Neill’s because she voted against ratification; Koran’s because he voted yes for the alternate version that delayed implementation.

They charged that the CBA violates Minn. Stat. § 3.855 (the collective bargaining statute); Article XI, Section 1 of the Minnesota Constitution (as an appropriation contrary to law); Article Ill, Section 1 of the constitution (as an illegal seizure of legislative powers); and Minn. Stat. § 16A.15 (for illegally allotting appropriated funds).

MMB filed a motion to dismiss on Feb. 1. Oral arguments were held on April 17.


Ramsey County District Court Judge Lezlie Ott Marek

Ramsey County Judge Lezlie Ott Marek

Standing as lawmakers

As a threshold matter, MMB moved to dismiss on grounds that O’Neill and Koran lacked standing to sue as lawmakers.

Lawmaker standing is construed narrowly, Marek notes in her July 19 order. It requires demonstration of personal injury, as opposed to institutional injury to the whole legislature. In an attempt to clear that hurdle, the two lawmakers claimed their votes were nullified.

That assertion doesn’t work, the judge found. Vote nullification lies only where votes would have been decisive in defeating the bills. That’s not true in either lawmaker’s case.

O’Neill’s no vote was not determinative, Marek found. The House bill passed 74-60, so her vote made no real difference to the outcome.

Koran can’t claim nullification either, even though the ratified agreement didn’t include the contingency he favored. For one thing, the judge found, Koran had voted for an improper Senate attempt to alter the agreement (more on that later). For another, he voted yes.

Writes Marek:

“The fact that his vote was premised on an improper amendment, not recognized by statute, does not change the fact that he voted to approve the CBAs. Thus, petitioners’ conclusory label of vote nullification is insufficient to establish legislator standing.”


MMB Commissioner Jim Schowalter

MMB Commissioner Jim Schowalter

Taxpayer standing

The lawmakers’ also lack standing to bring suit as taxpayers, the judge finds.

Minnesota taxpayers can challenge certain illegal expenditures by public officials, and O’Neill and Koran alleged that Frans illegally implemented a non-ratified contract, so he illegally spent public funds from the 2020-21 biennial budget.

To find taxpayer standing, Marek said, she first must determine whether an illegal act or unlawful expenditure occurred. If so, the lawmakers might have standing to sue as taxpayers.

But here they don’t, the judge found. While petitioners argue that Frans acted illegally by implementing an unratified CBA, they ignore that both chambers did ratify the 2020 agreement, “albeit in two bills instead of one unified bill.”

What’s more, the judge found, Minn. Stat. § 3.855 allows nothing but up or down votes on ratification. Since 1979, she adds, lawmakers have had no ability to modify collective bargaining agreements—they may merely accept or reject them. So the Republican Senate’s attempt to alter the CBA by delaying implementation was invalid, the court found.

That means both chambers actually ratified the same union contracts that Frans chose to implement, the judge found—so no illegal act was committed.

The judge rejected lawmakers’ argument that a CBA’s approval can’t be premised on cobbling two bills together. The only way to pass the contracts, they argued, is by passing a law that the governor signs. They also argued the Senate’s amendment can’t be severed from the bill Koran’s chamber approved.

But the judge found that Minn. Stat. § 3.855 actually doesn’t ask the legislature to “create a law.” Instead, it unambiguously asks only for a yes or no vote on ratification, Marek ruled.

She writes that petitioners conflate the CBA’s statutory approval process with the process for appropriating funds. The latter was accomplished separately in 2019, when the legislature passed a 2022-21 biennial budget. Koran and O’Neill had no quibble with those appropriations, the judges writes, and no tax dollars would be saved by granting their requested relief.

The judge adds that any challenge to an allegedly “illegal disbursement” lost traction at oral arguments, when legislators acknowledged that they had no plans to “claw back” the money already paid out to employees.

Writes the judge:

“This statement is inconsistent with a belief that the monies were disbursed illegally. To have the commissioner’s action declared illegal and then look the other way on millions of dollars that have already been paid out to union employees pursuant to the CBAs would be an unlawful reaction to an illegal action.”

No Minnesota court ever found that individual taxpayers have standing to enjoin a negotiated state employee labor agreement, Marek writes. She agrees with an amicus brief, submitted by the unions involved, which argued that proceeding with the suit would interfere with the “separate and distinct roles for the commissioner and the legislature.” Writes Marek:

“Here, extending the doctrine of taxpayer standing on the facts of this case would make bad public policy on labor relations.”

Because the motion to dismiss was granted, the judge ruled that the petitioners’ motion for a temporary injunction has been mooted and does not require a finding.

MMB has not yet replied to a request for comment on the decision.


Session/Law logo by Kirk Anderson