Post-Appointment Special-Election Ordinances in Statutory Cities: § 412.02, subd. 2a Permits Retroactive Application to Existing Vacancies and a Special Election Is Not “Removal” Under Article VIII, Section 5

Introduction

Dennis Walsh v. City of Orono, Minnesota (Minn. Dec. 31, 2025) resolves a recurring municipal-governance question: when a statutory city fills a city-council vacancy by appointment but lacks an ordinance governing earlier special elections, may it later enact a “special-election ordinance” and apply it to the already-existing vacancy to hold a special election before the next regular city election?

The case arose after Orono City Councilmember Matt Johnson resigned on November 12, 2024, with more than two years remaining in his term. Then-mayor Dennis Walsh appointed Claire Berrett on November 25, 2024. Orono did not yet have an ordinance specifying when it would hold a vacancy special election other than at the regular election. On February 10, 2025, Orono adopted Ordinance No. 307 and, by Resolution No. 7554, set a special election for May 13, 2025. Walsh petitioned under Minn. Stat. § 204B.44 to quash the election, arguing (1) the timing violated Minn. Stat. § 412.02, subd. 2a and (2) it unconstitutionally “removed” Berrett in violation of Minn. Const. art. VIII, § 5.

Summary of the Opinion

The Minnesota Supreme Court affirmed the district court and held:

Walsh’s statutory and constitutional claims fit within Minn. Stat. § 204B.44 because they alleged wrongful acts/omissions concerning a specific election.
Under Minn. Stat. § 412.02, subd. 2a, a statutory city may enact a special-election ordinance after an appointment and apply it to a vacancy that occurred earlier, authorizing a special election “at or before the next regular city election.”
Calling and holding that special election does not violate Minn. Const. art. VIII, § 5 because it is not a “removal” of an inferior officer; the appointee’s service is temporary by statute.

Justice Thissen (joined by Justice Moore, III) concurred on the scope of § 204B.44 but dissented on the statutory issue, concluding the statute is ambiguous and—using structure and legislative history—should be read to require the ordinance to preexist the vacancy/appointment.

Analysis

1. Precedents Cited

a. Statutory-city authority and limited powers

The court situates Orono’s status as a statutory city within the framework stated in City of Waconia v. Dock, emphasizing that statutory cities possess “only those powers expressly conferred by statute or implied as necessary in aid of those powers.” That principle matters because Orono’s power to call a vacancy special election must be found in, and bounded by, § 412.02, subd. 2a.

b. Scope of election-law challenges under Minn. Stat. § 204B.44

Respondents argued that Walsh’s Article VIII, Section 5 theory was not “concerning an election.” The court relied on prior constitutional challenges brought via § 204B.44, especially Clark v. Pawlenty, where petitioners used § 204B.44 to raise a Minnesota Constitution claim about ballot placement. The opinion also reinforced this point by citing examples of constitutional litigation in election posture: De La Fuente v. Simon, In re Candidacy of Indep. Party Candidates Moore v. Kiffmeyer, and Erlandson v. Kiffmeyer.

The court additionally referenced Minn. Voters All. v. Walz as a recent § 204B.44 decision that entertained a challenge to a writ of special election, underscoring that § 204B.44 is a vehicle for time-sensitive, election-specific claims.

c. Statutory interpretation methodology

The opinion’s interpretive path is anchored in a familiar canon line: Harstad v. City of Woodbury (de novo review), State v. Riggs and State v. Pakhnyuk (common usage and grammar), Caldas v. Affordable Granite & Stone, Inc. (enforce unambiguous text), and State v. Culver (ambiguity exists only if multiple reasonable interpretations).

The court’s “do not add words” approach relies on Hutchinson Tech., Inc. v. Comm'r of Revenue and reads the absence of a temporal requirement (i.e., no statutory command that the ordinance predate the vacancy) as dispositive. It also cites State v. Humes for the mandatory meaning of “shall,” emphasizing that the special election is required when more than two years remain.

In rejecting the dissent’s turn to legislative history, the majority invoked Rohmiller v. Hart for the proposition that history is consulted only if the text is unclear or ambiguous.

d. Vacancy doctrine and timing of special elections

Walsh argued there was no “vacancy” once Berrett was appointed. The court distinguished:

Minn. Voters All. v. Walz, where no vacancy existed because the “resigning” representative never assumed office; and the controlling statute (Minn. Stat. § 204D.19, subd. 4) concerned election-contest vacancies without an appointment/successor structure.
State ex rel. Dosland v. Holm, where a judge’s retirement was not effective by election time, so no vacancy existed to be filled.

Those cases, the court explained, do not govern § 412.02, subd. 2a’s two-step “appointment then election” design.

e. Constitutional “removal of inferior officers” framework

For Article VIII, Section 5, the court relied on:

Jacobsen v. Nagel (city councilmembers are “inferior officers,” and the court’s recall-related treatment of malfeasance);
Jacobs v. City of Columbia Heights (modern recall context);
In re Proposed Petition to Recall Hatch (definition of nonfeasance);
and distinguished State ex rel. Todd v. Essling, where a different statute gave an appointee the “unexpired term,” making a later “recall of the appointment” a prohibited removal.

The contrast with Essling becomes the engine of the constitutional holding: § 412.02, subd. 2a expressly creates a temporary appointment and a later elected successor, so displacement by special election is not a “removal for cause” question at all.

2. Legal Reasoning

a. § 204B.44 reaches election-connected constitutional claims

The court construed “any wrongful act, omission, or error … concerning an election” in § 204B.44(a)(4) to cover not only statutory defects in calling the election but also constitutional defects that allegedly arise from ordering the election. The key is the nexus: Walsh’s Article VIII, Section 5 theory was triggered by the act of calling the special election and its effect on officeholding.

b. Textual reading of § 412.02, subd. 2a: no timing restriction for the ordinance

The statutory dispute centered on the penultimate sentence: “The council must specify by ordinance under what circumstances it will hold a special election … other than … at the same time as the regular city election.” Walsh argued “will hold” means the ordinance can only govern future vacancies (i.e., must preexist the vacancy/appointment). The majority rejected that as an isolated reading.

The majority’s integrated-text approach emphasized:

The special election is mandatory (“shall”) when “more than two years remain” and the vacancy occurs before the filing period for the next regular election.
The statute affirmatively authorizes the election “at or before the next regular city election,” without stating that the “specify by ordinance” requirement must be satisfied before the vacancy occurs.
Imposing a “preexisting ordinance” condition would require adding words the Legislature did not use.

On this view, “it will hold” is future-looking as to the election that has not yet occurred, not as to when the vacancy arose.

c. The “vacancy” persists for purposes of the unexpired-term election

Walsh’s “no vacancy once appointed” argument failed because § 412.02, subd. 2a itself defines the appointment as temporary: “the appointed person shall serve until the qualification of a successor elected at a special election to fill the unexpired portion of the term.” The majority treated this as statutory recognition that (i) appointment fills the seat operationally but (ii) the law still requires an election to fill the remainder of the term.

d. A special election is not “removal” under Article VIII, Section 5

The court characterized the special election as the completion of the statutory vacancy-filling process, not a punitive or discretionary ouster. Unlike recall proceedings (the typical Article VIII, Section 5 setting), Orono did not initiate a process alleging malfeasance or nonfeasance.

The opinion’s key constitutional move is to treat the appointee’s tenure as inherently conditional by statute: Berrett was “fully entitled” to serve, but only “as a temporary appointee” until the election of a successor as § 412.02, subd. 2a requires/permits. Thus, the end of her tenure following an election is not a “removal” and does not implicate Article VIII, Section 5’s “malfeasance or nonfeasance” limitation.

3. Impact

Municipal governance and vacancy management. Statutory cities may now respond to an unanticipated vacancy by adopting a compliant special-election ordinance and scheduling an earlier uniform-date election, even if an appointment has already been made and the vacancy predated the ordinance. This reduces the likelihood that appointees serve long periods (potentially years) without voter ratification when more than two years remain.
Drafting and timing of ordinances. While the dissent’s approach would have incentivized cities to pre-adopt “vacancy special election” ordinances in calm times, the majority permits a reactive approach. Cities may still prefer pre-adoption to avoid litigation, but the majority reduces the legal risk of post-vacancy adoption.
Election litigation posture. The decision reinforces that § 204B.44 can accommodate constitutional theories so long as they target election-related duties, expanding practical access to expedited judicial review for election administration disputes.
Constitutional framing. By holding that election-triggered displacement of an appointee is not “removal,” the opinion narrows Article VIII, Section 5 to contexts that resemble recall/for-cause ouster rather than statutorily prescribed succession mechanisms.
Continuing debate (dissent). Justice Thissen’s dissent (joined by Justice Moore, III) signals that future cases may still test the boundary between “plain meaning” and “structure/history” where statutory language does not expressly resolve timing questions, especially in election-administration settings.

Complex Concepts Simplified

Statutory city: A Minnesota city governed primarily by state statutes (chapter 412) rather than a home rule charter; it has only powers the Legislature grants (as described in City of Waconia v. Dock).
Special-election ordinance (in this case): An ordinance required by § 412.02, subd. 2a specifying when a city will hold a vacancy special election on a date other than the regular city election date.
“At or before the next regular city election”: The statute allows the special election to occur on a legally permitted uniform election date that is no later than the next regular election; “at” is the default endpoint, “before” is the authorized acceleration.
§ 204B.44 petition: A fast-track election-law procedure that permits “any individual” to ask a court to correct or stop wrongful election-related acts, including acts by municipal officials.
Inferior officer; removal for malfeasance/nonfeasance: Local officials like city councilmembers are “inferior officers” (Jacobsen v. Nagel). Article VIII, Section 5 allows the Legislature to provide removal mechanisms for such officers for wrongdoing (malfeasance) or failure to perform duties (nonfeasance). The court held that replacing a temporary appointee through a statutorily required/authorized special election is not “removal.”

Conclusion

Dennis Walsh v. City of Orono, Minnesota establishes that, under Minn. Stat. § 412.02, subd. 2a, a statutory city may adopt a special-election ordinance after a vacancy has been filled by appointment and apply it to that existing vacancy to schedule a special election before the next regular city election. The court further holds that conducting such a special election does not constitute unconstitutional “removal” of an inferior officer under Minn. Const. art. VIII, § 5 because the appointment is temporary by statutory design. Finally, the opinion confirms that Minn. Stat. § 204B.44 encompasses election-connected constitutional challenges, strengthening that statute’s role as Minnesota’s primary expedited vehicle for resolving election administration disputes.