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Sec. 4.5. - Vacancy of municipal elected office. <br />It will be helpful to have some commentary before discussing the specifics of the <br />Charter language. <br />State law dictates that "[s]pecial elections shall be held in statutory cities to fill <br />vacancies in elective city offices as provided in section 412.02, subdivision 2a." Minn. <br />Stat. § 205.10, subd. 2. Thus, the statutory vacancy -filling scheme for cities does not <br />apply to charter cities. See Minn. Stat. § 412.016, subd. 1 ("This chapter applies to any <br />city which has not adopted a home rule charter pursuant to the constitution and the laws <br />of this state."). There is no stop -gap or fill-in measure for charter cities, so the general <br />concept of this Charter section does not conflict with statute. However, the language of <br />this section that purports to require special elections within certain time frames after the <br />occurrence of a vacancy cannot be complied with under state law. <br />First, elections may only be held on one of five dates: "the second Tuesday in <br />February, the second Tuesday in April, the second Tuesday in May, the second Tuesday <br />in August, or the first Tuesday after the first Monday in November." Minn. Stat. <br />§ 205.10, subd. 3a(a) ("A home rule charter city must not designate additional dates in its <br />charter."). The Secretary of State interprets this as also limiting primary elections to <br />these specific dates. As a result, unless the special election that would otherwise be <br />required to fill a vacancy by this Charter section just so happens to fall onto one of these <br />dates, the Charter's requirements must give way to statute. Certainly, the requirement of <br />Charter section 4.5.5.3 that "a special primary election and a special election shall be held <br />in January of the subsequent year following the vacancy," cannot stand in light of these <br />uniform election dates. <br />Second, there are statutory requirements for notice periods in advance of elections, <br />including notice periods for the deadlines for filing affidavits of candidacy. Minn. Stat. <br />§ 205.13, subd. 2. The statute requires that notice of the filing period be given two weeks <br />ahead of the filing period itself Id. Statute also dictates that the filing period occur <br />somewhere between 56 and 98 days before the election or primary election, depending on <br />the circumstances. Id., subd. la. Thus, there may need to be up to 112 days, or 16 weeks <br />advance notice of the election, not to mention the need to make preparatory decisions at a <br />council level. Where there is some uncertainty regarding the implication of this language <br />with respect to primaries that are not correlated with a general municipal election, it is <br />clear that a demarcation of eight weeks before the primary (as in Charter section 4.5.5.1 <br />and 4.5.5.2) is unworkable because it does not give sufficient time to comply with the <br />statutorily required notice periods. Further, it is not clear that the Charter can waive the <br />primary if the vacancy occurs within that timeframe as in charter section 4.5.5.1. See <br />Minn. Stat. § 205.065, subd. 2 (dictating that a resolution to hold primaries "is effective <br />for all ensuing municipal elections until it is revoked"). <br />8 <br />