Capitol Watch: Recall may be in order for burglar-senator

With the May 20 adjournment date in sight, it looked like the 2024 legislative session was going to end on time, on budget and with very little drama. But this is Minnesota, so instead we have news of a DFL state senator traveling 217 miles to burglarize the home of her stepmother. Let the circus begin!

If you haven’t heard, Senator Nicole Mitchell (DFL-Woodbury) left her house at 1:00 am and traveled three hours to Detroit Lakes to break into the home of her stepmother. She was quickly arrested for first-degree burglary (a felony), admitting to the police she “did something bad” and was “clearly not very good at this.” The police report said she was wearing all black, entered the house through a basement window, and was caught with two laptop computers in her backpack.

The next day, Mitchell used a Facebook post to deny she stole anything, claiming she was checking on a family member who suffers from Alzheimer’s and associated paranoia. Her statement on Facebook directly contradicts the police report, something that will have to be sorted out in a Becker County courthouse.

Pressure building to resign

Pressure has been building all week for Sen. Mitchell to resign. It started with Senate Republican Leader Mark Johnson (R-East Grand Forks) saying, “The complaint released by the Becker County Attorney lays out the case of a person who took extensive preparation to burglarize a family member’s home. This behavior is unbecoming of a member of the legislature and she needs to resign from the Senate immediately.” By the end of the week, even DFL Party Chair Ken Martin suggested Mitchell consider resigning, saying, “If I was in her shoes, I would probably consider resigning, of course, to focus on the legal challenges ahead…”

Over the weekend, the DFL Senate Caucus held a four-hour meeting discussing her fate and the strategy for finishing the 2024 session while holding onto their slim 34-33 majority. Senate Majority Leader Erin Murphy (DFL-St. Paul) issued a statement Sunday saying Mitchell has been relieved of her committee assignments and kicked out the of the DFL Caucus “while the case is under review both in the Senate and the courts.”

The state party chair and the DFL caucus distancing themselves from Mitchell is a sure sign her story is not strong enough to defend, even for the most partisan allies, even with the Senate majority on the line.

American Experiment supporters sent a few thousand emails to their senators over the weekend urging them to hold Mitchell accountable and pause any voting on the floor until more is known about the burglary. If you haven’t yet weighed in with your senator (or Sen. Mitchell) click here.

The key issue is the status of bills passing through the Senate by a one-vote margin with Mitchell providing the deciding vote while facing charges for felony burglary. Right now, she has a preliminary Ethics Committee hearing on May 7, 2024, and a first court appearance in Becker County on June 10, 2024. The session will be over before either process is complete.

At this point, it’s hard to see a path where Mitchell remains in the Senate.

From the archives

This is not the first time a legislator has been arrested for a serious crime during session. In March 2000, I was a young legislative staffer for Speaker of the House Steve Sviggum when a page approached me during session saying the Isanti County Sheriff was here to arrest Rep. Jim Rostberg. I quietly escorted Rostberg to the alcove of the House and watched the deputies lead him down the back stairs and out of the Capitol. Rostberg was arrested for second-degree criminal sexual conduct.

After the dust settled, Rep. Rostberg met with Sviggum and tried to convince the Speaker he would be cleared of the charges and was planning to run for reelection. Sviggum told Rostberg, “No, you’re done. If you run for reelection, I will recruit a Republican to run against you and we will defeat you in the primary. You’re done.” After the meeting, Rostberg announced his retirement from the House. Sviggum frequently told his Republican colleagues that if they experienced an ethical lapse, he would not wait for the Democrats to bring an ethics complaint, it would come from him.

That was 24 years ago. Will Majority Leader Murphy have the strength to tell Mitchell she’s done?

Recall might be in order

If Mitchell doesn’t resign and is not forced out by the Senate, the voters in her district do have one final option known as recall. Minnesota’s recall process is normally very hard to accomplish because the reasons for removing an elected official are very specifically and narrowly laid out in the constitution and statute. Chapter 211C of state statute says:

The grounds for recall of a judge shall be established by the supreme court. A state officer other than a judge may be subject to recall for serious malfeasance or nonfeasance during the term of office in the performance of the duties of the office or conviction during the term of office for a serious crime.

Since malfeasance and nonfeasance must occur “in the performance of the duties of the office,” the Mitchell recall petition would have to rely on her conviction of a serious crime. What’s a serious crime, you ask? The statute defines it as:

A crime that is punished as a misdemeanor or gross misdemeanor that involves assault, intentional injury or threat of injury to person or public safety, dishonesty, harassment, aggravated driving while intoxicated, coercion, obstruction of justice, or the sale or possession of controlled substances.

Lawyers will have to argue whether and how burglary fits into the definition of serious crime, but this appears to be the type of case that was anticipated when the recall statute was put into place in 1996.

A recall petition must list the grounds for recall and be signed by 25 eligible voters from her district. The petition is submitted to Secretary of State Steve Simon, who decides whether or not to pass it on to the Minnesota Supreme Court. If the court grants the petition, supporters must get signatures equal to 25% of the total vote in her last race for Senate. Since there were 39,064 total votes cast in the 2022 election for State Senate in District 47, supporters of recall would have 90 days to collect 9,766 signatures in order to trigger a recall election.

Once the signatures are approved, the Governor must call a recall election with the simple question, “Should State Senator Nicole Mitchell be removed from office? Yes or no.” If the “Yes” votes prevail, the seat becomes vacant, and the Governor must call a special election to fill the seat pursuant to state law. If a vacancy occurs during session, he has to call the election immediately. If the vacancy occurs outside of session, he has discretion. For example, if Mitchell were recalled over the summer, Gov. Walz could schedule the special election on November 5th to coincide with the general election.

There are many moving parts to the recall process but it’s hard to see how Sen. Mitchell could survive the pressure of canvassers with clipboards in the parking lot of the Woodbury Cub Foods asking people to sign a petition to remove her from office. But then again, this is Minnesota politics, so anything can happen. Stay tuned!

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