Instituting Police Department Reform: Municipal Governance and Minneapolis Question 2

On November 2, residents of Minneapolis will vote on Question 2 – a proposition to amend the city charter to transform the Police Department into a Department of Public Safety that employs a “comprehensive public health approach to the delivery of functions” related to public safety. While the proposition defers specifics of implementation to subsequent negotiations between the mayor and the city council, the Question contains two explicit changes from the status quo. First, it eliminates exclusive mayoral authority over the Department of Public Safety. Second, it eliminates a provision in the current charter that requires staffing and funding a minimum-sized police department.

Reasonable folks could differ over the merits of the Question, which is one of the more striking legal interventions in the debate over defunding or reforming police departments in the wake of the murder of George Floyd. Representative Ilhan Omar and state Attorney General Keith Ellison support the change. Senator Amy Klobuchar and Governor Tim Walz oppose it. A district court judge invalidated the ballot question on the grounds of insufficient clarity which would “mislead voters and make it unjust.” The Minnesota Supreme Court reversed that decision in a brief order, concluding that courts have limited authority to review ballot language.

But I am less focused on the merits of the Question. Instead, my initial reaction was skepticism about the desirability of designing a city’s governance structure though the ballot process. Ballotpedia reports that in 2020 there were 20 local police-related ballot measures, with another 10 proposed in 2021. Most of these would have made marginal changes to oversight, training, or practices of police departments. The Minneapolis question goes further; it replaces one standing department in the city charter with a new entity that, while responsible for traditional policing functions, would perform many of them in tandem with professionals that proponents of the question suggest could include mental health professionals, violence interrupters, social workers, housing experts, and substance abuse experts.

There are a couple of concerns that one might have about designing municipal government through a plebiscite. First, the municipal governance structure is complicated by its interconnected character – what Lon Fuller referred to as the problem of polycentricity. Think of the budgeting process. Setting the Parks Department budget without taking into account the Sanitation Department budget may fail to recognize that funding necessary to maintain parks could depend on how much funding is available to other departments that also operate in or around the parks. It is perhaps for this reason that many statutes exclude budgets from the list of subjects appropriate for the initiative. The same could be said for the allocation of municipal functions among departments. Ballot questions that focus on one city department in isolation can’t consider the interconnected nature of overall municipal activities. Polycentricity requires decision making by a centralized entity (the city council) rather than a piecemeal process in which voters allocate responsibilities or funding to one department without considering the implications for others.

But on that score, the ambiguity and imprecision of Question 2 may be a feature rather than the bug that the district court saw. Question 2 mandates a process, not an outcome. That is, it obligates the mayor and the council to consider the ways in which the city should deploy and pay for the various personnel that form the interconnected web of public safety that cities provide. It does require that the allocations and tradeoffs among those personnel be