Mitchell bid to delay burglary trial is latest twist in presession runup for Minnesota lawmakers
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A Minnesota state senator facing a burglary charge asked a judge Friday to postpone a felony burglary trial after the legislative session ends in May and the judge gave her permission to appear remotely for a court hearing from the Capitol on opening day.
In a motion filed in Becker County, attorneys representing DFL Sen. Nicole Mitchell cited state law that grants state legislators flexibility around legal proceedings during the legislative session. They asked to delay the trial start date until May 19, the day the Minnesota legislative session is scheduled to come to a close.
The motion could be considered Tuesday.
Mitchell, a first-term lawmaker from Woodbury, was arrested at her stepmother’s Detroit Lakes home in April and charged with burglary. She is alleged to have taken several items that belonged to her late father.
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She denies the characterizations of theft, has said the incident was a misunderstanding and pleaded not guilty. A motions hearing in her case is scheduled for Tuesday, the same day the Minnesota Legislature begins its session.
Mitchell’s attorney’s asked Becker County District Court Judge Michael Fritz to let the legislator participate remotely in the hearing since she is also required to attend the Senate session in person.
“To thus avoid a quasi-constitutional crisis and/or prospective separation-of-powers fight between the state’s judicial and legislative branches, the court should permit Nicole to appear for the hearing remotely from her office at the state Capitol,” attorney Dane DeKrey wrote.
The judge quickly granted the request for a remote option.
The prosecutor in the case, Becker County Attorney Brian McDonald filed a motion Friday seeking a speedy trial.
Senate leaders have said that Mitchell will be barred from voting if she’s away during the course of her trial. The multi-day trial is set to begin Jan. 27.
Senate Republican Leader Mark Johnson, of East Grand Forks, said Friday that the request could delay justice and further delays an orderly Senate session.
“The Senate cannot tell the judiciary what to do, but we can and should hold our own members accountable,” he said in a written statement. “Senate Republicans stand by our previous votes to not allow her to vote, to not count her vote, and to remove her from the body. We expect the Senate Democrats who called for her resignation will join us in our efforts this session.”
Before the motion was formally filed, Senate Democratic Leader Erin Murphy told MPR News that it would be wrong for Mitchell to cast votes while away at court proceedings.
“When she’s in trial, she will be in a different part of the state and I know that if she were in her trial and casting a vote that that would be a real problem,” Murphy said. “[Mitchell] knows that too.”
The Mitchell matter is only one of the membership problems facing lawmakers as the session approaches.
There is still a question about the House will operate. In the House Democrats are threatening to boycott if Republicans try to flex temporary muscle given a 67 to 66 seat edge that could change with a Jan. 28 special election to fill the remaining seat.
Lawmakers are also waiting for a judge to decide an election challenge case to recommend whether DFL Rep. Brad Tabke of Shakopee should be seated. Republicans suggest they won’t seat him if they have power given his 14-vote victory and a batch of 20 ballots that went missing.
House Democratic Leader Melissa Hortman, of Brooklyn Park, said all 66 Democrats might not show up if Republicans try to block Tabke.
“We will not participate in an illegitimate power grab,” Hortman said. “We are not going to stand by and let the Republicans kick out one of our members with no basis.”
Democrats are down a member from the November election results one DFL winner was deemed ineligible to take office over residency problems.
Republican House Leader Lisa Demuth, of Cold Spring, said Democrats would face repercussions from a boycott and said it would be a bad start to the five-month session.
“Are they not going to be here? Are they going to try to find other creative ways to actually take the oath of office?” Demuth said on Wednesday. “We don’t know that piece right now, but our expectation is that 67 constitutes a quorum and we will follow that.”
Demuth argues 67 is enough votes to elect her as speaker. But Secretary of State Steve Simon, a Democrat, has a different reading of the rules and has advised lawmakers that it takes 68 votes to convene the House, what’s known as a quorum.
“If there are not 68 members present, I have no authority to take any further action and will adjourn,” Simon wrote in a letter to legislative leaders on Friday. “My legal conclusion is based only on a careful review of the state constitution and laws — not on political considerations of any kind.”
Hortman and Demuth were negotiating a power-sharing deal until recently.
The Senate leaders are also talking about how to split power during a 33-33 tie at the session’s outset. The chamber is down a member after the December death of DFL Sen. Kari Dziedzic. The election to fill her seat is also on Jan. 28.
Murphy and Johnson have avoided the public skirmishes that have been common among House leaders.
But Mitchell remains the main unknown. A felony conviction could make it hard for her to continue in office, although expelling her requires a two-thirds vote.
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