Jurisdiction Office of Appellate Courts
Virginia Stark, Stark Law Office, Lindstrom, Minnesota, for
Swanson, Attorney General, Nathan J. Hartshorn, Assistant
Attorney General, Saint Paul, Minnesota, for respondent Steve
Reid LeBeau II, Michael L. Murphy, Jeffrey K. Holth, The
Jacobson Law Group, Saint Paul, Minnesota, for respondent
Because the remedy provided in Minn. Stat. § 204B.13
(2016), mitigates the prejudice from any unnecessary delay in
the filing of the petition, laches does not warrant dismissal
of the petition.
Because Robert Barrett did not reside in Legislative District
32B for the 6 months preceding the November 8, 2016 general
election, he was ineligible to hold the office of State
Representative for that district.
Under Minn. Stat. § 204B.13 we determined that Robert
Barrett's name should not be removed from the 2016
general election ballot. Instead, we held that the county and
state canvassing boards must not certify the vote totals for
the office of State Representative for Legislative District
32B from the 2016 general election, and the representative
from District 32B must be selected at a special election that
will be held on February 14, 2017.
granted in part and denied in part.
Tamara Monaghen filed a petition under Minn. Stat. §
204B.44 (2016), requesting an order directing respondent
Steve Simon, the Minnesota Secretary of State, to remove the
name of Robert Barrett from the ballot for State
Representative for Legislative District 32B at the general
election held on November 8, 2016. Petitioner alleged that
Barrett did not reside in District 32B for the 6 months
immediately preceding the 2016 general election. We referred
the matter to a referee to take evidence and make findings of
fact. The referee found that petitioner had proven that
Barrett did not reside in District 32B during the period
between the Fourth of July weekend and August 1, 2016, and
that the evidence supported removing Barrett's name from
the ballot. This opinion confirms our order,, granting the
petition to the extent it sought an order declaring that
Robert Barrett is ineligible to hold the office of State
Representative for Legislative District 32B. We denied the
petition, however, to the extent it sought an order declaring
that Robert Barrett's name be removed from the 2016
general election ballot for the office of State
Representative for District 32B.
is an eligible voter in Legislative District 32B. She claimed
in her petition that Barrett was required to live in District
32B from at least May 8, 2016, to the date of the election,
to establish residence as required by the Minnesota
Constitution. Petitioner claimed that Barrett did not reside
within District 32B at a house on Furuby Road in Taylors
Falls, Minnesota (the Furuby house), as Barrett stated in the
affidavit of candidacy he filed with the Minnesota Secretary
of State. Petitioner claimed that she and others investigated
whether Barrett resided at the Furuby house in July 2016 and
documented that he did not reside there. We issued an order
requiring the Minnesota Secretary of State and Barrett to
respond to the petition. Barrett denied the allegations in
the petition and moved to dismiss the petition, in part,
based on laches. We appointed the Honorable George Stephenson
to sit as a referee, hold an evidentiary hearing, and submit
findings of fact to our court on whether Barrett had resided
in Legislative District 32B for the 6 months immediately
preceding the November 8, 2016 general election.
referee held an evidentiary hearing on August 19, 2016. The
testimony presented at the hearing, as well as the exhibits
entered into evidence, establish the following. Barrett and
his wife own a house in Shafer, Minnesota (the Shafer house),
which is outside of District 32B. They purchased this house
in 2005. Ms. Barrett resides at the Shafer house.
Robert Barrett owns and drives a dark red Honda Civic and a
black Dodge truck.
October 2015, Barrett entered into a 14-month lease for the
Furuby house, which is a two-bedroom, single-family
residence. The Furuby house is located in District 32B.
Barrett paid $300 a month in rent and an average of $30 per
month for utilities. The house came sparsely furnished with a
sofa, kitchen table, and a chair. Barrett's lease will
expire at the end of December 2016. Barrett testified that he
would like to buy the Furuby house when the lease expires,
but he has not mentioned his interest to the owners, whom he
has known for many years.
testified that he has resided at the Furuby house since
October 2015. He said that he slept most nights at the Furuby
house and that he made dinner for himself at this house four
to five times per week. He testified he was at the Shafer
house 4 to 5 days per week, though he stayed overnight at
that house only 2 nights per week. When asked if he could
explain why petitioner and her witnesses never encountered
him when they visited the Furuby house, Barrett testified
that he stopped answering his door "for DFL activists
that are there to harass me."
Barrett testified that his wife spent 1 to 3 nights per week
at the Furuby house until the spring. He acknowledged that
since May, his wife had spent fewer nights per week there,
and in July and August, she spent 0 to 1 nights per week at
the Furuby house. Barrett said that his wife began spending
less time at the Furuby house because she did not feel safe
there due to the DFL activists surveilling the property and
harassing them. The referee rejected this explanation for why
Barrett's wife stopped spending time at the Furuby house
because she could not have known about the actions of the DFL
activists in May, when she started spending less time there.
The referee noted that the DFL activists began the
surveillance in July, and Ms. Barrett did not learn about it
until August, after the petition was filed.
did not have internet service, cable or satellite television,
or trash pickup at the Furuby house. There was also no
washing machine or dryer. Barrett did not have any insurance
for the Furuby house. He did not entertain there. Barrett,
however, listed the address of the Furuby house on his
driver's license and his passport. Barrett also received
packages from Amazon at the Furuby house.
and two others investigated whether Barrett was living at the
Furuby house. Between the weekend of the Fourth of July and
August 1, 2016, they made 30 visits to the Furuby house on 15
different days. The visits were as early as 5:50 a.m. and as
late as 10:07 p.m. During these visits, no one answered the
door when petitioner and the others rang the doorbell or
knocked. They did not see any cars in the garage, and they
did not see any lights on, except for one occasion when a
basement light was on. On many of the visits, a black truck
was parked in the same location outside the garage.
one of these visits, one of the investigators positioned his
car so that his high beams illuminated the living room
window. He saw no furniture and nothing on the living room
was at the Furuby house at least one time during this period.
On July 25, 2016, one of the investigators left DFL campaign
literature between the storm door and the front door of the
Furuby house. Barrett wrote on the campaign literature and
put it back where he found it.
evidence suggested that Barrett was at the Furuby house
toward the end of July. One investigator noticed on July 29
that the lawn looked like it was freshly mowed. Before July
31, the investigators saw the truck parked outside the
garage. On July 31 and August ...