Nearly two weeks after she was charged with felony burglary, state Sen. Nicole Mitchell doesn’t appear to be in any hurry to leave the Legislature.
The Democratic-Farmer-Labor senator from Woodbury returned to the Capitol in person this week and continues to vote alongside her colleagues, including on Republican-led measures aimed at preventing her from voting.
While it may raise eyebrows that a state lawmaker is voting on measures related to her own alleged misconduct, any GOP-led votes aimed at censuring Mitchell would fail anyhow as they likely would be split 33-33.
Amid calls for resignation, an ethics complaint, and daily floor votes targeting Mitchell initiated by Republican senators, DFLers this week said they’re removing Mitchell from her committee assignments and no longer allow her at caucus meetings.
One-seat majority
At least one of her DFL colleagues, Sen. Rob Kupec of Moorhead, publicly said she should consider resigning. But there’s no sign any DFLers will jump at throwing away their one-seat majority with just weeks before the end of the session and plenty of major partisan bills to pass.
For now, Mitchell doesn’t appear to be going anywhere, though other lawmakers facing similar pressure have eventually stepped down.
No Minnesota lawmaker has ever been expelled by their peers, and barring a sudden surge of Democrats turning on Mitchell, there won’t be enough votes to remove her from the chamber.
It would take 12 DFL Senators to join Republicans in order for an expulsion vote to succeed. Resignation is likely the only way Mitchell would leave office.
Past resignations
Of the countless people who have served in the Minnesota Legislature since the state’s founding in 1858, up to 30 have resigned after being charged with a crime, according to Hamline University Professor David Schultz.
Usually, resignations happen in the face of serious criminal charges — often corruption-related offenses such as misappropriation of public funds.
Driving while intoxicated on the other hand does not usually result in resignations. In fact, five members of the current Minnesota Legislature have been arrested for DWI while in office.
In the case of serious criminal charges, a lawmaker may find themselves in a position where exiting public service is not just the best choice politically, but legally. Prosecutors have offered plea bargains that include resignation as a condition of obtaining a lesser criminal charge, Schultz noted.
“What may be in her personal legal interest may be coming at odds with the political reality of the state Capitol,” Schultz said. “Some of the steps that she may take to protect herself legally may come into conflict with what’s in the DFL party’s interest.”
In at least one instance, a member of the House resigned from his office as part of a plea bargain in a criminal case. Though that case involved state money.
During the early 1990s in a series of scandals that came to be known as “phonegate,” several elected officials came under public scrutiny for misusing long-distance phone call access provided by the state.
House DFL Majority Leader Alan Welle resigned from the Legislature in 1994 after pleading guilty to abuse of telephone privileges.
He admitted to giving his son and nephew a state-issued long-distance call access code, resulting in around $90,000 in bills, the Associated Press reported at the time. As part of his plea agreement in the case, he left public office.
In another case where criminal charges led to resignation, though on the lawmaker’s own accord, state Sen. Joe Bertram of Paynesville resigned in 1996 after pleading guilty to stealing a leather vest from a store in his home district. The store owner claimed the senator tried to offer him $1,000 to keep quiet about the theft.
Sen. Bertram’s brother, state Rep. Jeff Bertram, was censured by the House for allegedly intimidating the shop owner. He left office in 1997.
Special election
If Mitchell steps down, what happens after that depends on the timing.
In most circumstances, state law requires the governor to call a special election within 35 days of vacancy in the Legislature.
So if Mitchell — or any other member of the Legislature for that matter — were to resign on or before June 8, the special election would fall on the normal election dates for the year.
In 2024, the state primary falls on Aug. 13 and the general on Nov. 5.
Another possible scenario is a vacancy after June 8, but more than 35 days before the primary. In that event, the governor could call a special election sometime in the summer.
But if a vacancy occurs too close to the primary, it could mean a delayed special election.
If a senator or representative were to step down on, say, July 31, it would mean the special election would happen after the November general election.
Allegations
It’s still not clear exactly what happened in the lead-up to Mitchell’s April 22 arrest in Detroit Lakes. But charges say Mitchell was found in her stepmother’s basement after a 911 call about a burglary. She allegedly told officers she was there to retrieve her father’s ashes after falling out of communication with her stepmother, and acknowledged she “did something bad.”
In a later statement on social media, Mitchell denied she was in the house to steal, claimed she was checking on her stepmother, who was recently diagnosed with Alzheimer’s and made no mention of the ashes.
In interviews with the Associated Press and KSTP-TV, Mitchell’s stepmother has said she fears her stepdaughter. The stepmother acknowledged to KSTP that she was recently diagnosed with Alzheimer’s, but that the disease has not progressed past its earliest stages.
Mitchell’s fellow Democrats say their colleague shouldn’t be ousted based on a charge and limited facts.
Republicans, on the other hand, want an expedited investigation into the senator and are calling for her to resign. They say she’s violated public trust and accuse her of changing her story about the incident.
First-degree, or felony burglary, carries a minimum sentence of six months and a maximum of 20 years in prison.
Mitchell’s case is still pending in Becker County District Court in Detroit Lakes, where she’s next scheduled to appear in June. A Senate ethics investigation is unlikely to reveal much new information in the case, though Mitchell is slated to appear at a hearing of the Subcommittee on Ethical conduct on May 7.
That committee is composed of two Democrats and two Republicans, meaning there could be a partisan split any decision from the panel on discipline or other recommendations.
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