The 2012 legislative session saw considerable jousting between GOP majorities in both chambers and the DFL governor as legislators wrestled with bonding, tax relief, and funding for a proposed Vikings stadium.
In recent years the November state economic forecast press conference seemed to be a repeating scene, with grim government officials announcing yet another large budget deficit. This ritual marked the unofficial start of each legislative session, kicking off annual battles over taxes and spending. More of the same was expected last autumn, with most Capitol observers predicting a deficit of $500,000 to $1 billion. There were shocked smiles all around, however, when the November forecast showed a budget surplus approaching $900 million. Released from fiscal shackles for the first time in many years, lawmakers were free to focus on pure policy issues. But in the end, the 2012 legislative session was all about money: for bonding, for tax relief, and for a Vikings stadium.
The session got underway on January 24, and battle lines were immediately drawn around a quartet of business-backed tort reform bills. All four bills passed the House and Senate, mainly buoyed by the support of the GOP majorities in both chambers, but the DFL governor, Mark Dayton, responded with four veto messages, setting the tone for a deeply divided session. Little progress was made during the first part of the year; in fact, not until March 5th did the number of signed bills exceed the number of vetoed bills. While the Minnesota Twins were in Florida for spring training, Gov. Dayton kept firing brush-back pitches at Republicans, ultimately vetoing more than 30 bills. Still, government gridlock eased somewhat as the weather warmed, and a slow but steady stream of bipartisan legislation worked its way through the Capitol and became law, setting the stage for a climatic stadium showdown at the end of the session.
From the beginning of the session until its end, the most prominent issues were a bonding bill that was most desired by Democrats, business tax relief that was Republicans’ top priority, and a Vikings stadium for which Gov. Dayton was cheerleader-in-chief. As the legislative calendar dwindled to its final days, those issues were still unresolved. First in line was a tax bill containing business tax relief that Republicans argued would spur job creation. The House author described the bill as “smokin’ hot,” but Democrats disagreed, arguing that it excessively favored businesses and added to future deficits. The bill was vetoed almost instantly after it landed on Gov. Dayton’s desk. Republicans regrouped and brought forward a scaled-back tax bill, hoping for compromise, but the second bill met the same fate as the first. Sandwiched between the tax bills was a modest bonding bill, not as small as some lawmakers preferred nor as large as others desired, but agreeable enough that it earned Gov. Dayton’s signature. To cap things off, the issue that wouldn’t die—a new home for the Minnesota Vikings—was finally resolved on the last day of the session when the House and Senate passed a stadium-financing bill over the objections of an unusual alignment of opponents that included some of the most conservative and most liberal members of the legislature. When that long battle concluded, legislators adjourned sine die and campaign season commenced.
The MSBA Agenda
The MSBA’s affirmative agenda consisted of four bills, all of which were signed into law. The largest of these, HF382/SF352, was a joint effort from the Business Law Section and the Real Property Section that provides new statutory schemes for receiverships and assignments for the benefit of creditors. The bill was carried by Rep. Joe Hoppe (R-Chaska) and lawyer-legislator Sen. Dave Thompson (R-Lakeville). It passed the House during the 2011 session and made its way through the Senate in 2012 before garnering Gov. Dayton’s signature and becoming Session Law Chapter 143.
Chapter 143 also contained a bill from the Probate and Trust Law Section, HF951/SF654, that was amended in the Senate Judiciary Committee. The language clarifies the ability to disclaim property interests, particularly interests held in trusts, as was disputed in In re S.H. Bowman Trust, 804 N.W.2d 361 (Minn. App. 2011). A pair of lawyer-legislators—Rep. Pat Mazorol
(R-Bloomington) and Sen. Scott Newman (R-Hutchinson)—led the way on this issue.
Another MSBA bill also involved multiple sections of the Bar. Chapter 260, which was advanced on behalf of the Real Property and Outstate Practice sections, exempts attorneys from Minnesota Department of Commerce real estate closing agent licensure requirements, reestablishing the traditional arrangement which was clouded by recent statutory changes. Rep. Mazorol was the House sponsor and Sen. Thompson was the original lead author in the Senate before Sen. Newman took over when the bill reached the Senate floor.
The fourth and final MSBA bill, which became Chapter 183, did not
create a new law; instead, it prevents an existing law from taking effect. Chapter 183 resolves a three-year MSBA lobbying effort that included two effective date delays passed during the 2010 and 2011 sessions. It repeals a never-implemented 2010 law that would have lengthened the effectiveness of child support judgment liens from 10 years to 20 years. While the concept isn’t objectionable, its implementation would have caused considerable confusion for real estate attorneys and placed significant fiscal burdens on the court system. The lead authors were Rep. Mary Liz Holberg (R-Lakeville) and, once again, Sen. Newman.
In addition to the four bills noted above, the Bar’s legislative efforts included an attempt to clarify imprecise farm and small business estate tax exclusions that were created by the legislature during the 2011 special session. Clarifying language suggested by the Probate and Trust Law Section was included in both of the omnibus tax bills, which, unfortunately, were vetoed.
The Bar had better luck with the Social Security Disability Law Section’s opposition to HF2116, which would have allowed unlimited charges to Social Security disability appellants requesting copies of their medical records. A compromise agreement instituting a $10 flat fee and no per-page copying charges was included in the health and human services omnibus bill, which became Chapter 247.
Various MSBA sections opposed several other bills, only one of which passed the legislature: HF322, the highly controversial joint physical custody bill that was opposed by the Family Law Section. The bill, which passed on the final day of the session, did not become law because Gov. Dayton elected to “pocket veto” it by not taking any action within 14 days of the legislature’s adjournment.
Additionally, the Bar assumed its usual role behind the scenes at the Capitol, providing technical advice and drafting assistance to legislators, legislative staff, and other organizations. This role has expanded in recent years as the number of lawyer-legislators has declined.
Overall, it was another very successful session for the MSBA. Many thanks are due to the Bar members who volunteered time to ensure that more than two dozen bills had technically sound and workable language, and to the members who supported the MSBA’s efforts with contributions to LawPAC. And even more gratitude is owed to those attorneys who sacrificed greatly to serve in an elected capacity.
Other New Laws of Interest
A low number of proposals made it all the way through the legislative process this year, but, in addition to the MSBA bills noted above, Gov. Dayton signed several other bills of interest to attorneys, short summaries of which can be found below. The full text of each bill is available at http://www.house.leg.state.mn.us/bills/chapterslist.asp
- Chapter 238: Modifies agency rulemaking provisions.
- Chapter 212: Alters appointed counsel provisions in several proceedings, including paternity and child protection; refashions public defender eligibility provisions; extends the right of representation to misdemeanor appellants in response to State v. Randolph, 800 N.W.2d 150 (Minn. 2011).
- Chapter 131: Reduces from $1.5 million to $1 million the aggregate liability of the state or a municipality for an incident involving nonprofits engaged in outdoor recreational activities that are government-funded or authorized under a government-issued permit. The liability limit for a single claimant remains at $500,000.
- Chapter 192: Waives Minnesota’s 11th Amendment immunity from suit in federal court under the Uniformed Services Employment and Reemployment Rights Act.
- Chapter 283: Raises the conciliation court general claim limit from $7,500 to $10,000 starting August 1, 2012, and lifts the limit to $15,000 starting August 1, 2014. Consumer credit actions will remain at their current cap of $4,000.
- Chapter 128: Modifies numerous criminal forfeiture provisions.
- Chapter 153: “Jacob’s Law” requires exspouses to notify one another if their child is the victim of an alleged crime, and requires law enforcement to notify the local welfare agency.
- Chapter 173: Changes provisions related to motor fuel theft.
- Chapter 175: Creates felony penalties for intentionally depriving a vulnerable adult and unreasonably confining or restraining a child.
- Chapter 200: Alters the “gang activity” definition in Minn. Stat. §617.91 to include unlawful possession of a firearm by a mino
- Chapter 218: Updates restraining order provisions to allow prosecution in any county in which one of multiple acts occurred.
- Chapter 222: Clarifies impaired driving provisions in response to State v. Retzlaff, 807 N.W.2d 437 (Minn. App. 2011).
- Chapter 223: Allows restraining orders to be sought in either party’s county of residence or in the county where the alleged harassment occurred.
- Chapter 227: Expands the definition of qualified domestic violence-related offenses to include female genital mutilation.
- Chapter 229: Corrects a minor error on the sex offender sentencing grid.
- Chapter 240: Updates controlled substance schedules and modifies the definition of—and penalties related to—synthetic cannabinoids.
- Chapter 216: Contains provisions related to, among other things, adoptions, child support, and recognition of parentage.
- Chapter 204: Requires the commissioner of human services to seek a reciprocal agreement with Bermuda to enforce child support obligations.
- Chapter 132: Alters provisions related to late fees and evictions from properties subject to foreclosure.
- Chapter 178: Modifies time share interests foreclosures.
- Chapter 184: Provides for contested case hearings to determine eligibility for eminent domain relocation assistance if denied by the acquiring authority.
- Chapter 187: Contains numerous technical corrections, including fixing some cross-reference errors in Minn. Stat. Ch. 515B (the Minnesota Common Interest Ownership Act).
- Chapter 198: Creates a process for unaffixing manufactured homes from real property so they are treated like motor vehicles rather than homes.
The Road Ahead
Every seat in the House and Senate will be up for grabs on Election Day in November. Republicans are trying to maintain control of both chambers, while Democrats are eager to pick up the handful of seats they need to take complete control of Minnesota’s government. Given the narrow margins separating the two parties in the House and Senate, the 2012 electoral contest figures to be just as hard-fought as the 2012 legislative session. Whoever is in charge next year is likely to face a budget deficit that is currently projected at $1.1 billion (a number that is doubled if inflation is factored in, and then doubled again if funds shifted from the K-12 system are counted). Added to this mix is a pent-up bipartisan desire to reform Minnesota’s tax code, an issue on which the Dayton Administration is gearing up to make a major proposal. Together, the budget deficit and the tax reform discussion will put into play two important issues for lawyers: justice system funding and a potential sales tax on legal services—two great topics to discuss with legislative candidates this summer.