In a year marked by the return of divided government in Minnesota—and the passage of a record-low number of bills—the interests of the bar were nonetheless well served. Session highlights included increased funding for the justice system and a package of major family law reforms.
Groucho Marx is credited with saying, “Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies.” Groucho isn’t around to share his thoughts on the 2015 Minnesota legislative session, but he probably would note that very few remedies were applied. In fact, the 2015 Legislature passed the fewest bills of any session since Minnesota became a state.
This is consistent with a steadily declining trend, and it is partially due to the amount of legislation that was rolled into omnibus bills, but it also reflects the difficulties of divided government. With a GOP House and a DFL Senate and governor, there simply wasn’t much upon which everyone agreed—a point underscored by Gov. Mark Dayton’s vetoes of three major omnibus bills that passed late in session, forcing a special session to complete the Legislature’s work.
The special session eventually took place on June 12. But fortunately, with a couple of days remaining in the regular session, the governor reached agreement with legislative leaders on a public safety and judiciary funding bill that provided most of what the justice system had requested. The deal included additional funding to cover 4 percent raises for judges and court staff in each year of the upcoming biennium, a 9 percent funding increase for public defenders, and a 7 percent funding increase for civil legal services. The MSBA was pleased to see lawmakers prioritize adequate funding for the justice system. It was a highlight during what was, despite the difficult environment at the Capitol, a very successful session for the bar.
The Bar Agenda
The bar association’s lobbying efforts included behind-the-scenes work on dozens of bills with the assistance of many MSBA member volunteers, who applied their knowledge to help prevent unintended consequences. In addition, we moved a large affirmative agenda that touched on a wide range of practice areas, including business, probate and trust, real property, and taxes. But most notable was one of the biggest legislative achievements of the 2015 session: a package of the most significant family law reforms since the 1970s.
The MSBA was a central player in family law reforms that arose from a stakeholder dialogue group consisting of fathers’ rights activists, legislators, judicial officers, child psychologists, ADR professionals, and other experts. Family law attorneys were deeply involved in the process as well, including Jennifer Sommerfeld and Pamela Waggoner on behalf of the MSBA’s Family Law Section, and Michael Dittberner on behalf of the Minnesota Chapter of the American Academy of Matrimonial Lawyers. Most of the reforms were incorporated into a family law omnibus bill (Chapter 30), and some others were included in the health and human services omnibus bill (Chapter 71). The changes, most of which take effect August 1, include:
- Revising the best interest of the child factors so they are, according to Sommerfeld, “better focused on the needs of the child going forward into a new family structure, rather than a comparison of the parents and their division of child-rearing duties when the family was intact.” (Ch. 30, Art. 1, Sec. 1-3)
- Moving the notice of rights currently found in “Appendix A” into the actual order for divorce, custody, and parenting time. (Ch. 30, Art. 1, Sec. 4-5)
- Requiring courts to award compensatory parenting time—and in some cases civil penalties—when parenting time is denied intentionally and repeatedly, unless the denial was necessary to protect the child’s physical or emotional health. (Ch. 30, Art. 1, Sec. 7)
- Allowing parties, by joint agreement, to restore the court’s jurisdiction over spousal maintenance modifications. (Ch. 30, Art. 1, Sec. 8)
- Clarifying necessary tax documents that must be provided by parties in child support cases, and providing penalties for parties who fail to provide the necessary documents. (Ch. 30, Art. 1, Sec. 9)
- Providing clarifying direction for courts when awarding income tax dependency exemptions. (Ch. 30, Art. 1, Sec. 10)
- Allowing for modification of child support to a date before service of a motion to modify in the limited cases when the parties agree. (Ch. 30, Art. 1, Sec. 11)
- Providing for simple annual interest rate calculations, tied to the market rate, for family law judgments, and allowing for a lower rate or no interest (although not for child support or spousal maintenance judgments) if the parties agree or the court finds it necessary to avoid unfair hardship. (Ch. 30, Art. 1, Sec. 12)
- Enhancing the notice requirements of the Recognition of Parentage form to help clarify the rights granted and not granted to the recognized parent. (Ch. 71, Art. 1, Sec. 52-53) Effective Mar. 1, 2016.
- Including parents with primary physical custody in the definition of “obligor” for spousal maintenance and child support. (Ch. 71, Art. 1, Sec. 69) Effective Mar. 1, 2016.
- Changing the imputed income calculation to 30 hours per week at 100 percent of the minimum wage. (Ch. 71, Art. 1, Sec. 70) Effective Mar. 1, 2016.
- Giving courts discretion to not award child support in certain situations when it would be detrimental to the child. (Ch. 71, Art. 1, Sec. 78) Effective Mar. 1, 2016.
- Creating a work group to study potential modifications to the parenting expense adjustment formula to eliminate the child support “cliff” at 45.1 percent parenting time. (Ch. 71, Art. 1, Sec. 121)
Passage of these reforms was a collaborative accomplishment, and the Legal Services Advocacy Project deserves much credit for their lobbying efforts.
In addition to the provisions cited above, the MSBA also pushed and passed a modified version of the Uniform Deployed Parents Custody & Visitation Act (Ch. 30, Art. 2). The new law creates rules and procedures that apply specifically to custody situations involving deployed service members. (Minnesota was the only state with no such laws.) Attorneys Johanna Clyborne and Lyndsey Olson, who helped draft the new law, said it will ensure that military parents aren’t penalized for their service, while still considering the legal rights and interests of the other parent and, most importantly, the best interests of the children involved.
In addition to family law, the MSBA successfully passed legislation related to other practice areas, including:
- Ch. 5 overhauls Minnesota’s trust code for the first time in 25 years. Attorney Chris Hunt, who worked on the legislation, said the new law is aligned with national trends and will be more user-friendly for clients, trustees, beneficiaries, lawyers, and courts. Effective Jan. 1, 2016.
- Ch. 32, Sec. 1 allows alternative forms of title evidence (rather than an abstract) for plat approval. This will decrease the time and expense involved in getting plat approval from cities, towns, and counties. Effective Aug. 1, 2015.
- Ch. 32, Sec. 2-4 allows the use of an examiner’s directive rather than a petition subsequent for contract for deed cancellations on Torrens property, which will make the Torrens system more efficient and user-friendly. Effective Aug. 1, 2015.
- Ch. 32, Sec. 5 conforms to the federal default rule for spousal apportionment of estate taxes in QTIP trust situations. This will prevent certain surviving spouses’ estates from unfairly incurring state estate tax liability when they should have none. Effective for decedents dying after Dec. 31, 2015.
- Ch. 39 cleans up Minnesota’s business entity statutes to make sure they work as intended and ensure smooth operation of the new LLC statute that takes effect August 1. Effective Aug. 1, 2015.
The only MSBA lobbying priority that did not get passed was HF837/SF745, which would bar the location of a taxpayer’s attorney from being considered in domicile determinations. The language was included in both the House and Senate omnibus tax bills; unfortunately, the Legislature did not pass a tax bill this year.
As always, lawyer-legislators played an integral role in the passage of bar-supported legislation. This year’s lawyer-legislator chief authors included Sen. Dick Cohen (DFL-St. Paul), Sen. Melisa Franzen (DFL-Edina), Rep. Melissa Hortman (DFL-Brooklyn Park), Rep. John Lesch (DFL-St. Paul), Sen. Scott Newman (R-Hutchinson), Rep. Dennis Smith (R-Maple Grove), and Sen. Dave Thompson (R-Lakeville). They and all other attorney members of the Legislature have earned the legal community’s gratitude for their service, career sacrifices, and invaluable assistance.
Notable New Laws
- Ch. 7 makes technical modifications to land surveying laws. Effective Aug. 1, 2015.
- Ch. 11 gives courts discretion to set bond amounts for conservators who have a ward with an estate over $10,000. Effective for conservators appointed and conservatorships reviewed by the court on or after May 1, 2015.
- Ch. 13 clarifies that if a homeowner exercises statutory postponement of a foreclosure sale, the redemption period is not shortened if there is another foreclosure in the future. It also requires a mortgagee to provide a mortgagor with a reinstatement figure within three days of receiving a request. Various effective dates.
- Ch. 14 clarifies foreclosure by advertisement publication requirements. Publication is sufficient if it occurs in a qualified newspaper with its known office of issue located (1) in the same county as the mortgaged premises; or (2) in an adjoining county if a sworn affidavit from the publisher states that a substantial portion of the newspaper’s circulation is in the county of the mortgaged premises. Effective for foreclosures in which the notice of pendency is recorded on or after July 1, 2015.
- Ch. 17 modernizes the fraudulent transfers act. Effective for transfers made or obligations incurred on or after Aug. 1, 2015.
- Ch. 20 allows patients to enjoin collection actions taken by nonprofit hospitals that do not provide plain language financial assistance summaries. Effective Jan. 1, 2016.
- Ch. 27 allows debt collection actions brought by a county to occur in that county’s conciliation court even when the defendant is not a resident of the county. Effective Aug. 1, 2015.
- Ch. 43 adopts recommendations from the Workers’ Compensation Advisory Council related to insurance payments to hospitals for inpatient treatment. Various effective dates.
- Ch. 49 provides a non-exclusive list of actions that fall under the definition of “public participation” for purposes of “strategic lawsuits against public participation” or “SLAPP” lawsuits. Effective for claims pending or commenced on or after May 20, 2015.
- Ch. 50 gives farm owners the same foreclosure equity stripping protections that are in law for residential homeowners. Effective Aug. 1, 2015.
- Ch. 63 allows electronic filings in contested case hearings, and allows agencies to electronically transmit rule-related documents to the Office of Administrative Hearings and the Office of the Revisor of Statutes. Effective Jan. 1, 2016.
- Ch. 64 modifies the responsible contractor law. Various effective dates.
- Ch. 65, Art. 2, Section 4 requires freelance court reporters to charge the same rate to all parties for copies of the same transcript. Effective for proceedings commencing on or after Aug. 1, 2015.
- Ch. 65, Art. 3, Sections 1-2
limit the disclosure of Safe At Home participants’ addresses during legal proceedings. Effective Aug. 1, 2015.
- Ch. 65, Art. 3, Section 31 creates a gross misdemeanor penalty for obtaining a firearm for transfer to an ineligible individual. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Sections 2 and 15 expand data protections for sex trafficking victims. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 3 changes the reckless driving definition to “while aware of and consciously disregarding a substantial and unjustifiable risk” of harm. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 5 lowers the “aggravating factor” blood alcohol level from .20 to .16. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 10 allows a necessity defense in implied consent proceedings. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 11 creates a five-year felony for hiring a minor prostitute. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 13 lowers the sex trafficking victim affirmative defense burden for prostitution charges. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 16 adds financial exploitation of vulnerable adults to the felony-level forfeiture offenses. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 17 creates a new crime of adulteration by bodily fluid. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 19 prohibits polygraph examinations of persons subjected to sex trafficking. Effective Aug. 1, 2015.
- Ch. 65, Art. 6, Section 21 increases the sex trafficking criminal limitations period. Effective for crimes committed on or after Aug. 1, 2015, and before that date if the limitations period has not expired by then.
- Ch. 65, Art. 8 adds certain synthetic drugs to Minnesota’s controlled substances schedule I and aligns Minnesota’s schedules II-V with federal schedules II-V. Effective Aug. 1, 2015.
- Ch. 67 puts a 60-day limit on law enforcement retention of license plate reader data not used in active criminal investigations. Effective Aug. 1 with certain conditions.
- Spec. Sess. Ch. 1, Art. 3, Sec. 12 creates the “MNVest” program, which allows businesses to raise money online through crowdfunding. Effective June 14, 2015.
- Spec. Sess. Ch. 1, Art. 3, Sec. 25 establishes a no-fault automobile insurance reform task force to evaluate no-fault arbitration, independent medical exams, and treatment standards and fee schedules. Report due by Feb. 1, 2016.
The full text of new chapters of law can be found at: www.revisor.leg.state.mn.us/laws