Uncertain Times, Unresolved Issues
By Bryan Lake
“Normal is the Holy Grail and only those without it know its value.”
– Sarah Crossan, One (2015)
The 2020 Minnesota legislative session was anything but normal. When it began on February 11, the DFL-controlled House and GOP-controlled Senate had clear priorities. Democrats wanted funding increases for childcare and early childhood education. Republicans wanted to cut taxes. Both sides supported a bonding bill, albeit of differing size and scope. And despite the partisan split between House and Senate, some type of grand compromise seemed likely because the state’s coffers were bulging with a $1.5 billion budget surplus.
Then covid-19 arrived and everything changed.
With the onset of the pandemic, what had been a relatively routine legislative session suddenly became uniquely difficult. The coronavirus produced a flood of urgent new issues that required lawmakers’ immediate attention even as the pandemic made it impossible to craft policies using the Legislature’s traditional processes. To their credit, legislators worked in a bipartisan fashion to provide much-needed support and leadership during the early days of the coronavirus crisis. But partisan divisions re-emerged and the session ended with the House and Senate unable to complete deals on several major issues.
Coronavirus response
In early March, lawmakers responded to the coronavirus pandemic by transferring $21 million to the state’s public health response contingency account. It seemed like a reasonable sum at the time, but just a week later, with the crisis rapidly escalating, legislators allocated $200 million to support health care providers and then went into an extended recess because it was too risky to conduct business at the Capitol.
At that point, a new legislative process had to be invented on the fly. Legislators began holding private quasi-committee meetings via teleconference. To get around open meeting laws, the meetings were conducted with just one caucus at a time. Lawmakers then briefly returned to the Capitol to pass a $330 million covid-19 relief bill using creative seating arrangements and voting methods to maintain social distancing, a process they continued through the remainder of the session.
By April the Legislature was conducting normal committee meetings remotely via videoconference, which improved transparency and public participation. Still, it was a dramatic change from the normally bustling Capitol, and it slowed down an institution built on relationships and in-person communication.
Because conditions made policymaking more challenging, and because the health crisis created myriad new issues that required quick action, the Legislature’s agenda was severely constricted. From mid-March on, lawmakers were focused almost exclusively on matters related to the pandemic. As a result, the MSBA’s focus shifted as well.
The MSBA agenda
The coronavirus pandemic triggered an increased interest in estate planning—particularly among high-risk individuals—but health fears and social distancing requirements made it more difficult to properly execute wills. Anecdotal evidence suggested that some individuals (particularly those unrepresented by counsel) were using unconventional execution methods that have not been addressed by Minnesota courts, such as remote video witnessing. Consequently, concerns arose that many improperly executed wills might be invalidated.
In response, the MSBA’s Probate & Trust Law Section proposed adopting a Uniform Probate Code provision that allows nonconforming wills to be probated if execution defects are shown by clear and convincing evidence to be harmless errors. This proposal was enacted as part of Chapter 74 (see Article 1, Section 2). Attorney Lauren Barron, who worked on the proposal, said, “The harmless error rule will serve justice and allow courts to salvage some wills that might otherwise be invalidated by execution technicalities.” The new law is effective for documents executed between March 13, 2020 and February 15, 2021.
Chapter 74 also included language requested by the state court system to suspend statutory deadlines governing district and appellate court proceedings (see Article 1, Section 16). The suspension period applies to deadlines that were triggered on or after March 13, and it expires 60 days after the peacetime emergency ends. The new law incorporated MSBA-suggested language providing that courts may continue to hold hearings, require appearances, or issue orders if “circumstances relevant to public safety, personal safety, or other emergency matters require action in a specific case.”
Near the end of the session, the Legislature found time to return to a handful of pre-pandemic bills, including a pair of MSBA proposals. The first proposal sought to repeal statutory publication criteria for the court of appeals. The MSBA believes publication criteria would be more appropriately established by court rule, and the separation-of-powers argument received strong support at the Capitol. The proposal passed as part of an omnibus bill (Chapter 82, Section 3) and it applies to cases filed with the court of appeals on or after August 1, 2020.
The final MSBA proposal modernizes the Uniform Transfers to Minors Act (UTMA) with updates suggested by the Probate & Trust Law Section. Attorney Cameron Seybolt, who was involved in crafting the bill, said, “These welcome changes will benefit minors, custodians, and banks, and will eliminate unnecessary court proceedings.” The language was included as part of an omnibus bill (Chapter 86, Article 2) and becomes effective August 1, 2020.
A number of legislators played key roles in getting the MSBA’s agenda across the finish line, but special thanks are due to the chief authors of the original bills and the omnibus bills they were included in: Sen. Warren Limmer (R-Maple Grove) and lawyer-legislators Rep. John Lesch (DFL-St. Paul), Sen. Mark Johnson (R-East Grand Forks), Rep. Kelly Moller (DFL-Shoreview), and Sen. Scott Newman (R-Hutchinson).
Other action of interest to attorneys
- Chapter 74, Article 1, Section 17 extended until June 30 the deadline for contesting a child support cost-of-living increase, which is set at 4.7 percent this year. Courts will also have discretion to accept a motion filed by October 31 if the obligor cannot meet the June 30 deadline due to covid-19-related circumstances.
- Chapter 76 prohibits minors from marrying. (Effective 8/1/20.)
- Chapter 85 establishes new financial exploitation protections for older adults and vulnerable adults. (Effective 8/1/20.)
- Chapter 86 contains guardianship and conservatorship modifications (Article 1), new procedures for approving and consenting to changes in common interest community governing documents (Article 3), and updates to wage garnishment provisions (Article 4). (Effective 8/1/20.)
- Chapter 89, Article 4, Section 33 makes veterinarians immune from liability for good faith reports of suspected animal cruelty. (Effective 8/1/20.)
- Chapter 90 requires the Peace Officers Standards & Training Board to develop model eyewitness identification policies (and law enforcement agencies would have to adopt similar policies) that are consistent with recommendations from the National Academies of Science.
- Chapter 92 allows local governments to accept certain documents electronically or by fax. (Effective 5/17/20 and expires the earlier of 1/6/21 or 60 days after the peacetime public health emergency ends.)
- Chapter 96 responds to a recent Minnesota Supreme Court case by adopting federal mental state and causation standards for harassment. (Effective 8/1/20.)
- Chapter 110 eliminates restrictions on conservation officers enforcing DWI laws and creates misdemeanor and gross misdemeanor offenses for operating drones above state prisons. (Effective 8/1/20.)
Long, hot summer
As the coronavirus swept across America it created a deep economic crisis, which in turn drastically altered the fiscal outlook for state governments, including here in Minnesota. A late February budget projection showed that the state had a $1.5 billion surplus for the current fiscal biennium. But by early May the surplus had vanished and was replaced by a $2.4 billion deficit—a stunning, nearly
$4 billion reversal in just 10 weeks.
The revised budget forecast arrived with limited time remaining before the Legislature’s constitutionally mandated May 18 adjournment deadline. Legislative leaders and Gov. Walz raced to negotiate deals on the budget deficit as well as other top-line issues, like a bonding bill and a tax bill, but they could not reach agreements before the final bell.
One of the reasons no global deal got done was that everyone anticipated a special session this summer. Indeed, when Gov. Walz extended his peacetime emergency order on June 12, it triggered a special session, and created an opportunity for lawmakers to revisit tax, bonding, budget, and coronavirus issues.
But sad news seems to pile on top of bad news this year, and in between the regular and special sessions, the George Floyd tragedy put a glaring spotlight on public safety and law enforcement issues that had been roiling for years, adding to the Legislature’s list of urgent matters. Unfortunately, the weeklong special session ended without agreements on police reforms, bonding, distribution of federal coronavirus funds, and other prominent matters.
At the time this article was written, lawmakers had retreated to their districts to focus on campaigns that will decide control of the House and Senate, and the path forward on major legislative issues was unclear. Another special session remained possible. Or not. Deals could be achieved. Or not. The only certainty was that it promises to be a long, hot summer at the Capitol, with nothing resembling normalcy on the horizon.
BRYAN LAKE is the MSBA’s lobbyist. He has worked with members and staff to promote and protect the MSBA’s interests at the state Capitol since 2009.