I. Call to Order
The meeting was called to order at 3:05 p.m. on Friday, September 14, 2012 at the Minnesota CLE Conference Center in Minneapolis. President Robert Enger presided, with Jud Haverkamp recording. Roll Call attached.
II. President’s Report
Mr. Enger welcomed participants, including those present on the phone or on the web. He noted that the North Star Lawyer program is about to roll out. This will recognize individuals who provide pro bono service and also give the Bar Association some recognition for its efforts to promote pro bono service.
III. Treasurer’s Report
Treasurer Richard Kyle Jr. reported that revenue and expenses are on track for fiscal 2012-13. He further observed that it was notable that although MSBA budgeted for a $57,000 deficit in the last fiscal year, the shortfall was only $693 at year-end 2011-12. Auditors are now reviewing MSBA finances for 2011-12 and will give their report in October to the Council.
IV. Executive Director’s Report
Mr. Groshens noted that he had submitted his report to the Assembly in writing by email. He invited comments or questions, of which there were none.
V. Consent Calendar
Noting that the minutes of the June 29, 2012 meeting of the Assembly were the only item on the Consent Calendar, Mr. Enger moved its adoption. The motion carried.
VI. Additional Agenda Items
Mr. Enger noted that two items had been submitted for consideration by the Assembly after the deadline and so would require approval of 75% of the Assembly members present in order to be added to the agenda.
The first item, offered by Secretary Mike Unger, calls for action to approve the membership of Assembly Committees and authorize the President to make changes to those committees in the course of the 2012-13 fiscal year. A motion was made and seconded to add this item to the agenda. The motion carried.
The second item, offered by Eric Larson on behalf of the General Policy Committee, asks the Assembly to consider the General Policy Committee’s recommendation that the MSBA oppose the voter identification amendment to the Minnesota Constitution that will be on the ballot in November 2012. Mr. Larson noted that after the committee made its recommendation, others within the MSBA expressed concern regarding the impact such action might have on other MSBA legislative positions and initiatives in the coming year. He noted further that both the MSBA Human Rights Committee and the Hennepin County Bar Association had offered support for the General Policy Committee’s recommendation. Mr. Enger called for a vote on whether to add the General Policy Committee recommendation to the agenda and called for a division to ascertain whether the 75% threshold had been cleared. The Assembly voted 48 in favor, 7 opposed, and 4 abstaining to add the recommendation to the agenda, meeting the requirement for 75% support.
VII. Elections/Appointments Committee
Thad Lightfoot reported on behalf of the Committee in the absence of Chair Dyan Ebert. Mr. Lightfoot reported that the Committee met on August 28 and recommended nominees who had expressed interest in appointment to the various boards and committees noted below.
A. Patrick Burns, Hennepin County, was nominated for appointment to the Legal Services Advisory Committee. There being no further nominations from the floor, a motion was made and seconded to close nominations and declare Mr. Burns elected. The motion carried.
B. Christopher Cain and Robin Wolpert were nominated for appointment to the Lawyers Professional Responsibility Board. There being no further nominations from the floor, a motion was made and seconded to close nominations and declare Mr. Cain and Ms. Wolpert elected. The motion carried.
C. Candace Dale was nominated for appointment to the State Board of Legal Certification. There being no further nominations from the floor, a motion was made and seconded to close nominations and declare Ms. Dale elected. The motion carried.
D. Thomas Hatch was nominated for reelection to the Southern Minnesota Regional Legal Services (“SMRLS”) Board. There being no further nominations from the floor, a motion was made and seconded to close nominations and declare Mr. Hatch reelected. The motion carried.
E. Dyan Ebert was nominated to complete the final year of the late Mike Ford’s term on the Board of Minnesota Continuing Legal Education. Mr. Lightfoot noted that Ms. Ebert was the Committee’s unanimous choice for the role and that she, as chair of the Elections/Appointments Committee, had recused herself from involvement in the nomination. There being no further nominations from the floor, a motion was made and seconded to close nominations and declare Ms. Ebert elected. The motion carried.
VIII. General Policy Committee
A. Amendment of the Civil Trial Certification Rules: Committee Chair Eric Larson reported on behalf of the Committee and presented two items for action by the Assembly. He described the first of these as a recommendation to approve the request of the Civil Trial Certification Board to make changes to the Standards for certification, including addition of provisions for “Senior Specialist” and “Judicial Fellow” status. The changes would accomplish several things: 1) in recognition of the decreasing number of cases going to trial, allow people previously certified to maintain certification without meeting ongoing trial requirements; 2) permit judges who have previously been certified to remain in certified status as “Judicial Fellows” if they so desire.
Jim Sherburne presented the recommendation on behalf of the Civil Trial Certification Board. Discussion centered on questions regarding the rising average age of civil trial lawyers and concern that few younger lawyers are seeking certification. Mr. Sherburne acknowledged that younger lawyers are finding it difficult to get an adequate number of trials for certification and advised that there is continuing support on the Board for a threshold number of trials as a requirement for certification, even as efforts are being made to increase the numbers of certified specialists. The recommendation was then voted and carried.
B. Recommendation to oppose the Voter ID amendment: Mr. Larson then presented the Committee’s second recommendation, that the MSBA oppose the voter identification amendment to the Minnesota Constitution that will be on the ballot in November 2012. He summarized the basis for the recommendation as follows: 1) The Constitution is not the appropriate place to address voter identification issues; 2) the MSBA has a policy promoting diversity of persons with disabilities and the elderly and the proposed amendment runs counter to that policy; 3) no evidence of voter fraud has been presented to justify imposing a voter identification requirement; 4) implementation and ongoing administration of such a requirement would increase costs. He noted further that the General Policy Committee did not have benefit of the MSBA lobbyists’ perspective when they made their recommendation and invited Bryan Lake, MSBA Government Relations Director, to comment.
Mr. Lake summarized his remarks by stating that since MSBA had not previously taken a position on the amendment while this subject was addressed during the legislative process, it may be counterproductive and ineffective to take such a position now. He shared his view that the resolution was unlikely to have an impact on the election outcome, but did risk offending legislative proponents who believe that any concerns should have been raised by MSBA during the session. Mr. Lake suggested that, since the amendment required substantial enabling legislation that has not been drafted, the Association could wait and, if the Amendment passes, could consider adopting a position that would allow MSBA to influence enabling legislation in a way that would limit the perceived negative effects.
Discussion centered on questions of the anticipated impact of the amendment on the voting rights of various groups; the likelihood that a resolution opposing the amendment would not be a surprise to legislators; and the potential for undercutting the MSBA’s effectiveness in furthering its legislative agenda, including ameliorating the adverse effects of the Voter ID amendment. Mr. Larson summarized the discussion noting that in his judgment the risk-benefit calculation favored bypassing the issue at this time.
The recommendation was then voted and failed by a vote of 20 in favor, 27 opposed, and 7 (including Judge Robert Awsumb, Judge John Guthmann, Judge Kathleen Sanberg, and Judge Mary Vasaly) abstaining.
IX. Governance Committee
The Governance Committee not having met, there was no report.
X. Judiciary Committee
Mike Unger, Chair, reported that while the Committee had not yet met, they anticipate addressing several issues including:
A. Use of peremptory challenges in discrimination situations;
B. Standards for judicial recusal on the basis of election activity;
C. Whether there are performance indicators that should be made available to the public in conjunction with judicial elections; and
D. Whether to renew the MSBA’s position on judicial selection. He noted that the committee is examining the issues and plans to begin discussions in January through a joint meeting with the Legislative Committee. They hope to have a recommendation by fiscal year end.
XI. Legislative Committee
Chair Thad Lightfoot reported that the committee expects to work with the Judiciary Committee in January to get input on the question of judicial selection policy and will seek input from other MSBA instrumentalities, sections and committees. The committees expect to work independently on recommendations and expect to report to the Assembly in June.
The Legislative Committee is preparing to consider legislative proposals from committees and sections in October and on October 17 will have a meeting to get input from the Uniform Law Commissioners as well. The deadline for submitting legislative proposals to the committee is Friday, October 26 at 5:00 p.m. Proposals will then be posted online for section review and individual sections will be approached for comment on proposals that may affect them. November 16 is the deadline for comments to be submitted to the Committee. On November 29 and possibly December 1 the committee will meet and come up with recommendations for the December 14 Assembly meeting.
XII. New Business
Secretary Mike Unger presented the recommendation to approve the membership of Assembly Committees for 2012-13. A motion was made and seconded to adopt the recommendation. The roster for the Elections/Appointments Committee inadvertently having been omitted from the listings online, the list of members on that Committee was read aloud. The recommendation was then voted and carried.
The meeting was adjourned at 4:30 p.m.
Michael W. Unger