2019 Legislative Session Recap

MSBA agenda finds success amid a state of gridlock at the Capitol 

By Bryan Lake

0719-MN-Capitol-150The 2019 legislative session featured power shifts, conflict, and rival parties compromising to cut a deal. 

The dynamics of the session were established on Election Day last November, when a DFL wave washed across Minnesota and produced a divided Legislature—a rare thing in a country filled with states colored in deepening shades of red or blue. Minnesotans replaced retiring Gov. Mark Dayton with another Democrat—former Congressman Tim Walz—and DFLers also won a majority of seats in the House of Representatives, ending four years of GOP control. Senators were not on the ballot in 2018, however, so Republicans maintained their majority in the Senate. 

The legislative session kicked off in early January, and the months ahead were grueling. Predictably, Republicans and Democrats found much to disagree on. In general, House committees were far more active and ambitious than their Senate counterparts. The judiciary and public safety omnibus bill provided a telling example: The House version swelled to 298 pages, while the Senate companion was a streamlined 31. The two chambers had little in common in many other areas as well. 

Due to stark philosophical differences, many controversial items failed to cross the finish line, including proposals related to gun control, sexual harassment standards, recreational marijuana, paid family and medical leave, and driver’s licenses for immigrants without legal status. Despite months of frenetic activity at the Capitol, actual accomplishments were minimal. In fact, the Legislature sent only 65 bills to the governor during the regular session, the lowest total during an odd-numbered year in at least four decades.  

Thirteen additional bills reached the governor’s desk following a 21-hour overnight special session that was necessary to complete a budget deal. As is typical in budget years, there were many complaints about closed-door negotiations and a lack of transparency, but to their credit, Gov. Walz, House Speaker Melissa Hortman (DFL-Brooklyn Park), and Senate Majority Leader Paul Gazelka (R-Baxter) maintained a respectful tone in public while they privately hammered out a compromise budget agreement and avoided a government shutdown—no small feat in today’s hyper-partisan political environment. 

The budget compromise included wins and losses for both parties. The DFL was able to increase education funding and permanently extend the health care provider tax, while the GOP secured a middle-class income tax cut and blocked a large gas tax increase.

Throughout the session, the MSBA was active in advocating for adequate funding for the justice system. Courts, public defenders, and civil legal services all received budget increases, albeit at lower levels than they had requested. The court system will receive additional funding for pay increases, cybersecurity, mandated psychological services, and treatment courts. In addition, a new judge unit will be added in the 7th Judicial District. Civil legal services got about half of the additional funding they requested, while public defenders received extra funding for salary increases as well as new attorneys and support staff. 

MSBA agenda

Numerous MSBA proposals were in play at the Capitol this year, and several passed despite the difficult operating environment. The first MSBA bill to get signed into law was Chapter 21, which establishes original jurisdiction in the district courts for public procurement bid protests. This procedural clarification eliminated confusion about whether such actions needed to be filed in district court or the court of appeals or both courts. The chief authors of the bill were a pair of lawyer-legislators, Rep. Dave Pinto (DFL-St. Paul) and Sen. Mark Johnson (R-East Grand Forks). Effective 5/10/2019.   

Another lawyer-legislator, Sen. Jerry Relph (R-St. Cloud), along with Rep. Jeanne Poppe (DFL-Austin), sponsored multiple MSBA proposals that were part of this year’s tax bill (Spec. Sess. Ch. 6). The proposals, a pair from the Probate & Trust Law Section and a pair from the Tax Law Section, included:

  • Attributing a deceased spouse's ownership to a surviving spouse for purposes of the three-year holding requirement in the qualified farm and small business estate tax exemption. (Art. 2, Sec. 23 & 24) Effective retroactively for estates of decedents dying after 12/31/17. 
  • Allowing married farm couples who hold their property in two trusts to maintain agriculture homestead status. (Art. 4, Sec. 12) Effective beginning for property taxes payable in 2020. 
  • Enabling automatic state relief for taxpayers who qualify for "equitable" innocent spouse relief under federal law. (Art. 2, Sec. 9) Effective for returns first due for taxable years beginning after 12/31/18. 
  • Removing the six-year timeline for an innocent spouse to request separation of tax liability. (Art. 2, Sec. 9) Effective for returns first due for taxable years beginning after 12/31/18. 

A fifth MSBA tax proposal—conforming with the federal refund period for overpaid taxes—was included in the Senate tax bill but did not survive in conference committee. Two other MSBA bills also did not make it across the finish line this year. The first would provide student loan repayment assistance for rural lawyers; the second would establish a right to counsel for public housing tenants in breach-of-lease cases. We will continue to work on these bills. 

In addition to the previously discussed bills, there was action this year on an issue raised by the MSBA-initiated Commission on Juvenile Sentencing for Heinous Crimes. Currently, key portions of Minnesota's Heinous Crimes Act are unconstitutional as applied to juveniles. The MSBA has recommended that the Legislature take action consistent with the commission's recommendations, which were to either adopt sentencing factors or eliminate the sentence of life without the possibility of release. The House judiciary and public safety bill contained language providing parole eligibility after 25 years for juveniles sentenced to life for heinous crimes, but the proposal died in conference committee.

On the defensive front, two family law bills opposed by the MSBA were stopped: a joint physical custody presumption and a private divorce program that would be administered with no court oversight. A floor amendment was offered to add the joint custody presumption language to the House judiciary and public safety omnibus bill, but the amendment failed on a tie vote. In the Senate, the proposal moved through one committee but did not reach the floor. The private divorce bill was included in the judiciary and public safety omnibus bill in the House but not the Senate, and it did not survive in conference committee. 

Notable new laws

• Assisted living: Ch. 60 establishes rights and protections for assisted living residents and creates new dementia care requirements for assisted living facilities. Ch. 60 also creates a framework for licensing assisted living facilities, an idea that was supported by the MSBA’s Elder Law Section. Various effective dates.

Criminal sexual conduct: Ch. 16 repeals the marital rape exception. Effective 7/1/19. And Spec. Sess. Ch. 5 Art. 4 contains numerous changes related to criminal sexual conduct, including:

• Expanding the definition of “position of authority.” Effective 8/1/2019.

• Not requiring proof of penetration for certain first-degree sexual conduct crimes involving victims under age 13. Effective 8/1/19.

• Prohibiting peace officers from engaging in sexual contact with detained individuals. Effective 8/1/2019.

• Enhancing penalties for certain child pornography offenders. Effective 8/1/2019.

• Eliminating the exception for touching clothed buttocks. Effective 8/1/2019.

• Enabling sexual assault victims to initiate investigations through any law enforcement agency regardless of where the assault took place. Effective 8/1/2019.

• Enhancing penalties for certain surreptitious intrusion offenses. Effective 8/1/2019.

Domestic abuse: Spec. Sess. Ch. 5, Art. 2, Sec. 27 allows domestic abuse no-contact order violations to be used as evidence against an accused person. Effective 5/31/19. 

• Driving: Several driving-related changes were signed into law this year, including:

• Ch. 10 applies reckless and careless driving provisions to light rail transit operators. Effective 8/1/19.

• Ch. 11 prohibits drivers from using handheld communication devices. Effective 8/1/19. 

• Ch. 35 provides that reports from qualified work zone flaggers can give peace officers probable cause to issue citations to drivers who violate work zone laws. Effective 8/1/19.

• Spec. Sess. Ch. 3 mandates that drivers stay out of the left lane if practicable when driving slowly (Art. 3, Sec. 39) and yield to school buses that are attempting to enter a lane from a shoulder or right turn lane (Art. 3, Sec. 40). Effective 8/1/19.

• Duty to warn: Ch. 28 expands duty to warn requirements for counselors. Effective 8/1/19.

• Exoneration: Spec. Sess. Ch. 5, Art. 2 amends the definition of “exonerated” in response to Back v. State. Effective 8/1/19.

• Human Rights Act: Spec. Sess. Ch. 5, Art. 2, Sec. 9 enables a charging party and respondent to access private or nonpublic data from the Department of Human Rights when a charging party brings an action under the Human Rights Act. Effective 8/1/19.

• Landlord-tenant: Spec. Sess. Ch. 1, Art. 6, Sec. 56-58 modifies residential lease requirements. Effective for leases entered into or renewed on or after May 31, 2019.

•  Predatory offenders: Spec. Sess. Ch. 5, Art. 5 modifies various provisions related to predatory offenders, including: 

• Requiring DNA samples and fingerprints from registrants. Effective 8/1/19.

• Requiring notice when a registered predatory offender receives services from a home care provider. Effective 8/1/19.

• Modifying predatory offender criminal penalty provisions in response to State v. Mikulak. Effective 8/1/19.

• Requiring registration for individuals who commit (1) felony-level surreptitious intrusion offenses, or (2) registerable offenses in other states and are in Minnesota for an aggregate of over 30 days. Effective 8/1/19. (For 2019, the 30-day aggregate period only counts days spent in the state on or after 8/1/19.)

•  Restrictive covenants: Ch. 45 enables restrictive covenants to be discharged. The new law incorporates many technical changes suggested by the MSBA's Real Property Section. Effective 8/1/19.  

•  Retainage: Spec. Sess. Ch. 7, Art. 9, Sec. 1 & 13 modifies retainage requirements for building and construction contracts. Effective for agreements entered into on or after 8/1/19.

• Reunification: Ch. 14 allows parents who have lost their custody rights to petition for reunification. Effective 8/1/19.

•  Vehicular operations: Spec. Sess. Ch. 5 Art. 6 modifies several vehicular operations provisions, including: 

• Mandating the loss of operating privileges for DWI test failure involving snowmobiles, boats, and ATVs. Effective 8/1/19.

• Expanding the prior convictions that enhance offenses to felony DWI. Effective 8/1/19.

• Exempting DWI offenders from vehicle forfeiture if they participate in the ignition interlock program. Effective 8/1/19.

• Making permanent the driver’s license reinstatement diversion pilot project. Effective 7/1/19.

• Wage theft: Spec. Sess. Ch. 7, Art. 3 enhances wage theft provisions. Effective 8/1/19. 

Editor’s note: The full text of new chapters of law noted in this article can be found at https://www.revisor.mn.gov/laws/91. 

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.