2023 MN Legislative Session Review

After years of gridlock, the whirlwind

By Bryan Lake

Note: The full text of the new chapters of law referenced here can be found at: www.revisor.mn.gov/laws/2023/0

Partisan divisions, few compromises, limited accomplishments: These were the essential elements of every Minnesota legislative session recap from 2015 through 2022. During those years neither major political party had simultaneous control of the House, Senate, and governor’s office—the trifecta, as it is known—and, predictably, the divisions in government caused constant gridlock.

Following another such legislative stalemate in 2022, politicos looked ahead to the November mid-term elections, in which DFL Gov. Tim Walz was on the ballot along with every seat in the DFL-controlled House and GOP-majority Senate. In the first half of 2022, the political environment favored Republicans, who appeared poised to benefit from voters’ concerns about inflation and crime. Democrats also carried the traditional midterm albatross of holding the White House and thus receiving most of the blame for the nation’s ills.

Conventional wisdom at the time was that Republicans were likely to hold their majority in the state Senate and had a good shot at flipping the House and potentially wresting control of the governor’s office, too. But just a month after the 2022 legislative session ended, the Supreme Court’s decision overturning Roe v. Wade dramatically changed the political landscape. It put abortion top-of-mind for many voters and energized the DFL base. With that tailwind, Walz was re-elected and Democrats not only maintained their majority in the House but flipped the Senate by a one-seat margin.

The DFL wave on Election Day washed away the partisan logjam at the Capitol, leading Gov. Walz to declare: “The era of gridlock in St. Paul is over.”

A transformative session

The DFL’s razor-thin majority in the Senate was secured with victories in a few extremely tight races, which left the winners on thin ice politically. And Democrats’ one-seat advantage essentially gave veto power to every DFL senator. Many observers expected those factors to shrink and slow the DFL agenda, but they turned out to be more speed bump than stop sign.

The new Democratic majorities started the session fueled by grand ambitions and a record budget surplus, and they proceeded to move a large volume of major legislation with great velocity. Depending on one’s political views this could have been either delightful or disastrous, but there was no denying that Minnesota was a changed place by the time the session ended.

When the dust settled, an astonishing assortment of noteworthy policy changes had passed. Tuition at public colleges and universities was eliminated for students with family incomes under $80,000. Special protections were granted to those seeking abortions or gender-affirming care in Minnesota. Marijuana was legalized. The use of no-knock search warrants was severely restricted. The largest child tax credit in the nation was established. Felons were given the right to vote upon release from incarceration instead of upon completion of probation. Gun control measures were adopted. Programs were established to ensure paid family and medical leave and earned sick and safe time. There was a record-sized bonding package and substantial funding increases for education, housing, and transportation. The list of historically significant legislation seemed endless.

Justice system funding

In the midst of the tidal wave of legislation, the MSBA was very pleased that lawmakers did not overlook the justice system.

Well before major budget bills were passed, lawmakers provided additional funding to the Office of the Attorney General to assist with criminal prosecutions (Chapter 8), and they filled a current biennium funding deficiency at the Office of Administrative Hearings (Ch. 23).

The most important measure, however, was Ch. 52, the omnibus judiciary and public safety bill. It contained substantial pay raises for judges and court staff, as well as an extra pay bump for law clerks. Courts were also given funding for case backlogs, new treatment courts, mandated psychological services, and courtroom technology enhancements. But the most eye-catching allocations were massive, truly historic funding increases for public defenders and civil legal services. These much-needed investments will dramatically improve access to justice in Minnesota and aid in recruiting attorneys to serve underprivileged populations.

The MSBA agenda

In addition to advocating for increased funding for the justice system, the MSBA had four policy priorities this year, all of which focused on helping under-resourced and unrepresented citizens. At the top of the list was a bill from the MSBA’s Access to Justice Committee that creates a right to counsel for public housing tenants in breach-of-lease cases. After a few years of gaining traction but not reaching the governor’s desk, the proposal finally got across the finish line this year as part of
Ch. 52. Attorney Larry McDonough, who was instrumental in developing and passing the right-to-counsel proposal, said it “will improve access to justice and level the playing field for public housing tenants who are involved in the most complicated types of breach-of-lease eviction cases.”

The remainder of the MSBA’s policy agenda consisted of a trio of Tax Law Section initiatives that were incorporated into Ch. 64, the omnibus tax bill. The first two proposals provide single-member LLCs and their sole members with a pair of tax benefits that are already available to other forms of LLCs: (1) a personal income tax credit for the sole member for income taxes paid by the LLC in other states; and (2) a sales tax exemption for the transfer of taxable items from the sole member to the LLC. Dan Kidney, an attorney and CPA who helped craft these concepts, said they will help disregarded single-member LLC owners by eliminating two tax traps that they are frequently unaware of.

The final Tax Law Section proposal simplifies service requirements for property tax petitions. Lynn Linne, a tax controversy attorney at Fredrikson & Byron, helped negotiate the final version of the bill with interested parties. She notes that now “counties and taxpayers will have a clear and simple understanding of the service requirements for property tax petitions.” Linne also emphasized that the bill will prevent taxpayers from having their cases dismissed solely due to failure to comply with overly burdensome and unnecessarily complicated service requirements.

Much credit and gratitude is owed to the chief authors of these bills: Rep. Hodan Hassan (DFL-Minneapolis) and Sen. Zaynab Mohamed (DFL-Minneapolis) for the right-to-counsel bill; Sen. Warren Limmer (R-Maple Grove) for the property tax petition bill; lawyer-legislator Sen. Judy Seeberger (DFL-Afton) for the single-member LLC changes; and lawyer-legislator Rep. Esther Agbaje (DFL-Minneapolis) for the property tax petition and single-member LLC bills.

In addition to our priority bills, the MSBA collaborated with the Minnesota uniform law commissioners on Ch. 21, a modified version of the Uniform Electronic Wills Act. The bill unanimously passed both chambers of the Legislature under the guidance of its chief authors, lawyer-legislators Rep. Sandra Feist (DFL-New Brighton) and Sen. Bonnie Westlin (DFL-Plymouth).

Sen. Westlin and fellow lawyer-legislator Rep. Kelly Moller (DFL-Shoreview) also introduced HF3204/SF2759, a package of family law reforms crafted by the Family Law Section and other stakeholders. The bill did not receive a committee hearing but remains in play for the second year of the legislative biennium.

On top of the bills noted above, the MSBA endorsed several other pieces of legislation that were signed into law, including the following:

prohibiting fees on uncertified court documents (Ch. 52);
reducing gross misdemeanor maximum sentences to 364 days (Ch. 52);
barring conversion therapy for minors and vulnerable adults (Ch. 28);
allowing undocumented immigrants to acquire driver’s licenses (Ch. 13); and
eliminating unconstitutional statutes related to adultery, sodomy, and fornication (Ch. 52).

The MSBA was active behind the scenes as well, offering technical suggestions and drafting assistance on numerous bills. Many thanks are due to the MSBA members who volunteered to share their expertise and improve the lawmaking process.

Omnibus judiciary and public safety bill

For attorneys who are curious about potential legislative changes affecting their practice areas, the most obvious place to look is Ch. 52, the omnibus judiciary and public safety bill. At over 500 pages, the behemoth bill was packed with significant policy changes. Among them were a slew of tenants’ rights provisions that include:

prohibiting landlords from requiring tenants to declaw or devocalize pets;
requiring disclosure of all nonoptional fees in lease agreements;
giving tenants the right to make move-in and move-out inspections;
restricting landlord entry;
barring landlords from requiring early renewal of leases lasting longer than 10 months;
forbidding landlords, in many circumstances, from penalizing tenants or terminating leases for conduct that occurs away from the rental building;
allowing tenants to terminate leases upon infirmity; and
requiring written notice before bringing eviction actions for unpaid rent or other unpaid financial obligations.

Ch. 52 also included some high-profile items like no-knock search warrant restrictions, background checks for firearm transfers, and extreme-risk protection orders. A long list of other policy changes was adopted, too, some of which directly affect lawyers, such as allowing licensed attorneys to apply for MN Government Access accounts so they can view and print MNCIS documents for free.

In the criminal law realm, Ch. 52 expands the categories of crimes motivated by bias as well as the list of qualified domestic-violence-related offenses. It also modifies the surreptitious intrusion statute, the aiding-and-abetting felony murder statute, and the penalties for “swatting.” It establishes automatic expungement of certain criminal records and creates new crimes for carjacking and organized retail theft. Additionally, the legislation grants tribal nations probation and post-release supervision authority, allows for prosecutor-initiated sentence adjustments, and gives police authority to attach tracking devices to vehicles without a court order.

Miscellaneous provisions of Ch. 52 align fentanyl and heroin penalties; enable survivorship of personal injury actions after death; establish a statewide office of appellate counsel to represent parents in juvenile protection matters; and modify procedures for retrieving contents from impounded vehicles and allow vehicle owners to sue for violations. The legislation also creates a Clemency Review Commission that will make recommendations to the Board of Pardons.

These and other Ch. 52 provisions not covered here have various effective dates. Careful study of the legislation is recommended.

Other legislation of interest to attorneys

Ch. 3 adds a definition of race to the MN Human Rights Act that includes hair texture and hair styles (effective 8/1/23).
Ch. 15 creates criminal penalties for unauthorized possession or purchases of catalytic converters (effective 8/1/23).
Ch. 16 modifies the Minnesota Indian Family Preservation Act (effective 8/1/23).
Ch. 19 allows courts to determine if current or former military members are eligible for deferred prosecution prior to findings of guilt (effective 8/1/23).
Ch. 27 modifies labor trafficking provisions and increases penalties (effective 8/1/23).
Ch. 34 prohibits intimidating, interfering, and deceptive conduct related to elections (effective 6/15/23).
Ch. 51 adopts the recommendations of the Workers’ Compensation Advisory Committee (various effective dates).
Ch. 53, the omnibus jobs and labor bill, includes the following provisions:

prohibits most non-compete agreements (effective 7/1/23);
establishes protections for warehouse workers (effective 8/1/23), meat and poultry processors (effective 1/1/24), and agriculture and food processing workers (effective 8/1/23);
bars restrictive franchise agreements (effective 5/25/23);
updates provisions related to the Public Employment Labor Relations Board (effective 5/25/23);
creates the Nursing Home Workforce Standards Board (effective 5/25/23);
strengthens construction worker wage protections (effective 8/1/23);
modifies construction indemnification agreements (effective 5/25/23); and
establishes earned sick and safe time for employees (effective 1/1/24).

Ch. 57, the omnibus commerce bill, contains elements that: provide remedies to debtors with coerced debt (effective 1/1/24); establish civil penalties for selling essential consumer goods or services for “unconscionably excessive prices” during a governor-declared abnormal market disruption (effective 5/25/23); modify common interest community provisions related to fines and fees (effective 8/1/23); and prohibit boat insurance policies from excluding family members (various effective dates).
Ch. 58 creates crimes for using “deepfake” technology to influence an election or disseminate sexual images or videos (effective 8/1/23).
Ch. 59 establishes a paid family and medical leave program (various effective dates).
Ch. 63 legalizes cannabis for adult use (various effective dates).
Ch. 68, the omnibus transportation bill, prohibits holding a cell phone while driving (effective 8/1/23) and reduces some transit rider misconduct penalties from misdemeanors to petty misdemeanors while establishing misdemeanor penalties for other transit rider misconduct (effective 7/1/23).

Looking ahead

The 2024 legislative session will begin on February 12.

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.