JUDICIARY

COVID-19 provisions passed

One of the COVID-19 response bills the Legislature passed included judiciary provisions to help Minnesotans take care of the important parts of their lives, even during a pandemic. Minnesotans are finding difficulties with judiciary matters that typically involve interactions with other people, so the bill made a number of changes to these matters that reflect the social distancing that Minnesotans are using to reduce the spread of the virus.

  • Marriage License: One of these changes was the ability for couples to apply for marriage licenses electronically. Usually, at least one person in a couple applying for a marriage license must apply in person. The response bill allowed counties to waive that requirement during peacetime emergencies, allowing for applications to be accepted by mail, fax, or electronic filing, if the application is signed by both individuals and they’ve been examined under oath. Examination under oath may happen over video or audio, and both individuals have to attest to the legality of the marriage. Counties aren’t required to offer this, so individuals should check with their counties to see if it is an option.
  • Child Support: Those owing child support see a cost of living adjustment every year. The COLA adjustment may be contested, but it’s typically done in person with a deadline to contest that adjustment. The response bill moved that deadline from May 1, 2020 to June 30, and there is an extension of the deadline until October 31, 2020 if an individual is unable to file a contest before June 30 due to COVID-19.
  • Wills: Minnesotans are also looking to update their wills in light of the global pandemic. In Minnesota, wills must be written, signed by the individual the will belongs to or their designee, and signed by two witnesses. However, attorneys are seeing challenges in getting wills properly executed, especially with at-risk populations. People don’t want to go to their lawyer’s office and are finding it difficult to get witnesses. This is especially true for people who have been quarantined or are in communal care settings that are effectively in lock-down mode.

Attorneys have been hearing cases of individuals using nonconventional witness options that have not been vetted by the state’s courts. The bill acknowledged this by allowing wills to be probated with errors in execution if the errors are harmless.It’s effective for wills and documents made or changed on or after March 13, 2020 and before February 15, 2021.

  • Court Deadlines: The bill also included a stay on certain deadlines for the judicial branch in district and appeals courts. There are a number of statutory deadlines prescribed for the state’s district and appellate courts prescribed in statute that are difficult to meet right now in light of COVID-19, especially as the judicial system is limiting interactions. The bill suspended those deadlines until 60 days after the end of the peacetime emergency.

The bill specifically does not prohibit a court from holding a hearing, requiring an appearance, or issuing an order if it’s determined that it’s relevant to public safety, personal safety, or other emergency matters.

The legislation is effective the day after final enactment and applies to all deadlines that hadn’t expired by March 13, 2020 and to deadlines generated on or after that day.

Senate DFLers are committed to keeping Minnesotans safe and informed during this pandemic. We know the stay-at-home order worked as we saw a shift in the curve. We’re moving into a Stay Safe Minnesota phase, but we know that life goes on even while we’re working on keeping everyone safe. We understand this and are working to find additional ways to adapt so that people can take care of the important parts of their life without putting themselves or others at risk. (HF 4556)

Non-COVID bills that passed

Data privacy package

As we create technology that improves people’s live, we also open a lot of questions about privacy and civil liberties that haven’t existed in the past.

The Legislature passed a data privacy omnibus bill this session that would close loopholes and establish warrant requirements for some of this new technology, including for drones and smart phone apps as well as emails.

Under the new legislation, law enforcement agencies would be required to obtain a warrant in order to use a drone for surveillance, with some exceptions for emergencies, disasters, and other issues. The data collected by these drones must be deleted as soon as possible, and there are requirements for notifying individuals if they were the subject of a drone warrant. Law enforcement agencies are required to allow for public comment before purchasing a drone.

The bill also requires law enforcement to obtain a warrant to search through electronic communication, namely emails. Emails that are older than 180 days may be searched without a warrant, and this legislation would close that loophole.

Smart phone apps are also included in the bill. Unique identifiers are IDs associated with electronics such as cell phones and tablets, and the various apps the electronics may use, such as Snapchat. Unique IDs can be used to track individual devices, which can reveal user behavior as well as place users into geographic regions, creating what is essentially more GPS data.

Law enforcement agencies have asked app developers, such as Snapchat, for this GPS data to assist in missing person cases. There has been uncertainty around sharing this data, and the bill aims to clarify that uncertainty by requiring law enforcement to obtain warrants for this data as well. The bill also included reporting requirements for electronic location tracking warrants as well as other data privacy-related issues.

Innovations in technology have increased our ability to connect with others and have broken down barriers in education, economics, and more. However, we must balance our civil liberties and rights to privacy in those innovations. Senate DFLers will keep fighting to find that balance and protect our privacy. (SF 3072)

Civil laws package

COVID-19 has changed the look of the Legislature this year, with CDC recommendations resulting in social distancing among legislators and members spending less time on the floor to reduce the risk of the spread of the virus. The Judiciary Committee has responded to this by packaging smaller, issue-related bills into omnibus bills, including a civil law package.

The bill made a series of changes to the state’s guardianship and conservatorship provisions based on recommendations from stakeholders, which included ARC MN, Legal Aid, the Consortium for Citizens with Disabilities, Minnesota Elder Justice Center, Estate and Elder Law Services – Volunteers of America, the Proof Alliance, and Lutheran Social Services. The changes aim to provide more independence and allow for more supported decision-making for those under guardianship or conservatorship.

The bill also included a provision supported by Legal Aid and the Minnesota Collectors’ Association that would make changes to the state’s wage garnishment laws. It also allows workers to preserve 40 times of either the state or federal minimum wage, whichever is higher, from garnishment per pay period and extends the length of time that court ordered wage garnishment can continue from 70 to 90 days.

Creditors are able to renew garnishments for a $15 fee that gets added to the debtor’s bill. The bill allows individuals to keep a little more money and extends the garnishment period an additional 20 days in order to reduce the amount of fees that end up tacked on to the debt.

Also included in the bill were changes to the uniform transfers to minors’ act and common interest ownerships.

How the Legislature is working may look different, but legislators have been hard at work this session passing bills that will improve the lives of all Minnesotans. These changes to civil laws will make a big difference for those affected. (SF 3357)

Public safety package

The Legislature passed a third judiciary omnibus bill near the end of session that focused on bipartisan updates to public safety.

The bill included a number of small provisions, including changes requested by the Department of Public Safety and the Department of Corrections, that will make a big difference in keeping Minnesotans safe.

Under the bill conservation officers are allowed to enforce DWI laws, and updates were made to background check requirements. The bill requires feminine hygiene products to be provided to individuals who need them while incarcerated and prohibits the flying of drones over correctional facilities. The bill also offers more flexibility to non-profits that administer the state’s youth intervention program grants.

All of the provisions were bipartisan and had stakeholder agreement. The bill was a strong example of Senate DFLers continuing to work for the safety of our communities even in the midst of a global pandemic. (SF 3258)

Child marriage ban

The Legislature passed and Governor Walz signed into law this session a bill that limits marriage to those 18 years of age and older. Child marriages may have been acceptable a century ago, but today we know that girls should stay in school, and when young girls have babies, infant mortality and maternal mortality rates are high.

While the age of consent to marry in Minnesota is currently 18, a loophole exists allowing minors aged 16 and 17 to be married with parental consent and judicial approval. When a child is forced to marry, the perpetrators are typically the parents. Parental “consent” is often parental “coercion.” Additionally, judges have wide discretion to approve marriages with a spousal age difference that constitutes statutory rape or where a child is marrying a registered sex offender.

Children can easily be forced into marriage or to remain in a marriage before they become legal adults at 18. As children, these victims face huge barriers if they try to leave home, enter a domestic violence shelter, or retain an attorney. It is unclear whether they can independently file for divorce (children may sue only through guardian ad litem, parent, guardian, friend or relative).

The research is clear: children who marry before 18 are far more likely to suffer from abuse, poverty, disease, and divorce than those who wait until they are 18 or older. Children who marry drop out of high school at disproportionately high rates and perpetuate poverty for their future children. This bill will protect children and allow them, particularly girls, to finish school and create the foundation they need to be successful. (SF 1393)

Presumptive five-year probation cap

The Minnesota Sentencing Guidelines Commission recently voted to support a presumptive five-year probation cap for felons in Minnesota.

Under the new guidelines, felony offenses, with the exception of homicide and criminal sex crimes, would be presumptively limited to no more than five years for probation. The proposal is not retroactive and would only affect probation sentences given after August 1, 2020.

Research shows the majority of probation revocations occur in the first 24 months of a probation sentence. The likeliness of an individual reoffending after seven years is the same as an individual with no criminal history score.

There are also vastly different probation sentences based on where a person lives in Minnesota. Probation sentences in Hennepin County average three years; probation sentences in the 7th judicial district, which includes a west-central region of the states, average seven years.

Recommendations from the Sentencing Guidelines Commission go into effect automatically on August 1 of the year they are proposed unless the Legislature acts to stop them. House DFLers passed a bill last year that would also cap probation lengths, but it did not make it through the Senate.

Minnesota has the fifth-highest rate in the country for people under community supervision. Senate DFLers are committed to ensuring Minnesota is using supervision effectively, and the Sentencing Guideline Commission’s proposal provides an opportunity to do so.

Sentencing Guideline Commission recommendations go into effect on August 1st unless the Legislature acts otherwise, and while Senate Republicans passed a bill through Judiciary that would block the recommendations, the bill wasn’t passed on the floor and the House never heard a bill.

Barring any changes over the next few months, Minnesota will have a presumptive five-year cap on probation sentences in effect on August 1st.

Disaster assistance contingency funding

The state’s disaster assistance contingency account was created in 2014, in order to get disaster assistance funds to cities without waiting for a special session.

The account has been used 40 times, and the Legislature has appropriated $82 million for the account; 16 of the last 40 requests have come in the last two years. The fund has been used more frequently recently as natural disasters are happening more often and becoming more severe.

The account provides the funds for gubernatorially-declared disasters as well as the required 25% share of state funding when the Federal Emergency Management Agency (FEMA) declares a federal emergency. Last session, the Minnesota Legislature funded the Disaster Assistance Contingency Account with enough dollars to account for the state’s share of FEMA’s spring 2019 flooding assessments, as well as additional state-declared emergencies. However, in January 2020, Minnesota was informed that FEMA severely underestimated the cost of recovery and nearly doubled their assessment. 

The account is facing a $3 million deficit due to unexpected high flooding during the spring of 2019. The Legislature passed a bill that included $30 million in funding for the account, to cover the deficit and ensure funds are available for future disaster assistance needs. (SF 3564)

Best practices for eyewitnesses

There have long been issues with eyewitness testimony, as its accuracy and reliability can be subjective. The Innocence Project and other stakeholders worked with the Legislature this session to pass a bill requiring that best practices for eyewitness identification be adopted by law enforcement agencies in Minnesota.

The bill makes a number of changes to current eyewitness identification practices to better the accuracy of the identification and reduce false identifications.

Senate DFLers are taking a hard look at our criminal justice system and the inequities within it. This bill is another small step in ensuring all Minnesotans receive justice. (SF 1256/HF 627)

Bills not passed

Funding for department of corrections, probation, sexual assault kit testing

The Senate was looking at a surplus and supplemental budget bills at the start of session. The onset of the pandemic upset all of that work, leaving many public safety requests unfunded.

The Department of Corrections is facing a budget shortfall due to overtime and personnel costs. COVID-19 is especially dangerous in a corrections facility, where the number of people moving in and out and the health vulnerabilities of the incarcerated population make these facilities potential hotspots. The pandemic has increased the need for corrections staff, which has increased this deficit.

One of the best ways to combat COVID-19 in the corrections system is to reduce the overall population of those in the system through reducing admissions and releasing individuals in both county and state and federal systems. Many county jails have been releasing low-risk, non-violent offenders with limited time left on their sentences and have been finding other ways to reduce the jail population.

This has led to increased pressure on the state’s probation system, which is also facing a budget shortfall. Not only personnel needs but the need for support for those that have been released from incarceration have increased as these low-risk non-violent offenders are rejoining their communities.

The state is also facing a large backlog of sexual assault kit testing. A 2015 inventory of the state found more than 3,000 sexual assault kits that had gone untested. The Legislature passed a bill to address this that year and federal funding has been received to tackle the backlog, but there are still too many kits that remain untested. Additional funding would allow the state to continue to reduce the backlog of kits as well as create a better system for tracking and testing the kits.

The House passed a bill that addressed all three of these funding shortfalls, but time ran out before the end of Session before the Senate could consider the bill.

Governor Walz has asked for funding for all three of these areas if there is to be any supplemental funding bill, and Senate DFLers will fight with the governor to keep our communities safe and provide justice.

Hate crimes legislation

Asian and Pacific Islander Minnesotans are experiencing an increase in discrimination and hate crimes during the COVID-19 pandemic. Minnesota has also recently seen an uptick in the number of hate crimes across the state.

Despite this increase in discrimination, Senate Republicans have refused to hear or pass anti-hate crime legislation.

The proposed legislation allows law enforcement to utilize new tools to shine a light on the number of real hate crimes across the state, create best practice approaches to dealing with crimes motivated by bias, and train law enforcement officers to successfully identify hate crimes that currently may not be recognized as such.

The bill also changes how damage to property is reported when damage is motivated by bias. State law only focuses on the identity of the property owner when determining if a bias motivated property crime has occurred. This legislation shifts the focus to the motive of the perpetrator as well as to the potential adverse impact the crime has on the community.

Senate DFLers believe this legislation will raise awareness around the urgent need to update Minnesota’s hate crime law and give law enforcement and communities the tools they need to address this mounting concern. No matter where we were born, how we pray, or what we look like, all Minnesotans deserve safe communities and a fair justice system. It says a lot about Senate Republicans when they’re unwilling to pass legislation that would help ensure this. (SF 4332)

Adult-use cannabis

Minnesota saw two pro adult-use cannabis legalization parties become major parties following the 2018 election. Despite a growing public opinion that adult-use cannabis should be legalized, or at the very least that a conversation should be had, Senate Republicans voted against moving forward legislation in a Judiciary Committee last session.

House and Senate DFLers were part of working groups over the interim to develop legislation that provides a comprehensive framework for adult-use cannabis legalization. That legislation was introduced this session but wasn’t heard, both as a result of COVID-19 and Republicans’ unwillingness to have a serious conversation about adult-use cannabis.

Legislation that would add the use of the cannabis flower to the state’s medical cannabis program, as well as moving cannabis from a schedule one to a schedule two controlled substance, is also expected. Senate DFLers pushed for discussion around this during the last legislative session, but Senate Republicans refused to take action.

Senate DFLers are committed to keeping Minnesotans safe, and that includes having a conversation around adult-use cannabis legalization. We will fight to have that conversation next session. (SF 4585)

Gun violence prevention

Senate DFLers have introduced no fewer than 24 gun violence prevention bills in the last several years. Despite mass shootings – including the recent ones in Fresno, El Paso, and Dayton – becoming the new normal in this country, Senate Republicans have refused to take any real action to curb the epidemic of senseless gun violence and keep Minnesota’s communities safe.

While Republicans claimed that crime and violence reduction was one of their top priorities this session, they once again failed to act on sensible gun violence prevention bills on the floor. Instead, the Judiciary Committee held two hearings around firearm laws. The first hearing, held in Hibbing in January, focused on bills that Senate Republicans said were more divisive. They included the DFL sensible gun violence proposals in this list, as well as a stand your ground law and permitless carry – both of which would increase gun violence in the state. This was an informational hearing – no votes were taken on any bills, and no amendments were offered to any bills.

The second hearing in March focused on the Republicans’ package of bills they referred to as their violence prevention platform. These bills included court hearings to enforce firearm restrictions for abusers, an increased penalty for illegal transfers as well as firearm possession by gang members, background checks for noncitizen permits to carry, a prohibition on disarming peace officers, and a prohibition on allowing civilly committed sex offenders to possess firearms.

Senate Republicans did not add the DFL proposals on background checks or emergency risk protection orders to this meeting’s agenda, stating they had gotten a hearing during the January committee meeting, despite the fact that the January committee hearing was purely informational.

Senate DFLers offered background checks and emergency risk protection orders as amendments – both were voted down on party line votes.

In a nationwide study from 2009 to 2016, about 42% of mass shootings produced documentation that the attacker displayed dangerous warning signs before the shooting. Extreme risk protection orders (ERPOs) would allow law enforcement and family members to seek a court order temporarily restricting a person’s access to firearms when they show red flags and pose a danger to themselves and/or others. Extended background checks would extend criminal background check requirements to include most private sales, gun show markets, and online transactions.

Last year, a Star Tribune poll found that nine out of 10 Minnesotans support criminal background checks on all private firearm purchases. Support among Minnesotans is broad as well as deep and crosses political, urban and rural, and gun owner and non-owner lines. Despite this support, Senate Republicans have refused to take any action that would curtail the gun violence epidemic Minnesota and the country is facing. They have voted to instead keep putting Minnesotans’ lives in danger. (SF 434, SF 436)

Sexual harassment standard

In 1986, the Supreme Court found in Meritor Savings Bank v. Vinson that sexual harassment could be a form of sex discrimination under Title VII of the Civil Rights Act of 1964 if (1) the harassment involves the conditioning of employment benefits on sexual favors, or (2) the harassment, while not affecting economic benefits, creates a hostile or offensive working environment. Employers could be held liable for the actions of their supervisors if the employers knew of the bad behavior.

Since Vinson, federal courts have wrestled with numerous fact situations in an effort to define what is “severe or pervasive,” often leading to results that some legislators now find questionable or even shocking. Minnesota state courts have adopted the Vinson standard.

Discussions started two years ago around changing the definition of severe and pervasive sexual harassment and resulted in a much simpler, much stronger piece of legislation. However, while the House passed the bill, Senate Republicans listened to the Chamber of Commerce and passed a weaker version of the bill. The bill was returned to the Judiciary Committee over interim, where Senate Republicans quickly voted to send the same, much weaker bill back to the floor. The bill wasn’t taken up before the end of session, so it will likely come back next session.

Senate DFLers are committed to passing the strongest possible version of a sexual harassment standards bill that protects Minnesotans. (SF 1307)

Restore the Vote

Minnesotans convicted of a felony lose the right to vote, even after they’ve re-entered the community or if they never served time in incarceration. Only once Minnesotans are “off paper”, having completed their probation or parole sentence, are their rights restored. At least 47,000 Minnesotans are disenfranchised as a result.

Since 1974, the percentage of Minnesotans disenfranchised as a result of a criminal conviction has increased 400%. Disenfranchising Minnesotans also disproportionately affects African Americans and American Indians.

Research also shows that children who have parents that vote are more likely to vote themselves. Restoring the vote not only helps Minnesotans now but engages the next generation and helps them become voters as well. Fourteen states and the District of Columbia restore voting rights when incarceration ends. Restoring the vote allows Minnesotans to have a stake in their community and a voice in who represents them that would make decisions that directly affect their life. It allows Minnesotans a greater ability to become full members of the state’s society and economy and reduces recidivism.

The House passed voter restoration in 2019, but Senate Republicans once again refused to hear the bill this session. It is long past time to pass this important bill and allow Minnesotans to participate in their democracy. (SF 1191)

Fireworks

Conversations around the ban on aerial and exploding fireworks in the state have happened on and off at the Capitol over the last several years. The Judiciary Committee heard a bill this Session that would lift that ban for those over 18. Tax revenue from the sale of fireworks would be divided into volunteer fire assistance grants, fire safety, and the general fund.

While many argue that Minnesotans want access to aerial fireworks and Minnesota is losing revenue to neighboring states where these fireworks are legal, there are significant questions about safety from fire departments and fire chiefs, emergency rooms, burn centers, and others.

The bill passed on a divided vote and was sent to Local Government, where it was not taken up.

Governor Walz said during an Almanac debate while he was running for governor that he was open to fireworks legislation. The bill will likely make another appearance next session.

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