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Update: April 4, 2006 9:20 p.m.
A proposal to amend the state constitution to define marriage failed to gain the approval of members of the Judiciary Committee, Tues., Apr. 4.
H.F. 6, carried by Sen. Michele Bachmann (R-Stillwater), places a constitutional amendment on the general election ballot. The proposed amendment provides that only the union of one man and one woman shall be valid or recognized as a marriage. Additionally, the proposed amendment denies other relationships recognition as marriage, or its legal equivalent, by the state or any political subdivision.
Marriage is important to our society and serves as society's "cultural DNA," Bachmann said. She said marriage is not a casual relationship, but one that carries many benefits and responsibilities. Marriage is not merely a private contract or a consensual relationship between two people, she said. It is a matter of public concern, making it an issue for state government to address, Bachmann said. She said traditional marriage lowers poverty rates and improves child wellbeing.
The institution is under assault across the nation, she said, with marriage laws overturned by judges in eight states. She said the Lambda Legal Defense and Education Fund has challenged marriage laws in several states, including Iowa. Bachmann said the situation in Minnesota is similar to the situation in Iowa. Iowa has a Defense of Marriage Act (DOMA) in statute, but a constitutional amendment has not advanced out of a legislative committee, she said. Bachmann said that if a constitutional amendment is not voted on and adopted in Minnesota this year, then a challenge similar to the one being pursued in Iowa can be expected here. The effort to create a right to same-sex marriage did not begin recently, she said, but began in Minnesota 35 years ago, with the state Supreme Court case of Baker v. Nelson.
Committee Chair Don Betzold (DFL-Fridley) said that time would be divided equally between proponents of the measure, invited by Bachmann, and opponents, invited by Sen. Scott Dibble (DFL-Mpls.).
We have over 30 years of data demonstrating that children raised by their biological mother and father are in the most beneficial arrangement, said Mick Meyhew, a professor of marriage and family therapy at St. Cloud State University. He said the lack of definition in society is dangerous for children and their development and leads to higher suicide rates.
Two attorneys outlined the legal lines of attack they anticipate will be used by advocates of same-sex marriage to overturn the state's DOMA law and the Baker decision. Chris Stoebel of the Alliance Defense Fund, an Arizona-based religious liberty legal alliance, said suits are being filed based on states' guarantees of due process and equal protection. The Baker decision was premised solely on the federal constitution and has no definitive value in interpreting the state constitution, he said. The question may not even be settled by the state's highest court, said Teresa Collett, a professor at the University of St. Thomas School of Law. She said the state's sodomy statute was struck down by a Hennepin County trial judge in 2001 and the attorney general declined to appeal the decision. A sitting judge in the same county, Bruce Peterson, wrote a letter to the editor saying he believes same-sex couples ought to be allowed to marry, Collett said.
I have spent 30 years on each side of the homosexual-heterosexual fence, said Robert Johnson. He said he lived as a straight man who was married for decades and raised children and then came out and has lived a gay man ever since. Same-sex marriage would contribute to the disintegration of marriage and family life, he said. The state should encourage relationships where children are raised by both a mother and a father, he said, but same-sex marriage, by definition, denies children either a mother or a father. He said gay relationships have an unfortunate tendency to be fragile, with harmful instability for children. A few activists advocating same-sex marriage do not speak for the entire homosexual community, he said.
Father Joseph Johnson, assistant chancellor of the Archdiocese of St. Paul and Minneapolis, said the state's Catholic leaders are united in their support of the proposal. We do not seek to impose our religious views on others, he said, but we must share our concerns about the possibility of legalized same-sex marriage. He said the religious freedom of Catholics is at risk, citing the recent decision of Catholic Charities of Boston to stop offering adoption services because it was prohibited from refusing to place children with same-sex couples. Children are not better off and Massachusetts is not a better place because of this confrontation, he said.
Same-sex marriage and interracial marriage have nothing in common, said Barbara White, a pastor with Light Foundational Ministries. There is a tremendous difference between a man and a woman, but no difference between the races, she said. Allowing a black man and a white woman to marry, for example, does not alter the definition of marriage, she said. She said phrasing the debate over same-sex marriage as a civil rights struggle is an affront to the civil rights movement and those who faced physical persecution-including rape, shootings and lynchings. White said having two loving people, who are not the mother and father, raise children has been tried in the African-American community. It does not work, she said.
This amendment will do nothing to help any family, said Ann DeGroot of OutFront Minnesota. It will not reduce divorce, child abuse or domestic violence, she said. Nor will it improve access to health care, educate more children or educate them better, or improve the state's economic vitality, she said. DeGroot said the proposals directly harms same-sex couples, their children and their extended families. It also hurts unmarried heterosexual couples and single parent families, she said. DeGroot said the proposal creates a caste system for families, where some are better than others.
The amendment will negatively affect nonprofits' ability to serve people, said Marcia Avner of the Minnesota Council of Nonprofits. The amendment will abolish frameworks created to make families stronger, safer and healthier, she said. She said courts in states that have adopted similar amendments have dismissed domestic violence charges against unmarried partners, regardless of sexual orientation and have negated legal contracts between unmarried persons, such as medical powers of attorney. Avner said the focus on same-sex relationships prevents the necessary public dialogue on other issues, including health care, transportation and education. The amendment is generally antithetical to our state's constitution, she said, which protects the rights of minorities.
I am among the 10 million Americans who have at least one homosexual parent, said Abigail Garner. She said the proposal creates new worries, including how emergency and end-of-life situations will be handled. If the amendment is approved, she said, hostile families may override the wishes of one partner in a same-sex relationship to have the other partner handle medical, financial and legal matters. Stripping my family of its rights will not help any traditional family, Garner said. Dr. Tom Scott said the American Academy of Pediatrics, Minnesota Chapter, believes the amendment will have a negative impact on maintaining healthy families and will harm children. Children raised by a same-sex couple fare just as well as children raised by heterosexual parents, he said. Nationwide, 34 percent of lesbian couples and 22 percent of gay male couples are raising children, he said.
Being homosexual is not a choice, said Wally Peck of Bemidji. He said the amendment will permanently deny a category of people the chance to share their lives with the person they love. Peck, who spoke alongside his wife, Cathy, said their daughter, who is lesbian, does not deserve to be treated as a second-class citizen. The amendment makes us more fearful for her, he said, because of the physical and spiritual violence directed at the homosexual community. Former Vikings nose tackle Esera Tuaolo spoke in opposition to the proposal, saying that he loves his partner and children completely. We are all children of God, he said.
As a religious minority, Jews understand the importance of the protections contained in the federal and state constitutions, said Elaine Aron of the Jewish Community Relations Council. The amendment denies rights and goes against the grain of the state constitution, she said. If it is adopted, Aron said, Minnesota will sully its reputation as tolerant and progressive. Father Tom Garvey, a retired Catholic priest, said the debate is about who gets to sit at the table of American life. Same-sex couples should not be denied a seat, he said.
There are no cases seeking to create same-sex marriage pending in Minnesota courts, said Dan Libenson, a professor at the University of St. Thomas School of Law. Minnesotans are deliberating the issue, engaging in dialogue and still making up their minds, he said. Libenson said there is no crisis requiring immediate action, but Minnesotans are getting high-pressure sales tactics from the amendment's proponents.
This is largely a religious dispute, said Sen. John Marty (DFL-Roseville), that the state should not take up. It is about which relationships we cherish and want to promote, he said, but people are entitled to different beliefs on the issue. It is not government's role to pick which belief to let trump another, Marty said. Same-sex families, with children, exist, he said. They are good neighbors who deserve to be protected as other families are, Marty said. The amendment cannot stop those families from existing, but it will take away some of their civil rights, he said. He said civil rights have never been put up to a public vote.
Sen. Thomas Neuville (R-Northfield) said the amendment is not about a religious imposition of values. If one religion chooses to bless a same-sex relationship, it should be permitted to do so, he said. Government has a different interest from faith communities, he said. The protection of children is the major public interest, Neuville said. He said it was significant that none of the opponents denied that planning or discussions have occurred on potential challenges to the current statutory definition of marriage. I would bet discussions and planning have taken place, he said. We will be in litigation over this question, Neuville said, and we must decide if we want to be on the offense or on defense. The debate over marriage is appropriate for public discussion and decision, it is not appropriate for the courts to settle it, he said. If the amendment is harmful, the existing statutory ban on same-sex marriage is equally harmful and the amendment opponents will marshal the same arguments to overturn it, he said.
Neuville offered an amendment to the bill replacing the marriage definition constitutional amendment with a constitutional amendment restricting the jurisdiction of the courts. Under the proposal, the courts may not overturn a legislative definition of marriage. If marriage is going to be redefined in Minnesota, Neuville said, it should be the Legislature that does it, not the courts. Even if a future Legislature disagrees with me about the proper definition of marriage, I want society's elected representatives to make the choice, not the courts, Neuville said. He said cultural upheaval occurred over abortion because courts decided the issue, cutting short public discussion. If the courts decide marriage for us, then politics will be defined by one's position on marriage, Neuville said. We ought to do what we can to keep the debate in the civil forum of legislative deliberation, he said.
The Neuville amendment to the bill was adopted on a 5-4 roll call vote. A motion to re-refer the bill to the Committee on Rules and Administration, without recommendation, was defeated on a 4-5 roll call vote.
The evening portion of the Judiciary Committee's Tues., Apr. 4, hearing concentrated on the relevant provisions of bills referred to the committee from other policy committees. Members, chaired by Sen. Don Betzold (DFL-Fridley), began with consideration of a bill relating to residential housing construction defects. S.F. 1287, authored by Sen. Linda Scheid (DFL-Brooklyn Park), provides that builders and remodelers must be notified of construction defects, must respond within 30 days and must have an opportunity to repair the defect. Scheid said that if the homeowner is not satisfied with the repair, or if the builder or remodeler refuses to repair, the homeowner still has the right to bring suit against the builder or remodeler. Scheid said the version of the bill adopted by the committee had undergone careful reworking by all concerned parties. She said the bill outlines the responsibilities of all parties in disputes involving construction defects. Sen. Thomas Neuville (R-Northfield) offered an amendment providing that if the builders company dissolves prior to discovery of the defect, liability rests with the insurance company. The amendment was adopted and the bill advanced to the Senate floor.
The committee also processed five additional bills. S.F. 2787, authored by Scheid, modifies mutual holding company laws, enacts the Interstate Insurance Product Regulation Compact and makes miscellaneous insurance law changes. The measure was approved and advanced to the Senate floor. S.F. 2648, authored by Sen. Ann Rest (DFL-New Hope), limits liability on claims brought against a municipality participating in a joint venture or enterprise. The bill was also advanced to the full Senate.
S.F. 3132, sponsored by Sen. Wesley Skoglund (DFL-Mpls.), is this year's omnibus data practices bill. The bill includes provisions dealing with the classification of data as private or nonpublic in a number of contexts. Members adopted a series of amendments relating to tribal identification cards, the use of driver's license information, and business screening services removal of data on expunged records and corrections to data. Skoglund authored two additional bills that were amended into the omnibus data practices bill. S.F. 3414 provides for parole and probation authorities to have access to records or data concerning any applicant for a gun permit or gun permit holder who is a defendant, parolee or probationer of a District Court. S.F. 3008 authorizes access to the comprehensive incident-based reporting system by the Dept. of Corrections' Fugitive Apprehension Unit. The bill was approved and re-referred to the Finance Committee.
A bill modifying the system testing newborns for heritable and congenital disorders was approved by members of the Judiciary Committee at their Thurs., Mar. 30, meeting.
S.F. 3344, carried by Sen. Linda Scheid (DFL-Brooklyn Park), shifts the approach of the system from an opt-out option for parents to an opt-in style. The bill also allows parents to choose to opt-in only for phenylketonuria (PKU), rather than the full battery of genetic tests. Before new tests may be added to the battery, under the bill, the Legislature must approve their addition. The measure also enhances destruction provisions by allowing parents to direct the destruction of their children's samples within 30 days, rather than the current two years, and by requiring the Dept. of Health (MDH) to provide a certificate of destruction to parents.
I support early detection of PKU and the more than 50 other disorders being tested for, Scheid said. However, she said, parents are currently being given little or no meaningful information about the tests before they are conducted. Many parents are not told about the tests or given a meaningful opportunity to opt out before their children are born, Scheid said. She said parents often do not find out about the tests until they notice a bruise on their child's heel, where the blood sample is usually taken. "Who do we think we are that we know better," she said, by forcing parents to have their children tested. By far, most parents will still opt in, she said, but they must be allowed to make informed choices about their children's well-being.
The list of tests has been expanding steadily, without public comment, since 2003, said Twila Brase of the Citizens Council on Health Care. She said some parents who consider opting out are told by doctors and nurses that social services will be called if the parent chooses to opt out of the testing. Medical professionals should be talking with parents in the nine months leading up to birth about the importance of the tests and the dangers of letting the disorders go undetected, she said. Carla Taepke, a parent, said she wanted her child tested, but did not want the genetic information entered into a state database. She questioned whether there are any good reasons for keeping a child's samples for two years after parents have said they want the samples destroyed; the tests have been conducted and the results given to parents. Magdalena Wallhoff said she and her husband were not informed of their ability to opt out when their child was born last year. Parents should be engaged and informed in making medical decisions, not kept ignorant or afraid of medicine, said Wallhoff, a public health graduate student married to a medical student.
Opt-in programs always mean less participation than opt-out programs, said Rep. Paul Thissen (DFL-Mpls.). Thissen said his son was born shortly after MDH expanded the battery of tests. One of the new tests, he said, covered a disorder that both parents unknowingly carried in their genetic profile. Thissen said his son tested positive and they were able to secure early treatment. Many parents are in similar positions, where they do not know they are carriers for something that may seriously endanger their newborn, he said. Sara Noznesky said the American Academy of Pediatrics Minnesota Chapter is greatly concerned that the proposal could significantly reduced the number of newborns screened. Phil Griffin, representing the March of Dimes, said that if the current opt-out system is not working properly, it should not be trashed, but should instead be reformed.
Mark McCann, MDH, said active research is conducted on the samples, but only on an anonymous basis. Academic review committees have determined that direct parental consent was unnecessary because of the anonymous nature of the research and because no private health information is available to researchers, he said. McCann said MDH began storing samples in 1997 and has collected over 600,000 samples since then. The department is aware of concerns about parent education and is in the midst of an effort to improve education for physicians to distribute to expectant parents, he said.
Sen. Ann Rest (DFL-New Hope) offered an amendment deleting the provisions requiring legislative approval of new tests and shifting from an opt-out to an opt-in model. The amendment was divided to consider each provision separately; both parts of the amendment were adopted and the provisions deleted on matching 5-4 roll call votes. Sen. Warren Limmer (R-Maple Grove) offered an amendment requiring the MDH website to include annual reports with data about how many screenings were performed, how many individuals opted out, how many samples were destroyed, how many individuals' test results were destroyed and how many samples were released for research. The amendment was adopted. Sen. Thomas Neuville (R-Northfield) offered, and the committee adopted, an amendment making clear that tests other than those for heritable and congenital disorders may not be added to the battery unless expressly authorized by law. Sen. Julianne Ortman (R-Chanhassen) offered an amendment making providers civilly liable to parents if the required information is not provided before testing is performed. Ortman said it was important to make the current opt-out provisions meaningful for parents. The amendment was tabled on a 5-4 roll call vote.
S.F. 3344 was approved and re-referred to the Health and Family Security Committee.
The committee, chaired by Sen. Don Betzold (DFL-Fridley), advanced two additional bills.
S.F. 2662, authored by Sen. Linda Higgins (DFL-Mpls.), creates a procedure for nonprofit organizations to acquire unoccupied nuisance property and rehabilitate it for low- or moderate-income housing. Higgins said communities across the state face challenges with nuisance property that the owner is willing to leave boarded up while paying a minimal fee and the property taxes. She said the bill proposes a remedy that is more affordable than condemnation because it does not involve the city government. Under the bill, the nonprofit seeking possession undertakes independent judicial action to take possession of the property. Neuville said current law provides procedures for dealing with hazardous properties. The bill represents good intentions, he said, but proposes a dangerous solution. The procedure amounts to a private power of eminent domain, he said. Neuville moved to table the bill; the motion failed. S.F. 2662 was sent to the full Senate on a 5-4 roll call vote.
S.F 2852, sponsored by Sen. Tom Saxhaug (DFL-Grand Rapids), is the Dept. of Natural Resources' forestry bill. The measure permits the department to reimburse owners for their appraisal costs after they have donated land to the state, allows the department to accept gifts of land outside the boundaries of state parks and recreation areas, modifies the auction procedure for state timber sales and allows permits to include a schedule of liquidated damages for breach of the permit terms. The bill was advanced to the Finance Committee.
Members of the Judiciary Subcommittee on Data Practices, chaired by Sen. Wesley Skoglund (DFL-Mpls.), held an evening meeting, Tues., Mar. 28, to consider three measures. The subcommittee combined all three proposals forwarded the package to the full committee.
S.F. 3375, sponsored by Sen. Satveer Chaudhary (DFL-Fridley), prohibits bulk distribution of personal information in driver's license and motor vehicle records and requires drivers' consent for Internet or electronic access to their records. S.F. 3167, carried by Sen. Don Betzold (DFL-Fridley), modifies the classifications of numerous types of data. S.F. 3414, carried by Skoglund, authorizes probation and parole officers to access information about a handgun permit applicant or holder who is a defendant, parolee or probationer of a district court.
Language from the bills was amended into S.F. 3414, which was then advanced to the full Judiciary Committee.
At the beginning of the Tues., Mar. 28, Judiciary Committee, Chairman Don Betzold (DFL-Fridley), announced because it was deadline day, members had to complete the lengthy agenda during the panel's allotted time, or the bills would be dead for the session. The panel buckled down immediately and managed to clear 13 bills from the agenda.
S.F. 3234, sponsored by Sen. Ellen Anderson (DFL-St. Paul), regulates statutory housing warranties. Anderson said the bill attempts to fix a loophole in the law that allows builders' corporations to dissolve before the statutory 10 year new home warranty runs out and escape terms of the warranty. The bill was amended to specify that insurance purchased by the builder is still in force, even if the builder's corporation is dissolved. In addition, the bill specifies that the warranties are unaffected if the builder's corporation dissolves.
Anderson also carried a bill, S.F. 2995, regulating liens for storage charges on motor vehicles with one or more secured creditors listed on the certificate of title. Under the bill, a lien for storage charges for more than five days accrues only after written notice is sent by registered mail to all listed secured creditors. The bill also specifies that the notice contain the name, address, and telephone number of the lien holder, the amount of money owed and the rate at which the storage charges are accruing. S.F. 1695, authored by Sen. Wesley Skoglund (DFL-Mpls.), provides for the release of records necessary for family and caretaker involvement in mental health care. Under the bill, the request for access must be in writing, the family member or caretaker must be directly involved in the patient's care, the involvement must be verified by the provider or physician, the patient must be informed, the patient does not object and the information must be necessary to help care for the patient.
S.F. 1040, carried by Betzold, limits liability for physicians, physician's assistants, certified nurse practitioners, or clinical nurse specialists in psychiatric and mental health for the conduct of a former prisoner or committed person related to the use or nonuse of medicines prescribed before the person's release. S.F. 3349, authored by Sen. Jane Ranum (DFL-Mpls.), provides for enforcement of foreign protective orders. Ranum said foreign protective orders include orders for protection entered by a court of another state, and order by an Indian tribe or an order entered in a U.S. territory that would be a protective order in Minnesota. S.F. 2735, sponsored by Sen. Ann Rest (DFL-New Hope), makes changes to the membership of the Legislative Audit Commission and eliminates obsolete language. Rest said the bill was before the panel because of provision that is repealed dealing with the commission's power to request data that is withheld by a state agency after the commissioner of administration rules that an individual is entitled to access the data.
All of the above bills were approved and advanced to the full Senate for consideration.
S.F. 2002, authored by Sen. Dan Sparks (DFL-Austin), makes a number of changes in order to protect consumers from identity theft. The bill provides for credit blocks in cases of identity theft, authorizes a consumer to place a security freeze on the consumer's credit report, provides protections against identity theft, provides for credit monitoring, provides for the adequate destruction of personal records and provides civil and criminal penalties. Members laid the bill aside in order to consider S.F. 2965, sponsored by Sen. Satveer Chaudhary (DFL-Fridley). S.F. 2965 regulates the disclosure of personal information by data warehouses, provides notice content requirements and removes an exemption for security breaches for financial institutions and health care entities. Chaudhary offered most of the language of the bill as an amendment to S.F. 2002. The amendment was adopted. In addition, S.F. 2965 was approved and sent to the full Senate. S.F. 2002 was also approved and advanced to the Senate floor.
Two bills authored by Sen. Scott Dibble (DFL-Mpls.) were advanced to the full Senate. S.F. 2887 requires notices of manufactured home parks to be given to the commissioner of health and the Housing Finance Agency. S.F. 3216 regulates condominium conversions and allows local regulation of the common interest community form of ownership by striking a provision that provides that any ordinance is not effective for a period of more than 18 months.
S.F. 2899, authored by Sen. Linda Berglin (DFL-Mpls.), establishes a controlled substances reporting program. Berglin said the bill aims to reduce the incidence of drug diversion by allowing the Board of Pharmacy to maintain a database of prescribing information. Members adopted two amendments removing language relating to rulemaking and to an advisory committee and to limit access to information by a private vendor hired to provide technical assistance. The bill was approved and re-referred to the Finance Committee.
S.F. 3263, sponsored by Sen. Lawrence Pogemiller (DFL-Mpls.), provides for the awarding of reasonable attorney fees and costs in litigation relating to new home warranties. The bill was also advanced to the floor.
One bill was laid over. S.F. 3279, carried by Sen. Gary Kubly (DFL-Granite Falls), provides Conciliation Court with jurisdiction to determine fraudulent bank transactions using a debit card.
The Judiciary Subcommittee on Data Practices met Thurs., Mar. 23, to begin considering bills for the omnibus data practices bill. Most of the bills heard by the subcommittee were amended into the omnibus data practices bill, S.F. 3132, but several measures were advanced to the full committee to continue through the legislative process.
S.F. 2002, carried by Sen. Dan Sparks (DFL-Austin), contains a number of identity theft protections, several of which have data practices implications. The bill authorizes credit blocks in cases of identity theft, authorizes a consumer to place a security freeze on the consumer's credit report, provides Social Security protections, provides for credit monitoring, provides for the adequate destruction of personal records and provides civil and criminal penalties. The data practices provisions include the process for blocking information in a consumer credit report that is a result of identity theft, the process of placing a security freeze on a credit report and the establishment of a procedure for consumer driven monitoring of information in a credit report. The bill also requires businesses to take reasonable measures to protect against unauthorized access or use of disposed information. The measure was approved and advanced to the full Judiciary Committee.
S.F. 2965, carried by Sen. Satveer Chaudhary (DFL-Fridley), regulates the disclosure of personal information by data warehouses and provides notice content requirements. Chaudhary said the bill adds to provisions passed last year requiring institutions to notify consumers there has been a security breach involving the consumers' personal information. The bill was also advanced to the full Judiciary Committee.
The remaining items in the agenda were all included in the omnibus bill, S.F. 3132, carried by Subcommittee Chair Wesley Skoglund (DFL-Mpls.). The original bill provides that all data maintained by the Dept. of Health or community public water systems that identify the address of the testing site and the name, address, and telephone number of residential homeowners of each specific site that is tested for lead and copper as required by federal law and the department's drinking water protection program are classified as private data on individuals and nonpublic data. The measure was amended to include a provision authorizing the commissioner of revenue to execute and administer any with the secretary of the treasury or the Bureau of Alcohol, Tobacco, Firearms and Explosives in the Dept. of Justice. S.F. 2950, sponsored by Sen. Jane Ranum (DFL-Mpls.), specifies that data collected, created or maintained by the name and event index service of the Bureau of Criminal Apprehension are classified as private data and become confidential data when the data joins private or public data to any confidential data.
Skoglund carried the remaining bills. S.F. 2813 provides for the reporting of suspicious deaths under the Vulnerable Adult Maltreatment Reporting Act to the local medical examiner, in addition to law enforcement and the ombudsman. S.F. 3041 specifies that the commissioner of administration, when asked for a commissioner's opinion on a data practices matter, must respond within five business days if the commissioner determines that an opinion will not be given. S.F. 3042 modifies records management requirements and changing emergency records preservation requirements. S.F. 1695 modifies access to health care records to authorize the release of records necessary for family and caretaker involvement in mental health care under specific circumstances. Under the bill, the request for access must be in writing, the family member or caretaker must be directly involved in the patient's care, the involvement must be provided by the provider or physician, the patient must be informed, the patient does not object and the information must be necessary to help care for the patient.
Members laid over one bill for further consideration: S.F. 2951, sponsored by Ranum, authorizes the retention of specific juvenile history data for purposes of predatory offender registration. During discussion on the bill, members decided more work needed to be done to refine the language of the bill.
The Judiciary Committee, chaired by Sen. Don Betzold (DFL-Fridley), met Thurs. Mar. 23, to assemble the omnibus family law bills and to hear several other measures.
S.F. 3386, sponsored by Sen. Thomas Neuville (R-Northfield), is the vehicle for a number of provisions relating to marriage, paternity, visitation and child custody. Under the bill, a person who is granted custody of a child or parenting time with a child must notify the child's other parent if the person marries or lives in the same residence with a person who has been convicted of crimes such as murder, kidnapping, child abuse, child sexual abuse or other sex offenses. In addition, a person convicted of similar crimes may not be granted custody of a nonbiological child. The bill also specifies conditions under which a man is presumed to be the biological father of a child, including residing with the child for 12 months during the first 2 years of the child's life and openly holding out the child as his own. The bill also provides that a determination that the alleged father is the biological father does not preclude the adjudication of another man as the legal father nor does it allow the donor of genetic material for assisted reproduction for the benefit of a recipient parent, whether sperm or ovum, to claim to be the child's biological or legal parent.
For children who are under state guardianship, the bill specifies that when there is a written communication or contact agreement between prospective adoptive parents and birth relatives other than birth parents it must be included in the final adoption decree unless all parties agree to omit it. In addition, the bill specifies that if the adoptive parents or birth relatives do not comply with the communication or contact agreement, the court must determine the terms of the agreement.
Other sections of the bill add provisions to authorize a Mej Koob to solemnize marriages and add a provision under which Hmong marriages may be solemnized by a Mej Koob. The bill also adds Buddhists to marriage provisions currently applicable to Hindus and Muslims. In addition, the bill prohibits the solemnization of marriages that would be in violation of the state's marriage laws or marriages to which both parties do not voluntarily consent. The definition of neglect in the Maltreatment of Minors Act is expanded, under the bill, to include allowing a child to enter into a marriage in violation of state law, allowing a child to enter into marriage without consent or otherwise allowing a marriage that is in violation of state law.
The bill also spells out the contents of a notice of temporary restraining order and alternative dispute resolution provision to be included with every marriage dissolution summons. Part of the notice requires parties to a dissolution proceeding to participate in a minimum of two hours of mediation unless the parties file a signed marital termination agreement with the court or do not have the means to defray the cost of mediation. In the area of custody designation, a parenting plan is not required to designate sole or joint legal or physical custody. The bill also sets forth factors the court must consider when a custodial parent wants to move the child to another state. Finally, the bill provides for real estate and pension plan division in marital dissolutions. Members amended the bill into another bill, S.F. 2633, that originally provided for appeal of Fourth Judicial District Family Court referee orders. The measure, also carried by Neuville, is now considered the vehicle bill for the family law changes relating to marriage, dissolution and custody. S.F. 2633 was also amended to include the contents of S.F. 2403, sponsored by Sen. Wesley Skoglund (DFL-Mpls.). The measure contains the original language authorizing a Mej Koob to solemnize marriages.
The other major family law bill, S.F. 3199, deals primarily with child support issues. The bill, sponsored by Neuville, makes changes to the new child support law enacted last session. Provisions in the bill include a rebuttable presumption that in the absence of other evidence, a parent is entitled to receive at least 25 percent of the parenting time of a child, adds languages defining "potential income" to be used in calculating support when a person is voluntarily unemployed, makes changes to the six-month review hearing requirement, makes changes in provisions dealing with the calculation of income and makes changes to the basic support guidelines.
Both family law bills were approved and sent to the Senate floor.
In other action, the panel heard a bill creating a supervised visitation advisory committee. S.F. 2991, sponsored by Sen. Mike McGinn (R-Eagan), also adjusts marriage dissolution fees to fund parenting time centers. Under the bill, the advisory committee is to advise the commissioner on planning development, data collection, funding and evaluation of programs and services for families referred for services at parenting time centers. The bill was approved and re-referred to the State and Local Government Operations Committee.
Several additional bills were acted upon. S.F. 2857, carried by Sen. Linda Scheid (DFL-Brooklyn Park), classifies data relating to bioprocessing piping and equipment as nonpublic. Sen. John Hottinger (DFL-St. Peter) carried S.F. 1426, the Uniform Environmental Covenants Act. Hottinger said an environmental covenant is a specific recordable interest in a piece of real estate arising from an environmental response project that imposes activity and use limitations. S.F. 3128, sponsored by Betzold, is the revisor's bill that makes technical and clarifying changes to current law. All three measures were approved and advanced to the Senate floor.
Sen. Jane Ranum (DFL-Mpls.) carried two measures. S.F. 3250 modifies and updates the coroner and medical examiners law. The bill deals with the investigation of sudden or unexpected deaths or deaths not due to natural causes, adds more types of death that are reportable, specifies terms for disposal of autopsy tissue, provides that inquest records be public and provides for the use of coroner or medical examiner records. The bill was approved and re-referred to the Crime Prevention and Public Safety Committee. S.F. 2757 provides for the prevention, preparedness and response to unauthorized releases of extraordinarily hazardous substances. The measure was approved and re-referred to the Environment and Natural Resources Committee.
The Judiciary Subcommittee on Family Law met Tues., Mar. 21, to consider several bills relating to family law.
Subcommittee Chair Thomas Neuville (R-Northfield) carried two of the measures. One bill, S.F. 3386, is the vehicle for the omnibus family law policy bill, Neuville said. Members adopted an amendment to strip out all the child support provisions and to add in provisions from last year's omnibus family law bill. Panel members then adopted an amendment adding the child support provisions to Neuville's other bill, S.F. 3199, the omnibus child support bill.
Neuville said S.F. 3386 makes a number of changes in provisions relating to paternity, visitation and child custody. Under the bill, a person who is granted custody of a child or parenting time with a child must notify the child's other parent if the person marries or lives in the same residence with a person who has been convicted of crimes such as murder, kidnapping, child abuse, child sexual abuse or other sex offenses. In addition, a person convicted of similar crimes may not be granted custody of a nonbiological child. The bill also specifies conditions under which a man is presumed to be the biological father of a child, including residing with the child for 12 months during the first 2 years of the child's life and openly holding out the child as his own. The bill also provides that a determination that the alleged father is the biological father does not preclude the adjudication of another man as the legal father nor does it allow the donor of genetic material for assisted reproduction for the benefit of a recipient parent, whether sperm or ovum, to claim to be the child's biological or legal parent.
For children who are under state guardianship, the bill specifies that when there is a written communication or contact agreement between prospective adoptive parents and birth relatives other than birth parents it must be included in the final adoption decree unless all parties agree to omit it. In addition, the bill specifies that if the adoptive parents or birth relatives do not comply with the communication or contact agreement, the court must determine the terms of the agreement. The bill also spells out the contents of a notice of temporary restraining order and alternative dispute resolution provision to be included with every marriage dissolution summons. Part of the notice requires parties to a dissolution proceeding to participate in a minimum of two hours of mediation unless the parties file a signed marital termination agreement with the court or do not have the means to defray the cost of mediation. In the area of custody designation, a parenting plan is not required to designate sole or joint legal or physical custody. The bill also sets forth factors the court must consider when a custodial parent wants to move the child to another state. Finally, the bill provides for real estate and pension plan division in marital dissolutions.
Neuville's other bill, S.F. 3199, sets forth a number of modifications to the child support guidelines enacted last year. The guidelines use the combined income from both parents to determine the amount of child support. The bill also provides that in the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child. Other portions of the bill relate to provisions about the scope of payments to a public authority, the inclusion of potential income in the support calculations if a parent is voluntarily unemployed or underemployed, the inclusion of a request for a six-month review with the dissolution decree, the modification of definitions, the calculations of income and adjustments to the basic support guidelines.
Both measures were advanced to the full Judiciary Committee.
In other action, the panel heard an additional three bills. S.F. 2545, sponsored by Sen. Charles "Chuck" Wiger (DFL-North St. Paul), clarifies requirements in child out-of-home placements. Under the bill, a preference for providing care and guidance in the child's own home is eliminated. The bill specifies that the court must consider the totality of the child's circumstance, past history and other factors when determining whether a child's welfare or safety can be safeguarded without removal from the home. Finally, the bill provides that the court may consider the preference of the parent or parents in placing the child. Wiger said the bill re-examines the factors in determining the best interest of the child. The bill was laid over for further work.
S.F. 2991, sponsored by Sen. Mike McGinn (R-Eagan), creates a supervised visitation advisory committee and increases the marriage dissolution fee by $25 to be used to fund parenting time centers. The measure was approved and advanced to the full committee.
Sen. Wesley Skoglund (DFL-Mpls.) carried a bill, S.F. 2403, providing for the solemnization of Hmong marriages by a Mej Koob. The bill also imposes criminal penalties for knowingly facilitating the solemnization of a prohibited marriage, such as allowing a child to enter into a marriage. The bill also adds provisions for Buddhist marriage solemnizations. The bill was amended into the omnibus family law bill, S.F. 3386.
A proposal to legalize the use of marijuana by persons suffering from debilitating medical conditions resurfaced Thurs., Mar. 16, and gained the approval of members of the Judiciary Committee.
S.F. 1973 had previously been considered by the committee, but two motions to advance the bill-once with favorable recommendation, once without recommendation-failed on tie votes. Committee Chair Don Betzold (DFL-Fridley) explained that a provision of Mason's Legislative Manual permits anyone to move to reconsider a bill in committee; on the Senate floor, only a member who voted on the prevailing side may move to reconsider. Sen. Ann Rest (DFL-New Hope), who was absent from the earlier hearing, moved to reconsider S.F. 1973. The motion prevailed.
Rest offered two amendments to the bill, both at the request of Chief Author Steve Kelley (DFL-Hopkins). One amendment prohibited qualifying patients from growing their own plants, thereby restricting the permitted growers to primary suppliers; the other amendment clarified that a qualifying patient may not also register as a primary supplier. Both amendments were adopted.
This bill is not about people frivolously using a controlled substance, Kelley said. He said the bill offers a limited availability of marijuana to provide relief from painful symptoms associated with cancer and other chronic diseases. I have seen a lot of people burn out from abusive recreational use of marijuana, said Sen. Wesley Skoglund (DFL-Mpls.), but I have also heard a lot of people tell me how much this drug has helped them manage chronic pain. The best course would be for the federal government to put marijuana through the normal, rigorous testing process for pharmaceuticals, he said. Until they do, we should take this limited approach to help people, Skoglund said.
The benefits of marijuana are in doubt, said Sen. David Hann (R-Eden Prairie). The American Medical Association and the Mayo Clinic have determined that it is not effective for pain management, he said. Because some people claim this helps them, we are abrogating the normal process for developing medical treatments, he said. The claims that it helps may be true, he said, they are purely subjective assertions. Hann said some advocates for full legalization of marijuana view limited, medical legalization as a first step toward general public acceptance of the drug as benign. We should help people in pain, he said, but this bill is not the way to do it.
There are insufficient controls on the marijuana authorized under this bill, said Sen. Thomas Neuville (R-Northfield). I have sympathy for people in pain, he said, but the state cannot allow the growth of a dozen plants for each of thousands of people, some of whom are terminally ill. Restricting the suppliers to only 10 organizations would make the system manageable, but that has been rejected by the bill's proponents, he said. Neuville said proponents have also rejected a proposal requiring patients and suppliers to consent in advance to a search and inspection of the plants to ensure compliance.
The bill was advanced to the Crime Prevention and Public Safety Committee on a 5-4 roll call vote.
In other action, committee members considered five additional bills. S.F. 2575, authored by Sen. Sandra Pappas (DFL-St. Paul), regulates international marriage brokers. S.F. 3105, carried by Sen. Steve Murphy (DFL-Red Wing), modifies standards and fees for documents recorded or filed with county recorders. S.F. 3077, sponsored by Neuville, clarifies when public defenders may be assigned to child protection cases. All three bills were sent to the full Senate. S.F. 3049, carried by Sen. John Hottinger (DFL-St. Peter), creates an expedited judicial review of financing statements in cases where there is reason to believe a statement is fraudulent. The measure was re-referred to the Crime Prevention and Public Safety Committee. The final bill, S.F. 2995, was laid over for further discussion. Carried by Sen. Ellen Anderson (DFL-St. Paul), the measure modifies the statute governing liens for storage charges on motor vehicles.
Members of the Judiciary Committee met Tues., Mar. 14, to act on four pieces of legislation. The panel, chaired by Sen. Don Betzold (DFL-Fridley), approved all four bills.
Three bills were advanced the Senate floor. S.F. 2541, carried by Sen. Mike McGinn (R-Eagan), provides a procedure for conveying title to real property held by a custodian. The bill is modeled after existing provisions relating to conveyances by grantors or trustees of a trust. S.F. 2520, sponsored by Sen. Geoff Michel (R-Edina), contains the recommendations of the Business Law Section of the Minnesota State Bar Association. The bill modifies statutes governing business corporations and limited liability companies. S.F. 2519, authored by Sen. Thomas Neuville (R-Northfield), makes mostly technical changes to real estate, probate, common interest community and construction statutes. The fourth bill was recommended for placement on the Consent Calendar. S.F. 2818, carried by Sen. Wesley Skoglund (DFL-Mpls.), extends for two years a domestic fatality review team pilot project in the Fourth Judicial District. The pilot project was created in 1999 and has been extended twice.
Members of the Judiciary Committee met Thurs., Mar. 9, to consider three bills dealing with eminent domain. Sen. Don Betzold (DFL-Fridley), committee chair, said the three bills provide three different approaches in dealing with eminent domain. He said a number of other bills had been introduced on the topic, but the three before the panel contained distinct differences from other measures.
Senate Counsel Kathleen Pontius provided background on Minnesota's eminent domain law and summarized the U.S. Supreme Court's Kelo decision. The decision spurred the drafting of the various new eminent domain proposals. Key factors in the Kelo decision reflect that the courts give a great deal of deference to local units of government and that the deliberations for the economic development project indicated the use of the property was a public purpose.
The first of the three bills, S.F. 2432, sponsored by Sen. Betsy Wergin (R-Princeton), defines public use for purposes of eminent domain. Under the bill public use is limited to the possession, occupation, or enjoyment of the taken property by the general public or a public body, the acquisition of an interest in property by a public service corporation or common carrier that is essential to the performance of the duties, function or purpose of the public service corporation or common carrier, or the acquisition of property by a public body necessary to protect the public health or safety. Finally, the bill specifies that property or an interest in property acquired by eminent domain may not be transferred or conveyed to a private person or for a use that is not a public use.
Betzold carried a bill, S.F. 2694, containing several provisions requested by municipalities. Tom Grundhoefer, League of Minnesota Cities, outlined the provisions of the bill. He said the first portion of the bill expands the appraisal and negotiation requirements used to acquire property for transportation projects to include all eminent domain proceedings. The bill also increases the cap on fees for appraisals. In addition, Grundhoefer said, the bill requires notice of an eminent domain petition to include provisions regarding the procedures for challenging the public purpose or necessity of the taking. Other provisions contain requirements for the appeal of an order challenging the public purpose, authorize the court to award reasonable attorney fees, and contain right of first refusal requirements applicable in cases where the governing body of an acquiring authority determines the publicly owned property acquired through eminent domain is not longer in use. The bill also modifies provisions dealing with reimbursement for reestablishment expenses of a displaced business and makes notice requirements and appeals for eminent domain proceedings by the Dept. of Transportation consistent with the changes in the bill.
The bill also contains limitations on the use of eminent domain in cases where property will be transferred to a person or nongovernmental entity without the power of eminent domain, Grundhoefer said. The bill outlines the circumstances under which economic development is a proper purpose and outlines the process for exercising eminent domain powers by a condemning authority in cases of abandoned, blighted, environmentally contaminated, nuisance or structurally substandard property.
Sen. Thomas Bakk (DFL-Cook) carried the third measure, S.F. 2750. "I am not a new-comer to the issue," Bakk said. He said that in his area of the state, when the Boundary Waters Canoe Area was created, 84 resorts were taken under eminent domain. He said many other instances of the use of eminent domain by the federal government have occurred in the northern part of the state. He said the taking of property hurts no matter who does the taking. He said the bill defines public use or purpose, prohibits the use of eminent domain for economic development, requires clear and convincing evidence for specific takings, provides for attorney fees and other additional elements of compensation and make other changes in the exercise of eminent domain.
Bjorn Skogquist, mayor of Anoka, spoke on behalf of S.F. 2694. He said the legislation would make cities go through the process, whereas now, there can be abuses in the use of eminent domain. Duane Reed, president of the Minneapolis NAACP, said the bills were a bipartisan effort that speaks to the civil rights of all property owners. "There has been a long history of using eminent domain to target minority neighborhoods for urban renewal," he said. Duluth Mayor Herb Bergston spoke in support of S.F. 2750. Bergston said, "The damage comes when we confuse public benefit with public purpose."
Members considered an amendment combining elements of S.F. 2750 and S.F. 2694. Betzold said there is a legitimate use of eminent domain as a last resort, but it should not be the first means used to acquire a property. Bakk said his goal was limit the use of eminent domain for public use and eliminate the use of eminent domain for economic development.
The committee recessed before taking any action on the amendment. When members returned, another amendment to S.F. 2750 was offered to the panel. Betzold said considerable work had been done during the time the panel was in recess and the new amendment was the result of that work. The amendment sets forth a number of definitions including definitions for abandoned property, blighted area, dilapidated building, environmentally contaminated area, public nuisance, public service corporation and public use. Under the bill, public use or public purpose means the possession, occupation, ownership and enjoyment of the land by the general public or by public agencies, the creation or functioning of a public service corporation or mitigation of a blighted area, remediation of an environmentally contaminated area, reduction of abandoned property or removal of a public nuisance. Further, the definition specifies that the public benefits of economic development, including an increase in tax base, tax revenues, employment or general economic health do not by themselves constitute a public use or public purpose. The measure also spells out the conditions for the taking of nondilapidated building in areas of blight mitigation by using an absolute necessity standard.
The amendment also contains provisions for appraisal and negotiation requirements, notice and public hearing requirements and compensation requirements. The measure also establishes preponderance of the evidence as the evidentiary standard for takings involving blighted areas, contaminated areas and public nuisances.
Members heard testimony on the amendment and then discussed amendments to the amendment. Sen. John Marty (DFL-Roseville) offered an amendment specifying that if the taking is for removal of blight, environmental contamination remediation or removal of a public nuisance, the resolution of a local government or agency authorizing the use of eminent domain must identify and describe the public costs and benefits that are known or expected to result and address how the acquisition serves one or more identified public purposes and why the acquisition is necessary. The amendment to the amendment was adopted.
The second amendment to the amendment, offered by Sen. Julianne Ortman (R-Chanhassen), specifies that if the final judgment or award of damages is at least 20 percent greater than the last written offer made by the condemning authority before the filing of the petition, the court may award the owner reasonable attorney fees and costs in addition to other compensation and fees authorized. Members discussed requiring the court to find bad faith on the part of the condemning authority before ordering the award of attorney fees, but did not include the language. Representatives of several local government associations spoke against the amendment and said the 20 percent figure was arbitrary and did not account for small awards. Ortman responded that if homeowners are offered such a low amount of money for their property and need to go to court to obtain a reasonable price, then they should not have to bear the additional burden of attorneys' fees. The amendment was adopted.
Member adopted the entire amendment, approved the bill and re-referred the measure to the State and Local Government Operations Committee.
A measure permitting the use of marijuana when recommended by a licensed medical professional failed to gain the support of members of the Judiciary Committee at a hearing, Thurs., Mar. 2. Two motions to advance the bill failed on tie votes.
S.F. 1973, sponsored by Sen. Steve Kelley (DFL-Hopkins), protects qualifying patients and their primary suppliers from civil and criminal liability for the possession, cultivation or use of marijuana. To qualify, a patient must suffer from a debilitating medical condition. Kelley said the bill does what the state can to protect medical marijuana users. We cannot do anything about federal law, he said, but we can alleviate the state law hurdles preventing patients from following a doctor's advice on using marijuana to alleviate pain or seizures. The bill establishes a reasonable, controlled and orderly way for qualifying patients to obtain marijuana, Kelley said.
Several patients who would likely be eligible under the law discussed the painful symptoms of their diseases and the possibility of relief offered by marijuana. Neil Haugerud, a former sheriff and former state Representative, said medical marijuana users are not a concern for law enforcement. A cancer patient using marijuana recommended by a doctor is no more a threat to public order than a cancer patient taking morphine or opiates by prescription, he said. These are otherwise law abiding citizens struggling to deal with a diagnosis they never sought, Haugerud said.
Sen. Wesley Skoglund (DFL-Mpls.) offered an amendment removing veterinarians from the list of licensed professionals who may recommend marijuana use, clarifying the protection offered to qualified people with whole marijuana plants, making the data practices provisions of the bill consistent with general data practices principles and permitting law enforcement agencies to sell marijuana plants to qualified patients or primary suppliers. Allowing law enforcement to choose to sell confiscated marijuana plants to medical users provides a way for protected purchasers not to have to enter the existing illegal market for the drug, Skoglund said. The amendment was adopted.
I support permitting legitimate medical use of marijuana to alleviate pain and other symptoms, said Sen. Thomas Neuville (R-Northfield), but the distribution process in this bill is not controllable enough. A better system might be to distribute the drug through public health nurses, he said.
An initial motion to re-refer the bill to the Crime Prevention and Public Safety Committee failed on a tie vote. A motion to re-refer the bill without recommendation also failed on a tie.
Committee members, led by Chair Don Betzold (DFL-Fridley), also considered a measure prohibiting the disruption of funerals by protesters. S.F. 2613, carried by Betzold, makes it a misdemeanor to disrupt a funeral and provides additional civil remedies. The bill defines disruption as including public protesting or picketing on the day of the ceremony within 300 feet of the ceremony locations, the funeral route and the home of the deceased's family.
It is unfortunate that we even need to consider this bill, Betzold said, but hateful protests at funerals have emerged in the military context and could quickly spread to other funerals. This bill does not violate anyone's freedom of speech, but does restrict the physical proximity of demonstrations to funerals, burials and memorial services, he said. Grieving families have enough to deal with without facing screaming protesters attacking the deceased and the community, said James Bono of the Patriot Guard. He urged committee members to expand the protected zone to 1,000 feet and to prohibit the use of megaphones. Protests at funerals will only expand, he said, from fallen service members and civil rights leaders to public safety personnel and first responders.
Teresa Nelson, legal counsel, ACLU of Minnesota, said the bill is well-intentioned but seriously flawed. Protesters could successfully challenge this bill and collect attorney fees, she said. Nelson said cruel speech is protected by both the federal and state constitutions. Legislators should focus on specific conduct or on actual disruptions of services, not a presumed disruption, Nelson said. She said the bill is overly broad and may encompass laborers picketing a building next door to the funeral home. Similarly, she said, because funerals happen daily, the route restriction means that some high-traffic streets used regularly by funerals would be permanently off limits to picketers of any variety.
Members adopted an amendment, offered by Betzold, changing the effective date of the bill from August 1 to the day following final enactment. The measure was advanced to the Crime Prevention and Public Safety Committee.
The panel also approved three other bills. S.F. 2633, carried by Sen. Ann Rest (DFL-New Hope), permits litigants to appeal decisions made by Family Court referees in Hennepin County directly to the Court of Appeals. A similar procedure has been approved for Ramsey County. The current procedure in Hennepin County requires a referee's decision to be reviewed by a district judge before being appealed to the Court of Appeals. Judge James Swenson and Michael Dittberner, Academy of Matrimonial Lawyers, said the bill is designed to reduce the cost, length and acrimony of family cases. S.F. 1039, authored by Sen. Gary Kubly (DFL-Granite Falls), prohibits tampering with clock-hour meters on farm tractors. Both bills were sent to the full Senate. S.F. 2319, sponsored by Betzold, is the Uniform Securities Act (2002). The bill is designed to coordinate federal and state securities regulation. The measure was advanced to the Commerce Committee.
In other action, committee members heard a report from the legislative auditor on child support enforcement. The report indicated that the child support enforcement system performs well, but needs improvement in county accountability and arrears management policies.
The Judiciary Subcommittee on Family Law, chaired by Sen. Thomas Neuville (R-Northfield), met Tues., Feb. 21, to discuss a proposal to specify that there is a presumption of joint custody in marriage dissolutions. Neuville said the hearing was simply to gather information and that no action would be taken on the proposal until after the session begins.
Former Representative Andy Dawkins, now an attorney in private practice, said the parties involved in drafting the proposal all had a common purpose of reducing the conflict in child custody hearings. He said joint physical custody should be the norm unless the court finds differently. "Now that the income sharing method for setting child support has passed, it is necessary to move toward the sharing of custody," Dawkins said. He said, "Kids need meaningful relationships with both parents."
Dr. Susan Phipps-Yonas, psychologist, said what is most important for children is that there be as much continuity as possible in their relationships with both parents. In addition, we need to be sensitive to developmental issues, she said. Phipps-Yonas said, "Children don't need a label as to who their primary caretaker is. What they do need is a predictable schedule and an agreement in place about how to resolve conflicts when they arise."
Stephen Arnott, of the Family Law Section of the Minnesota Bar Association, said the Family Law Section is opposed to the proposal. "It is important to note that children are not property and that one size does not fit all cases." There are instances parents should not agree to joint physical custody, but the proposal presumes joint custody, he said. "The ideal situation is to have no presumption," Arnott said. Ellen Abbott, also of the Family Law Section, said, "I am exceedingly concerned about the effect the proposal will have." She said parenting plans are great when people have the time and resources to do it, but having a joint custody presumption doesn't conform to the reality of families.
Other speakers also spoke against the proposal and said that having no presumption was a preferable situation. Ron Elwood, Legal Services Advocacy Project, said, "Custody issues should be looked at on a case by case basis and having a presumption of joint custody flies in the face of doing that." He also said that another problem is that the joint presumption apparently would apply to paternity cases. Finally, Elwood said having mandatory mediation is problematic for many families.
Possible changes in the way Minnesota selects its judges were the focus of a joint hearing of the Elections and Judiciary Committees. The panels met Wed., Feb. 8, to hear from former judges, representatives of bar associations and others on the wide variety of options Minnesota has, if legislators choose to seek new ways to staff the state bench. The committees, chaired by Sen. Charles "Chuck" Wiger (DFL-North St. Paul) and Sen. Don Betzold (DFL-Fridley), did not have any specific legislation in front of them.
Assistant Attorney General Tom Vasaly began the meeting by reviewing the U.S. Supreme Court and Eighth Circuit Court of Appeals decisions in a case challenging campaign activities regulations in the code of judicial conduct. The U.S. Supreme Court struck down as a violation of free speech rights a provision of the code prohibiting candidates for judicial office from announcing their views on disputed legal issues, Vasaly said. The Eighth Circuit, applying the Supreme Court's decision, also invalidated portions of the code prohibiting candidates from identifying themselves with political parties and from personally soliciting campaign funds.
There are five basic judicial selection models, said Senate Counsel Kathleen Pontius. Some states use a lifetime appointment system, occasionally with a mandatory retirement age, she said. Others use a model relying on legislative confirmation or required selection from candidates recommended by a merit-examination commission to constrain the governor's choice of judges, Pontius said. She said three models use a form of election to select judges: candidates run in either partisan elections or nonpartisan elections or incumbent judges are subjected to retention elections. Some states mix models, she said, by using one method to name appellate judges and another for trial-court judges. Minnesota is classified as a nonpartisan election state, she said, though common practice has been for judges to retire early, thereby allowing the governor to appoint a replacement who later runs for reelection. The state has a merit selection commission, Pontius said, but its choices are not always binding on the governor.
Senate Counsel Peter Wattson provided the panels with a history of changes to the process proposed as legislation since 1989. He said most of the proposals have focused on eliminating judicial elections and replacing them with a gubernatorial appointment and Senate confirmation process. Terms for judges under the appointment-and-confirmation proposals have ranged from three to ten years, he said. In recent years, bills have tended to provide for appointment by the governor with no confirmation, but again with a fixed term, Wattson said. Other bills, he said, have proposed eliminating the incumbency designation on the ballot.
Judicial independence is important to our legal system, said George Soule, former chair of the judicial selection commission. Judicial independence means that judges make decisions free from outside pressures, strictly according to the law and without fear of reprisal, he said. Soule reviewed the recent history of partisan elections in other states. These states are not known for their outstanding judiciaries, he said. Instead, they have a reputation of expensive, contested elections for the bench, he said. Campaigns based on political issues are deceptive to voters, Soule said, because hot-button cases rarely come before the courts. Our courts are busy with important, but low-profile, cases, such as criminal matters, divorces and child protection proceedings, he said. Soule added that too much discussion of a particular case or particular issue would also require candidates-cum-judges to recuse themselves from hearing a case. Political and partisan elections are likely to create or reinforce a perception among citizens that moneyed special interests have bought justice, he said. Qualified candidates will avoid seeking judgeships, Soule said, because they have no background of political involvement and no desire to become active in a bruising electoral battle.
Susan Holden, president of the Minnesota State Bar Association, Will Fluegel, president of the Minnesota Trial Lawyers Association, and Greg Bulinski, president of the Minnesota Defense Lawyers Association, said their groups and others are studying possible courses of action. Concerns about possible drastic changes in Minnesota's culture of qualified judges rendering their decisions without regard to the personal preferences but in accord with the law are not limited to a specific segment of the legal community, Bulinski said. We are all proud of the present state of our judiciary, Fluegel said.
Former District Judge John Stanoch said Minnesota's judiciary is nationally recognized for its quality. Our judges move cases through the system quickly and have been innovative to create new solutions to existing societal problems, he said. Stanoch highlighted the establishment of drug courts, the use of restorative justice and former Chief Justice Kathleen Blatz's focus on the child protection system. He said there is no apparent move by anyone on any side of the legal community-the plaintiffs' bar, the defense bar, labor, business-to dramatically change our culture. Legislators should not worry too much, he said, about this year's judicial elections, but should be commended for starting to think about the best long-term option.
Sen. John Hottinger (DFL-St. Peter) said lawmakers should consider modifying the state's campaign finance rules, such as by imposing contribution limits, to cover judicial races. Hottinger and Sen. Julianne Ortman (R-Chanhassen) also probed the possibility of limiting independent expenditures and special interest influence.
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