Minnesota Lawyer Blog

The Children’s Justice Initiative has formed a workgroup to make recommendations to the Judicial Council concerning representation of parents in child abuse cases, now that the Board of Public Defense has said that defenders will no longer represent them. The CJI Parent Representation Workgroup, chaired by Justice Helen Meyer, will hold its first meeting Aug. 18. from 8:30 a.m. to noon in Room 230 of the Minnesota Justice Center.

No agenda has yet been released, but the members have received a 2006 CHIPS Public Defender Workgroup Final Report that was prepared at the direction of the Legislature. It’s frustrating to read. It concluded:

“The CHIPS Public Defender Workgroup spent several months discussing the crisis in the child protection system caused by lack of resources to provide appropriate legal representation to indigent parties, and the critical role well-trained, culturally competent, adequately compensated attorneys with realistic caseloads, not just in protecting the legal rights of children and parents in child abuse and neglect proceedings, but in counseling parents about their responsibilities in the process and facilitating better outcomes for children.

“The Workgroup concludes that the legislature must address the current crisis in child protection cases caused by the lack of resources for adequate legal representation in child protection cases. The need for adequate funding for well-trained, culturally competent attorneys with realistic caseloads that permit them to fully participate in the collaborative resolution of these cases is immediate. The legislature can also take the leadership in designing and implementing a statewide entity whose primary mission is to provide advocacy and legal representation for families (parents and children) in child-protection cases to ensure a permanent safe and nurturing home for every Minnesota child.”

Of course, this has not happened. Shall we anticipate that this latest group’s recommendations will meet the same fate? Obviously the Legislature needs more help, i.e. pressure, from the public and particularly the bar.

The Minnesota Legislature has yet to reach a consensus on things like reducing health care costs, providing property tax relief... and oh yeah... plugging that $935 million budget hole.

But on the bright side — the white, porcelain bright side — Tim Nelson over at MPR's News Cut blog reports that lawmakers in the House and Senate have backed a change in the plumbing code that would allow waterless urinals in Minnesota.

I've actually used this type of fixture — it was an underwhelming experience. But this is actually a big deal for environmental types and builders interested in promoting sustainable construction.

In the past, lawmakers balked at the idea of waterless urinals for obvious sanitary reasons, but their use in other states have shown they work just as well as the original (gravity, after all, does all the work) and can significantly reduce water use. Then again, the energy savings is probably offset by that strategically placed electronic advertising display — and you still have to wash your hands.

Legislation that would enable surrogacy contracts has been heard in committee in both the House of Representatives and the Senate and is expected to go to the governor this session. That’s the word from Maple Grove attorney Glen Norton, the legislative chair for the Minnesota State Bar Association Family Law Section. The MSBA General Assembly has backed the legislation.

Senate File 2965 sets forth both the law regarding gestational carrier contracts and also contains provisions regarding the rights of the parties in cases of donated embryos. The latter sets up a scheme similar to the existing law regarding the parental rights of sperm donors, or more accurately, the absence thereof. When an embryo is donated, the donor is not treated as a biological parent; the intended parents are treated as parents under the law, assuming the requirements outlined in the bill are followed.

The gestational contract provisions regulate both gestational carriers and intended parents. Parental rights would vest immediately upon the child’s birth under the legislation. The bill also provides for legal or equitable damages to either party if the contract is breached.

Surprisingly, no opposition to the legislation has materialized, Norton said. The bill does not address the controversial subject of how to deal with embryos that are not fertilized. Additional legislation on that may be needed in the future, Norton said.

Minneapolis attorney Erick Kaardal announced a press conference today at 2:00 p.m. at the State Capitol Rotunda for his client Citizens for Rule of Law. The lawsuit, filed today, seeks to stop “per diem” overcompensation to individual state legislators as a violation of the state and federal constitutions, according to a press release sent out this morning.

The defendants are: Senate Committee on Rules and Administration; House Committee on Rules and Legislative Administration; Senate Fiscal Services; House Budgeting and Accounting; and Compensation Council and State of Minnesota.

The press conference is part of Rule of Law Day at the Capitol sponsored by Citizens for Rule of Law and Neopopulism.org.

A St. Paul Pioneer Press poll reports the unsurprising news that Minnesotans don’t want to be disenfranchised from selecting judges. It also found that Minnesotans would favor switching to a retention-election system, which is consistent with the recommendation of the Quie Commission’s majority.

A retention system has also received a qualified endorsement from the Minnesota State Bar Association. By a narrow margin, the MSBA voted in favor of switching to an appointment system, but also endorsed retention elections as the "next best" choice.

Interestingly, the PiPress reports that the survey is being released just weeks before the Legislature is scheduled to consider a constitutional amendment that would make judges subject to periodic retention elections.

It’s not my job to disrespect my colleagues, but the Legislature doesn’t go into session until Feb. 12 and the only scheduled “consideration” of judicial elections is a joint meeting on Feb. 4 of the Senate committees on the judiciary, judiciary budget and state and local government operations and oversight. The latter committee is chaired by Sen. Ann Rest, DFL-New Hope. Rest's administrator, Brenda Shafer-Pellinen, reports that the meeting is the only currently scheduled judicial election related event. The list of speakers at the meeting is not yet final, but should be available by the end of the week, Shafer-Pellinen said.

Most Legislature-watchers don’t expect a constitutional amendment to come out of this session.

The Minnesota Legislature passed its budget bills before adjourning but they still could be vetoed by the governor. If the courts have to intervene in order to keep the state operating, the purview of their power isn't clear under State ex rel. Sviggum v. Hanson, issued by the Court of Appeals today.

At least that's the opinion of the attorney for the appellants in the case, Erick Kaardal, who represented a group of legislators in a quo warranto proceeding that the court found nonjusticiable.

The state legislators had claimed that the Commissioner of Finance had violated the Constitution and statutes by disbursing funds during the 2005 partial government shutdown without a legislative appropriation. The state legislators challenged the Ramsey County District Court's actions in the context of the 2005 partial government shutdown to order the Commissioner of Finance to disburse funds without a legislative appropriation. The state legislators alleged such action was unconstitutional and violative of statutes, explained Kaardal in a press release.

The Court of Appeals left unresolved the critical issue of whether the Ramsey County District Court in the future can order the Commissioner of Finance to disburse funds without a legislative appropriation in the next partial government shutdown, said Kaardal.

"Now, the Governor, the state legislature, the courts and the public are left to wonder whether the Minnesota Constitution will be applied in the next partial government shutdown situation," Kaardal said.

The Strib has an update on the good-faith insurance bill that allows direct actions against insurers and creates a cause of action against insurers who deny benefits without a reasonable basis.

Through an amazing act of legislative prestidigitation, the insurance bill was attached to a $2 billion public safety bill. Gov. Tim Pawlenty, who is against the insurance measure, threatened to veto the entire public safety bill unless the insurance rider was removed.

"During debate in the Senate and the House, supporters angrily accused Pawlenty and the insurance industry of refusing to compromise," the Strib reports. "The bill has been the target of extensive lobbying from the trial lawyers, who long have primarily supported DFLers, and of an expensive media campaign from the insurance industry, which has often supported Republicans."

The insurance provision was ultimately pulled to make way for the massive public-safety bill. (See "'Good faith' starts slugfest at Legislature.") It wil undoubtedly resurface again a separate piece of legislation.

The entire episode proves what I always have thought: "If laws are like sausages, stick with vegetarian option." In any event, as I posted before, I am sick of those lawyer-bashing insurance industry radio ads against this bill. If they really want to keep our rates down, why don't they stop running that obnoxious and deceptive ad campaign and send the money saved back to us in the form of a rebate or reduced premium?

The Strib has a good article on its website about the dispute between the trial lawyers' and insurance lobby over a bill that would allow direct actions and bad-faith claims against insurers. (Bill pits lawyers against insurers.)

I should be annoyed at the Strib for doing it because we had something similar on the drawing board for today's paper, but wound up holding it over. However, the Strib did a good job and the info needs to get out there, so I will put a check on my editor's pride. We may still do something for the next issue, but our angle would be different.

BTW -- I don't know how many of you have heard those obnoxious insurance industry ads for this bill, but they are so bad that I changed the radio station on my alarm clock just to avoid waking up to them. They have taken the lowest road possible -- demonizing lawyers.