I. Call to Order
The meeting was called to order at 12:35 p.m. on Friday, December 14, 2012 at the Minnesota CLE Conference Center in Minneapolis. President Robert Enger presided, with Nancy Mischel recording. Roll Call attached.
Elmer Wiblishauser Award: Mr. Enger asked Chris Stahl, Publications Committee Chair, to introduce the winner of this award. Mr. Stahl presented the award for best article published in Bench & Bar between July 1, 2011 and June 30, 2012, to Greg Wiley for his article on excessive force claims.
Citizen Lawyer Award: Mr. Enger asked Dan Prokott, former chair of the Civil Education Committee, to introduce the winner of this award. Mr. Prokott presented the award to Eldon Kaul a founder of the MSBA’s civic education committee in 2006 and an active supporter of civic education for many years. Mr. Kaul thanked the Assembly for the award and noted that the MSBA is about more than just providing services to attorneys, stating we are citizens first and lawyers second.
III. Update on the work of the Amicus Society
Robin Wolpert reported that the Society has developed education materials for attorneys to use when speaking to the public about the justice system. The materials include tip sheets, sample letters to the editor and to legislators. The Society is seeking business support for the justice system.
IV. President’s Report
Mr. Enger reported that he attended the Great Rivers Conference of eight mid-western state bars in October. This is an opportunity to exchange ideas and information and address issues of mutual concern. Mr. Enger urged members to support the Bar Foundation beyond the $25 dues check-off. He also encouraged members to contribute to LawPAC.
V. Treasurer’s Report
Richard Kyle Jr. referred members to the materials and reported that revenue and expenses are on track for the current year.
VI. Executive Director’s Report
Members were referred to the written report emailed prior to the meeting.
VII Consent Calendar
A motion was made and seconded to approve the minutes of the September 14, 2012 meeting. The motion carried.
VIII. Additional Agenda Items
There were no additional agenda items.
IX. Elections/Appointments Committee
Dyan Ebert, Chair, reported that eight candidates applied for openings on the Minnesota State Bar Foundation Board and the Committee interviewed all of them. The Committee recommended Patrick Costello, Jackson County, to complete a term ending June 30, 2013, and Laura Sahr Schmit, Hennepin County, to complete a term ending June 30, 2014. Following a call for additional nominations, a motion was made to close nominations. The two recommended candidates were approved.
X. General Policy Committee
Eric Larson, Chair, reported that the Committee reviewed a number of lapsed MSBA policies at their last meeting. Some of these policies were referred back to the committees and sections with the relevant expertise to decide whether to recommend them for renewal. The Committee also heard from representatives of the public defender office regarding their request for MSBA support of a petition to maintain the surcharge on the attorney registration fee for another two years. The Committee is recommending the MSBA support the public defenders’ petition. This recommendation will be discussed later in the agenda.
XI. Governance Committee
Greg Schwartz, on behalf of Chair Sonia Miller-Van Oort, discussed the Committee’s recommendation to amend Bylaws and Articles of Incorporation, as distributed prior to the meeting, to provide for electronic voting by the Council. The recommendation was approved.
XII. Judiciary Committee
Mike Unger, chair, reported that the Judiciary Committee, along with the Legislative Committee, is soliciting comments from members and affiliated organizations regarding whether the MSBA should renew its current policy on judicial elections, which expires in June 2013. The Judiciary Committee recently heard a proposal from the LAD Committee regarding Cy Pres funding which was sent back to LAD for further review and clarification.
Mr. Unger then presented the Committee’s recommendation that the MSBA support the public defenders’ request for a two-year continuation of the attorney registration fee to implement and upgrade technology necessary to take advantage of eCourt. In formulating its recommendation, the Committee heard directly from representatives of the State Board of Public Defense and had an opportunity to ask questions. Mr. Unger noted that although the vote was not unanimous, the Committee came to its recommendation after robust debate because it is critical to ensure the efficiency of operation of the Court to keep things running smoothly for our clients. The Committee agreed it is really the legislature’s responsibility to fund the public defenders; their support of the proposal is more pragmatic than philosophical.
Kevin Kajer and Robert Sykora from the Board of Public Defense, along with Bill Ward, chief public defender from the Fourth Judicial District were provided an opportunity to speak. Mr. Kajer thanked the MSBA for its past support and stated this would absolutely be the last time they would be requesting MSBA support for the attorney registration fee surcharge. The public defenders have only 58% of the staffing level needed for their caseload, according to ABA standards. The speakers clarified that their petition to the court was for funds to acquire technology to stay abreast of the courts’ embrace of electronic filing and not for public defender positions or general support.
Robin Wolpert spoke on behalf
of the Appellate Practice Section, which took
the following position on the Petition by the Public Defenders now pending
before the Minnesota Supreme Court:
Minnesota Supreme Court has recognized that the Legislature and the Governor
are responsible for the creation of the State's biennial budget and have a
constitutional obligation to provide adequate funding for the public defense
system. Order Extending Increase in Lawyer Registration Fees (Minn. Mar.
2, 2011) at 2. Accordingly, the Appellate Practice Council believes that
the Legislature rather than the Supreme Court should be responsible for funding
all aspects of public defender's operating expenses, including technology.
(2) The Public Defender should request that the Legislature provide funding for the technological expenses requested in its Petition to the Supreme Court.
(3) The technological expenses requested in the Public Defender's Petition should be funded by the Legislature.
(4) The Public Defender's Petition to the Supreme Court is not ripe for consideration by the Court until the Legislature has acted upon the Public Defender's proposed budget.
(5) Accordingly, the Appellate Practice Council opposes the Petition at this time.
Ms. Wolpert stressed that the Section opposes the petition at this time because it is premature. The request for funds should be made to the Legislature and only if it is denied should the Court consider the petition. It is not a question of supporting the public defenders’ office but rather one of strategy.
Blair Buccione, past chair of the Criminal Law Section, stated that while the Section supports a fully funded Minnesota public defense system, funding for the public defense system should be provided by citizens of the state and not by attorneys. The Criminal Law Section asks fellow members of the MSBA to oppose continuation of the fee.
Sam Edmonds spoke on behalf of the New Lawyers Section, the largest section of the bar. The Section supports a public defender system fully funded by the state legislature and therefore opposes the recommendation by the MSBA Judiciary and General Policy Committees to support an extension of the license fee. Mr. Edmonds noted that as long as attorneys are willing to pay more in registration fees, the Legislature will be able to avoid its job. He also mentioned the economic hardship on new lawyers in this economy is great.
A motion was made and seconded to substitute the Appellate Practice Section resolution dated December 13, 2012 for the Judiciary Committee’s resolution. Mr. Lightfoot noted that the court backdated the registration fee in 2009 and the Court could do so again, thus obviating the need for the public defenders to make their request to the court now, prior to legislative action.
A motion was made to amend the substitute motion to delete number 5 from the proposal. This was accepted as a friendly amendment. The motion to substitute passed by a vote of 42-23 with abstentions from Judge Awsumb, Justice Dietzen, Judge Guthmann, and Judge Neville..
With the Appellate Practice Section resolution on the floor, the motion passed 43-18, with abstentions from Judge Awsumb, Justice Dietzen, Judge Guthmann, and Judge Neville.
XIII. Legislative Committee
Thad Lightfoot, chair, introduced Emily McGann, the MSBA’s new Government Relations staff, who will be working closely with Bryan Lake.
Mr. Lightfoot summarized the recommendation of the Legislative Committee that the MSBA endorse the following proposals, distributed prior to the meeting: the Environmental & Resources Law Section to amend Minn. Stat. §115B (MERA) (clarification and conformance to federal law); the Real Property Law Section (technical amendments to Minn. Stat. §§507.092, 507.403, 508.70, and 508.82); the Probate & Trust Law Section: amendments to Minn. Stat. §524.2-301 (clarifying inheritance rights between spouses unintentionally omitted from estate plan) and Minn. Stat. §524.3-916 (conforming spousal apportionment of estate taxes with federal right of recovery); the Family Law Section: opposition to further limitations on judicial discretion to determine the best interests of children in setting levels of parenting time, including joint physical custody presumptions; and of the Legal Assistance to the Disadvantaged Committee: support the removal of language enacted by the Minnesota legislature that requires civil legal service to only use state funds for state court and agency matters. A motion was made to adopt the recommendations. The motion carried with abstentions from Judge Awsumb, Justice Dietzen, Judge Guthmann, and Judge Neville.
In addition, the Committee has set three profession-wide MSBA priorities for this session; preventing a sales tax on legal services, ensuring adequate funding for the justice system and judicial election reform. The MSBA’s current position opposing a sales tax on legal services is due to expire, the Council is recommending renewal. A motion was made to renew the position. The motion carried with abstentions from Judge Awsumb, Justice Dietzen, Judge Guthmann, and Judge Neville.
Mr. Lightfoot also reported to the Assembly the Legislative Committee’s recommendation that the Council set the following priorities for lobbying in the upcoming session: a) Amend Minn. Stat. §524.6 to permit the appointment of an agent over a multi-party account who has no property interest in the account. (previously approved; resolves a probate issue involving joint accounts used by an aging parent and a child); b) Amend Minn. Stat. §271.06 to establish a “postmark rule” for taxpayers pursuing challenges to tax assessments in Minnesota Tax Court (previously approved); c) Enact technical and conforming amendments to real estate statutes approved by the Assembly (see above). In addition, the Legislative Committee sent one family law proposal was sent back to the section for further work, as well as a proposal from the social security disability law section.
Richard Kyle recommended that the MSBA approve the Minnesota CLE audit for the year ending June 30, 2012. The motion was seconded and passed.
XV. New Business
There was no new business.
A. Notice of nominations/appointments to the following boards:
(Election of nominees will take place at the April 25, 2013 meeting of the Assembly. Members should encourage any Association member who is interested in being nominated to submit a Qualifications and Interest Statement to the MSBA office by Friday, March 15.)
1. Client Security Board -- The term of Timothy O’Brien, Hennepin County, expires June 30, 2013. Mr. O’Brien has served two terms and is not eligible to serve an additional term.
2. State Board of Continuing Legal Education – The terms of Glen Jacobsen, Renville County, and Michael Schechter, Dakota County, expire June 30, 2013. Mr. Jacobsen has served two terms and is not eligible to serve an additional term. Mr. Schechter has served one term and is eligible to serve an additional term.
3. Legal Services Advisory Committee -- The term of Nicholas Slade, Hennepin County, expires July 1, 2013. Mr. Slade has served two terms and is not eligible to serve an additional term.
4. Central Minnesota Legal Services – The term of Jon Saunders expires April 30, 2013. Mr. Saunders is eligible to serve an additional term.
5. MSBA/ABA Delegates – The terms of Jason Kohlmeyer, Michael Miller (Young Lawyer Delegate), and Mary Schneider expire at the end of the ABA meeting in August. Mr. Kohlmeyer and Ms. Schneider have served one term and are eligible to serve an additional term. Mr. Miller has served three terms and is not eligible to serve an additional term.
B. Future Meetings
Thursday, April 25, 2013 -- Noon (Minnesota CLE)
Friday, June 28, 2013 – 9:00 a.m. (Minnesota CLE)
The meeting was adjourned at 3:00 p.m.
Michael W. Unger