Minnesota Legislature
Decision day for commissioners
You might have thought the special session ended when all the budget bills passed and the governor signed them. The House adjourned sine die, after all, and left town.
The Minnesota Senate, however, did not. And some of Gov. Tim Walz’s commissioners might lose their jobs as a direct result.
Senate Republicans today are holding informational hearings to discuss the confirmations of six people who lead agencies or offices, plus one advisory board member. Committees could issue informal recommendations to either keep or fire them, which the full Senate could then take up.
For some reason, GOP Senate leaders acted a little cagey about their plans for all this.
Senate Majority Leader Paul Gazelka, R-East Gull Lake, told reporters on June 30 that the Senate was planning to “stick around a few days.” He said the idea was to keep an eye on the governor and make sure he signed all bills the passed during the special session, including the late-moving taxes bill. “Trust but verify,” Gazelka said.
But then, after passing its final bills on Thursday morning, the House adjourned, leaving the Senate alone and with nothing to do—as far as legislation is concerned, anyway. The governor signed the last of the budget bills later that day.
Yet the Senate made no move to pack its bags.
On Friday, a skeleton crew of senators met on the floor, with only six members present. DFLers present apparently thought the plan was to adjourn.
Instead, Sen. Michelle Benson, R-Ham Lake, told them they’d be called back after the holiday weekend. Benson was oblique in response to DFLers who asked why they would need to return. But she did mention that the governor has “some open appointments,” which the Senate needs to consider.
She didn’t say which commissioners she meant or what exactly was planned. But under questioning from DFLers, Benson began hinting at what she had in mind.
She said “my commissioner”—presumably either DHS commissioner Jodi Harpstead or MDH Commissioner Jan Malcolm, both of whom are governed by Benson’s Health and Human Services committee—approached her with “an executive order inquiry” at some point “in the past few days.” Executive orders are not something senators are eager to consider now that the peacetime emergency is over.
“So we are going to remain vigilant and attentive to the governor’s appointments,” she said. She later added, “The Senate does have unique responsibilities in appointment proceedings and confirmations.”
Sen. Sandy Pappas, DFL-St. Paul, asked Benson to lay her cards on the table. “Are there some vendettas here against the governor’s commissioners that you want to fire some of them at this point?” ask Sen. Sandy Pappas, DFL-St. Paul.
“I object to the characterization of Senate oversight as a vendetta,” Benson, R-Ham Lake, replied.
Senate Minority Leader Susan Kent, DFL-Woodbury, then called for the Senate to join the House and adjourn sine die. But her motion failed 29-35, with most senators voting remotely.
Since then, the Senate majority has posted its hearing schedule for today, along with the list of commissioners and other Walz appointees whose confirmations will be examined by them. That list includes:
Dean Compart, president of the Board of Animal Health
Mark Phillips, commissioner of the Iron Range Resources and Rehabilitation Board (despite its name, this is a state agency)
Aaron Vande Linde, director of the Minnesota Office of School Trust Lands
Jennifer Ho, commissioner of the Minnesota Housing Finance Agency
Sarah Strommen, commissioner of the Minnesota Department of Natural Resources
Laura Bishop, commissioner of the Minnesota Pollution Control Agency
Neither Malcolm nor Harpstead are on the list. According to MPR’s Brian Bakst, one commissioner thought to be in possible trouble, Malcolm, is not in jeopardy, despite oft-discussed Republican concerns about the way she and her department handled the pandemic.
Of those on the list, Bishop is the commissioner whose appointment is most obviously in trouble. During the June 30 press conference, Gazelka made specific reference to three areas of GOP dissatisfaction with the Walz administration’s unilateral rule making. All three implicate Bishop’s agency:
The California “clean car” air-emissions standards that the Walz administration, through Bishop’s MPCA, has pursued unilaterally.
A “blow up” on restrictions to manure spreading on farm fields, which Gazelka said have come down through rule making.
Another “major blowup” over PFAS (per- and polyfluoroalkyl substances). That’s a family of chemicals used in commercial packaging, non-stick cookware and fast-food wrappers that have been tied to health conditions like liver damage, thyroid disease and infertility. Because of executive branch attempts to limit the chemical’s use, Gazelka said, companies like 3M, Schwann’s and General Mills could be forced to stop manufacturing some products.
“That’s MPCA,” Gazelka said.
Walz later issued a written statement about his commissioners possibly being on the chopping block:
“Our commissioners are exceptionally qualified public servants who are charged with protecting public safety, public health and advancing the common good. I expect the Senate to fulfill their constitutional duty to confirm any qualified candidate, as they should have done two years ago when our commissioners were first appointed. Because Senate Republicans put this work off for two years and are choosing to conduct their work in overtime, I am calling on them to forgo the thousands of taxpayer dollars they take each day in per diem, and I expect that they will conduct their work expediently, professionally and free of any political theatre.”
If the Senate votes down anyone’s confirmation, that person would immediately lose his or her job. That’s what happened in 2020, when the Senate voted remove the Labor and Industry Commissioner Nancy Leppink and Commerce Commissioner Steve Kelley.
Legislative calendar
Here was the week’s legislative schedule at the time of this writing. Monitor this legislative page for changes and updates.
Senate Agriculture and Rural Development committee, Tuesday, July 6, 8:30 a.m. The committee, in an information-only hearing, will consider Compart’s appointment.
Senate Mining and Forestry Policy committee, Tuesday, July 6, 9:30 a.m. The committee will take up Phillips’ and Vande Linde’s confirmations.
Minnesota Senate, floor session, Tuesday, July 6, 10 a.m. No agenda is yet set, but confirmations almost certainly will be taken up at some point today. The full body could take up the first two confirmations at 10 a.m., or quickly go into recess and wait for recommendations from the two other committees scheduled to meet.
Senate Housing Finance and Policy committee, Tuesday, July 6, 1 p.m. Commissioner Ho’s confirmation will be discussed.
Senate Environment and Natural Resources Policy and Legacy Finance committee, Tuesday, July 6, 2 p.m. The confirmations of Strommen and Bishop will be considered.
Minnesota Judiciary
Supreme Court
The state’s highest court has no arguments scheduled until August. If the court issues any new opinions, they will come tomorrow at 10 a.m.
Court of Appeals
The state Court of Appeals has oral arguments set for Wednesday and Thursday. New opinions will come out at 10 a.m. today.
July 7
Panel: Judges Michelle A Larkin (presiding), Lucinda E. Jesson and Diane Bratvold
9:30 a.m.
State v. Brian John Leonida (A20-1059)
Leonida, whose felony conviction for violating a protective order is on appeal, wants the court to decide whether a 10th Judicial District Court judge committed reversible error by denying his sentencing departure request, based on information obtained outside the record. Also: Did the District Court abuse its discretion by denying a departure based on offender-related factors when Leonida’s conduct was “significantly less serious than the typical offense?”
10:10 a.m.
In the Matter of: Petition of MCEA for Commencement of Environmental Assessment Worksheet (A20-1592)
Appellants—advocacy groups Protecting Public Waters and the Minnesota Center for Environmental Advocacy—want the court to reverse Renville County’s decision to deny a an environmental assessment worksheet petition, related to a county ditch-improvement project. Relators claim such an assessment is required under Minnesota rules. The county says the project “does not have the potential for significant environmental effects.”
Panel: Judges Matthew E. Johnson, presiding; Jeffrey M. Bryan; Jennifer L. Frisch
9:30 a.m.
SVAP III Riverdale Commons L.L.C. v. Coon Rapids Gyms, L.L.C. (A20-1593)
This business-eviction case relates to Gov. Tim Walz’s March 2020 executive order that closed gyms, fitness centers and other similar businesses. Respondent SVAP III claims Coon Rapids Gym breached its lease by failing to pay rent for four months, during a time when the appellant was not allowed to use the property because of the executive order. The gym argues its obligation to pay rent was excused under the doctrines of impossibility and frustration of purpose.
10:10 a.m.
Trevor Hogan v. O'Laughlin Trucking & Excavating, Mechanical L.L.C., et. al. (A20-1583)
Another COVID-19 fallout case, the state agency DEED is a co-respondent here. The case involves an application for unemployment insurance benefits from an employee who claims he was involuntarily prevented from working when the pandemic hit. Among issues posed are whether the governor’s peacetime emergency order left Hogan with no safe or lawful work options between March 23, 2020, and April 22, 2020; and whether the employer must prove its work was essential and justified exposing employees to substantial risk.
July 8
Panel: Judges Renee L. Worke (presiding), Jeanne M. Cochran; and Randall J. Slieter
9:30 a.m.
Everest Stables, Inc. v. Foley & Mansfield, L.L.P., et al. (A20-1514)
At District Court, Everest Stables brought civil action for legal malpractice, breach of contract, breach of fiduciary duty, fraud and misrepresentation against Foley & Mansfield and Thomas Pahl, a partner at the law firm. The Hennepin County District Court ruled against the thoroughbred horse breeder in a case that, among other things, alleged the law firm falsely represented that a case was ready for trial when it wasn’t. Among issues to be addressed on appeal: Did the District Court properly dismiss the breeder’s claims on summary judgment?
10:10 a.m.
State v. Mitchell Curtis Madsen (A20-1389)
This is an appeal of a criminal conviction for receiving stolen property. The question for the panel is whether the Washington County District Court abused its discretion by failing to find that Madsen established it was “fair and just” to permit him to withdraw his guilty plea before sentencing.
Panel: Judges Kevin G. Ross (presiding), Denise D. Reilly; and Theodora Gaïtas
9:30 a.m.
Curtis M. Smallwood v. State Department of Human Services, et al. (A21-0001)
Smallwood, a client at Moose Lake’s Minnesota Sex Offender Program, sued the state in Ramsey County District Court for allowing hackers to access, steal and disseminate his private personal and health data. While concerned that the state allowed such a breach to happen, the District Court found no relief could be granted under the Minnesota Government Data Practices Act or the Minnesota Health Records Act. Smallwood appeals. The claims tie to a March 26, 2018, “data security incident,” in which there was unauthorized access to a DHS employee’s state email account.
10:10 a.m.
In the Matter of the Welfare of the Child of: J.R.W., Parent (A21-0198)
This is an appeal from a District Court order that adjudicated a minor child as needing protection or services pursuant to Minn. Stat. § 260C.007.
Minnesota State Bar Association
Thursday, July 8
9 a.m.- 2:30 p.m.
One Profession—10th Judicial District
Billed as a day of education and virtual networking, this event is good for 3.75 CLE credits, including 1.0 elimination of bias credits. Supreme Court Justice G. Barry Anderson will give a Supreme Court update at 9 a.m.; Kendra Brodin, chief attorney development officer at Taft, will talk about time and stress management at 10:15 a.m; Marie Anderson and John Collentine, both of Mercer, will talk about the new association health plan at 11:15 a.m.; and 10th District Chief Judge Stoney Hiljus will offer an update on his court at 1 p.m. At 1:30 p.m., attorney Haley L. Moss, of Haley Moss L.L.C., will give an hour-long presentation on neurodiversity, with an eye toward helping lawyers accept and support their clients, friends, family and colleagues who think differently. The sign-up deadline is today. Register here.
News and notes
New interim ACLU director
Ben Feist is stepping in as interim executive director at ACLU Minnesota, the organization announced over social media on July 1.
Feist, the organization’s chief program officer and former legislative director, replaces John Gordon, who is retiring. The tweet credits Gordon with shepherding ACLU-MN through four years of “huge growth,” and said he plans to spend time with his family and travel.
Feist, an experienced lawyer/lobbyist, joined ACLU-MN in 2013 after practicing immigration and nationality law at Grell Feist P.L.C., where he was a partner. Before that, he was an assistant state Attorney General for four years.
In an email to Session/Law, Feist said:
“I am honored to have this opportunity to lead the ACLU of Minnesota in the interim period. I look forward to steering the organization through the leadership transition and continuing the ACLU-MN's fight for policing and criminal legal reform, voting rights, immigrants' rights and other core civil liberties issues.”
Before he joined ACLU-MN, Gordon practiced civil litigation with Faegre Baker Daniels in Minneapolis, representing a variety of clients in trials and other contested matters.
Redistricting panel appointed
The Minnesota Supreme Court on June 30 appointed five judges to a redistricting panel to hear and decide issues—including all pretrial and trial motions—in Wattson, et. al. v. Simon et. al. and Sachs et. al. v. Simon et. al., both of which deal with legislative and congressional redistricting.
“The Minnesota Legislature adjourned its regular session on May 17, 2021, and although now in special session, has not yet enacted redistricting legislation,” Chief Justice Lorie Gildea wrote in the June 30 order. “Future legislative activity on redistricting is a possibility, but there are significant duties and responsibilities in the work required for redistricting.”
Further, she continues, legislative policy requires that new redistricting plans be implemented no later than 25 weeks before the Aug. 9, 2022, state primary election. Writes, Gildea:
“Thus, work by a redistricting panel must commence soon in order to permit the judicial branch to fulfill its proper role in assuring that valid redistricting plans are in place for the state legislative and congressional elections in 2022.”
The House adjourned the special session sine die, though the Senate remains at least temporarily on the job to consider agency confirmations. Without the House at work, the Senate could not pass any redistricting legislation at the moment even if it wanted to.
There is very little to indicate that the Senate or the House wants to do that. Or at least they’re in no hurry to get it done. Which is why plaintiff Peter Wattson filed suit earlier this year.
Speaking to Session/Law on July 1, Wattson called the panel’s appointment “no big deal” and “just what I assumed would happen eventually.” Added Wattson:
“I’m glad they decided to get started now. They seem to recognize that preparing to draw maps can take a long time—much longer than actually drawing them.”
Gildea’s order appoints the following judges to the redistricting panel:
Court of Appeals Judge Louise D. Bjorkman (presiding)
Court of Appeals Judge Diane B. Bratvold
7th Judicial District Court Chief Judge Jay D. Carlson
10th Judicial District Court Judge Juanita C. Freeman
3rd Judicial District Court Judge Jodi L. Williamson
Wattson, a former Minnesota Senate counsel, said the panel’s composition is politically and geographically balanced, just as he said previous redistricting panels have been.
“I have every expectation they will be both fair and skilled at what they do,” he said.
Juvenile Justice committee appointee
Gov. Tim Walz on June 30 announced that Trahern Pollard, founder and CEO of advocacy organization We Push for Peace, has been appointed to the Juvenile Justice Advisory Committee.
The appointment, which runs through Jan. 6, 2025, is effective today. Pollard replaces Raj Sethuraju, an associate professor at Metropolitan State University’s School of Law Enforcement and Criminal Justice.
The committee is a supervisory board to the Office of Juvenile Justice and Delinquency Prevention’s Title II Juvenile Justice Program. Its job is to prepare and administer state planning and award of grants.
The Office of Juvenile Justice and Delinquency Prevention is part of the U.S. Department of Justice.
Judicial search reopened
The Judicial Selection Commission has reopened the search to replace Ramsey County District Judge Lezlie Ott Marek.
Claire Lancaster, the governor’s press secretary, said it’s not an unprecedented move, though it’s not something that has been has done recently. “We’ve done this a couple of times before, though probably not in the last year,” she said. She said the commission is “just seeking more applicants.”
Marek, a 2010 appointee of former Gov. Tim Pawlenty, is retiring. The Judicial Selection Commission announced its initial search for her replacement on June 1. Interviews were to have been conducted on July 12.
The new application deadline is 4 p.m., on July 13, 2021. The commission now expects to hold interviews in late July.
Those wishing to apply may request an application through the Office of the Governor and Lt. Governor via e-mail at Judicial.Selection@state.mn.us. Application materials should be addressed to Commission Chair Erin Sindberg Porter.