Minnesota Lawyer
Two bills aimed at discouraging participation in disruptive mass protests are on their way to the Public Safety and Security Policy and Finance Committee, where Rep. Tony Cornish, R-Vernon Center (right), is chair. To his left is Jason Rector, a House committee legislative analyst. (Staff photo: Kevin Featherly)
Unlawful assemblies: Two bills that aim to increase civil and criminal penalties against demonstrators who block access to highways and airports are themselves on the march.
The bills, House File 322 and House File 390, both list Rep. Nick Zerwas, R-Elk River, as chief author.
HF 322 has moved furthest. It would allow local authorities like police departments to sue protesters to recover costs of responding to “unlawful assemblies and public nuisances.” Court fines assessed against a defendant could not be applied toward the civil damages.
On Jan. 26, HF322 was approved by the Civil Law and Data Practices Policy Committee and re-referred to the Public Safety and Security Policy and Finance Committee, where Rep. Tony Cornish, R-Vernon Center, is chair.
The other bill, HF 390, was referred to Cornish’s committee on Jan. 23, but has yet to be heard. It would increase criminal penalties for those taking part in unlawful assemblies.
Under its terms, violators who either engage in violence or communicate violent intent during an illegal protest would face up to three years in prison and a $5,000 fine under HF 390. Non-violent violators convicted face up to a year in prison and a $3,000 fine.
If passed, that law would go into effect in August 2017 and would apply only to crimes committed after that date.
“My hope is that we will take these bills up in a hearing in Chair Cornish’s Public Safety committee in the next week or two,” Zerwas said Wednesday. Neither bill as yet has a Senate companion.
Rep. Brian Johnson, R-Cambridge, a co-author on both bills, said new laws are needed to prevent people from blocking freeways, as happened on both Interstate 35 and Interstate 94 last year. Those incidents created serious safety hazards, he said.
“If you go out and march and shut down the freeway, that’s an unlawful assembly,” Johnson said. “For one thing, it is against the law to even walk on the freeway.”
For Zerwas, an “unlawful assembly” is a gathering in which demonstrators fail to obey lawful police commands and block public access to roads or airports. Before his bills’ penalties would kick in, he said, a demonstrator would have to be separately charged, tried and convicted of a misdemeanor or greater connected to the incident.
Several mass demonstrations took place last weekend. One was at the Minneapolis-St. Paul International Airport protesting the Trump administration’s immigration travel ban. Another protesting the Dakota Access pipeline briefly blocked the Marshall Avenue/Lake Street bridge over the Mississippi River.
Zerwas said neither of those incidents would have triggered the penalties in his bills. Protesters who blocked the bridge dispersed when police told them to, he said. The airport protest was contained to a public sidewalk and never blocked airport access.
Zerwas thinks a message is getting through to demonstrators that the public is losing patience. “I believe people understand that this is really a counterproductive way to try to advance your message,” Zerwas said. “It comes with a lot of negatives.”
Rep. JoAnn Ward, DFL-Woodbury, is a member of the Public Safety committee that will hear the bills next. She agrees it is important to set boundaries for mass rallies. But Zerwas’ response, she said, goes “way too far.”
“It’s too prohibitive,” Ward said. “If we go too far, then we really are infringing on free speech.”
Nixing mandatory retirements: Rep. Tina Liebling, DFL-Rochester, wants to put an end to the mandatory retirement age for Minnesota’s judges.
As things stand, judges in Minnesota must retire on the last day of the month in which they turn 70. That is not uncommon; 19 states require judges to retire at 70, while eight others retire them at 75. In Vermont, judges can stick around through their 90th year.
But 17 states have no retirement age and Liebling’s one-line bill, House File 621, would add Minnesota to that list. “I just do feel that we shouldn’t have arbitrary age limits for judges,” Liebling said. “In any other setting, this would be considered age discrimination.”
She said that it is true that many judges are ready to retire by age 70, but others are not. “My feeling is that when you have a wisdom profession like judging, it doesn’t make any sense to force people to retire just because of the calendar,” she said.
This is not the first time Liebling has offered the bill. In previous attempts, she said, it has never gotten a hearing.
Liebling said she recently brought the bill to the attention of state Supreme Court Chief Justice Lorie Skjerven Gildea—who, incidentally, is only 55. “I didn’t want to blindside her and I let her know it was coming,” Liebling said.
The DFLer was unable to secure the chief justice’s support for the bill, she said. Liebling thinks that might be, in part, because the chief justice has authority to rehire retired judges as so-called “senior judges” after age 70.
“The chief justice is going to pick the ones that she thinks are the best, so there is some benefit there,” Liebling said. “Of course, then she is getting to choose who gets to continue.”
Liebling said she has gotten resistance from other quarters, too, particularly from people who regard the mandatory retirement age as a safety valve for weeding out bad judges.
That makes no sense to Liebling. “If someone is a bad judge at 50, my goodness, are we going to wait until they are 70?” she said.
Liebling is the lone author on her bill, and has not asked anyone else to sign on—though she is looking for a senator to offer a companion bill. “It is something I think needs to be discussed and that we should be thinking about,” she said.
The bill was introduced and had its first reading in the House on Jan. 30. It was referred to the House Public Safety and Security Policy and Finance Committee.
Wetland mitigation: He hasn’t offered it just yet, but Rep. Bob Gunther, R-Fairmont, is working on a bill that he hopes will kick-start some stalled local road projects in Greater Minnesota.
The problem, Gunther said, is that upgrades or expansions to existing county, city and township road projects that damage wetlands cannot legally go forward unless other wetlands in the same vicinity are restored.
A state program to help deal with that, the Local Government Roads Wetland Replacement Program, is administered by the Minnesota Board of Water & Soil Resources. But it has its own problems. Last year it ran out of wetland acreage in several regions of the state where mitigation is already supposed to occur, according to the board’s Executive Director John Jaschke.
And because the board has been under-funded for years and never received the $5 million it was set to receive in the failed 2016 bonding bill, it lacks money to buy new watershed acreage that might replace wetlands eaten up by road work.
“Therefore, we have this conundrum where the state policy says to do it, but the money to do it is not there,” Jaschke said. “So there is this crisis, almost, in some people’s minds.”
Without the board’s assistance local governments must get their own permits and finance wetland mitigation alone, Jaschke said. That’s a tall order for cash-strapped local governments.
“Everybody wants roads,” Gunther said. “But here is the hitch—there will be no road building this spring because we have no wetland replacement acres.”
That’s where Gunther’s idea kicks in. The Legacy Funding Finance Committee chair’s anticipated bill would appropriate $15 million a year for the DNR to use however it wants—whether purchasing dedicated public lands for hunters and fisherman, financing asset preservation projects or maintaining parks and trails.
The catch is that the DNR would have to turn over 5 percent of that allocation to the Board of Water and Soil Resources every year, thus providing a reliable funding source for the Local Government Roads Wetland Replacement Program.
There are many details to be worked out, Jaschke said, and without a bill in hand it is hard to assess the plan. Nonetheless, he thinks Gunther may be onto something. “It sounds like an idea that we should pay attention to,” Jaschke said.
