Text of MN SF 2860 (2010)

S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] A bill for an act 1.1 relating to judicial proceedings; providing for wrongful death actions by domestic 1.2 partners; establishing a witness privilege and crime victim rights for domestic 1.3 partners; amending Minnesota Statutes 2008, sections 3.736, subdivision 6; 1.4 466.05, subdivision 2; 573.02, subdivisions 1, 3; 595.02, subdivision 1; 611A.01; 1.5 611A.036, subdivision 2; 611A.52, subdivision 8. 1.6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.7 Section 1. Minnesota Statutes 2008, section 3.736, subdivision 6, is amended to read: 1.8 Subd. 6. Claims for wrongful death; notice. (a) When the claim is one for death 1.9 by wrongful act or omission, the notice may be presented by the personal representative, 1.10 surviving spouse or surviving domestic partner, or next of kin, or the consular officer of 1.11 the foreign country of which the deceased was a citizen, within one year after the alleged 1.12 injury or loss resulting in the death. If the person for whose death the claim is made has 1.13 presented a notice that would have been sufficient had the person lived, an action for 1.14 wrongful death may be brought without additional notice. 1.15 (b) For purposes of this subdivision, "domestic partner" has the meaning given in 1.16 section 611A.01, paragraph (d). 1.17 Sec. 2. Minnesota Statutes 2008, section 466.05, subdivision 2, is amended to read: 1.18 Subd. 2. Claims for wrongful death; notice. (a) When the claim is one for death 1.19 by wrongful act or omission, the notice may be presented by the personal representative, 1.20 surviving spouse or surviving domestic partner, or next of kin, or the consular officer of 1.21 the foreign country of which the deceased was a citizen, within one year after the alleged 1.22 injury or loss resulting in such death; if the person for whose death the claim is made has 1.23 Sec. 2. 1 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] presented a notice that would have been sufficient had the person lived an action for 2.1 wrongful death may be brought without any additional notice. 2.2 (b) For purposes of this subdivision, "domestic partner" has the meaning given in 2.3 section 611A.01, paragraph (d). 2.4 Sec. 3. Minnesota Statutes 2008, section 573.02, subdivision 1, is amended to read: 2.5 Subdivision 1. Death action. (a) When death is caused by the wrongful act or 2.6 omission of any person or corporation, the trustee appointed as provided in subdivision 3 2.7 may maintain an action therefor if the decedent might have maintained an action, had the 2.8 decedent lived, for an injury caused by the wrongful act or omission. An action to recover 2.9 damages for a death caused by the alleged professional negligence of a physician, surgeon, 2.10 dentist, hospital or sanitarium, or an employee of a physician, surgeon, dentist, hospital or 2.11 sanitarium shall be commenced within three years of the date of death, but in no event 2.12 shall be commenced beyond the time set forth in section 541.076. An action to recover 2.13 damages for a death caused by an intentional act constituting murder may be commenced 2.14 at any time after the death of the decedent. Any other action under this section may be 2.15 commenced within three years after the date of death provided that the action must be 2.16 commenced within six years after the act or omission. The recovery in the action is the 2.17 amount the jury deems fair and just in reference to the pecuniary loss resulting from the 2.18 death, and shall be for the exclusive benefit of the surviving spouse or surviving domestic 2.19 partner and next of kin, proportionate to the pecuniary loss severally suffered by the death. 2.20 The court then determines the proportionate pecuniary loss of the persons entitled to the 2.21 recovery and orders distribution accordingly. Funeral expenses and any demand for the 2.22 support of the decedent allowed by the court having jurisdiction of the action, are first 2.23 deducted and paid. Punitive damages may be awarded as provided in section 549.20. 2.24 (b) If an action for the injury was commenced by the decedent and not finally 2.25 determined while living, it may be continued by the trustee for recovery of damages for 2.26 the exclusive benefit of the surviving spouse or surviving domestic partner and next of 2.27 kin, proportionate to the pecuniary loss severally suffered by the death. The court on 2.28 motion shall make an order allowing the continuance and directing pleadings to be made 2.29 and issues framed as in actions begun under this section. 2.30 (c) For purposes of this section, "domestic partner" has the meaning given in section 2.31 611A.01, paragraph (d). 2.32 Sec. 4. Minnesota Statutes 2008, section 573.02, subdivision 3, is amended to read: 2.33 Sec. 4. 2 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] Subd. 3. Trustee for action. Upon written petition by the surviving spouse or 3.1 surviving domestic partner or one of the next of kin, the court having jurisdiction of an 3.2 action falling within the provisions of subdivisions 1 or 2, shall appoint a suitable and 3.3 competent person as trustee to commence or continue such action and obtain recovery 3.4 of damages therein. The trustee, before commencing duties shall file a consent and oath. 3.5 Before receiving any money, the trustee shall file a bond as security therefor in such form 3.6 and with such sureties as the court may require. 3.7 Sec. 5. Minnesota Statutes 2008, section 595.02, subdivision 1, is amended to read: 3.8 Subdivision 1. Competency of witnesses. Every person of sufficient understanding, 3.9 including a party, may testify in any action or proceeding, civil or criminal, in court or 3.10 before any person who has authority to receive evidence, except as provided in this 3.11 subdivision: 3.12 (a) A husband person cannot be examined for or against his wife the person's spouse 3.13 or domestic partner without her the consent, nor a wife for or against her husband without 3.14 his consent of the spouse or domestic partner, nor can either, during the marriage or 3.15 domestic partnership or afterwards, without the consent of the other, be examined as to 3.16 any communication made by one to the other during the marriage or domestic partnership. 3.17 This exception does not apply to a civil action or proceeding by one against the other, nor 3.18 to a criminal action or proceeding for a crime committed by one against the other or against 3.19 a child of either or against a child under the care of either spouse or domestic partner, nor 3.20 to a criminal action or proceeding in which one is charged with homicide or an attempt 3.21 to commit homicide and the date of the marriage of the defendant or existence of the 3.22 domestic partnership is subsequent to the date of the offense, nor to an action or proceeding 3.23 for nonsupport, neglect, dependency, or termination of parental rights. For purposes of 3.24 this section, "domestic partner" has the meaning given in section 611A.01, paragraph (d). 3.25 (b) An attorney cannot, without the consent of the attorney's client, be examined as 3.26 to any communication made by the client to the attorney or the attorney's advice given 3.27 thereon in the course of professional duty; nor can any employee of the attorney be 3.28 examined as to the communication or advice, without the client's consent. 3.29 (c) A member of the clergy or other minister of any religion shall not, without the 3.30 consent of the party making the confession, be allowed to disclose a confession made to 3.31 the member of the clergy or other minister in a professional character, in the course of 3.32 discipline enjoined by the rules or practice of the religious body to which the member of 3.33 the clergy or other minister belongs; nor shall a member of the clergy or other minister of 3.34 any religion be examined as to any communication made to the member of the clergy or 3.35 Sec. 5. 3 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] other minister by any person seeking religious or spiritual advice, aid, or comfort or advice 4.1 given thereon in the course of the member of the clergy's or other minister's professional 4.2 character, without the consent of the person. 4.3 (d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the 4.4 consent of the patient, be allowed to disclose any information or any opinion based thereon 4.5 which the professional acquired in attending the patient in a professional capacity, and 4.6 which was necessary to enable the professional to act in that capacity; after the decease 4.7 of the patient, in an action to recover insurance benefits, where the insurance has been 4.8 in existence two years or more, the beneficiaries shall be deemed to be the personal 4.9 representatives of the deceased person for the purpose of waiving this privilege, and no 4.10 oral or written waiver of the privilege shall have any binding force or effect except when 4.11 made upon the trial or examination where the evidence is offered or received. 4.12 (e) A public officer shall not be allowed to disclose communications made to the 4.13 officer in official confidence when the public interest would suffer by the disclosure. 4.14 (f) Persons of unsound mind and persons intoxicated at the time of their production 4.15 for examination are not competent witnesses if they lack capacity to remember or to relate 4.16 truthfully facts respecting which they are examined. 4.17 (g) A registered nurse, psychologist, consulting psychologist, or licensed social 4.18 worker engaged in a psychological or social assessment or treatment of an individual 4.19 at the individual's request shall not, without the consent of the professional's client, be 4.20 allowed to disclose any information or opinion based thereon which the professional has 4.21 acquired in attending the client in a professional capacity, and which was necessary to 4.22 enable the professional to act in that capacity. Nothing in this clause exempts licensed 4.23 social workers from compliance with the provisions of sections 626.556 and 626.557. 4.24 (h) An interpreter for a person disabled in communication shall not, without the 4.25 consent of the person, be allowed to disclose any communication if the communication 4.26 would, if the interpreter were not present, be privileged. For purposes of this section, a 4.27 "person disabled in communication" means a person who, because of a hearing, speech 4.28 or other communication disorder, or because of the inability to speak or comprehend the 4.29 English language, is unable to understand the proceedings in which the person is required 4.30 to participate. The presence of an interpreter as an aid to communication does not destroy 4.31 an otherwise existing privilege. 4.32 (i) Licensed chemical dependency counselors shall not disclose information or 4.33 an opinion based on the information which they acquire from persons consulting them 4.34 in their professional capacities, and which was necessary to enable them to act in that 4.35 capacity, except that they may do so: 4.36 Sec. 5. 4 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] (1) when informed consent has been obtained in writing, except in those 5.1 circumstances in which not to do so would violate the law or would result in clear and 5.2 imminent danger to the client or others; 5.3 (2) when the communications reveal the contemplation or ongoing commission 5.4 of a crime; or 5.5 (3) when the consulting person waives the privilege by bringing suit or filing charges 5.6 against the licensed professional whom that person consulted. 5.7 (j) A parent or the parent's minor child may not be examined as to any communication 5.8 made in confidence by the minor to the minor's parent. A communication is confidential if 5.9 made out of the presence of persons not members of the child's immediate family living 5.10 in the same household. This exception may be waived by express consent to disclosure 5.11 by a parent entitled to claim the privilege or by the child who made the communication 5.12 or by failure of the child or parent to object when the contents of a communication are 5.13 demanded. This exception does not apply to a civil action or proceeding by one spouse 5.14 against the other or by a parent or child against the other, nor to a proceeding to commit 5.15 either the child or parent to whom the communication was made or to place the person or 5.16 property or either under the control of another because of an alleged mental or physical 5.17 condition, nor to a criminal action or proceeding in which the parent is charged with a 5.18 crime committed against the person or property of the communicating child, the parent's 5.19 spouse, or a child of either the parent or the parent's spouse, or in which a child is charged 5.20 with a crime or act of delinquency committed against the person or property of a parent 5.21 or a child of a parent, nor to an action or proceeding for termination of parental rights, 5.22 nor any other action or proceeding on a petition alleging child abuse, child neglect, 5.23 abandonment or nonsupport by a parent. 5.24 (k) Sexual assault counselors may not be allowed to disclose any opinion or 5.25 information received from or about the victim without the consent of the victim. However, 5.26 a counselor may be compelled to identify or disclose information in investigations or 5.27 proceedings related to neglect or termination of parental rights if the court determines good 5.28 cause exists. In determining whether to compel disclosure, the court shall weigh the public 5.29 interest and need for disclosure against the effect on the victim, the treatment relationship, 5.30 and the treatment services if disclosure occurs. Nothing in this clause exempts sexual 5.31 assault counselors from compliance with the provisions of sections 626.556 and 626.557. 5.32 "Sexual assault counselor" for the purpose of this section means a person who has 5.33 undergone at least 40 hours of crisis counseling training and works under the direction 5.34 of a supervisor in a crisis center, whose primary purpose is to render advice, counseling, 5.35 or assistance to victims of sexual assault. 5.36 Sec. 5. 5 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] (l) A domestic abuse advocate may not be compelled to disclose any opinion or 6.1 information received from or about the victim without the consent of the victim unless 6.2 ordered by the court. In determining whether to compel disclosure, the court shall weigh 6.3 the public interest and need for disclosure against the effect on the victim, the relationship 6.4 between the victim and domestic abuse advocate, and the services if disclosure occurs. 6.5 Nothing in this paragraph exempts domestic abuse advocates from compliance with the 6.6 provisions of sections 626.556 and 626.557. 6.7 For the purposes of this section, "domestic abuse advocate" means an employee or 6.8 supervised volunteer from a community-based battered women's shelter and domestic 6.9 abuse program eligible to receive grants under section 611A.32; that provides information, 6.10 advocacy, crisis intervention, emergency shelter, or support to victims of domestic abuse 6.11 and who is not employed by or under the direct supervision of a law enforcement agency, 6.12 a prosecutor's office, or by a city, county, or state agency. 6.13 (m) A person cannot be examined as to any communication or document, including 6.14 worknotes, made or used in the course of or because of mediation pursuant to an 6.15 agreement to mediate. This does not apply to the parties in the dispute in an application 6.16 to a court by a party to have a mediated settlement agreement set aside or reformed. 6.17 A communication or document otherwise not privileged does not become privileged 6.18 because of this paragraph. This paragraph is not intended to limit the privilege accorded 6.19 to communication during mediation by the common law. 6.20 (n) A child under ten years of age is a competent witness unless the court finds that 6.21 the child lacks the capacity to remember or to relate truthfully facts respecting which the 6.22 child is examined. A child describing any act or event may use language appropriate for 6.23 a child of that age. 6.24 (o) A communication assistant for a telecommunications relay system for 6.25 communication-impaired persons shall not, without the consent of the person making the 6.26 communication, be allowed to disclose communications made to the communication 6.27 assistant for the purpose of relaying. 6.28 Sec. 6. Minnesota Statutes 2008, section 611A.01, is amended to read: 6.29 611A.01 DEFINITIONS. 6.30 For the purposes of sections 611A.01 to 611A.06: 6.31 (a) "Crime" means conduct that is prohibited by local ordinance and results in bodily 6.32 harm to an individual; or conduct that is included within the definition of "crime" in 6.33 section 609.02, subdivision 1, or would be included within that definition but for the fact 6.34 Sec. 6. 6 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] that (1) the person engaging in the conduct lacked capacity to commit the crime under the 7.1 laws of this state, or (2) the act was alleged or found to have been committed by a juvenile. 7.2 (b) "Victim" means a natural person who incurs loss or harm as a result of a crime, 7.3 including a good faith effort to prevent a crime, and for purposes of sections 611A.04 7.4 and 611A.045, also includes (1) a corporation that incurs loss or harm as a result of a 7.5 crime, (2) a government entity that incurs loss or harm as a result of a crime, and (3) any 7.6 other entity authorized to receive restitution under section 609.10 or 609.125. The term 7.7 "victim" includes the family members, guardian, or custodian of a minor, incompetent, 7.8 incapacitated, or deceased person. "Family members" includes a domestic partner. In a 7.9 case where the prosecutor finds that the number of family members makes it impracticable 7.10 to accord all of the family members the rights described in sections 611A.02 to 611A.0395, 7.11 the prosecutor shall establish a reasonable procedure to give effect to those rights. The 7.12 procedure may not limit the number of victim impact statements submitted to the court 7.13 under section 611A.038. The term "victim" does not include the person charged with 7.14 or alleged to have committed the crime. 7.15 (c) "Juvenile" has the same meaning as given to the term "child" in section 7.16 260B.007, subdivision 3. 7.17 (d) "Domestic partners" means two persons who: 7.18 (1) are the same sex; 7.19 (2) are adults and mentally competent to enter into legally binding contracts; 7.20 (3) have assumed responsibility for each other's basic common welfare, financial 7.21 obligations, and well-being; 7.22 (4) share a common domicile and primary residence with each other on a permanent 7.23 basis; 7.24 (5) have a committed interdependent relationship with each other, intend to continue 7.25 that relationship indefinitely, and do not have this type of relationship with any other 7.26 person; 7.27 (6) are not married to another person and have not entered into a domestic 7.28 partnership arrangement with another person that is currently in effect; and 7.29 (7) are not related by blood or adoption so that a marriage between them would be 7.30 prohibited under section 517.03, subdivision 1, paragraph (a), clause (2) or (3). 7.31 Sec. 7. Minnesota Statutes 2008, section 611A.036, subdivision 2, is amended to read: 7.32 Subd. 2. Victim's spouse, domestic partner, or immediate family members. An 7.33 employer must allow a victim of a violent crime, as well as the victim's spouse, domestic 7.34 Sec. 7. 7 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] partner, or immediate family members, reasonable time off from work to attend criminal 8.1 proceedings related to the victim's case. 8.2 Sec. 8. Minnesota Statutes 2008, section 611A.52, subdivision 8, is amended to read: 8.3 Subd. 8. Economic loss. (a) "Economic loss" means actual economic detriment 8.4 incurred as a direct result of injury or death. 8.5 (b) In the case of injury the term is limited to: 8.6 (1) reasonable expenses incurred for necessary medical, chiropractic, hospital, 8.7 rehabilitative, and dental products, services, or accommodations, including ambulance 8.8 services, drugs, appliances, and prosthetic devices; 8.9 (2) reasonable expenses associated with recreational therapy where a claimant has 8.10 suffered amputation of a limb; 8.11 (3) reasonable expenses incurred for psychological or psychiatric products, services, 8.12 or accommodations, not to exceed an amount to be set by the board, where the nature of 8.13 the injury or the circumstances of the crime are such that the treatment is necessary to 8.14 the rehabilitation of the victim; 8.15 (4) loss of income that the victim would have earned had the victim not been injured; 8.16 (5) reasonable expenses incurred for substitute child care or household services to 8.17 replace those the victim or claimant would have performed had the victim or the claimant's 8.18 child not been injured. As used in this clause, "child care services" means services 8.19 provided by facilities licensed under and in compliance with either Minnesota Rules, 8.20 parts 9502.0315 to 9502.0445, or 9545.0510 to 9545.0670, or exempted from licensing 8.21 requirements pursuant to section 245A.03. Licensed facilities must be paid at a rate not to 8.22 exceed their standard rate of payment. Facilities exempted from licensing requirements 8.23 must be paid at a rate not to exceed $3 an hour per child for daytime child care or $4 8.24 an hour per child for evening child care; 8.25 (6) reasonable expenses actually incurred to return a child who was a victim of a 8.26 crime under section 609.25 or 609.26 to the child's parents or lawful custodian. These 8.27 expenses are limited to transportation costs, meals, and lodging from the time the child 8.28 was located until the child was returned home; and 8.29 (7) the claimant's moving expenses, storage fees, and phone and utility installation 8.30 fees, up to a maximum of $1,000 per claim, if the move is necessary due to a reasonable 8.31 fear of danger related to the crime for which the claim was filed. 8.32 (c) In the case of death the term is limited to: 8.33 (1) reasonable expenses actually incurred for funeral, burial, or cremation, not to 8.34 exceed an amount to be determined by the board on the first day of each fiscal year; 8.35 Sec. 8. 8 S.F. No. 2860, as introduced - 86th Legislative Session (2009-2010) [10-5409] (2) reasonable expenses for medical, chiropractic, hospital, rehabilitative, 9.1 psychological and psychiatric services, products or accommodations which were incurred 9.2 prior to the victim's death and for which the victim's survivors or estate are liable; 9.3 (3) loss of support, including contributions of money, products or goods, but 9.4 excluding services which the victim would have supplied to dependents if the victim 9.5 had lived; and 9.6 (4) reasonable expenses incurred for substitute child care and household services 9.7 to replace those which the victim or claimant would have performed for the benefit of 9.8 dependents if the victim or the claimant's child had lived. 9.9 Claims for loss of support for minor children made under clause (3) must be paid for 9.10 three years or until the child reaches 18 years old, whichever is the shorter period. After 9.11 three years, if the child is younger than 18 years old a claim for loss of support may be 9.12 resubmitted to the board, and the board staff shall evaluate the claim giving consideration 9.13 to the child's financial need and to the availability of funds to the board. Claims for loss of 9.14 support for a spouse or domestic partner, as defined in section 611A.01, made under clause 9.15 (3) shall also be reviewed at least once every three years. The board staff shall evaluate 9.16 the claim giving consideration to the spouse's or domestic partner's financial need and 9.17 to the availability of funds to the board. 9.18 Claims for substitute child care services made under clause (4) must be limited to 9.19 the actual care that the deceased victim would have provided to enable surviving family 9.20 members to pursue economic, educational, and other activities other than recreational 9.21 activities. 9.22 Sec. 8. 9