HF 455

1st Unofficial Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

1.1A bill for an act

1.2relating to public defense; updating and clarifying public defense provisions of
1.3law; modifying right to representation by the public defender; requiring the state
1.4public defender to supervise the statewide public defender system; authorizing
1.5appointment of a chief appellate public defender; providing for representation
1.6by the chief appellate public defender; striking statutory language relating to
1.7public defender co-pays;amending Minnesota Statutes 2006, sections 270A.03,
1.8subdivision 5; 590.05; 611.14; 611.17, subdivision 1; 611.20, subdivision 6;
1.9611.215, subdivisions 1, 1a; 611.23; 611.24; 611.25, subdivision 1; 611.26,
1.10subdivisions 2, 7; 611.27, subdivisions 3, 13, 15; 611.35; repealing Minnesota
1.11Statutes 2006, section 611.20, subdivision 5.
1.12BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.13    Section 1. Minnesota Statutes 2006, section 270A.03, subdivision 5, is amended to
1.14read:
1.15    Subd. 5. Debt. "Debt" means a legal obligation of a natural person to pay a fixed
1.16and certain amount of money, which equals or exceeds $25 and which is due and payable
1.17to a claimant agency. The term includes criminal fines imposed under section 609.10 or
1.18609.125 , fines imposed for petty misdemeanors as defined in section 609.02, subdivision
1.194a , and restitution. The term also includes the co-payment for the appointment of a district
1.20public defender imposed under section 611.17, paragraph (c). A debt may arise under a
1.21contractual or statutory obligation, a court order, or other legal obligation, but need not
1.22have been reduced to judgment.
1.23    A debt includes any legal obligation of a current recipient of assistance which is
1.24based on overpayment of an assistance grant where that payment is based on a client
1.25waiver or an administrative or judicial finding of an intentional program violation;
1.26or where the debt is owed to a program wherein the debtor is not a client at the time
2.1notification is provided to initiate recovery under this chapter and the debtor is not a
2.2current recipient of food support, transitional child care, or transitional medical assistance.
2.3    A debt does not include any legal obligation to pay a claimant agency for medical
2.4care, including hospitalization if the income of the debtor at the time when the medical
2.5care was rendered does not exceed the following amount:
2.6    (1) for an unmarried debtor, an income of $8,800 or less;
2.7    (2) for a debtor with one dependent, an income of $11,270 or less;
2.8    (3) for a debtor with two dependents, an income of $13,330 or less;
2.9    (4) for a debtor with three dependents, an income of $15,120 or less;
2.10    (5) for a debtor with four dependents, an income of $15,950 or less; and
2.11    (6) for a debtor with five or more dependents, an income of $16,630 or less.
2.12    The income amounts in this subdivision shall be adjusted for inflation for debts
2.13incurred in calendar years 2001 and thereafter. The dollar amount of each income level
2.14that applied to debts incurred in the prior year shall be increased in the same manner
2.15as provided in section 1(f) of the Internal Revenue Code of 1986, as amended through
2.16December 31, 2000, except that for the purposes of this subdivision the percentage increase
2.17shall be determined from the year starting September 1, 1999, and ending August 31, 2000,
2.18as the base year for adjusting for inflation for debts incurred after December 31, 2000.
2.19    Debt also includes an agreement to pay a MinnesotaCare premium, regardless of the
2.20dollar amount of the premium authorized under section 256L.15, subdivision 1a.

2.21    Sec. 2. Minnesota Statutes 2006, section 590.05, is amended to read:
2.22590.05 INDIGENT PETITIONERS.
2.23    A person financially unable to obtain counsel who desires to pursue the remedy
2.24provided in section 590.01 may apply for representation by the state public defender.
2.25The state public defender shall represent such person under the applicable provisions
2.26of sections 611.14 to 611.27, if the person has not already had a direct appeal of the
2.27conviction. If, however, the person pled guilty and received a presumptive sentence or a
2.28downward departure in sentence, and the state public defender reviewed the person's case
2.29and determined that there was no basis for an appeal of the conviction or of the sentence,
2.30then the state public defender may decline to represent the person in a postconviction
2.31remedy case. The state public defender may represent, without charge, all other persons
2.32pursuing a postconviction remedy under section 590.01, who are financially unable
2.33to obtain counsel.

3.1    Sec. 3. Minnesota Statutes 2006, section 611.14, is amended to read:
3.2611.14 RIGHT TO REPRESENTATION BY PUBLIC DEFENDER.
3.3    The following persons who are financially unable to obtain counsel are entitled to be
3.4represented by a public defender:
3.5    (1) a person charged with a felony, gross misdemeanor, or misdemeanor including a
3.6person charged under sections 629.01 to 629.29;
3.7    (2) a person appealing from a conviction of a felony or gross misdemeanor, or
3.8a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction
3.9proceeding and who has not already had a direct appeal of the conviction, but if the person
3.10pled guilty and received a presumptive sentence or a downward departure in sentence,
3.11and the state public defender reviewed the person's case and determined that there was no
3.12basis for an appeal of the conviction or of the sentence, then the state public defender may
3.13decline to represent the person in a postconviction remedy case;
3.14    (3) a person who is entitled to be represented by counsel under section 609.14,
3.15subdivision 2 ; or
3.16    (4) a minor ten years of age or older who is entitled to be represented by counsel
3.17under section 260B.163, subdivision 4, or 260C.163, subdivision 3.

3.18    Sec. 4. Minnesota Statutes 2006, section 611.17, subdivision 1, is amended to read:
3.19    Subdivision 1. Standards for district public defense eligibility. (a) Each judicial
3.20district must screen requests for representation by the district public defender. A defendant
3.21is financially unable to obtain counsel if:
3.22    (1) the defendant, or any dependent of the defendant who resides in the same
3.23household as the defendant, receives means-tested governmental benefits; or
3.24    (2) the defendant, through any combination of liquid assets and current income,
3.25would be unable to pay the reasonable costs charged by private counsel in that judicial
3.26district for a defense of the same matter.
3.27    (b) Upon a request for the appointment of counsel, the court shall make appropriate
3.28inquiry into the financial circumstances of the applicant, who shall submit a financial
3.29statement under oath or affirmation setting forth the applicant's assets and liabilities,
3.30including the value of any real property owned by the applicant, whether homestead or
3.31otherwise, less the amount of any encumbrances on the real property, the source or sources
3.32of income, and any other information required by the court. The applicant shall be under
3.33a continuing duty while represented by a public defender to disclose any changes in the
3.34applicant's financial circumstances that might be relevant to the applicant's eligibility for a
3.35public defender. The state public defender shall furnish appropriate forms for the financial
4.1statements. The forms must contain conspicuous notice of the applicant's continuing duty
4.2to disclose to the court changes in the applicant's financial circumstances. The forms must
4.3also contain conspicuous notice of the applicant's obligation to make a co-payment for the
4.4services of the district public defender, as specified under paragraph (c). The information
4.5contained in the statement shall be confidential and for the exclusive use of the court
4.6and the public defender appointed by the court to represent the applicant except for any
4.7prosecution under section 609.48. A refusal to execute the financial statement or produce
4.8financial records constitutes a waiver of the right to the appointment of a public defender.
4.9The court shall not appoint a district public defender to a defendant who is financially able
4.10to retain private counsel but refuses to do so.
4.11    An inquiry to determine financial eligibility of a defendant for the appointment of
4.12the district public defender shall be made whenever possible prior to the court appearance
4.13and by such persons as the court may direct. This inquiry may be combined with the
4.14prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
4.15subdivision 3 . In no case shall the district public defender be required to perform this
4.16inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
4.17conduct a financial inquiry. The inquiry must include the following:
4.18    (1) the liquidity of real estate assets, including the defendant's homestead;
4.19    (2) any assets that can be readily converted to cash or used to secure a debt;
4.20    (3) the determination of whether the transfer of an asset is voidable as a fraudulent
4.21conveyance; and
4.22    (4) the value of all property transfers occurring on or after the date of the alleged
4.23offense. The burden is on the accused to show that he or she is financially unable to afford
4.24counsel. Defendants who fail to provide information necessary to determine eligibility
4.25shall be deemed ineligible. The court must not appoint the district public defender as
4.26advisory counsel.
4.27    (c) Upon appointment of the public defender, an individual who receives public
4.28defender services shall be obligated to pay to the court a co-payment for representation
4.29provided by a public defender. The co-payment shall be according to the following
4.30schedule:
4.31    (1) if the person was charged with a felony, $200;
4.32    (2) if the person was charged with a gross misdemeanor, $100; or
4.33    (3) if the person was charged with a misdemeanor, $50.
4.34    If the person is a child and was appointed counsel under the provisions of section
4.35260B.163, subdivision 4, the parents of the child shall pay to the court a co-payment of
4.36$100. If the person is a parent of a child and the parent was appointed counsel under
5.1the provisions of section 260C.163, subdivision 3, the parent shall pay to the court a
5.2co-payment of $200.
5.3    If a term of probation is imposed as a part of an offender's sentence, the co-payment
5.4required by this section must not be made a condition of probation. The co-payment
5.5required by this section is a civil obligation and must not be made a condition of a criminal
5.6sentence. Collection of the co-payment may be made through the provisions of chapter
5.7270A, the Revenue Recapture Act.
5.8    (d) All public defender co-pay revenue collected under paragraph (c) and revenues
5.9less statutory fees collected under chapter 270A shall be deposited in the public defender
5.10co-pay account in the special revenue fund.
5.11    The first $2,740,000 deposited in the public defender co-pay account must be
5.12transferred to the general fund. This is not an annual transfer. Receipts in excess of the first
5.13$2,740,000 are appropriated to the Board of Public Defense for public defender services.
5.14    (c) Upon disposition of the case, an individual who has received public defender
5.15services shall pay to the court a $28 co-payment for representation provided by a public
5.16defender, unless the co-payment is, or has been, waived by the court.
5.17    The co-payment must be credited to the general fund. If a term of probation is
5.18imposed as a part of an offender's sentence, the co-payment required by this section must
5.19not be made a condition of probation. The co-payment required by this section is a civil
5.20obligation and must not be made a condition of a criminal sentence.

5.21    Sec. 5. Minnesota Statutes 2006, section 611.20, subdivision 6, is amended to read:
5.22    Subd. 6. Reimbursement schedule guidelines. In determining a defendant's
5.23reimbursement schedule, the court may derive a specific dollar amount per month
5.24by multiplying the defendant's net income by the percent indicated by the following
5.25guidelines:

5.26 5.27	Net Income Per Month of Defendant		Number of Dependents Not Including Defendant
5.28 5.29			4 or more		3		2		1		0
5.30 5.31	$200 and Below		Percentage based on the ability of the defendant to pay as determined by the court.
5.32	$200 - 350		8%		9.5%		11%		12.5%		14%
5.33	$351 - 500		9%		11%		12.5%		14%		15%
5.34	$501 - 650		10%		12%		14%		15%		17%
5.35	$651 - 800		11%		13.5%		15.5%		17%		19%
5.36	$801 and above		12%		14.5%		17%		19%		20%

5.37    "Net income" shall have the meaning given it in section 518.551, subdivision 5.

6.1    Sec. 6. Minnesota Statutes 2006, section 611.215, subdivision 1, is amended to read:
6.2    Subdivision 1. Structure; membership. (a) The State Board of Public Defense
6.3is a part of, but is not subject to the administrative control of, the judicial branch of
6.4government. The State Board of Public Defense shall consist of seven members including:
6.5    (1) four attorneys admitted to the practice of law, well acquainted with the defense
6.6of persons accused of crime, but not employed as prosecutors, appointed by the Supreme
6.7Court; and
6.8    (2) three public members appointed by the governor.
6.9    After the expiration of the terms of persons appointed to the board before March
6.101, 1991, The appointing authorities may not appoint a person who is a judge to be a
6.11member of the State Board of Public Defense, other than as a member of the ad hoc
6.12Board of Public Defense.
6.13    (b) All members shall demonstrate an interest in maintaining a high quality,
6.14independent defense system for those who are unable to obtain adequate representation.
6.15Appointments to the board shall include qualified women and members of minority
6.16groups. At least three members of the board shall be from judicial districts other than the
6.17First, Second, Fourth, and Tenth Judicial Districts. The terms, compensation, and removal
6.18of members shall be as provided in section 15.0575. The chair shall be elected by the
6.19members from among the membership for a term of two years.
6.20    (c) In addition, the State Board of Public Defense shall consist of a nine-member ad
6.21hoc board when considering the appointment of district public defenders under section
6.22611.26, subdivision 2 . The terms of chief district public defenders currently serving shall
6.23terminate in accordance with the staggered term schedule set forth in section 611.26,
6.24subdivision 2 .

6.25    Sec. 7. Minnesota Statutes 2006, section 611.215, subdivision 1a, is amended to read:
6.26    Subd. 1a. Chief administrator. The State Board of Public Defense, with the advice
6.27of the state public defender, shall appoint a chief administrator who must be chosen
6.28solely on the basis of training, experience, and other qualifications, and who will serve
6.29at the pleasure of the state public defender State Board of Public Defense. The chief
6.30administrator need not be licensed to practice law. The chief administrator shall attend all
6.31meetings of the board, but may not vote, and shall:
6.32    (1) enforce all resolutions, rules, regulations, or orders of the board;
6.33    (2) present to the board and the state public defender plans, studies, and reports
6.34prepared for the board's and the state public defender's purposes and recommend to the
6.35board and the state public defender for adoption measures necessary to enforce or carry
7.1out the powers and duties of the board and the state public defender, or to efficiently
7.2administer the affairs of the board and the state public defender;
7.3    (3) keep the board fully advised as to its financial condition, and prepare and submit
7.4to the board its annual budget and other financial information as it may request;
7.5    (4) recommend to the board the adoption of rules and regulations necessary for the
7.6efficient operation of the board and its functions; and
7.7    (5) perform other duties prescribed by the board and the state public defender.

7.8    Sec. 8. Minnesota Statutes 2006, section 611.23, is amended to read:
7.9611.23 OFFICE OF STATE PUBLIC DEFENDER; APPOINTMENT;
7.10SALARY.
7.11    The state public defender is responsible to the State Board of Public Defense. The
7.12state public defender shall supervise the operation, activities, policies, and procedures
7.13of the statewide public defender system. When requested by a district public defender
7.14or appointed counsel, the state public defender may assist the district public defender,
7.15appointed counsel, or an organization designated in section 611.216 in the performance
7.16of duties, including trial representation in matters involving legal conflicts of interest or
7.17other special circumstances, and assistance with legal research and brief preparation.
7.18The state public defender shall be appointed by the State Board of Public Defense for a
7.19term of four years, except as otherwise provided in this section, and until a successor is
7.20appointed and qualified. The state public defender shall be a full-time qualified attorney,
7.21licensed to practice law in this state, serve in the unclassified service of the state, and
7.22be removed only for cause by the appointing authority. Vacancies in the office shall be
7.23filled by the appointing authority for the unexpired term. The salary of the state public
7.24defender shall be fixed by the State Board of Public Defense but must not exceed the
7.25salary of a district court judge. Terms of the state public defender shall commence on July
7.261. The state public defender shall devote full time to the performance of duties and shall
7.27not engage in the general practice of law.

7.28    Sec. 9. Minnesota Statutes 2006, section 611.24, is amended to read:
7.29611.24 CHIEF APPELLATE PUBLIC DEFENDER; ORGANIZATION OF
7.30OFFICE; ASSISTANTS.
7.31    The state public defender shall supervise the operation, activities, policies and
7.32procedures of the state public defender system. The state public defender shall employ or
7.33retain assistant state public defenders, a chief administrator, a deputy state (a) Beginning
7.34January 1, 2007, and for every four years after that date, the State Board of Public Defense
8.1shall appoint a chief appellate public defender in charge of appellate services, who shall
8.2employ or retain assistant state public defenders and other personnel as may be necessary
8.3to discharge the functions of the office. The chief appellate public defender shall serve a
8.4four-year term and may be removed only for cause upon the order of the State Board of
8.5Public Defense. The chief appellate public defender shall be a full-time qualified attorney,
8.6licensed to practice law in this state, and serve in the unclassified service of the state.
8.7Vacancies in the office shall be filled by the appointing authority for the unexpired term.
8.8    (b) An assistant state public defender shall be a qualified attorney, licensed to
8.9practice law in this state, serve in the unclassified service of the state if employed, and
8.10serve at the pleasure of the appointing authority at a salary or retainer fee not to exceed
8.11reasonable compensation for comparable services performed for other governmental
8.12agencies or departments. Retained or part-time employed assistant state public defenders
8.13may engage in the general practice of law. The compensation of the chief appellate public
8.14defender and the compensation of each assistant state public defender shall be set by the
8.15State Board of Public Defense. The chief appellate public defender shall devote full time
8.16to the performance of duties and shall not engage in the general practice of law.
8.17    (c) The incumbent deputy state public defender as of December 31, 2006, shall be
8.18appointed as the chief appellate public defender for the four-year term beginning on
8.19January 1, 2007.

8.20    Sec. 10. Minnesota Statutes 2006, section 611.25, subdivision 1, is amended to read:
8.21    Subdivision 1. Representation. (a) The state chief appellate public defender shall
8.22represent, without charge:
8.23    (1) a defendant or other person appealing from a conviction of a felony or gross
8.24misdemeanor;
8.25    (2) a person convicted of a felony or gross misdemeanor who is pursuing a
8.26postconviction proceeding and who has not already had a direct appeal of the conviction,
8.27but if the person pled guilty and received a presumptive sentence or a downward departure
8.28in sentence, and the state public defender reviewed the person's case and determined that
8.29there was no basis for an appeal of the conviction or of the sentence, then the state public
8.30defender may decline to represent the person in a postconviction remedy case; and
8.31    (3) a child who is appealing from a delinquency adjudication or from an extended
8.32jurisdiction juvenile conviction.
8.33    (b) The state chief appellate public defender may represent, without charge, all other
8.34persons pursuing a postconviction remedy under section 590.01, who are financially
8.35unable to obtain counsel.
9.1    (c) The state public defender shall represent any other person, who is financially
9.2unable to obtain counsel, when directed to do so by the Supreme Court or the Court of
9.3Appeals, except that The state chief appellate public defender shall not represent a person
9.4in any action or proceeding in which a party is seeking a monetary judgment, recovery or
9.5award. When requested by a district public defender or appointed counsel, the state public
9.6defender may assist the district public defender, appointed counsel, or an organization
9.7designated in section 611.216 in the performance of duties, including trial representation in
9.8matters involving legal conflicts of interest or other special circumstances, and assistance
9.9with legal research and brief preparation. When the state public defender is directed by a
9.10court to represent a defendant or other person, the state public defender may assign the
9.11representation to any district public defender.

9.12    Sec. 11. Minnesota Statutes 2006, section 611.26, subdivision 2, is amended to read:
9.13    Subd. 2. Appointment; terms. The state Board of Public Defense shall appoint a
9.14chief district public defender for each judicial district. When appointing a chief district
9.15public defender, the state Board of Public Defense membership shall be increased to
9.16include two residents of the district appointed by the chief judge of the district to reflect
9.17the characteristics of the population served by the public defender in that district. The
9.18additional members shall serve only in the capacity of selecting the district public
9.19defender. The ad hoc state Board of Public Defense shall appoint a chief district public
9.20defender only after requesting and giving reasonable time to receive any recommendations
9.21from the public, the local bar association, and the judges of the district. Each chief district
9.22public defender shall be a qualified attorney licensed to practice law in this state. The chief
9.23district public defender shall be appointed for a term of four years, beginning January 1,
9.24pursuant to the following staggered term schedule: (1) in 2000 2008, the second and
9.25eighth districts; (2) in 2001 2009, the first, third, fourth, and tenth districts; (3) in 2002
9.262010, the fifth and ninth districts; and (4) in 1999 2011, the sixth and seventh districts.
9.27The chief district public defenders shall serve for four-year terms and may be removed for
9.28cause upon the order of the state Board of Public Defense. Vacancies in the office shall
9.29be filled by the appointing authority for the unexpired term. The chief district public
9.30defenders shall devote full time to the performance of duties and shall not engage in the
9.31general practice of law.

9.32    Sec. 12. Minnesota Statutes 2006, section 611.26, subdivision 7, is amended to read:
10.1    Subd. 7. Other employment. Chief district public defenders and Assistant district
10.2public defenders may engage in the general practice of law where not employed on a
10.3full-time basis.

10.4    Sec. 13. Minnesota Statutes 2006, section 611.27, subdivision 3, is amended to read:
10.5    Subd. 3. Transcript use. If the state chief appellate public defender or a district
10.6public defender deems it necessary to make a motion for a new trial, to take an appeal,
10.7or other postconviction proceedings in order to properly represent a defendant or other
10.8person whom that public defender had been directed to represent, that public defender
10.9may use the transcripts of the testimony and other proceedings filed with the court
10.10administrator of the district court as provided by section 243.49.

10.11    Sec. 14. Minnesota Statutes 2006, section 611.27, subdivision 13, is amended to read:
10.12    Subd. 13. Public defense services; correctional facility inmates. All billings for
10.13services rendered and ordered under subdivision 7 shall require the approval of the chief
10.14district public defender before being forwarded on a monthly basis to the state public
10.15defender. In cases where adequate representation cannot be provided by the district public
10.16defender and where counsel has been appointed under a court order, the state public
10.17defender shall forward to the commissioner of finance all billings for services rendered
10.18under the court order. The commissioner shall pay for services from county criminal
10.19justice aid retained by the commissioner of revenue for that purpose under section
10.20477A.0121, subdivision 4, or from county program aid retained by the commissioner of
10.21revenue for that purpose under section 477A.0124, subdivision 1, clause (4), or 477A.03,
10.22subdivision 2b , paragraph (a).
10.23    The costs of appointed counsel and associated services in cases arising from new
10.24criminal charges brought against indigent inmates who are incarcerated in a Minnesota
10.25state correctional facility are the responsibility of the state Board of Public Defense. In
10.26such cases the state public defender may follow the procedures outlined in this section for
10.27obtaining court-ordered counsel.

10.28    Sec. 15. Minnesota Statutes 2006, section 611.27, subdivision 15, is amended to read:
10.29    Subd. 15. Costs of transcripts. In appeal cases and postconviction cases where the
10.30state appellate public defender's office does not have sufficient funds to pay for transcripts
10.31and other necessary expenses because it has spent or committed all of the transcript funds
10.32in its annual budget, the state public defender may forward to the commissioner of finance
10.33all billings for transcripts and other necessary expenses. The commissioner shall pay for
11.1these transcripts and other necessary expenses from county criminal justice aid retained
11.2by the commissioner of revenue under section 477A.0121, subdivision 4, or from county
11.3program aid retained by the commissioner of revenue for that purpose under section
11.4477A.0124, subdivision 1 , clause (4), or 477A.03, subdivision 2b, paragraph (a).

11.5    Sec. 16. Minnesota Statutes 2006, section 611.35, is amended to read:
11.6611.35 REIMBURSEMENT OF PUBLIC DEFENDER AND APPOINTIVE
11.7APPOINTED COUNSEL.
11.8    Subdivision 1. Reimbursement; civil obligation. Any person who is represented
11.9by a public defender or appointive appointed counsel shall, if financially able to pay,
11.10reimburse the governmental unit chargeable with the compensation of such public
11.11defender or appointive appointed counsel for the actual costs to the governmental unit in
11.12providing the services of the public defender or appointive appointed counsel. The court in
11.13hearing such matter shall ascertain the amount of such costs to be charged to the defendant
11.14and shall direct reimbursement over a period of not to exceed six months, unless the court
11.15for good cause shown shall extend the period of reimbursement. If a term of probation is
11.16imposed as a part of a sentence, reimbursement of costs as required by this chapter must
11.17not be made a condition of probation. Reimbursement of costs as required by this chapter
11.18is a civil obligation and must not be made a condition of a criminal sentence.
11.19    Subd. 2. Civil action. The county attorney may commence a civil action to recover
11.20such cost remaining unpaid at the expiration of six months unless the court has extended
11.21the reimbursement period and shall, if it appears that such recipient of public defender or
11.22appointive appointed counsel services is about to leave the jurisdiction of the court or sell
11.23or otherwise dispose of assets out of which reimbursement may be obtained, commence
11.24such action forthwith. The county attorney may compromise and settle any claim for
11.25reimbursement with the approval of the court which heard the matter. No determination or
11.26action shall be taken later than two years after the termination of the duties of the public
11.27defender or appointive appointed counsel.

11.28    Sec. 17. REPEALER.
11.29Minnesota Statutes 2006, section 611.20, subdivision 5, is repealed.