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HF 3135

as introduced - 86th Legislature (2009 - 2010) Posted on 02/22/2010 11:56am

KEY: stricken = removed, old language.
underscored = added, new language.
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A bill for an act
relating to judicial proceedings; providing for wrongful death actions by domestic
partners; establishing a witness privilege and crime victim rights for domestic
partners; amending Minnesota Statutes 2008, sections 3.736, subdivision 6;
466.05, subdivision 2; 573.02, subdivisions 1, 3; 595.02, subdivision 1; 611A.01;
611A.036, subdivision 2; 611A.52, subdivision 8.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2008, section 3.736, subdivision 6, is amended to read:


Subd. 6.

Claims for wrongful death; notice.

new text begin(a) new text endWhen the claim is one for death
by wrongful act or omission, the notice may be presented by the personal representative,
surviving spousenew text begin or surviving domestic partnernew text end, or next of kin, or the consular officer of
the foreign country of which the deceased was a citizen, within one year after the alleged
injury or loss resulting in the death. If the person for whose death the claim is made has
presented a notice that would have been sufficient had the person lived, an action for
wrongful death may be brought without additional notice.

new text begin (b) For purposes of this subdivision, "domestic partner" has the meaning given in
section 611A.01, paragraph (d).
new text end

Sec. 2.

Minnesota Statutes 2008, section 466.05, subdivision 2, is amended to read:


Subd. 2.

Claims for wrongful death; notice.

new text begin(a) new text endWhen the claim is one for death
by wrongful act or omission, the notice may be presented by the personal representative,
surviving spousenew text begin or surviving domestic partnernew text end, or next of kin, or the consular officer of
the foreign country of which the deceased was a citizen, within one year after the alleged
injury or loss resulting in such death; if the person for whose death the claim is made has
presented a notice that would have been sufficient had the person lived an action for
wrongful death may be brought without any additional notice.

new text begin (b) For purposes of this subdivision, "domestic partner" has the meaning given in
section 611A.01, paragraph (d).
new text end

Sec. 3.

Minnesota Statutes 2008, section 573.02, subdivision 1, is amended to read:


Subdivision 1.

Death action.

new text begin(a) new text endWhen death is caused by the wrongful act or
omission of any person or corporation, the trustee appointed as provided in subdivision 3
may maintain an action therefor if the decedent might have maintained an action, had the
decedent lived, for an injury caused by the wrongful act or omission. An action to recover
damages for a death caused by the alleged professional negligence of a physician, surgeon,
dentist, hospital or sanitarium, or an employee of a physician, surgeon, dentist, hospital or
sanitarium shall be commenced within three years of the date of death, but in no event
shall be commenced beyond the time set forth in section 541.076. An action to recover
damages for a death caused by an intentional act constituting murder may be commenced
at any time after the death of the decedent. Any other action under this section may be
commenced within three years after the date of death provided that the action must be
commenced within six years after the act or omission. The recovery in the action is the
amount the jury deems fair and just in reference to the pecuniary loss resulting from the
death, and shall be for the exclusive benefit of the surviving spousenew text begin or surviving domestic
partner
new text end and next of kin, proportionate to the pecuniary loss severally suffered by the death.
The court then determines the proportionate pecuniary loss of the persons entitled to the
recovery and orders distribution accordingly. Funeral expenses and any demand for the
support of the decedent allowed by the court having jurisdiction of the action, are first
deducted and paid. Punitive damages may be awarded as provided in section 549.20.

new text begin (b) new text endIf an action for the injury was commenced by the decedent and not finally
determined while living, it may be continued by the trustee for recovery of damages for
the exclusive benefit of the surviving spouse new text beginor surviving domestic partner new text endand next of
kin, proportionate to the pecuniary loss severally suffered by the death. The court on
motion shall make an order allowing the continuance and directing pleadings to be made
and issues framed as in actions begun under this section.

new text begin (c) For purposes of this section, "domestic partner" has the meaning given in section
611A.01, paragraph (d).
new text end

Sec. 4.

Minnesota Statutes 2008, section 573.02, subdivision 3, is amended to read:


Subd. 3.

Trustee for action.

Upon written petition by the surviving spouse new text beginor
surviving domestic partner
new text endor one of the next of kin, the court having jurisdiction of an
action falling within the provisions of subdivisions 1 or 2, shall appoint a suitable and
competent person as trustee to commence or continue such action and obtain recovery
of damages therein. The trustee, before commencing duties shall file a consent and oath.
Before receiving any money, the trustee shall file a bond as security therefor in such form
and with such sureties as the court may require.

Sec. 5.

Minnesota Statutes 2008, section 595.02, subdivision 1, is amended to read:


Subdivision 1.

Competency of witnesses.

Every person of sufficient understanding,
including a party, may testify in any action or proceeding, civil or criminal, in court or
before any person who has authority to receive evidence, except as provided in this
subdivision:

(a) A deleted text beginhusbanddeleted text end new text beginperson new text endcannot be examined for or against deleted text beginhis wifedeleted text endnew text begin the person's spouse
or domestic partner
new text end without deleted text beginherdeleted text end new text beginthe new text endconsentdeleted text begin, nor a wife for or against her husband without
his consent
deleted text endnew text begin of the spouse or domestic partnernew text end, nor can either, during the marriage new text beginor
domestic partnership
new text endor afterwards, without the consent of the other, be examined as to
any communication made by one to the other during the marriagenew text begin or domestic partnershipnew text end.
This exception does not apply to a civil action or proceeding by one against the other, nor
to a criminal action or proceeding for a crime committed by one against the other or against
a child of either or against a child under the care of either spousenew text begin or domestic partnernew text end, nor
to a criminal action or proceeding in which one is charged with homicide or an attempt
to commit homicide and the date of the marriage of the defendant new text beginor existence of the
domestic partnership
new text endis subsequent to the date of the offense, nor to an action or proceeding
for nonsupport, neglect, dependency, or termination of parental rights. new text beginFor purposes of
this section, "domestic partner" has the meaning given in section 611A.01, paragraph (d).
new text end

(b) An attorney cannot, without the consent of the attorney's client, be examined as
to any communication made by the client to the attorney or the attorney's advice given
thereon in the course of professional duty; nor can any employee of the attorney be
examined as to the communication or advice, without the client's consent.

(c) A member of the clergy or other minister of any religion shall not, without the
consent of the party making the confession, be allowed to disclose a confession made to
the member of the clergy or other minister in a professional character, in the course of
discipline enjoined by the rules or practice of the religious body to which the member of
the clergy or other minister belongs; nor shall a member of the clergy or other minister of
any religion be examined as to any communication made to the member of the clergy or
other minister by any person seeking religious or spiritual advice, aid, or comfort or advice
given thereon in the course of the member of the clergy's or other minister's professional
character, without the consent of the person.

(d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the
consent of the patient, be allowed to disclose any information or any opinion based thereon
which the professional acquired in attending the patient in a professional capacity, and
which was necessary to enable the professional to act in that capacity; after the decease
of the patient, in an action to recover insurance benefits, where the insurance has been
in existence two years or more, the beneficiaries shall be deemed to be the personal
representatives of the deceased person for the purpose of waiving this privilege, and no
oral or written waiver of the privilege shall have any binding force or effect except when
made upon the trial or examination where the evidence is offered or received.

(e) A public officer shall not be allowed to disclose communications made to the
officer in official confidence when the public interest would suffer by the disclosure.

(f) Persons of unsound mind and persons intoxicated at the time of their production
for examination are not competent witnesses if they lack capacity to remember or to relate
truthfully facts respecting which they are examined.

(g) A registered nurse, psychologist, consulting psychologist, or licensed social
worker engaged in a psychological or social assessment or treatment of an individual
at the individual's request shall not, without the consent of the professional's client, be
allowed to disclose any information or opinion based thereon which the professional has
acquired in attending the client in a professional capacity, and which was necessary to
enable the professional to act in that capacity. Nothing in this clause exempts licensed
social workers from compliance with the provisions of sections 626.556 and 626.557.

(h) An interpreter for a person disabled in communication shall not, without the
consent of the person, be allowed to disclose any communication if the communication
would, if the interpreter were not present, be privileged. For purposes of this section, a
"person disabled in communication" means a person who, because of a hearing, speech
or other communication disorder, or because of the inability to speak or comprehend the
English language, is unable to understand the proceedings in which the person is required
to participate. The presence of an interpreter as an aid to communication does not destroy
an otherwise existing privilege.

(i) Licensed chemical dependency counselors shall not disclose information or
an opinion based on the information which they acquire from persons consulting them
in their professional capacities, and which was necessary to enable them to act in that
capacity, except that they may do so:

(1) when informed consent has been obtained in writing, except in those
circumstances in which not to do so would violate the law or would result in clear and
imminent danger to the client or others;

(2) when the communications reveal the contemplation or ongoing commission
of a crime; or

(3) when the consulting person waives the privilege by bringing suit or filing charges
against the licensed professional whom that person consulted.

(j) A parent or the parent's minor child may not be examined as to any communication
made in confidence by the minor to the minor's parent. A communication is confidential if
made out of the presence of persons not members of the child's immediate family living
in the same household. This exception may be waived by express consent to disclosure
by a parent entitled to claim the privilege or by the child who made the communication
or by failure of the child or parent to object when the contents of a communication are
demanded. This exception does not apply to a civil action or proceeding by one spouse
against the other or by a parent or child against the other, nor to a proceeding to commit
either the child or parent to whom the communication was made or to place the person or
property or either under the control of another because of an alleged mental or physical
condition, nor to a criminal action or proceeding in which the parent is charged with a
crime committed against the person or property of the communicating child, the parent's
spouse, or a child of either the parent or the parent's spouse, or in which a child is charged
with a crime or act of delinquency committed against the person or property of a parent
or a child of a parent, nor to an action or proceeding for termination of parental rights,
nor any other action or proceeding on a petition alleging child abuse, child neglect,
abandonment or nonsupport by a parent.

(k) Sexual assault counselors may not be allowed to disclose any opinion or
information received from or about the victim without the consent of the victim. However,
a counselor may be compelled to identify or disclose information in investigations or
proceedings related to neglect or termination of parental rights if the court determines good
cause exists. In determining whether to compel disclosure, the court shall weigh the public
interest and need for disclosure against the effect on the victim, the treatment relationship,
and the treatment services if disclosure occurs. Nothing in this clause exempts sexual
assault counselors from compliance with the provisions of sections 626.556 and 626.557.

"Sexual assault counselor" for the purpose of this section means a person who has
undergone at least 40 hours of crisis counseling training and works under the direction
of a supervisor in a crisis center, whose primary purpose is to render advice, counseling,
or assistance to victims of sexual assault.

(l) A domestic abuse advocate may not be compelled to disclose any opinion or
information received from or about the victim without the consent of the victim unless
ordered by the court. In determining whether to compel disclosure, the court shall weigh
the public interest and need for disclosure against the effect on the victim, the relationship
between the victim and domestic abuse advocate, and the services if disclosure occurs.
Nothing in this paragraph exempts domestic abuse advocates from compliance with the
provisions of sections 626.556 and 626.557.

For the purposes of this section, "domestic abuse advocate" means an employee or
supervised volunteer from a community-based battered women's shelter and domestic
abuse program eligible to receive grants under section 611A.32; that provides information,
advocacy, crisis intervention, emergency shelter, or support to victims of domestic abuse
and who is not employed by or under the direct supervision of a law enforcement agency,
a prosecutor's office, or by a city, county, or state agency.

(m) A person cannot be examined as to any communication or document, including
worknotes, made or used in the course of or because of mediation pursuant to an
agreement to mediate. This does not apply to the parties in the dispute in an application
to a court by a party to have a mediated settlement agreement set aside or reformed.
A communication or document otherwise not privileged does not become privileged
because of this paragraph. This paragraph is not intended to limit the privilege accorded
to communication during mediation by the common law.

(n) A child under ten years of age is a competent witness unless the court finds that
the child lacks the capacity to remember or to relate truthfully facts respecting which the
child is examined. A child describing any act or event may use language appropriate for
a child of that age.

(o) A communication assistant for a telecommunications relay system for
communication-impaired persons shall not, without the consent of the person making the
communication, be allowed to disclose communications made to the communication
assistant for the purpose of relaying.

Sec. 6.

Minnesota Statutes 2008, section 611A.01, is amended to read:


611A.01 DEFINITIONS.

For the purposes of sections 611A.01 to 611A.06:

(a) "Crime" means conduct that is prohibited by local ordinance and results in bodily
harm to an individual; or conduct that is included within the definition of "crime" in
section 609.02, subdivision 1, or would be included within that definition but for the fact
that (1) the person engaging in the conduct lacked capacity to commit the crime under the
laws of this state, or (2) the act was alleged or found to have been committed by a juvenile.

(b) "Victim" means a natural person who incurs loss or harm as a result of a crime,
including a good faith effort to prevent a crime, and for purposes of sections 611A.04
and 611A.045, also includes (1) a corporation that incurs loss or harm as a result of a
crime, (2) a government entity that incurs loss or harm as a result of a crime, and (3) any
other entity authorized to receive restitution under section 609.10 or 609.125. The term
"victim" includes the family members, guardian, or custodian of a minor, incompetent,
incapacitated, or deceased person. new text begin"Family members" includes a domestic partner. new text endIn a
case where the prosecutor finds that the number of family members makes it impracticable
to accord all of the family members the rights described in sections 611A.02 to 611A.0395,
the prosecutor shall establish a reasonable procedure to give effect to those rights. The
procedure may not limit the number of victim impact statements submitted to the court
under section 611A.038. The term "victim" does not include the person charged with
or alleged to have committed the crime.

(c) "Juvenile" has the same meaning as given to the term "child" in section
260B.007, subdivision 3.

new text begin (d) "Domestic partners" means two persons who:
new text end

new text begin (1) are the same sex;
new text end

new text begin (2) are adults and mentally competent to enter into legally binding contracts;
new text end

new text begin (3) have assumed responsibility for each other's basic common welfare, financial
obligations, and well-being;
new text end

new text begin (4) share a common domicile and primary residence with each other on a permanent
basis;
new text end

new text begin (5) have a committed interdependent relationship with each other, intend to continue
that relationship indefinitely, and do not have this type of relationship with any other
person;
new text end

new text begin (6) are not married to another person and have not entered into a domestic
partnership arrangement with another person that is currently in effect; and
new text end

new text begin (7) are not related by blood or adoption so that a marriage between them would be
prohibited under section 517.03, subdivision 1, paragraph (a), clause (2) or (3).
new text end

Sec. 7.

Minnesota Statutes 2008, section 611A.036, subdivision 2, is amended to read:


Subd. 2.

Victim's spousenew text begin, domestic partner, new text end or immediate family members.

An
employer must allow a victim of a violent crime, as well as the victim's spousenew text begin, domestic
partner,
new text end or immediate family members, reasonable time off from work to attend criminal
proceedings related to the victim's case.

Sec. 8.

Minnesota Statutes 2008, section 611A.52, subdivision 8, is amended to read:


Subd. 8.

Economic loss.

(a) "Economic loss" means actual economic detriment
incurred as a direct result of injury or death.

(b) In the case of injury the term is limited to:

(1) reasonable expenses incurred for necessary medical, chiropractic, hospital,
rehabilitative, and dental products, services, or accommodations, including ambulance
services, drugs, appliances, and prosthetic devices;

(2) reasonable expenses associated with recreational therapy where a claimant has
suffered amputation of a limb;

(3) reasonable expenses incurred for psychological or psychiatric products, services,
or accommodations, not to exceed an amount to be set by the board, where the nature of
the injury or the circumstances of the crime are such that the treatment is necessary to
the rehabilitation of the victim;

(4) loss of income that the victim would have earned had the victim not been injured;

(5) reasonable expenses incurred for substitute child care or household services to
replace those the victim or claimant would have performed had the victim or the claimant's
child not been injured. As used in this clause, "child care services" means services
provided by facilities licensed under and in compliance with either Minnesota Rules,
parts 9502.0315 to 9502.0445, or 9545.0510 to 9545.0670, or exempted from licensing
requirements pursuant to section 245A.03. Licensed facilities must be paid at a rate not to
exceed their standard rate of payment. Facilities exempted from licensing requirements
must be paid at a rate not to exceed $3 an hour per child for daytime child care or $4
an hour per child for evening child care;

(6) reasonable expenses actually incurred to return a child who was a victim of a
crime under section 609.25 or 609.26 to the child's parents or lawful custodian. These
expenses are limited to transportation costs, meals, and lodging from the time the child
was located until the child was returned home; and

(7) the claimant's moving expenses, storage fees, and phone and utility installation
fees, up to a maximum of $1,000 per claim, if the move is necessary due to a reasonable
fear of danger related to the crime for which the claim was filed.

(c) In the case of death the term is limited to:

(1) reasonable expenses actually incurred for funeral, burial, or cremation, not to
exceed an amount to be determined by the board on the first day of each fiscal year;

(2) reasonable expenses for medical, chiropractic, hospital, rehabilitative,
psychological and psychiatric services, products or accommodations which were incurred
prior to the victim's death and for which the victim's survivors or estate are liable;

(3) loss of support, including contributions of money, products or goods, but
excluding services which the victim would have supplied to dependents if the victim
had lived; and

(4) reasonable expenses incurred for substitute child care and household services
to replace those which the victim or claimant would have performed for the benefit of
dependents if the victim or the claimant's child had lived.

Claims for loss of support for minor children made under clause (3) must be paid for
three years or until the child reaches 18 years old, whichever is the shorter period. After
three years, if the child is younger than 18 years old a claim for loss of support may be
resubmitted to the board, and the board staff shall evaluate the claim giving consideration
to the child's financial need and to the availability of funds to the board. Claims for loss of
support for a spouse new text beginor domestic partner, as defined in section 611A.01, new text endmade under clause
(3) shall also be reviewed at least once every three years. The board staff shall evaluate
the claim giving consideration to the spouse's new text beginor domestic partner's new text endfinancial need and
to the availability of funds to the board.

Claims for substitute child care services made under clause (4) must be limited to
the actual care that the deceased victim would have provided to enable surviving family
members to pursue economic, educational, and other activities other than recreational
activities.