By Anne Sexton
Whether you are a person who spews the latest political polling data unprompted at the office water cooler—or perhaps the office Zoom check-in—or one who treats avoiding all political conversations like an Olympic sport, our state legislative season is upon us. Jokes aside, being a competent attorney necessitates understanding key aspects of Minnesota laws and the state legislative process. Through a strictly nonpartisan lens, here are 10 concepts to help us on that front.
Session laws v. statutes
As a refresher from your 10th-grade civics class, all proposed laws start as bills. All bills that are passed by the Legislature, and not vetoed by the governor, become law. (Unless of course, the veto is overridden by the Legislature.)
Minnesota Laws, or session laws, is an umbrella term for all bills that become law. These are compiled and published by legislative session in Laws of Minnesota. For example, Laws 2021 is a compilation of all the laws passed in the regular 2021 legislative session. Laws 2021 First Special Session is a compilation of all the laws passed in the first special session in 2021.
A subset of Minnesota Laws, published as Minnesota Statutes, comprises only the coded laws from session laws. Coding simply refers to the section reference numbers in Minnesota Statutes. For Minnesota Statutes, section 13.01, section 13.01 is the “coding.” What is included in Minnesota Statutes or left solely in Minnesota Laws is the distinction between coded and uncoded laws. For example, Laws 2020, chapter 70, article 1, section 1 amends Minnesota Statutes, section 144.4199, subdivision 1. The changes to section 144.4199, subdivision 1 were incorporated in the next version of Minnesota Statutes. Meanwhile, section 3 of that same article is uncoded and will only ever appear in session laws, specifically Laws 2020, not Minnesota Statutes.
But this begs a larger question: Which laws are coded? Laws that are permanent and have general application receive coding.1 Appropriations and one-time studies are examples of laws not usually coded because they are not typically both permanent and general in their application. Both session laws and statutes can be amended. Minnesota Laws are printed with the strikes and underscoring, whereas Minnesota Statutes are “cleaned.” (That is, the stricken text is removed and new text is incorporated.)
To recap, Minnesota Laws include all laws passed in a session, both coded and uncoded. Minnesota Statutes is a compilation of all session laws passed with coding. It is helpful to understand the difference not only to use the terms correctly but also to know where to look for the information you seek. If you are a visual person, think of the relationship between bills, session laws, and statutes this way.
Minnesota Statutes, chapter 645: clarifying the muddle
Have you ever read a statutory section that mentioned holiday and wondered whether that included religious holidays, only federal holidays, both federal and state holidays, or some other combination? If the rule or statutory section you are reading does not provide a definition, Minnesota Statutes, section 645.44, subdivision 5 provides the definition for holiday. A term as simple as “holiday” can significantly impact filing deadlines, licensing, review periods, and many other obligations.
Are you looking for more support for your argument that may is permissive? See section 645.44, subdivision 15. Want to finally settle the debate with your colleague about whether must and shall have the same statutory meaning? See 645.44 subdivisions 15a and 16. (Spoiler alert: Both mean mandatory in Minnesota Statutes.)
Minnesota Statutes, chapter 645 includes useful information for interpreting statutes. Note, there are several definition sections not near one another in the chapter: sections 645.44 through 645.451 are likely to be the most generally applicable. And a word of caution for using chapter 645: All great lawyers also check the statutory chapter and section they are in for additional definitions that supplement or supersede chapter 645.
Statutory notes: Ignore them at your peril
Have you ever visited the Office of the Revisor of Statutes’ (revisor’s office) website and accidentally scrolled to the bottom of Minnesota Statutes, section 256B.0625, or been curious what “[See Note.]” meant after subdivision 3h? Although their text is not the law, those statutory notes contain critical information—like, for example, whether the statutory text is in effect. In the case of the aforementioned section 256B.0625, failing to read the note for subdivision 3h would leave you unaware that the language enacted by Laws 2021, First Special Session chapter 7, article 6, section 12, is not effective until federal approval is obtained.
Naturally, you could have discovered the effective date information for this subdivision by reviewing the extensive legislative history for section 256B.0625. I will admit, however, that this is not a practice many of us do for each and every word in Minnesota Statutes. Reviewing notes can save you time on your legislative history and alert you to special considerations about the text.
Do not mistakenly hang your case on a headnote
In Minnesota Statutes, the bolded text before sections and subdivisions is called a headnote. Headnotes are not the law, but simply act as guides or catchphrases to assist the reader.2
Is that administrative rule still in effect?
As a brief administrative law recap for those who have evaded the land of promulgation and the Minnesota Administrative Procedure Act, a rule is created through an administrative process, not the Legislature. The Legislature provides authority for agencies to add detail and specificity to laws by creating administrative rules.3 Every administrative rule must have a law authorizing the rule.4
In 1981, the Legislature added an interesting and rarely utilized provision to the Minnesota Administrative Procedure Act: “If a law authorizing rules is repealed, the rules adopted pursuant to that law are automatically repealed on the effective date of the law’s repeal unless there is another law authorizing the rules.”5 The next time you apply an administrative rule, be sure to check whether its statutory authority is still valid. And don’t forget the last half of the sentence—“unless there is another law authorizing the rules.”6 You will need to research whether a different statute authorizes the rule.
Roadmap for bills
Whether you are delving deep into legislative history research or tracking pending legislation, it is useful to know the simple organizational structure of bills in the Minnesota Legislature. (As with bill-drafting and the legislative process, there is an exception to everything. If you searched, you could find bills that broke from the standard organizational practice for some reason or another.)
In the vast majority of cases, you will find this order:
- coded sections (amendments to Minnesota Statutes and proposed Minnesota Statutes in statutory order);
- amendments to session law;
- uncoded sections (one-time studies, instructions to commissioners, appropriations, etc.);
- revisor’s instructions;
- repealers; and
- effective dates or application sections.
Large bills (usually omnibus bills) may include articles. Each article will be arranged in the same format as above. One notable exception to this arrangement is omnibus appropriation bills, which may start each article with an appropriation description and summary of appropriation by fund.
Not all bills will have each of these components. All bills will start with a title and an enacting clause, which are mandatory.7 It is not a complicated system, but understanding it can save you a significant amount of time in looking through an 800-plus-page omnibus bill.
Identical text, but not companions
For a bill to become law, identical provisions must first pass both the House and Senate. When bill language is drafted by the revisor’s office, two sets of “jackets” are created. Two green jackets go to the House and two yellow jackets go to the Senate for introduction. The revisor number on all four of these bills is identical. This system allows the House and Senate desks to track what is known as companion bills. A bill introduced in the House with a revisor number identical to that of a bill introduced in the Senate will automatically be deemed a companion.
But the legislative process gets complicated and messy fast, and bills with identical content will not always bear the same revisor number. Members may wish to introduce the same language in a new bill (also known as clones) for various reasons, or perhaps the amendment process changes the original language of one bill to be identical to another bill in the other body with a different revisor number. Even if the language between the two bills is identical, when the revisor number in the House file differs from that of the Senate file, the bills are not automatically deemed companions.
If you were starting to grow concerned that bills containing identical language with different House and Senate revisor numbers would not make it through the legislative process, rest easy. The House and Senate desks have a process to deem bills companions that do not share the same revisor number.
Understanding how identical language can be in bills that are not companions to one another can help improve your legislation-tracking abilities and reassure you that you have indeed not lost your wits.
Minnesota: A journal entry state
The Minnesota Constitution requires that
“[b]oth houses shall keep journals of their proceedings…”8 Minnesota is a journal entry state. Every legislative day, the House and Senate track the daily activity in their respective journals and the official communications of each body.
Minnesota legislative staff work hard to ensure the accuracy of the journals. For you, the journal of either body is one source to establish legislative intent.9
Tracking session law changes: Easier than it sounds
Session law does not have the same legislative history as Minnesota Statutes. This can make it challenging to track changes to session law, which may include repealers, amendments, or other legislative actions. The Minnesota Revisor of Statutes maintains Table 1, which allows you to enter in a session law and see any session law amending it. Table 1 is available at www.revisor.mn.gov/laws/table1. This table is especially useful for tracking changes to appropriations or mandated reports and studies.
Mandated reports: One MN nice database
If you have worked for a state agency, listened to a committee hearing, or read any bills, you have probably noticed that the Legislature mandates many, many reports and studies. The Minnesota Legislative Reference Library maintains a Mandated Reports Database (available at www.leg.state.mn.us/lrl/mndocs/mandates_search). This helpful database includes reports that the library received or expects to receive.
Reports can be useful for understanding future policy dynamics or quickly gathering information on a topic without going through a government data request.
Conclusion
Understanding our legislative process is an important part of being a responsible citizen, but for lawyers there is an added layer. You are applying—or trying not to apply—these laws, statutes, and administrative rules. Understanding our laws and the state legislative process can go a long way toward using them well.
ANNE SEXTON is the director of public interest programs at the University of Minnesota Law School. Before accepting this role, Anne previously served as an assistant revisor at the Office of the Revisor of Statutes. asexton@umn.edu