Minnesota litigants can appeal “as of right” to the Minnesota Court of Appeals, but once that appeal is exhausted, advancing to the Minnesota Supreme Court depends on winning the court’s agreement to accept your case. Here are tips for convincing the supreme court to exercise discretion and accept your case onto its overcrowded docket.
“How you think when you lose determines how long it will be until you win.”
G. K. Chesterton, English Critic (1884-1936)
Each year, the Minnesota Court of Appeals decides approximately 2,100 cases.1 If you are on the losing side of that decision, your case has reached a tipping point. You have exhausted your one appeal as of right. The appellate rules do not permit you to file a request for rehearing with the court of appeals.2 Any additional hearing in the appellate courts will be by petition to the Minnesota Supreme Court. You have two options—let the decision stand or file a petition for further review.
About 640 petitions for further review or “PFRs” are filed each year asking for permission to proceed to the supreme court. The decision to grant or deny is entirely at the discretion of the state supreme court. Each year, about 60 requests are granted. Gaining review is an accomplishment, not just because it happens only 10 percent of the time, but because it comes with decent odds of turning a loss into a win. In 2007, the supreme court decided 82 cases; only 24 or almost 30 percent affirmed the court of appeals. Forty-two of those cases, about 50 percent, resulted in either a reversal and remand to the lower tribunal, or some sort of mixed result.3 In contrast, only about 15 percent of the court of appeals’ dispositions reversed the decision on review.4
“To win, you’ve got to stay in the game.”5 The petition for review is your only chance to do this, and it is done entirely in writing. Oral argument is not permitted.
The central strategy for a successful petition is to put yourself in the shoes of the supreme court. Our supreme court has seven justices and each justice casts a vote for or against review on every petition, unless they recuse themselves from participating in a case.6 Three justices must vote in favor of review for the petition to be granted.7 Three is the magic number even if some members of the court do not participate. Your client’s chance of obtaining three votes improves when you follow the rules, understand how the supreme court reviews petitions, tailor your petition to the criteria for review, andamicus curiae support review for reasons independent of the adversarial process.
Follow the Rules
The first rule is to be timely. The appellate rules allow 30 days to file a PFR, counting from the date the court of appeals’ decision is filed.8 Although the supreme court has jurisdiction to grant a PFR even after the 30 days have passed, they do so only rarely.9 In those 30 days, the petitioner must prepare a request for further review that is fully contained within the five pages allowed by the rules.10 Contrast the five pages allowed for the petition with the 45 pages or 14,000 words allowed for an appellant to present their arguments in a brief.11 The PFR is not a “mini-brief”; it is more like a letter to the court.
The content of this “letter” is somewhat prescribed. Each petition must contain: a statement of the legal issues sought to be reviewed, a statement of the criteria relied upon to support the request, a statement of the case including what happened before the appeal reached the supreme court, and an argument in support.12 In addition to addressing these subjects in no more than five pages, the petitioner must file an appendix, which “shall contain” the court of appeals’ opinion, any judgment or relevant order from the trial court or administrative agency, and other materials “necessary for an understanding of the petition.”13
Review of Petitions
After a petition is filed, other parties to the appeal have 20 days in which to file a response; the response may include a request for cross-review.14 Although a response is not required, most parties respond. After the response is received, the petition, response and other papers go to the supreme court commissioner for review. The Commissioner’s Office screens the petitions, and prepares a written analysis and recommendation that is circulated to the justices.15 The commissioner’s analysis is detailed and will include review of the record on appeal, if necessary. Not surprisingly, the justices rely on this analysis, although each member of the court has the entire record at his or her disposal.
Approximately two times each month, the supreme court meets at special term to discuss the petitions for review. These meetings are closed and result in an order granting or denying review.
Typically, the court has special term once each week in the third and fourth weeks of each month, with fewer special terms in July and August.16 The supreme court’s calendar, including days set aside for special term, is posted on the Minnesota Judicial Branch website.17
Assuming the almost 700 petitions each year are allocated fairly evenly throughout the year, the court reviews over 55 petitions each month. Although a statute says the supreme court has 60 days from filing in which to grant or deny a PFR, the court’s own guidelines state that it seeks to dispose of a PFR within 40 days of filing.18 This means the court is reviewing and deciding a lot of petitions fairly quickly.
Tailoring Your Petition
“Pushing the right buttons is key to getting the case accepted for review.”19 Rule 117 of the appellate rules provides criteria for the court to consider in making its decision. The criteria are discretionary, just like the decision to grant review is discretionary.20 But what the rule says is very important. Your case is assessed against four main criteria: (1) Is the question important and is it the type of question the supreme court should answer? (2) Does the question involve the constitutionality of a statute? (3) Have the lower courts “so far departed from the accepted and usual course of justice as to call for an exercise of the [s]upreme [c]ourt’s supervisory powers”? or (4) Will a supreme court decision help develop, clarify or harmonize the law? If the fourth criterion is applied, then Rule 117 states the question should also involve either application of a new principle or policy, or resolution of a question of statewide importance, or be likely to recur.
These criteria are very similar to those used by other courts in granting discretionary review, including the United States Supreme Court’s criteria for granting a petition for writ of certiorari.21 Not every criterion must be met, but the likelihood of obtaining review increases if your case meets more than one criterion.
The criteria might appear complicated but can be simply stated. As former Chief Justice Popovich wrote, “the petition argument should focus on persuading the court that review is appropriate and justified.”22 You must portray your issue as essential to the court and the development of the law. Doing so requires evaluating your case objectively and carefully stating and selecting the issues.
An objective evaluation asks whether the issue is ready for supreme court review.23 The issue is not ready, or “ripe,” if it was not preserved in or presented to the lower courts, if the issue played only a tangential role in the decisions below, or if the issue rests on a poor record or is not clearly raised by the facts. In the United States Supreme Court, advocates ask whether the case is a “good vehicle” for review. If your case is a poor vehicle, then the court may take a pass even though the legal issue appears to merit decision by the supreme court.
The importance of the court of appeals’ decision and the decision they reviewed cannot be ignored. Some lower court decisions have the “right stuff” for supreme court review and others do not. More than one former justice has stated that the lower court’s written opinion drives the supreme court’s decision to grant or deny review. The “right stuff” is always hard to define. Generally, unpublished decisions are not precedent and, therefore, are not of statewide importance.24 Generally, a dissenting opinion suggests that the issue is something significant and undecided. But these are only generalizations and nothing more. The supreme court often takes review of unpublished decisions of the court of appeals. Of the 33 civil cases recently pending at the supreme court, 12 appeals were from unpublished decisions.25 Similarly, a dissent in the court of appeals nudges the supreme court toward review only if the dissent’s reasoning reflects why the appeal should receive hearing by the supreme court.26
Some types of cases are more likely to gain further review than others. Cases likely to receive review are those involving constitutional issues, particularly under the Minnesota Constitution; the first judicial interpretation of a statute; a request to expand or contract principles of common law, which may be beyond the error-correcting function of the court of appeals; or decisions that arguably conflict with an earlier decision of the court of appeals. Cases unlikely to gain further review are those involving the application of settled law to particular facts, cases with procedural obstacles to reaching the merits (i.e., waiver or failure to preserve issues for review), and those where the record is not sufficiently developed to provide confidence that the issue can be reached and that the case presents it in an appropriate context.
In addition to seeing your appeal objectively, you must carefully select and state the issue on which you want the supreme court to grant review. Two principles apply: less is more and the standard of review should be favorable to the petitioner. By raising only one or two issues, the petitioner conveys confidence in its analysis and keeps the court’s attention. By stating the issues simply without overblown factual references and argument, the petitioner demonstrates that, in all fairness, the issue merits review.
The standard of review, which is the filter through which an appellate court views any issue, should be the touchstone for selecting the issues. The most common standards of review are de novo, meaning the appellate court does not defer to the lower court, and abuse of discretion, meaning the appellate court recognizes the lower court has been entrusted with discretion. De novo review applies to questions of law and abuse of discretion applies, for example, to the admission of evidence and how a trial is conducted, among other things.
In all appeals at whatever level, an appellant prefers de novo review to abuse of discretion. At the supreme court, grounds for the preference are even stronger. Each of the Rule 117 criteria for review suggests that the court will give priority to questions of law, such as constitutionality of a statute and conflict in the law. Even the third criterion states that where the lower court has exercised its discretion, the supreme court’s supervision is needed only if the court has “so far departed from the accepted and usual course of justice.” So a PFR should focus on questions of law. If the petition raises discretionary issues, then it should also demonstrate precisely why the issue is important enough to warrant the attention of the supreme court.
Something must be said about common mistakes in preparing the petition. Showing the court of appeals was wrong about the facts or the law, or arguing that the court of appeals did not appreciate how good your evidence was, are approaches that hurt your petition rather than help it. Similarly, pleas for sympathy are simply not enough. By devoting any of the scant five pages to arguments that do not match the criteria for review, the petition suggests that the issues do not qualify for review.
Friends of the Court
Your request for review is strengthened if nonparties echo the request. It is unremarkable that the losing party wants additional review. But it carries some weight when a person not a party to the case takes a stand on an issue. The proper procedure to follow is given by Rule 129, which allows any nonparty to file for permission to participate as amicus curiae, or friend of the court. The request itself is limited to stating the nonparties’ interest in the appeal, whether they support affirming or reversing the court of appeals’ decision, and why an amicus curiae brief will benefit the court.27
The involvement of amicus curiae creates an important impression. By generating nonparty interest, your claim that the issue has statewide importance is verified. Ideally, the supreme court should be aware of this interest before they have decided whether to grant review. In other words, a nonparty who supports review should file a request to appear as soon as possible after the PFR is filed. In any event, the rules establish an outside deadline for amicus requests—15 days after the order granting review.28
Petitions for review are available for any decision by the court of appeals, not just after full briefing and oral argument. For example, when the court of appeals grants or denies a motion to dismiss an appeal as outside its jurisdiction or untimely, that order may be reviewed by the supreme court.29 Along the same lines, supreme court review is available when the court of appeals grants or denies discretionary review under Rule 105 or an extraordinary writ under Rule 120.30
Additionally, PFRs may ask for limited relief from the court, something short of full briefing and oral argument on the merits. For example, the petitioner may request that the supreme court remedy a narrow error in the court of appeals’ decision, exercise authority not possessed by the court of appeals, or stay the appeal while the supreme court decides the issue in a pending appeal.31 If your appeal requires less than the full attention of the court, this should be included in the petition. In some instances, a request for limited relief may make review easier to obtain.
As one appellate advocate put it, how are you going to persuade “an overworked, understaffed, and skeptical appellate court to exercise its discretion and accept yet one more case onto its overcrowded docket?”32 When filing a petition for review, adhere to the rules and consider how the petition is reviewed by the supreme court. Above all, be honest and thorough in your assessment of the case and whether it meets the criteria for review. If nonparties are concerned and willing to tell the supreme court that review is necessary, then your case probably raises an issue of general importance for the court.
1 Minnesota Judicial Branch, Report to the Community (2007) [“2007 Report”] states that 2,333 cases were filed in the court of appeals with 2,187 dispositions. Id. at 16.
2 Minn. R. Civ. App. P. 140.01 (“No petition for rehearing shall be allowed in the Court of Appeals.”).
3 2007 Report at 17. The remaining 16 cases, almost 20 percent of the court’s decisions, received a disposition of dismissal (six cases) or “other decision” (ten cases). Id.
4 Minnesota Judicial Branch, Report to the Community, 17 (2006) states that 254 or 11 percent of its dispositions resulted in reversal and 177 or 7 percent had a mixed result. The 2007 statistic is not available.
5 Claude M. Bristol, The Magic of Believing (1948).
6 See Code of Judicial Conduct, Canon 3 (includes discussion of when a judge shall disqualify himself or herself from proceedings to avoid questions regarding impartiality).
7 See “Case Dispositional Procedures of the Supreme Court,” included as Appendix D, David F. Herr and Sam Hanson, Minnesota Practice: Appellate Rules Annotated (2009 ed.) [“App. R. Annotated”, edition pending].
8 Minn. R. Civ. App. P. 117, subd. 1.
9 App. R. Ann. at §117.8 (citing cases).
10 Minn. R. Civ. App. P. 117, subd. 3.
11 Minn. R. Civ. App. P. 132.01, subd. 3.
12 Minn. R. Civ. App. P. 117, subd. 3.
14 Id., subd. 4.
15 Hon. Peter S. Popovich and Erin L. Miller, “Obtaining Review in the Minnesota Supreme Court,” 14 Hamline L. Rev. 117, 122, 130-31 (1991).
16 “Case Dispositional Procedures,” supra note 7.
17 The Minnesota Judicial Branch website is available at: http://www.mncourts.gov/ Click on “calendars” in the upper left corner of the page to access the supreme court’s yearly calendar.
18 Minn. Stat. §480A.10, subd. 1; “Case Dispositional Procedures,” supra note 7. It is unlikely the legislature can limit the supreme court’s jurisdiction with the 60-day deadline. App. R. Ann. at §117.8.
19 Marshall Houts and Hon. Walter Rogosheske, updated by Diane Bratvold, Art of Advocacy: Appeals, §8.04 (Matthew Bender 2008) (chapter authored by Hon. John Simonett).
20 Minn. R. Civ. P. 117, subd. 2 (stating the criteria “may be considered”); see also 1983 Comment (stating criteria are “intended to be instructive and are neither mandatory nor exclusive”).
21 S. Ct. R. 17(a)-(c) (indicating certiorari may be granted where there is conflict in decisions among circuit courts of appeal, conflict in decisions between state courts of last resort or a state high court and a federal appellate court on a federal question, or a question of federal law has been raised and should be settled).
22 Popovich and Miller, supra note 15 at 132.
23 Art of Advocacy: Appeals, supra note 19 at §8.05.
24 Minn. Stat. §480A.08, subd. 3.
25 See “Pending Civil Cases before the Minnesota Supreme Court,” in Minnesota Supreme Court Watch, available at: http://www.briggs.com/mnsupremecourt/. Analysis included in webcast sponsored by Minnesota CLE and aired on Dec. 12, 2008, in the series, “Understanding Minnesota Appellate Practice and Procedures,” moderated by David F. Herr.
26 Art of Advocacy: Appeals, supra note 19 at §8.05.
27 Minn. R. Civ. App. P. 129.01.
29 See, e.g., Premier Bank v. Consolidated Lumber Co., A08-1295 (Minn. App. Aug. 26, 2008) (order dismissing appeal), rev. granted (Nov. 18, 2008).
30 See, e.g., In re Paul W. Abbott Co., Inc., A08-1105 (Minn. App. Aug. 12, 2008) (order denying writ of prohibition), rev. granted (Sept. 23, 2008).
31 App. R. Ann. at §117.3 (citing cases).
32 Sylvia H. Walbolt and J. Andrew Meyer, “When It’s Your Last Chance: Tips on Obtaining Discretionary Review,” 27 Litigation (Summer 2001).
DIANE B. BRATVOLD is a shareholder with Briggs and Morgan, PA. She has practiced almost exclusively in civil appeals for over 20 years and is a fellow of the American Academy of Appellate Lawyers. Diane was recently named president-elect of the 8th Circuit Bar Association. She has also been appointed to the Minnesota Supreme Court’s Advisory Committee on Rules of Civil Appellate Procedure and serves on MSBA’s Court Rules and Administration Committee.
SAM HANSON is a shareholder with Briggs and Morgan, PA. He rejoined Briggs and Morgan in January 2008 after serving five years as associate justice of the Minnesota Supreme Court (and two with the Minnesota Court of Appeals). He concentrates his practice on business litigation and energy law, assisting clients with arbitration and mediation, civil litigation, appellate law, and public utility regulation. Sam has been inducted into the American College of Trial Lawyers and the American Board of Trial Advocates.