Why it’s time to reconsider Minnesota’s approach
Members of the bar have long chafed at the designation of appellate opinions as “unpublished.” But the concept has many judicial defenders, including past and present judges on the Court of Appeals. In this article, a justice of the Minnesota Supreme Court and his former law clerk argue for a middle way that would result in more precedent for trial courts and arbitrators to apply.
When the Minnesota judicial branch surveys attorneys, the appellate courts receive excellent reviews, except on two subjects. First, attorneys are concerned that the Minnesota Supreme Court takes too long to issue its opinions. The court is working on that; for example, the court now internally circulates draft opinions electronically. The second concern is that too many Minnesota Court of Appeals opinions are not precedential. Last year, 92 percent of the Court of Appeals’ opinions were “unpublished.” This concern, along with Justice Lillehaug’s experiences with unpublished opinions (both as a lawyer and as a justice who considers petitions for review), prompt us to take a fresh look at the subject and to make some modest suggestions for change.
The Legislature created unpublished opinions
The Minnesota Court of Appeals was created in 1982 when the Minnesota Legislature enacted Chapter 480A of the Minnesota Statutes.1 The original version of section 480A.08 said nothing about whether the new court’s opinions should be published. Neither did the 1983 amendment to the statute.2
As the Court of Appeals began to issue its opinions in volume, it became clear that practitioners had to read more cases. Some questioned whether Minnesota needed “all this law.” We suspect these questions were prompted, in part, by the fact that, in the mid-1970s, the federal courts of appeals started to issue opinions designated “unpublished.”3 Unpublished opinions were not typically citable or accorded any precedential value. Many states soon followed suit.
In 1986, the Minnesota State Bar Association’s Judicial Administration Committee conducted a survey on whether the Court of Appeals should continue to publish all of its opinions.
The result? “[A]n overwhelming majority of the practitioners favor continued publication of all opinions.”4
Despite the bar’s strong preference for publication, just one year later the Minnesota Legislature amended Minn. Stat. §480A.08 to provide for unpublished opinions. The statute stated:
The court of appeals may publish only those decisions that: (1) establish a new rule of law; (2) overrule a previous court of appeals’ decision not reviewed by the supreme court; (3) provide important procedural guidelines in interpreting statutes or administrative rules; (4) involve a significant legal issue; or (5) would significantly aid in the administration of justice.5
The statute further provided that unpublished opinions are “not precedential” and, with limited exceptions, may not be cited for a binding rule of law.
The 1987 version of section 480A.08—like today’s version—required any party citing an unpublished opinion to provide a “full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial.”6 If cited in a brief or memorandum of law, “a copy of the unpublished opinion must be provided to all other counsel at the time the brief or memorandum is served.”7 Today, the text of the 1987 amendment is located at paragraph (c) of Minn. Stat. §480A.08, subd. 3.
In 1989, section 480A.08, subdivision 3, was amended a final time. That amendment—located at paragraph (b)—clarifies that a Court of Appeals decision need not include a written opinion.8 A statement of decision without a written opinion may not be officially published and must not be cited as precedent, except as law of the case, res judicata, or collateral estoppel.9
The result of the Legislature’s restriction on Court of Appeals opinions was dramatic. In 1988, the court issued 706 unpublished opinions and 611 published opinions.10 By 1994, the percentage of published opinions had dropped substantially. That year, the court issued 1,007 unpublished opinions and only 274 published opinions.11 In other words, in less than a decade, the percentage of unpublished opinions soared to well over 70 percent.
Separation of powers considerations
In our view, the restrictions in section 480A.08 on the publication and precedential value of appellate decisions are almost certainly unconstitutional as a violation of the separation of powers. Unlike the United States Constitution, the Minnesota Constitution expressly speaks to such separation. It provides: “The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.”12
The power to decide which opinions to issue and disseminate is at the heart of the judicial function. So is the power to decide which decisions are precedential and how to apply them.
The test for whether a statute invades a judicial function turns on “whether the statute deals with substantive or procedural law.”13 The “judicial branch governs procedural matters, while the creation of substantive law is a legislative function.”14 Legislative interference with procedural matters is only permitted as a matter of comity.15
The rules that govern opinions seem to be procedural in nature. Nowhere in the Minnesota Constitution is the Legislature given special authority to regulate those procedures.16
There is another, less obvious, constitutional issue posed when the judiciary agrees or decides that its opinions will not be precedential. This issue was articulated by one of Justice Lillehaug’s judicial role models, the late Chief Judge Richard Arnold of the U.S. Court of Appeals for the 8th Circuit. Judge Arnold was a fierce opponent of unpublished decisions. In his view, a non-precedential opinion “expands the judicial power beyond the limits set by Article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule [regarding unpublished opinions] is therefore unconstitutional.”17
The Minnesota Supreme Court’s response: Comity
Rather than resisting the legislative intrusion on the judicial branch’s power, the Advisory Committee on the Rules of Civil Appellate Procedure and, ultimately, the Supreme Court, went along. In 1998, Minnesota Rule of Civil Appellate Procedure 136.01 was amended to mirror section 480A.03, subd. 3. As amended, Rule 136.01, subd. 1 states:
(a) Each Court of Appeals disposition shall be written in the form of a published opinion, unpublished opinion, or an order opinion.
(b) Unpublished opinions and order opinions are not precedential except as law of the case, res judicata or collateral estoppel, and may be cited only as provided in Minnesota Statutes §480A.08, subd. 3 (1996).18
The adoption of Rule 136.01 is consistent with the Minnesota Supreme Court practice of using the doctrine of “comity” to avoid clashes with the Legislature by adopting rules similar to legislation. For example, the Court declared unconstitutional legislative restrictions on access to records of juvenile offenders, but then adopted a juvenile delinquency rule that partially incorporated those restrictions.19
Similarly, the Court adopted as a rule of evidence Minnesota Statutes §634.20, which allowed evidence of domestic conduct by the accused against family or household members other than the victim.20
Together, Minn. Stat. §480A.08, subd. 3, and Rule 136.01 are the foundation for the law on unpublished opinions.
The appellate courts justify unpublished opinions
Two Minnesota cases discuss the rationale for unpublished opinions: (1) Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796 (Minn. Ct. App. 1993); and (2) Vlahos v. R & I Construction of Bloomington, Inc., 676 N.W.2d 672 (Minn. 2004).
In Dynamic Air, the Minnesota Court of Appeals explained, for the first time, its interpretation of section 480A.08:
Unpublished opinions of the Court of Appeals are not precedential. Minn. Stat. §480A.08, subd. 3(c) (1992). At best, these opinions can be of persuasive value. For example, a party may cite to an unpublished opinion affirming a trial court’s exercise of discretion to persuade a trial court to exercise discretion in the same manner. It is, however, improper to rely on unpublished opinions as binding precedent.
We note also that the use of such opinions has the potential to result in profound unfairness. Attorneys who have access to computerized research systems are able to find unpublished opinions with facts apparently similar to their case. Attorneys who cannot afford these services, however, are at a disadvantage, as they are unable to find those unpublished opinions supporting their cases. Because the full fact situation is seldom set out in unpublished opinions, the danger of mis-citation is great.
The legislature has unequivocally provided that unpublished opinions are not precedential. We remind the bench and bar firmly that neither the trial courts nor practitioners are to rely on unpublished opinions as binding precedent.21
A decade later, the Minnesota Supreme Court agreed with the Court of Appeals’ assessment of the limited value of unpublished opinions. In Vlahos, the Court criticized a district court’s reliance on an unpublished opinion of the Court of Appeals: “[W]e pause here to stress that unpublished opinions of the court of appeals are not precedential. The danger of miscitation is great because unpublished decisions rarely contain a full
recitation of the facts. Unpublished decisions should not be cited by the district courts as binding precedent.”22
With the encouragement of Dynamic Air and Vlahos, the percentage of opinions issued in unpublished form continued to rise. By 1994, the percentage had risen to 73 percent. By 2005, 86 percent of opinions were unpublished. Last year, 2015, 92 percent of opinions were unpublished.
The problems with unpublished opinions
The Court of Appeals’ interpretation of section 480A.08 in Dynamic Air—approved by the Minnesota Supreme Court in Vlahos—has been criticized by attorneys and commentators.23 Specific criticisms include:
- Too many important opinions that would be good precedent are designated as unpublished. Many experienced practitioners remember interesting, even ground-breaking, opinions that, to their surprise, were not published. Justice Lillehaug remembers two such cases from his private practice. The issues were weighty. In both cases, the Supreme Court granted review and reversed.
- In an era where more disputes are being arbitrated, having more civil precedent would be helpful to both district courts and arbitrators as they try to apply the law.
- Even when they don’t break new legal ground, some unpublished opinions contain significant analyses of facts worthy of publication.24
- The concern in Dynamic Air about attorneys having access to Court of Appeals decisions is entirely outdated. The West Publishing monopoly is over. Unpublished opinions are as easy to find electronically as published ones.
Although the high percentage of unpublished opinions is perennially unpopular in the bar and in the academy, there are many judicial defenders of the concept, including past and present judges on the Court of Appeals. They argue that unpublished decisions allow the Court of Appeals to better handle a large caseload without sacrificing the rights of the parties or creating unnecessary precedent.25 Opinions to be published receive greater scrutiny; they circulate for review and comment to all of the judges on the Court of Appeals. Unpublished opinions circulate to only half of the judges. In other words, judges contend, unpublished opinions enable the Court of Appeals to function efficiently day-to-day as an error-correcting court.26
Unpublished opinions are reviewed by the Supreme Court
The Minnesota Supreme Court grants or denies petitions to review cases from the Court of Appeals based on the criteria of Minnesota Rule of Civil Appellate Procedure 117, subd. 2. The criteria for review in Rule 117 are remarkably similar to the criteria for publication in section 480A and Rule 136.01. Thus, assuming that both courts properly apply their criteria, it should be highly unlikely that the Supreme Court would ever grant a petition to review an unpublished decision of the Court of Appeals. Or so one would think.
But that assumption would be wrong. For example, in 2013-14, the Supreme Court granted 165 petitions for review. Of those, 88 of the grants, or 51 percent, were from unpublished decisions. The Supreme Court reversed the Court of Appeals in 17, or 35 percent, of those cases.
Clearly, there are many times when the Court of Appeals and the Supreme Court do not see eye to eye on what constitutes an important statewide case or a significant point of law. Is it possible that the Court of Appeals is being too self-effacing in designating only 8 percent of its cases as precedent-worthy? Justice Lillehaug thinks so. As a result, when he casts his vote for or against a petition for review, he no longer gives any weight to whether the Court of Appeals opinion is published or unpublished.
The national trend against unpublished opinions
The Court of Appeals’ increasing reliance on unpublished opinions stands in stark contrast to the national trend. In 2006, the tide began to roll back at the federal level. Federal Rule of Appellate Procedure 32.1 was enacted to provide uniformity for citations to federal unpublished opinions.27 The rule provides that a federal court may not prohibit or restrict the citation to unpublished opinions issued on or after January 1, 2007.
Recently, many states have decided to abandon or pare back their systems of unpublished opinions. More than half the states now either permit citation of, or no longer issue, unpublished opinions.28 Since 2004, at least 13 states—Alaska, Arkansas, Hawaii, Kansas, Louisiana, New Mexico, North Carolina, Ohio, Pennsylvania, Texas, Utah, Wisconsin, and Wyoming—have begun to permit citation of unpublished opinions, now accord precedential value to unpublished opinions, or have stopped issuing unpublished appellate opinions altogether.29
What should be done
Out of great respect for the Court of Appeals judges and their sizable workloads, we are not prepared to suggest that Minnesota abandon non-precedential opinions, notwithstanding the national trend. But we have some ideas for improvement.
First, the Legislature should repeal section 480A.08, subd. 3, as an infringement on the judicial branch’s authority. The Legislature should not be, and should not want to be, in the business of telling the courts when and how to issue and apply their own opinions.
Second, the Court of Appeals should try to issue more precedential opinions. Simply put, it cannot be that 92 percent of its opinions involve no significant legal issues. Likely an initial target of doubling the percentage of decisions as precedential would not materially affect the management of a large case load. The Minnesota Court of Appeals is a strong, vibrant institution with 19 well-qualified judges. We suspect that most judges on a panel invest their time and careful attention in each case regardless of whether the opinion is to be published or not. And Court of Appeals policy is that every opinion is reviewed by at least nine judges, including the chief judge, and by experienced Court of Appeals staff attorneys.30
Third, the Advisory Committee on the Minnesota Rules of Appellate Procedure might consider a rules change whereby unpublished Court of Appeals opinions deemed especially significant by the bar could be upgraded to precedential status. A subcommittee could promptly review unpublished Court of Appeals opinions as they are issued. The subcommittee could petition the Court of Appeals to change the designation to precedential.
Fourth, because all Court of Appeals decisions are available online to all attorneys, the designations “published” and “unpublished” should be changed to “precedential” and “non-precedential.” Finally, the rule that special notice need be given when a non-precedential decision is cited should be stricken.
We hope that these thoughts and our proposals for more appellate precedent will renew and refresh the discussion.
DAVID L. LILLEHAUG is an Associate Justice of the Minnesota Supreme Court.
NATHAN J. EBNET was a law clerk to Justice Lillehaug and now practices in the trial department of Dorsey & Whitney in Minneapolis.
1 Act of Mar. 22, 1982, ch. 501, 1982 Minn. Laws 569.
2 There is an urban legend that unpublished opinions were part of the legislative bargain that created the Court of Appeals. Our research provides no support for that legend.
3 David R. Cleveland, Appellate Court Rules Governing Publication, Citation, and Precedential Value of Opinions: An Update, 16 J. of App. Prac. & Process 257, 257 (2015).
4 Committee and Section Reports 1985-86, Bench & Bar of Minn., May/June 1986, at 32 (emphasis added).
5 Act of June 12, 1987, ch. 404, sec. 182, 1987 Minn. Laws 3490, 3622.
8 Act of June 3, 1989, ch. 335, art. 1, sec. 256, 1989 Minn. Laws 2693, 2894.
9 Minn. Stat. §480A.08, subd. 3(b).
10 Lawrence R. McDonough, To Be or Not To Be Unpublished: Housing Law and the Lost Precedent of the Minnesota Court of Appeals, 35 Hamline L. Rev. 1, 22 (2012).
11 Id. The numbers do not include unpublished order opinions.
12 Minn. Const. art. III, §1.
13 State v. Lindsey, 632 N.W.2d 652, 658 (Minn. 2001).
14 State v. Lemmer, 736 N.W.2d 650, 657 (Minn. 2007) (citing State v. Johnson, 514 N.W.2d 551, 554 (Minn. 1994)).
16 Minn. Const., arts. III-IV.
17 Anastasoff v. United States, 223 F.3d 898, 905 (8th Cir. 2000) (R. Arnold, J.), opinion vacated on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000).
18 Minn. R. Civ. App. P. 136.01.
19 See Minnesota R. Juvenile Delinquency P. 30.02.
20 See State v. Fraga, 864 N.W.2d 615, 627 (Minn. 2014).
21 Dynamic Air, 502 N.W.2d at 800-01.
22 Vlahos, 676 N.W.2d at 676 n.3.
23 See, e.g., Chad M. Oldfather, Other Bad Acts and the Failure of Precedent, 28 Wm. Mitchell L. Rev. 151, 178 n.116 (2001) (arguing that unpublished opinions receive less attention and are decided less carefully compared to published opinions); Alice S. Brommer, Dealing Effectively with Unpublished Cases: Non-Precedential Authority May be Persuasive, Minn. Law., Dec. 6, 1999, at 1 (noting attorneys’ concern that the decision on whether to publish is not always clear); Jennifer K. Anderson, Comment, The Minnesota Court of Appeals: A Court Without Precedent?, 19 Wm. Mitchell L. Rev. 743, 760-63 (1993) (arguing that a lack of published opinions makes it difficult to know what the law in an area really is).
24 McDonough, supra note 11, at 20.
25 See, e.g., Peter S. Popovich, Ten Years Later: Justice Delayed Is No More, 19 Wm. Mitchell L. Rev. 581, 585 (1993); D.D. Wozniak, A True Success Story, 19 Wm. Mitchell L. Rev. 589, 589-90 (1993).
26 See McDonough, supra note 11, at 20.
27 Cleveland, supra note 4, at 257.
28 Id. at 258.
30 If additional review within the Court of Appeals is required so that more opinions can be published, the requirement that the panels issue their decisions within 90 days of oral argument could be waived. See Minn. Stat. §480A.08, subd. 3(a).