• March 28, 2018

Minnesota litigators have complained about so-called unpublished Minnesota Court of Appeals opinions for several years. See Lawrence R. McDonough, To Be or Not To Be Unpublished: Housing Law and the Lost Precedent of the Minnesota Court of Appeals, 35 Hamline L. Rev. 1, 22 (2012).

Minnesota Supreme Court Justice David Lillehaug brought attention to the issue in late 2016.

Still, the problem persists. And it is a problem.

Why? Take the Court of Appeals decision in City of Minneapolis v. Sitescape, Inc., decided this week (please).

The City of Minneapolis lawsuit involved a condemnation of property in which the property owner, a corporation, was not allowed to argue at an evidentiary hearing because the corporate representative had not been able to retain legal counsel in time for the hearing. The corporate representative hired counsel for the corporation soon after, but the trial court refused to re-open the hearing on the condemnation.

The case implicated constitutional rights.

The Minnesota Court of Appeals affirmed the trial court’s denial of the property owner’s right to challenge the condemnation, over the dissent of Minnesota Court of Appeals Judge Peter Reyes.

Not only is the Sitescape case “unpublished” and therefore without precedential weight but, as Judge Reyes points out, the majority relied in part on Port Auth. of City of St. Paul v. Baillon Co., No. C6-01-387, 2001 WL 881481, at *2 (Minn. App., Aug. 7, 2001), another unpublished case (which, of course, is not supposed to have precedential authority).

We understand that the Minnesota Court of Appeals’ resistance to eliminating so-called “unpublished” cases has three main justifications: (1) the status of “unpublished cases” comes from a statute so it is the legislature’s job to do away with, not the courts’; (2) requiring that all Minnesota Court of Appeals’ decisions be “published” would add a significantly to the workload of the Court of Appeals. We have been told that “unpublished” decisions are not circulated to all judges on the Court of Appeals, as are cases that are to be “published;” and (3) if the Court of Appeals increases the number of “published” cases and it would give less attention to its “published” cases by necessity (due to the increased number of them and the court’s strained resources). This could create a much higher risk of inconsistent “published” Minnesota Court of Appeals decisions.

Our responses to these arguments are: (1) the Court of Appeals, not the legislature, decides what is to be published and what is not to be published so the suggestion that this is the prerogative of the legislature is shaky both from a pragmatic point of view and a constitutional (separation of powers) point of view; (2) the “workload” problem could be solved by simply lowering the internal process for “published decisions;” and (3) Minnesotans and Minnesota litigators are just as frustrated and inconvenienced by inconsistent “unpublished” opinions as they are by inconsistent “published” ones because lower courts and the Court of Appeals itself simply pick the analysis and reasoning of an inconsistent “unpublished” decision whenever it sees fit.

Unpublished decisions inject confusion and uncertainty into Minnesota case law. Furthermore, the idea of “unpublished” opinions seems antithetical to the common law legal system. The Sitescape decision provides an example.

Sitescape itself is designated as “unpublished” and therefore “non-precedential” but the Sitescape majority itself relies on the analysis in another “unpublished” case in its analysis (i.e., relies on an unpublished case as precedent).

In other words, Minnesota Court of Appeals’ “unpublished” cases seem to lurk in Shadowland, a limbo, where cases may be precedential and they may not be, depending on the whims of the deciding court.

How does this square with the common law legal system? In the common law system,  legal disputes are resolved, not by reference to statutes but by reference to previous court decisions. This has always resulted in imprecision and messiness. It has always had to deal with incorrect earlier decisions or inconsistent (even irreconcilable) earlier decisions.

Idiosyncratically adding the label “unpublished” to decisions attacks the basic common law framework of how our courts are supposed to decide cases.

Nevertheless, there is staunch institutional resistance to the idea of doing away with unpublished decisions.

At a minimum, maybe the Minnesota Court of Appeals could adopt a rule requiring that any case must be “published” in which there is a dissent? After all, the “unpublished” decision statute provides:

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.

Doesn’t a Court of Appeals dissent suggest, at a bare minimum, that at least one of the appellate judges believes either category #1 or #4 is involved?

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