• August 16, 2017

Writs of certiorari are an important part of the appellate toolbox.

Writs of certiorari are their own kind of appeal, and they are not well understood by Minnesota litigators.  Certiorari matters are not like the usual civil case that starts in the district court and then proceeds to the appellate courts.  These matters instead start in front of a government official or body (like a state agency or a political subdivision) and then proceed directly to the Court of Appeals or, in the case of workers’ compensation and tax court appeal matters, directly to the Supreme Court.

There are three main kinds of certiorari appeals:

  • Chapter 14 “contested case” appeals,
  • Chapter 606 matters, and
  • Appeals from other matters which proceed by writ of certiorari under the Minnesota appellate rules (including appeals from unemployment compensation decisions, workers’ compensation decisions, and tax court decisions).

Chapter 14 and Chapter 606 matters are of greatest interest to me.

Chapter 14 provides for “contested cases.”   It says that certain kinds of challenges to state decisions are “contested cases” under sections 14.57 – 14.62.  These cases are heard by an administrative hearing officer from the Office of Administrative Hearings.  The hearing officer makes a final decision in the matter, or, more commonly, for some kinds of matters, a recommendation to a state department or agency official who makes the final agency decision.  The kinds of matters that proceed under Chapter 14 range from the simple to the very complex.  Matters that proceed under Chapter 14 include disputes about fair campaign practices, data practices, utility regulation, rights to special education services, regulated health care facilities and many kinds of state licensing matters.

Chapter 606 of the Minnesota Statutes makes some other kinds of government decisions appealable via certiorari.  Matters that are appealable under Chapter 606 are certain government decisions that are not appealable under Chapter 14 or other statutes.  These include appeals from certain political subdivision decisions (which are not subject to Chapter 14, since that chapter only addresses state agency decisions), and state agency decisions that do not require contested case hearings and therefore are not subject to Chapter 14.  To be appealable under Chapter 606, the government decision challenged must be “quasi-judicial,” and not “quasi-legislative.”  Many cases define the distinction, but broadly speaking, a quasi-judicial decision is one that applies a defined standard to facts found by the decision-maker, and not decisions that make policy.  Generally, a quasi-judicial decision applies to a limited number of people, and not to the public generally.  The kinds of Chapter 606 matters that may be appealed via certiorari, too, are very wide-ranging.  A few examples:  a city order requiring the destruction of a dog, a city decision designating buildings for historic preservation, and the denial of a police officer’s claim for health benefits under a state program.

A few things make certiorari appeals different.

First, they are initiated differently.  You have to first submit a petition for a writ of certiorari to the clerk of appellate courts.  Assuming your ducks are all in a row, the clerk issues a writ, which must then be served and filed along with the usual appellate documents like a statement of the case.

Second, the timelines are different.  Some certiorari matters must be initiated within 30 days, rather than 60 days.  A certiorari appeal will not be timely if the petition is not filed and the writ issued by the time to appeal.  This means that you must leave time to submit the petition and have the clerk issue the writ before the time to appeal runs.  Because of this, appeals by certiorari should never be left for the last minute.

Third, the standard of review is different.  The legislature entrusts certain decisions to state agencies and political subdivisions.  The appellate courts give those decisions the benefit of the doubt.  You need to understand the standards of review and how to address them to prevail in certiorari appeals.

Writs of certiorari present some opportunities and pose some pitfalls.  You need to understand both to use certiorari effectively.  Watch for more from me on this topic.

Sam Orbovich and I will be presenting on writs of certiorari at a MinnCLE webinar on Thursday, August 17, 2017, from noon to 1:00 pm.  Join us to learn more about certiorari appeals.




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