• June 4, 2014

Update (June 4, 2014)The Minnesota Supreme Court is seeking applicants interested in serving on several advisory committees that provide recommendations on possible changes to the rules that govern court proceedings and records in the state.

Update (May 27, 2014): (under subject line: More Trouble for Plaintiffs on the Horizon From Minnesota Court Administration?):  Minnesota Supreme Court Justice Barry Anderson’s follow-up on Mike Unger’s May 22 Minnesota Litigator post, below:

Thank you for your comments about potential rule changes as we move forward with electronic filing.   There will be further conversation about the issues you’ve raised.  On a related note, you mentioned the various advisory committees established by the Minnesota Supreme Court that deal with rules of procedure.   Many of your readers may not be aware that as a reaction to the most recent budget crisis, the Court adopted a moratorium on meetings of many of those committees as a way to assist in controlling costs.  That moratorium has now been lifted and over the next several weeks and months, there will be announcements regarding committee vacancies and meeting schedules.

Barry Anderson, Associate Justice, Minnesota Supreme Court

Original Post (May 22, 2014) (under the subject line “More Trouble for Plaintiffs on the Horizon From Minnesota Court Administration?”): I would certainly hope not. The folks in court administration that I know all seem like very fine public servants, but sometimes they have ideas to promote administrative ease which negatively affect the public’s right to have their day in court.

A case in point:  the most recent proposed changes to the Rules of Civil Procedure and the General Rules of Practice.  

In the order setting these proposed Rules on for hearing, they are billed as merely being proposed amendments “related to the submission of confidential information.”  That description is true for the most part, but not completely.  The “e-Court Steering Committee” has made these proposals.  They appear to lack the usual input of experts on the Rules.  Among the proposed amendments is something that seems to have little to do with confidentiality, or e-filing in particular.  The Steering Committee has proposed to amend the Rules to permit rejection of filing of a complaint if it doesn’t come with the newly required “Civil Cover Sheet”.  Since use of Civil Cover Sheets in the Federal Courts predated e-filing in the Federal Court,  there is nothing about “civil cover sheets” that has anything to do with e-filing per se.  Thus, it remains a puzzle how this subject was slipped into an e-Court Steering Committee proposal, but it is.

The proposed rule to reject initial filings due to lack of a Civil Cover Sheet, is now under consideration and offered for public comment.  You may submit your comments in writing to the Supreme Court by May 31. As far as I can tell, this proposal was not scrutinized by the Rules Advisory Committees that the Supreme Court used to employ to consider Rules changes.  (Is this a quirk, or does it represent a choice to no longer use Advisory Committees?  A similar thing may have happened with the last big set of amendments, which were produced by a specially appointed Task Force. )

The e-Court Steering Committee Memo advances this new change by saying the proposed amendments are designed to “reduce unnecessary work” and that “addressing these issues administratively makes sense from a workload efficiency standpoint”.    Perhaps so, but since when should administrative ease trump access to the courts by litigants?  There appears to be no discussion of this concern in the Steering Committee’s transmittal memo.

Why is this proposed rule change important?  Recall that the most recent amendments to our Rules of Civil Procedure have made a filing deadline that is of great importance.  Now if a plaintiff doesn’t file a case within a year of commencement, it is deemed dismissed with prejudice.   See Rule 5.04.  This means that a filing, submitted at or near the one year deadline, could be rejected and before the filing is known to have been rejected, the deadline may have already passed, and the case is then deemed dismissed with prejudice.  May it rest in peace.

Whatever happened to the idea that the courts preferred to make decisions on the merits of cases?

Not long ago I served on the Supreme Court’s Advisory Committee on the Rules of Civil Procedure and, before that, as Chair of the Minnesota State Bar Association’s Court Rules Committee.  I distinctly recall the enthusiasm of members of the Bar and Advisory Committee members (which was made up of judges, learned academics and experienced practitioners of all stripes), when the Supreme Court, in 2000 and again in 2012, adopted amendments  that were designed to limit the Court Administrator from refusing or rejecting filings, merely due to a form or rule error.    Could the pendulum be swinging back so soon, in favor of technical trip wires or new administrative “death penalties”?

In the past, the Supreme Court and its Advisory Committee recognized that refusing to accept filings might have unintended and disproportionate consequences for the litigants.  Other solutions for administrative problems were thought to be preferable as a way to address technical errors.

With this latest petition, a largely administrative committee is now proposing to increase the right of Court Administrators everywhere to reject filings again, even at the risk of the loss of substantive legal rights to our citizens.  I trust the Court won’t go for this.

Perhaps it is time to reactivate the Advisory Committees on the Rules.  The folks who actually represent the citizens who are litigants in our courts have an important voice that ought to be solicited and heard early in the Rule making process.  Hearing their thoughts ought not be left to chance that they will emerge at public hearings occurring at the end of rule making process.

In the meantime, if you have any reservations about this rule change,  please let the Court know your thoughts prior to May 31.  Don’t expect that blog posts like this will be sufficient to get the message through.  Your contribution is important.


By Michael W. Unger

Mr. Unger, of Unger Law Office in Minneapolis, is a certified civil trial specialist who represents plaintiffs in personal injury, wrongful death and medical malpractice cases.

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