Briefly: Clearing up confusion over unpublished opinion copies

The Legislature tries really hard, and most of the time it gets things right within an order of magnitude. On occasion, hard-fought politics or complex social issues make writing coherent statutes challenging, and it is frequently the case that the courts must step in and add polish, gloss, spin or filler on legislative language that is less than clear.

Normally the effective date of the statute doesn’t require much analysis. There are some general rules of construction — statutes are deemed to be prospective only unless the Legislature makes clear its intent that they have retroactive effect. Legislation can be retroactive within certain constitutional limits. The Legislature can even resurrect rights that have been previously barred by prior statutes.

But the Legislature recently threw a curve ball at Minnesota courts, and particularly at Minnesota lawyers. It repealed the statutory requirement that counsel provide the court and opposing counsel with copies of unpublished Court of Appeals opinions in advance of relying upon them. So far, so good. But the effective date of the new statute, Aug. 1, 2020, contains an odd provision that the amendment applies to “to cases filed at the Minnesota Court of Appeals on or after that date.”

What in the world does that mean? Perhaps we can give you some guidance.

First, a history lesson. In 1977, 60 percent of the 1,200–1,500 cases filed with the Supreme Court were decided by summary affirmance or reversal. Laurence C. Harmon & Gregory A. Lang, A Needs Analysis of an Intermediate Court of Appeals, 7 Wm. Mitchell L. Rev. 51, 67 (1981). After all the hard work of briefing, the parties would receive a one-line order that stated simply “The judgment of the district court is summarily affirmed.” Worse yet, on occasion, the order said that the judgment was summarily reversed, with no explanation. (And remember — this was then the only level of appellate review.)

Lawyers, their clients, and the public were frustrated by an appellate system that was overwhelmed by the number of cases it faced. They wanted a system that gave them confidence that their appeals had been duly considered, the issues carefully reviewed and thoughtfully decided. Part of that process was a written opinion.

But it was also apparent that if there were an additional 1,500 appellate opinions each year, precedent would literally explode. Those who questioned the need for the new Court of Appeals pointed out that a great many of the cases that were flooding the Minnesota Supreme Court weren’t really worthy of that court’s attention. They were frequently efforts to relitigate the result below, arguing simply that the trial court or the jury had gotten the facts wrong. The appellate court had little patience for litigants who insisted on bringing appeals in an effort to merely re-argue the facts. In Walsh v. Dahl, 195 Minn. 36, 261 N.W. 476 (1935), the Supreme Court had some particularly acerbic comments about such cases. “We have reviewed the evidence and find that fact issues only were presented. As such the verdict settled the matter. Why counsel persist in appealing cases where only fact issues are involved is an unsolved mystery. The spirit of controversy seems to be an ever present obsession. The present appeal furnishes abundant proof of just such mental ailment.”

Some lawyers obviously thought it was better to get a one-line summary affirmance than that sort of wood shedding.

But courts depend in large part on the confidence of the public to maintain their authority, and that confidence flows directly from the content and quality of the written opinions issued by judges at all levels.

The Minnesota Constitution was amended in 1982, and the Legislature created the Court of Appeals by enacting Chapter 480A. The original language 480A.08, subd. 3 provided that “[i]n every case, the decision of the court, including any written opinion containing a summary of the case and a statement of the reasons for its decision, shall be indexed and made readily available.” A 1986 survey of Minnesota lawyers by the MSBA found that “an overwhelming majority of the practitioners favor continued publication of all opinions.”

However, that did not solve problem of exploding precedent. So the Legislature adopted a compromise — the new Court of Appeals would be required to explain its decision in every case, even if the explanation was not worthy of lengthy exposition. Opinions could be written so the parties knew they had been heard, and why they received the decision they did, but would not require the care and careful writing of a precedential opinion, which would impact other parties in other cases.

In 1987 the Legislature amended § 480A.08, subd.3 to provide that the Court of Appeals “may publish only those decisions” that announced a new rule of law, overruled a previous decision, stated important “interpretation guideline,” resolved a significant legal issue, or significantly aided in the administration of justice. The Legislature specifically addressed the precedent issue by declaring that unpublished opinions of the court of appeals “are not precedential,” and “must not be cited unless the party citing the unpublished opinion provides a full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial. 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, and other counsel may respond.” Minn. Stat. § 480A.08, subd. 3(c).

Here we need to keep in mind that the Court of Appeals was created in 1983. The internet had yet to blossom, and there was a legitimate concern that the big law firms would have access to unpublished decisions, while lawyers in small firms and judges in outstate courthouses might not. Thus, the requirement in the statute that if an unpublished decision was to be relied upon, copies had to be provided.

The new statute had an immediate impact. In 1988, 54% of court of appeals opinions were unpublished. That trend grew over the ensuing decades. Since 2010, more than 90% of court of appeals’ decisions have been unpublished.

A full discussion of the intricacies of unpublished opinions, statements of decision, etc., is beyond this article. For those of you interested in more detail, we recommend that you read Minnesota Practice: Appellate Rules Annotated § 136.4 Decision and notice of decision, and Hon. David L. Lillehaug & Nathan J. Ebnet, A Fresh Look at the Problem of Unpublished Opinions, 73 Bench & Bar of Minn, Dec. 2016, at 16. Suffice it to say that despite the declaration that unpublished opinions are not precedent, nimble lawyers cite them regularly, and enthusiastically, ignoring the spirit, if not the letter, of the statute.

So why the repeal of the copy requirement? It is clear that with ubiquitous computer-assisted legal research, much of it free in the form of Google Scholar or Fastcase, or similar services, the reason behind the statutory requirement of providing copies of unpublished opinions no longer exists. The published and unpublished opinions are equally accessible on the courts’ website. Presaging the legislative change, effective July 1, 2016, amendments to the Minnesota Rules of Civil Appellate Procedure changed the way those opinions are handled in the appellate courts. Rule 130.02 now provides that unpublished decisions “shall not be included in the addendum, unless those opinions are not generally available in online databases or from Minnesota law libraries, but may be, if required or desired, provided to other parties by alternate means.” The Advisory Committee Comment to this amendment clarified that it did not affect the obligation to provide copies under Minn. Stat. § 480A.08, subd. 3, to opposing parties or attorneys.

It appears that the Legislature was really simply trying to remove an antiquated provision from the statute, one that had outlived its usefulness. But in its haste, it didn’t quite hit the mark. By its terms, the amendment appears to apply only to future court of appeals cases, which cannot be what the Legislature intended. The citation requirement has to apply to all courts, and it would be truly odd if in the same court counsel were required to provide copies as required by the repealed statute in one case, but not in one filed after the effective date of the repeal. The effective date language cannot mean what it literally says.

Our best judgment is that the repeal of the statutory requirement of providing copies of unpublished cases says all that needs to be said on the subject. In the absence of a statute or court rule requiring copies to be provided, there’s no reason to do so. And the effective date of the statute probably doesn’t make any difference once the requirement vanishes. The courts should probably apply it uniformly to old and new cases, in the trial and appellate courts, and to old and new unpublished decisions. And the courts should be equally ready, recognizing their inherent authority, to be relieved of any legislative mandate as to the specific criteria to apply to the publication decision.

So we should thank the Legislature for trying to make things simpler, and forgive them if, in their haste, they made things a little bit more confusing. In these trying times, there certainly are bigger issues to worry about.

Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 35 years of experience practicing law, and he focuses his practice almost exclusively in appellate courts. David Herr is an appellate lawyer at Maslon LLP and serves as Reporter for the Minnesota Supreme Court Advisory Committee on Rules of Civil Appellate Procedure. Erica Holzer is a litigation and appellate attorney at Maslon LLP. She currently serves as secretary and treasurer of the MSBA’s Appellate Section and as a member of the Minnesota Supreme Court Advisory Committee on Rules of Civil Appellate Procedure. Eric, David, and Erica are co-authors of Volume 3 of Minnesota Practice: Appellate Rule Annotated (2020 edition; forthcoming from West/Thomson Reuters).