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(Deposit  Photos)
(Deposit Photos)

Bar Buzz: Go ahead, cite it

A new rule has been adopted that reflects a statutory repeal, which handed authority over precedential Court of Appeals opinions back to the courts.

For years, Minn. Stat. Sec. 480A.08 dictated that some Court of Appeals opinions “must not be officially published.” The law also laid out criteria for deciding which opinions are published, and therefore considered precedential.

Retired Supreme Court Justice David Lillehaug was among the most vocal critics of the Legislature having domain over the appellate opinions, calling it a separation-of-powers violations.

But lawmakers this year decided to get out of that business. They repealed the statute for all cases file on or after Aug. 1. Now the Supreme Court has issued a new rule outlining how the courts will handle the matter.

A change to Rule 128 of the Rules of Civil Procedure allows lawyers to include in their briefs a statement about whether a ruling should be precedential, nonprecedential or an order opinion. They can also explain their reasons.

Meanwhile, Rule 136.01 gives judicial panels new criteria for deciding the form of a written opinion. Those factors—which are more detailed than those under the old statute—are determined by whether the ruling:

  • Establishes a new principle or rule of law, or clarifies existing case law.
  • Decides a novel issue involving a constitutional provision, statute, administrative rule or rule of court.
  • Resolves a significant or recurring legal issue.
  • Applies settled principles or controlling precedent.
  • Involves an atypical factual record or procedural history.
  • Includes an issue pending before the U.S. or Minnesota supreme courts.
  • Warrants a particular form based on the parties’ arguments, such as statements allowed under Rule 128.02, subd. l(f).

The new rules also eliminate a bugaboo that has annoyed attorneys for more than three decades.

Under the old statute, counsel couldn’t cite an unpublished opinion in court without first providing a full copy to all other counsel, 48 hours in advance of the hearing. To cite such an opinion in a brief or memo, a full copy had to be distributed to all other counsel at the time of service, and the other lawyers needed a chance to respond.

That requirement is gone. Now, the rule says simply that “nonprecedential opinions may be cited as persuasive authority.” No fuss, no muss.

According to the Judicial Branch, a workgroup of judges proposed the changes after extensive consultation with the Minnesota State Bar Association and submitted them to the Supreme Court.

Justices put the new rules in place on July 22. The order was signed by Associate Justice G. Barry Anderson.

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About Kevin Featherly

Kevin Featherly, who joined BridgeTower Media in mid-2016, is a journalist and former freelance writer who has covered politics, law, business, technology and popular culture for publications and websites in the Twin Cities and nationally since the mid-1990s.

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