Unpublished opinions have been with us since the early days of the Minnesota Court of Appeals. The propriety of such opinions has been debated for almost as long. As we wrote just two months ago, the Minnesota Legislature recently undertook to bring some clarity to the issue of unpublished opinions, or at least how they are provided to the court and opposing counsel. (See Eric Magnuson, David Herr, and Erica Holzer, “Unpublished Copies,” Minnesota Lawyer, June 15, 2020.) But that was not the end of developments regarding the subject. Effective Aug. 1, the Rules of Appellate Procedure provide explicit direction regarding not only the precedential limits of such opinions, but also how the parties and the Court of Appeals address the question of publication.

While the Minnesota Supreme Court and the Minnesota Court of Appeals have both previously stressed the nonprecedential nature of unpublished Court of Appeals opinions and admonished trial courts and practitioners against relying on them — see e.g., Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) — lawyers have consistently cited those decisions whenever they thought they might help their clients’ cause. And the director of the Minnesota Ofﬁce of Lawyers Professional Responsibility at one time identified an ethical obligation for an attorney to cite unpublished Court of Appeals opinions adverse to his or her client, if that authority is the only opinion on point. (Marcia A. Johnson, Advisory Opinion Service Update, Bench & Bar of Minnesota, Oct. 1993, at 13.)

The debate over the proper place for unpublished opinions in appellate advocacy was not limited to Minnesota. Other courts have imposed similar prohibitions on the use of unpublished decisions, and lawyers in those courts have been equally insistent on using them if the decisions provide even nominal support for an argument otherwise lacking in citable authority. The debate may have hit its pinnacle when a panel of the 8th Circuit issued an opinion in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), in which Judge Richard Arnold declared the prohibition on citation of unpublished opinions to violate the Constitution. The prohibition, Judge Arnold wrote, “expands the judicial power beyond the limits set by Article III by allowing [courts] complete discretion to determine which judicial decisions will bind … and which will not.” 223 F.3d at 905. While the Anastasoff opinion was subsequently vacated as moot following a settlement during rehearing en banc, it set off a flurry of published commentary and was cited numerous times by other federal courts. See Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23 (2005) (discussing the Anastasoff decision); Thomas R. Lee & Lance S. Lehnhof, The Anastasoff Case and the Judicial Power to “Unpublish” Opinions, 77 Notre Dame L. Rev. 135 (2001) (same); Howard J. Bashman, The Unconstitutionality of Non-Precedential Appellate Rulings, The Legal Intelligencer (Dec. 11, 2000) (same); United States v. Goldman, 228 F.3d 942, 944 (8th Cir. 2000) (“Although Dungy is an unpublished opinion, our panel must follow it as precedent. … Only the en banc court can overturn the Dungy panel’s opinion.”)(citing Anastasoff).

The result in many courts was a walk back from prohibitions on citing unpublished decisions; most courts now allow such decisions to be cited for whatever value they may have. Because stare decisis is a bedrock principle of the Minnesota courts as well, Minnesota has generally followed that path. Thus, from time to time, the Minnesota Court of Appeals has cited to its own unpublished decisions, deeming them “instructive,” if not precedential. See, e.g., Andrew L. Youngquist, Inc. v. Cincinnati Ins. Co., 625 N.W.2d 178 (Minn. Ct. App. 2001) (court’s unpublished decisions not precedential; “they may have persuasive value”). The court has also applied this distinction in reviewing trial court consideration of unpublished court of appeals opinions. See, e.g., Donnelly Brothers Const. Co. v. State Auto Property and Cas. Ins. Co., 759 N.W.2d 651, 659 (Minn. Ct. App. 2009). Despite the Court of Appeals’ intermittent use of such opinions, for lawyers, their use remained fraught. See, e.g., Skyline Village Park Ass’n v. Skyline Village L.P., 786 N.W.2d 304, 310 n.2 (Minn. Ct. App. 2010) (ﬁnding prior unpublished decision unpersuasive due to its unpublished status).

Following the Legislature’s lead, the Minnesota Supreme Court has amended the rules concerning Court of Appeals briefing and opinions, amendments which became effective Aug. 1, 2020. The amendments to Rule 136 do away with “published” and “unpublished” opinions, replacing them with the new categories of “precedential” and “nonprecedential” opinions. Minn. R. Civ. App. P. 136.01 subd. 1(a). The order amending the rules also sets out some criteria for the Court of Appeals to consider in deciding whether to publish a particular decision:

In determining the written form, the panel may consider all relevant factors, including whether the opinion:

(1) establishes a new principle or rule of law or clarifies existing case law;

(2) decides a novel issue involving a constitutional provision, statute, administrative rule, or rule of court;

(3) resolves a significant or recurring legal issue;

(4) applies settled principles or controlling precedent;

(5) involves an atypical factual record or procedural history;

(6) includes an issue pending before the United States Supreme Court or the Minnesota Supreme Court; or

(7) warrants a particular form based on the parties’ arguments, including, but not limited to, the parties’ statements allowed by Rule 128.02, subd. l(f).

Minn. R. Civ. App. P. 136.01 subd. 1(b).

The amended rule also succinctly states what has been the practice in recent years concerning the citation of unpublished opinions—they may be cited, but only as persuasive authority. They are binding only as law of the case, or for purposes of res judicata or collateral estoppel. Minn. R. Civ. App. P. 136.01 subd. 1(c).

The most notable part about this effort to address unpublished opinions is a new rule provision permitting the parties, at their option, to brief whether a decision should be published. “[A] party may include an optional statement as to whether the court’s opinion should be precedential, nonprecedential, or an order opinion, and the party’s reasons.” Minn. R. Civ. App. P. 128.02 subd. 1(f). Other courts addressing the question of publication frequently require such a statement. E.g. WI R. App. P. 809.19(1)(c) (appellant’s brief must contain “a statement as to whether the opinion should be published”). It seems likely that every appellant will be inclined to argue for publication, on the theory that their case is important, while most respondents are likely to argue against publication by asserting that the case below was rightly decided, and either based on well-established law or is limited to its specific facts. Of course, only time will tell if the bar reacts to this permissive approach as expected.

Do the new rules increase clarity about the value of unpublished opinions for both judges and lawyers? Probably. And while lawyers in any particular case may be unlikely to anguish over the decision to urge publication or to oppose it, the rule amendment adds a little bit more order, and more certainty, to the appellate process. In that light, though it was a long time coming, it’s hard to say that the rule amendment doesn’t make sense.

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. Geoffrey Kozen is an associate at Robins Kaplan.

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