The recent 25th anniversary of the Minnesota Court of Appeals provides an opportune time for the state’s highest tribunal to review and revise some of its protocols and the way it interacts with the intermediate tribunal.
Ever since creation of the appellate court by state constitutional amendment in 1983, the Minnesota Supreme Court has had discretion over most of its docket. Except for a select few matters (first-degree homicide cases; decisions of the Tax Court; workers’ compensation appeals; attorney disciplinary matters; state-wide election contests; and certified questions from the federal trial courts), the jurists on the state’s supreme Court have unfettered leeway over what cases to take.
While free to pick-and-choose which matters to hear, the Court gives very little guidance to practitioners regarding the petition process. The Court’s case dispositional procedures provide for initial review of petitions for review by the commissioner’s office, which recommends whether to deny the request, grant it, limit the issues, or consider the case without oral argument. The Court meets thrice monthly to consider the petitions and grants review upon the affirmative vote of at least three of its seven members.
Rule 117 of the Minnesota Rules of Civil Appellate Procedure provides whatever limited substantive guidance exists, identifying the grounds for granting a Petition. They include the importance of the question; its potential state-wide impact; reconciliation of conflicting decisions below; whether a state law has been declared insufficient; and possible recurrence of issues unless resolved by the top tribunal.
De-mystify Decisions
Otherwise, the petition for review process is shrouded in mystery. It’s time to demystify how the Court makes decisions on which cases to review.
Statistics show that the chances for Minnesota Supreme Court review are slim. The appellate court issues rulings on the merits in about 2,200 cases annually. Over the past five years, there were 3,394 petitions filed with the state high court, an average of about 680 per year. The Minnesota Supreme Court heard only 457 of the cases, barely 13 percent of those for which petitions were filed. The Court reversed or remanded 208 of them, including those heard in the first three quarters of 2008, a reversal-remand rate of 44 percent.
In 2007, 619 petitions were filed, 327 in criminal cases and the balance in civil matters. The likelihood of achieving review in either genre is slight. Of the 327 criminal cases, only 27, or 7 percent , were reviewed by the High Court, and 40 of the non-criminal matters, about 14 percent. Collectively, the overall review rate in 2007 was slightly above 10 percent.
Incidentally, the available figures for the first nine months of 2008 were similar: 483 Petitions were filed and 66 were granted, roughly a 14 percent rate of review.
The review rate in Minnesota seems low but probably is equivalent to, and maybe exceeds, the ratio of the highest tribunals in other state court jurisdictions, and it is much higher than that of the U.S. Supreme Court. Of the approximately 6,660 petitions for Writs of Certiorari disposed of during its 2006 term, the High Court granted review in only 137 cases, a paltry 2 percent. Unlike Minnesota’s Supreme Court, which reverses or remands about 45 percent of its cases, about two-thirds of the cases heard by the High Court are reversed.
But even at the 14 percent review-level, the chance of having a case heard by the Minnesota Supreme Court is less than winning a bet on the horses at Canterbury Downs or on a slot machine at a casino.
Majesty & Mystery
Gambling on a petition for review can be expensive. The filing fee for most petitions is $500, in addition to legal fees that may be generated in the petition process. But lawyers and litigants have little insight into their chance for success. The process is similar to playing black jack without knowing how many cards are in the dealer’s deck.
Because of the mystery in which review is granted, and the unlikelihood of acceptance, lawyers are perplexed in counseling clients on the probability of a petition being granted. Cases in which the lower courts have held a statute unconstitutional seemingly have a higher likelihood of a successful petition, as do cases in which there is a dissent by the appellate tribunal. But even those actions are far from sure-fire successes. E.g. Edina Cmty. Lutheran Church v. State, 745 N.W.2d 194 (Minn. Ct. App. 2008), rev. denied (Minn. Apr. 29, 2008) (provisions of Minnesota Citizens’ Personal Protection Act of 2005 unconstitutionally interfered with churches’ religious practices).
As a matter of intuition, cases that have relatively clear-cut legal issues of broad significance and are not marred by hotly disputed or unique facts would seem most likely to auger for Supreme Court review. But some cases that seem singular, and of limited applicability, occasionally make their way up the ladder. E.g. Commandeur LLC v. Howard Harty, Inc., 724 N.W.2d 508 (Minn. 2006) (Columbus Day is legal holiday and excluded from computing time for 60-day appeal period).
The Court has never articulated any meaningful reasons for granting, or denying, a petition. Denials of review are accompanied with a curt, one-sentence declination. Even those occasions when it grants review, it does so without comment other than delineation of the issues and a briefing schedule.
The impact of a lower court ruling seems more important than its substance in securing Supreme Court review. Appellate petitioners should therefore stress the significance of the issue and how it affects other potential litigants. Emphasizing that the appellate court ruling from which review is sought is erroneous is not a tactic that is likely to be successful. An irony is that one of the main reasons the Court of Appeals was established was the disenchantment of the bar over the Minnesota Supreme Court’s existing practice of summary affirmances, without opinions, of trial court rulings. Those elliptical exercises left lawyers and litigants in a state of despair. But the current practice of denying review in a vast number of cases, without explanation, also creates its share of dismay.
The states’s Supreme Court may be hesitant to reveal much about its petition decision-making process. Disclosure can take some of the majesty—and mystery—out of the process. Greater explanation of the rationale for accepting review could diminish the awe in the process. As magicians never reveal the secret of their tricks, jurists are inhibited from explaining their internal machinations.
Review Reticence
The court’s reticence to explain why it grants, or denies, review is not unique. The U.S. Supreme Court has long followed a similar pattern that silence is golden and olden.
But High Court justices occasionally expound on why they feel a denied Writ of Certiorari should have been granted. E.g. Colorado General Assembly v. Salazar, 541 U.S. 1093 (2004); Cargill, Inc. v. U.S., 516 U.S. 955 (1995). In so doing, they offer a glimmer of guidance to lawyers and lower tribunals. Most recently, Chief Justice John Roberts wrote a rather literary piece, joined by Justice Anthony Kennedy, in dissenting from denial of certiorari in an arrest-and-seizure case in Pennsylvania v. Dunlap, 2008 WL 4550630 (Oct. 1, 2008). His disagreement with the refusal to hear the case read like the beginning of a mystery novel: “North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak ...”
In Minnesota, the bar, and the lower courts could benefit from some elucidation of the petition process, whether with such literary panache or not. This could be done by an occasional explanation by the Court of why a particular petition is granted or, in appropriate cases, why one is denied. This type of exposition could provide guidance to help demystify the Petition process and turn a Petition for Review from a blind gamble to a more predictable process.
