FRESH LOOK PROBLEM UNPUBLISHED OPINIONS

citation of unpublished opinions, now accord
precedential value to unpublished
opinions, or have stopped issuing unpublished
appellate opinions altogether. 29
What should be done
Out of great respect for the Court of
Appeals judges and their sizable workloads,
we are not prepared to suggest that
Minnesota abandon non-precedential
opinions, notwithstanding the national
trend. But we have some ideas for improvement.
First, the Legislature should repeal
section 480A.08, subd. 3, as an infringement
on the judicial branch’s authority.
The Legislature should not be, and
should not want to be, in the business of
telling the courts when and how to issue
and apply their own opinions.
Second, the Court of Appeals should
try to issue more precedential opinions.
Simply put, it cannot be that 92 percent
of its opinions involve no significant legal
issues. Likely an initial target of doubling
the percentage of decisions as precedential
would not materially affect the management
of a large case load. The Minnesota
Court of Appeals is a strong, vibrant
institution with 19 well-qualified judges.
We suspect that most judges on a panel
invest their time and careful attention in
each case regardless of whether the opinion
is to be published or not. And Court
of Appeals policy is that every opinion is
reviewed by at least nine judges, including
the chief judge, and by experienced
Court of Appeals staff attorneys. 30
The Legislature should
not be, and should
not want to be, in the
business of telling the
courts when and how
to issue and apply their
own opinions.
Third, the Advisory Committee on
the Minnesota Rules of Appellate Procedure
might consider a rules change
whereby unpublished Court of Appeals
opinions deemed especially significant
by the bar could be upgraded to precedential
status. A subcommittee could
promptly review unpublished Court of
Appeals opinions as they are issued. The
subcommittee could petition the Court
of Appeals to change the designation to
precedential.
Fourth, because all Court of Appeals
decisions are available online to all attorneys,
the designations “published”
and “unpublished” should be changed to
“precedential” and “non-precedential.”
Finally, the rule that special notice need
be given when a non-precedential decision
is cited should be stricken.
We hope that these thoughts and our
proposals for more appellate precedent
will renew and refresh the discussion. s
DAVID L. LILLEHAUG is
an Associate Justice
of the Minnesota
Supreme Court.
DAVID.LILLEHAUG
@COURTS.STATE.
MN.US
NATHAN J. EBNET
was a law clerk to
Justice Lillehaug and
now practices in the
trial department of
Dorsey & Whitney in
Minneapolis.
EBNET.NATHAN@
DORSEY.COM
Notes
1
Act of Mar. 22, 1982, ch. 501, 1982
Minn. Laws 569.
2
There is an urban legend that
unpublished opinions were part of
the legislative bargain that created
the Court of Appeals. Our research
provides no support for that legend.
3
David R. Cleveland, Appellate Court
Rules Governing Publication, Citation,
and Precedential Value of Opinions:
An Update, 16 J. of App. Prac. &
Process 257, 257 (2015).
4
Committee and Section Reports 1985-
86, Bench & Bar of Minn., May/
June 1986, at 32 (emphasis added).
5
Act of June 12, 1987, ch. 404, sec.
182, 1987 Minn. Laws 3490, 3622.
6
Id.
7
Id.
8
Act of June 3, 1989, ch. 335, art. 1,
sec. 256, 1989 Minn. Laws 2693,
2894.
9
Minn. Stat. §480A.08, subd. 3(b).
10
Lawrence R. McDonough, To Be or
Not To Be Unpublished: Housing Law
and the Lost Precedent of the Minnesota
Court of Appeals, 35 Hamline L.
Rev. 1, 22 (2012).
11
Id. The numbers do not include
unpublished order opinions.
12
Minn. Const. art. III, §1.
13
State v. Lindsey, 632 N.W.2d 652,
658 (Minn. 2001).
14
State v. Lemmer, 736 N.W.2d 650,
657 (Minn. 2007) (citing State
v. Johnson, 514 N.W.2d 551, 554
(Minn. 1994)).
15
Id.
16
Minn. Const., arts. III-IV.
17
Anastasoff v. United States, 223 F.3d
898, 905 (8th Cir. 2000) (R. Arnold,
J.), opinion vacated on reh’g en banc,
235 F.3d 1054 (8th Cir. 2000).
18
Minn. R. Civ. App. P. 136.01.
19
See Minnesota R. Juvenile Delinquency
P. 30.02.
20
See State v. Fraga, 864 N.W.2d 615,
627 (Minn. 2014).
21
Dynamic Air, 502 N.W.2d at 800-
01.
22
Vlahos, 676 N.W.2d at 676 n.3.
23
See, e.g., Chad M. Oldfather,
Other Bad Acts and the Failure of
Precedent, 28 Wm. Mitchell L. Rev.
151, 178 n.116 (2001) (arguing
that unpublished opinions receive
less attention and are decided less
carefully compared to published
opinions); Alice S. Brommer,
Dealing Effectively with Unpublished
Cases: Non-Precedential Authority
May be Persuasive, Minn. Law., Dec.
6, 1999, at 1 (noting attorneys’
concern that the decision on
whether to publish is not always
clear); Jennifer K. Anderson,
Comment, The Minnesota Court of
Appeals: A Court Without Precedent?,
19 Wm. Mitchell L. Rev. 743, 760-
63 (1993) (arguing that a lack of
published opinions makes it difficult
to know what the law in an area
really is).
24
McDonough, supra note 11, at 20.
25
See, e.g., Peter S. Popovich, Ten
Years Later: Justice Delayed Is No
More, 19 Wm. Mitchell L. Rev. 581,
585 (1993); D.D. Wozniak, A True
Success Story, 19 Wm. Mitchell L.
Rev. 589, 589-90 (1993).
26
See McDonough, supra note 11, at
20.
27
Cleveland, supra note 4, at 257.
28
Id. at 258.
29
Id.
30
If additional review within the
Court of Appeals is required so that
more opinions can be published, the
requirement that the panels issue
their decisions within 90 days of
oral argument could be waived. See
Minn. Stat. §480A.08, subd. 3(a).
www.mnbar.org December 2016 s Bench&Bar of Minnesota 19