We recently wrote in this column about amicus, their value, and their challenges. “I Get By with a Little Help from My Friends,” Minnesota Lawyer (July 2016). As a variation on that theme, we have watched with particular interest the progress of a case now pending in the Minnesota Supreme Court in which amici may play a central role, and which puts in the spotlight the question of what limits, if any, there are on courts to constrain themselves to decide a case based on the issues and arguments presented by counsel for the parties. In other words, when is getting the right legal answer more important than deciding which party wins?
In State v. Vasko, 2016 Minn. App. Unpub. LEXIS 381 (Minn. Ct. App. Apr. 18, 2016), the Court of Appeals reversed the misdemeanor conviction of Renee Vasko for violating a municipal blight ordinance. The ordinance prohibited a junked or abandoned vehicle on private property for any period greater than 30 days, and there was a notice requirement to the owner of the property. An officer first noticed the vehicle on her property on September 5, but there was no evidence of proper notice until September 29. Vasko’s vehicle was towed on October 24, and she was fined $100 because she had an unregistered and inoperable vehicle on her property that allegedly created a blight.
Vasko appealed the fine, appearing pro se in the court of appeals. The court found there was an ambiguity in the ordinance as to its notice requirement and applied the rule of lenity in favor of the defendant. The court reasoned that there were two reasonable constructions of the ordinance. The dissent argued that, among other things, the parties never presented the issue of ambiguity, and Vasko admitted the inoperable vehicle had been in her yard for two years.
The state filed a petition for review with the Minnesota Supreme Court, asserting that the Court of Appeals’ decision directly conflicted with Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988). Thiele held that a party may not generally raise new issues on appeal, that is, issues not presented to the trial court, and that the appellate court’s decision has to be based on the factual record created in the trial court. The state argued in its petition for review that neither party had raised any issue relating to the ambiguity of the ordinance or the applicability of the rule of lenity at trial or at any time during the pendency of the appeal. Further, according to the state, the Court of Appeals, which came up with the issue on its own, did not provide either party an opportunity to address the argument before it issued an opinion.
The action of the Court of Appeals is not without precedent. The Minnesota Supreme Court has itself done the same thing. In State v. Hannuksela, 452 N.W.2d 668 (Minn. 1990), the court raised the issue of whether a partially invalid search warrant rendered inadmissible everything seized under the warrant. Neither party had raised severance or partial invalidity. Nonetheless, the court chose to apply that law with the following reasoning: “If the doctrine were either novel or questionable, it might be appropriate for the court to solicit additional briefs. However, it is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be ‘diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities.’” Id. (quoting Tate, Sua Sponte Consideration on Appeal, in Appellate Judicial Opinions 128 (R. Leflar ed. 1974)). And just last month, the Minnesota Supreme Court demonstrated that, when it comes to jurisdiction, the appellate courts have an affirmative duty to confirm that they have the power to decide a case, regardless of what the parties may or may not do on the question of jurisdiction. McCullough & Sons, Inc. v. City of Vadnais Heights, Nos. A14-1992 & A15-0064 (Aug. 10, 2016).
In light of the claimed conflict between the decision of the Court of Appeals and Thiele, it was perhaps not surprising when the Minnesota Supreme Court granted further review. What was surprising, however, was that the order granting review specifically invited the Minnesota Attorney General, the Criminal Law Section of the Minnesota State Bar Association, the Appellate Practice Section of the Minnesota State Bar Association, and the Minnesota Association of Criminal Defense Lawyers to appear as amici in the case. None of those parties had filed a request for leave to participate as amici.
The Appellate Practice Section of the Minnesota State Bar Association elected to avoid taking a position on the merits of the case, and instead addressed a threshold philosophical issue –assuming the appellate court properly chose to decide an important issue not raised by any of the parties in the lower court or on appeal, what procedure, if any, should the appellate court follow?
The Appellate Practice Section proposed a simple and direct solution – “In that situation, an appellate court should invite the parties to address the issue through supplemental briefing before deciding it. If the parties cannot adequately develop the issue, whether because a party is pro se or for some other reason, the court should invite amicus participation or seek the appointment of pro bono counsel.”
The position of the section was really an affirmation of the importance of the basic adversarial structure of the American justice system. Sometimes viewed as a descendant of the medieval method of dispute resolution – trial by combat, where the disputants were allowed to select a champion to battle for them – the adversarial system is firmly entrenched in American law. The right to counsel in criminal cases, the rules of evidence, the process of direct and cross-examination, and the entire decisional process are built on the assumption that the litigants will identify their disputes and present evidence and argument in an effort to convince the court where the merits fall. It is not a perfect system, but it works. Further, “[i]t can also be argued that two prejudiced searchers starting from opposite ends of the field will between them be less likely to miss anything than the impartial searcher starting at the middle.” P. Devlin, The Judge (Oxford University Press, 1970) 60-1.
Of course, the strength of that system is premised on the assumption that the fight will be fair, that the sides will be more or less equally armed, and that the adversarial process will sort out the truth. By contrast, the inquisitorial process, where the court leads a search for the truth, holds a certain attraction when the opposing sides are not evenly matched.
The Appellate Practice Section has come down squarely in favor of the adversarial system, suggesting ways in which that system can fairly address situations such as are presented by Ms. Vasko’s case. The section emphasized the importance of adversarial development of a case because it guards against errors, ensures judicial impartiality, and promotes fairness and equity. So strong is the section’s commitment to those values that it has offered to help find pro bono counsel for unrepresented parties in appellate cases.
Although the amount of Ms.Vasko’s fine is modest, the issue her case presents is important. Like the Appellate Practice Section of the Minnesota State Bar Association, we take no position on the outcome of the case on the merits, but we agree wholeheartedly that supplemental briefing and amici would provide an added help to both the court and the parties, while at the same time, respecting the basic nature of the adversarial system.
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