You have found a great Minnesota Court of Appeals case supporting your client’s position. Unfortunately, it is unpublished. Or worse, there is a terrible case against your client’s position that the other side and the judge are enamored with, despite its unpublished status. What to do? Much of the confusion about unpublished court of appeals opinions comes from the tension between their non-precedential nature and the role they nevertheless play in certain circumstances as persuasive authority.
The rule is clear; unpublished opinions are not precedent. Minn. Stat.§ 480A.08, subd. 3(c); R. Civ. App. P. 136.01, subd. 1(b) (Unpublished opinions and order opinions are not precedential except as law of the case, res judicata or collateral estoppel, and may be cited only as provided in Minn. Stat. § 480A.08, subd. 3.). But they are frequently cited, and important enough that attorneys are required to provide copies to other counsel at least 48 hours before relying upon them in court and if citing an unpublished opinion in a brief or memorandum or law, to provide a copy contemporaneous with filing. Minn. Stat. § 480A.08, subd. 3.
This notification obligation was a really big deal when the Court of Appeals was created, due to concerns that practitioners in larger law firms might have superior access to “secret” unpublished orders. Before the Court of Appeals existed, the Supreme Court would decide the majority of appeals with one-line summary orders— “The decision of the district court is summarily affirmed.” Lawyers in the know about the district court decision (remember, this was in the late 1970’s— before the internet made decisions readily accessible) would slap the summary affirmance on the district court order and present it as binding precedent in the next case. This inspired the statutory requirement to provide copies of unpublished decisions, to level the playing field. This obligation, while outdated given the widespread availability of opinions on the internet, remains today.
Google-able yes, but precedential, no. Minnesota’s appellate courts have often reminded practitioners that these decisions are not precedent. In Columbia Casualty Company v. 3M, 814 N.W.2d 33, 38 (Minn. Ct. App. 2012), the court of appeals refused to analyze unpublished court of appeals decisions upon which one party heavily relied, saying such reliance was “misplaced” because they had no precedential value. The Supreme Court has also stressed their non-precedential nature, noting that unpublished decisions rarely contain a full recitation of the facts and therefore create great danger of miscitation. Vlahos v. R & I Constr. of Bloomington, Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004). Consequently, “[u]npublished decisions should not be cited by the district courts as binding precedent.” Id.
The Minnesota Court of Appeals does occasionally find its reasoning in unpublished opinions to have “persuasive” value, and accordingly may cite them. See, e.g., State v. Zais, 790 N.W.2d 853, 861 (Minn. Ct. App. 2010). The court distinguishes between citing an unpublished opinion for its persuasive value rather than as precedent. 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). The former is appropriate in certain circumstances, the latter is always prohibited.
The Court of Appeals has also held that a district court may, in certain circumstances, allow a legal malpractice expert to testify about how unpublished opinions could have informed an attorney of trends in the law to establish the appropriate standard of care. See Jerry’s Enterprises, Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 691 N.W.2d 484, 495 (Minn. Ct. App. 2005). In addition, the Director of the Minnesota Office of Lawyers Professional Responsibility has opined that an attorney has an ethical obligation to cite unpublished opinions by the Minnesota Court of Appeals adverse to his or her client, if such authority is the only on-point in the jurisdiction. Marcia A. Johnson, Advisory Opinion Service Update, Bench & Bar of Minnesota, Oct. 1993, at 13.
So if all opinions are important, why are some unpublished? Several reasons. First, the Court of Appeals handles a substantial workload, and according to the Judicial Branch’s 2015 Annual Report, is the “court of last resort” in approximately of 96% of cases. (The other 4% are the cases in which the Supreme Court grants review.) In 2015, 1,953 cases were filed in the Minnesota Court of Appeals and the court disposed of 2,054 cases, which is a very large volume for the nineteen judges to manage – more than two dispositions per judge per week, all year. Even simple cases take time, and many cases are not simple.
Issuing unpublished opinions, which ostensibly resolve contested issues only for the parties in that dispute (remember, they are not precedential), is also consistent with the Court of Appeal’s role as an error-correcting rather than a law-making court. See Lake George Park, L.L.C. v. IBM Mid-America, 576 N.W.2d 463, 466 (Minn. Ct. App. 1998) (“This court, as an error correcting court, is without authority to change the law.”) The Minnesota Supreme Court, which handles far fewer cases, necessarily takes a different approach to opinions because it knows it is making precedent that will have ramifications for future parties. Thus, all its opinions are published.
In addition, the Minnesota Legislature has specified that the Court of Appeals “may only publish” decisions in five different situations. In order to be published, an opinion must either: (1) “establish a new rule of law;” (2) “overrule a previous Court of Appeals’ decision not reviewed by the Supreme Court;” (3) “provide important procedural guidelines in interpreting statutes or administrative rules;” (4) “involve a significant legal issue;” or (5) “significantly aid in the administration of justice.” Minnesota Statute § 480A.08, subd. 3(c).
While some of these situations are fairly cut and dried, others are more nuanced. When do procedural guidelines become important? When is a legal issue significant?
Chief Judge Edward Cleary provided some insights on the Court’s process regarding publication status. The law clerk preparing a bench memo for the panel may provide initial input regarding publication. Next, the issue is considered by the panel in conference post-argument. While the panel makes the final decision on publication, any opinion chosen for publication is circulated to all judges. Colleagues may weigh in on the merits and sometimes the wisdom of publishing. (Unpublished opinions are circulated to half the judges for random review.) For the past few years, between 8-10% of the court’s opinions have been published, and while some judges are more likely to publish than others, the identities of the judges publishing most often has changed each of the last few years. Once an opinion is issued, however, there is no process for changing its publication status.
What’s a thoughtful practitioner to make of all of this? First, research thoroughly so you find any relevant unpublished decisions, regardless of whether they hurt or help your position. While your professional obligation to reveal them to the courts is not as cut and dried as your obligation to inform the court of controlling authority, if an unpublished opinion is the only decision on-point, you must bring it to the court’s attention. Candor is not only required, it is the best policy. The more a case pains you, the greater the need to cite it and take it on directly.
If an unpublished opinion helps your case, do not to overplay your hand. Tempting a district court to treat an unpublished opinion as precedential is contrary to the law and could create reversible error. But you can and should argue that a helpful and relevant unpublished opinion has persuasive value, and encourage the court to find its reasoning persuasive, but not outcome-determinative.
Finally, keep in mind that forthcoming amendments to the Minnesota Rules of Civil Appellate Procedure, effective July 1, 2016, address unpublished decisions. Generally speaking, the appellate courts do not want you to provide them with copies of unpublished opinions. Rule 130.02 on the “Addendum” clarifies that unpublished decisions “shall not be included in the addendum, unless those opinions are not generally available in online databases or from Minnesota law libraries, but may be, if required or desired, provided to other parties by alternate means.” In the rare occasions where unpublished decisions are not easily available and must be included in an Addendum, you can exclude them from your 50 pages of discretionary material. The Advisory Committee Comment to this amendment clarifies that it does not affect the obligation to provide copies under Minn. Stat. § 480A.08, subd. 3 to opposing parties or attorneys.
At the end of the day, an unpublished decision of the Court of Appeals may not be precedential, but no one can deny that, in a particular case, it might be important, and sometimes persuasive enough to make a difference for your client. Use them well, but wisely.
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