3-2-1? What kind of decision is that?
No majority Minnesota Supreme Court In re Tschumy decision gives insight into the Court’s thinking but doesn’t create controlling precedent.
October 16, 2014
Usually it’s pretty clear who is the winner and who is the loser in an appeal. There is a written opinion, and if the court is divided, the judges square off into majority and dissent.
Occasionally, when for some reason there is an even number of judges, the yeas and the nays end up evenly divided. The usual result then is an affirmance of the lower court by an evenly divided court, with no opinion issued, and the lower court decision becoming the controlling law of the case.
However, on occasion, some of the appellate judges feel so strongly about things that they want to tell the world why they did what they did. That was apparently the motivation behind the recent decision of the Minnesota Supreme Court in a case involving the power of a guardian to terminate life support for a ward.
In re the Guardianship of Jeffers. J. Tschumy, Ward, A12-2179 (Minn. Sept. 17, 2014), was a decision that many in the healthcare and guardianship communities eagerly awaited. Jeffers Tschumy was a nursing home resident for whom a guardian had been appointed to make decisions concerning his medical care. Several years after the guardianship was in place, Tschumy choked on a sandwich and went into cardiac arrest. He suffered permanent brain damage and was in a persistent vegetative state. The hospital asked the court to authorize the guardian to request removal of life support. The guardian took the position that he did not need a court order, and that he already possessed the authority to end life support.
The District Court ordered life-support terminated, saying that it would explain its reasoning later. Tschumy died and the District Court discharged the guardian. Despite the fact that there was no longer a controversy before it, several months later the District Court judge wrote a sweeping order saying, among other things, that guardians need specific authority from a court to terminate life support. Healthcare providers and those who practice in the guardianship area saw the District Court’s order as creating significant obstacles. The discharged guardian appealed to the Court of Appeals, asserting that he had the authority to cease treatment without court involvement. The Court of Appeals agreed and reversed the District Court. Tschumy’s court-appointed attorney then filed a petition for further review, which the Supreme Court granted. Amici included the State of Minnesota, the Minnesota Hospital Association and the Minnesota Medical Association.
Three justices joined an opinion written by Chief Justice Lorie Gildea, holding that even though the appeal was technically moot because of Tschumy’s death, the matter was functionally justiciable because it presented an important public issue of statewide significance that was contested on both sides. On the merits, the three justices held that the power of a guardian to consent to necessary medical treatment includes the power to consent to the removal of life support when all interested parties agree that removal is in the ward’s best interest.
Not surprisingly, this difficult issue evoked disagreement on the court. Justice G. Barry Anderson dissented, arguing that the statute did not authorize the result. Justices David Stras and Alan Page also dissented, but not on the same ground as Justice Anderson. In their view, there was no justiciable controversy, and the case should have been dismissed.
But for the fact that the vote totals came up 3-3, the Tschumy decision would have been an important decision in a narrow area of the law, yet not especially notable beyond that sphere. But the job of the Minnesota Supreme Court is to declare the law – that’s why it takes cases on further review. What happens when there is no majority statement as to what the law is?
This is more than an academic question. It is generally the rule that when an appellate court is evenly divided, the decision of the lower court is affirmed without opinion. See Englund v. MN CA Partners/MN Ventures, 565 N.W.2d 433 (Minn. 1997). In that case, the Supreme Court initially issued “a 4-2 opinion” that affirmed the decision reached by the Court of Appeals, but unanimously rejected the legal analysis used by that court. For some unexplained reason, one of the justices had a change of heart, moving from the majority to the dissent, resulting in a 3-3 tie. The opinion was withdrawn, and the decision of the Court of Appeals was affirmed without opinion. Id. The law of the case became the Court of Appeals decision, which every member of the Supreme Court had rejected on the merits.
The Minnesota Supreme Court has been quite clear in stating that decisions of the Court of Appeals are not the law of Minnesota, and only the Supreme Court has the authority to make a definitive statement of the law. See, e.g., Willis v. Cnty. of Sherburne, 555 N.W.2d 277, 281-82 (Minn. 1996). So, against this background, the question remains, what is the effect of the decision of the Minnesota Supreme Court when an opinion is written that does not control a majority? The answer probably is that the bench and bar have some insight into the court’s thinking but are left without controlling precedent.
This was the result reached by the United States Supreme Court in Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960). In Eaton, after one justice recused, four justices voted to affirm and four voted to reverse. Prior to the decision, the four justices favoring affirmance had made their views known when they filed memorandum opinions in connection with the Court’s order noting probable jurisdiction. In that circumstance, the Supreme Court concluded that the normal practice of not issuing opinions in cases where the Court is divided should not be followed, and that it was appropriate to issue a per curiam opinion setting forth the views of the court, not so much for the benefit of the litigants in the case at bar, but for litigants in future cases. Id. at 264.
The Minnesota Supreme Court has done the same thing, although sometimes not so overtly. In Sig Ellingson & Co. v. Polk County State Bank of Crookston, 186 Minn. 48, 242 N.W. 626 (1932), Justice Charles Loring, who had served as counsel for the defendant in the court below, recused. Chief Justice Samuel Wilson and two other justices felt that the plaintiff could not recover. Three justices felt that the trial court had properly allowed a verdict for the plaintiff. The court issued a per curiam opinion which set out the facts of the case and listed the positions of the justices. The court referred to the rule that when the court is equally divided, the order from which the appeal was taken will be affirmed. Chief Justice Wilson, for himself and two other justices, and Justice Homer Dibell, for himself and the remaining two justices, then wrote separate opinions giving their views of the facts and law.
Likewise in Gran v. Spangbergen, 53 Minn. 42, 54 N.W. 933 (1893), the justices all agreed that the trial court erred in some of its rulings but were equally divided as to whether that error was prejudicial. Despite its division, the court issued an opinion, authored by Chief Justice James Gilfillan, setting forth the court’s views on the propriety of the trial court’s actions. The same action was taken in Nelson v. Minneapolis & St. Louis Railway Co., 41 Minn. 131, 42 N.W. 788 (1889), where the court agreed on the issue of liability but was evenly divided on the question of damages. Despite this division, the court filed an opinion setting forth its views of the case. And in Folev Bros. v. St. Louis County, 158 Minn. 320, 197 N.W. 763 (1924), the court was again equally divided, resulting in affirmance of the decision below. Justice Andrew Holt wrote a short opinion explaining the views in favor of affirmance, while Chief Justice Wilson wrote a separate opinion expressing the views in favor of reversal and specifically commented on the equal division of the court:
- This situation, the large amount involved, and the public interest in the controversy, in my judgment, justifies me in stating my reasons for dissenting to the views of my associates and I consider it the imperative duty of both sides of this controversy to disclose, under the unusual circumstances confronting us, such reasons as they may have to sustain their conclusion.
Id. at 323, 197 N.W. at 764 (Wilson, J., dissenting).
Clearly there is nothing unprecedented about a 3-3 decision of the Minnesota Supreme Court, with opinions all around. But the unanswered question remains – what is the law in the State of Minnesota? It probably is not anything any of the justices on this Supreme Court said. And the reasoning of the Court of Appeals clearly amounts to nothing more than the law of the case. It will probably take a future case, and a future Supreme Court, to answer with finality the substantive issues presented by Tschumy.
Reprinted with permission of Minnesota Lawyer ©2014
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