Briefly In the Interest of Justice
February 20, 2015
Everyone knows that rules have to be followed. And every lawyer handling an appeal knows that appellate rules have to be followed to the letter, or really bad things can happen.
We have written in past columns about the disasters that have befallen lawyers when they fail strictly to follow the rules. See my columns from March 2013 “Crossing the t’s and dotting the i’s” and May 2014, “Perfecting an Appeal: Intent Matters.” But there is some reason for hope and possible redemption for those who have wandered from the narrow path of appellate procedure. A recent order from the Minnesota Supreme Court allowed a clearly defective appeal to proceed, granting relief “in the interests of justice.” It was a rare event, and one that deserves some study.
The fact that the appellate courts might, in some circumstances, actually bend the rules in order to save an appeal is certainly not something upon which anyone should rely. It is the equivalent of a 70-yard Hail Mary pass in a football game on the last play, or a three-quarter court basketball shot that goes in at the buzzer, and only slightly more likely than the odds of winning the lottery. But in some cases, in some circumstances, an otherwise fatal mistake is forgiven.
Now before anyone starts to think that appellate courts will freely grant relief from failure to do what the rules say you must do, we need to remind ourselves that the circumstances must, indeed, be right. That means first of all, you have to be in the right court, and ask for the right relief if you want a mistake to be overlooked. For example, federal appellate courts are courts of limited jurisdiction — their jurisdiction only exists in the finite circumstances where it has been expressly created by law. This means that exceptions for late or imperfect appellate filings are very narrow. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 409 (U.S. 1993) (discussing excusable neglect standard). In the federal courts, litigants can seek forgiveness for late filings only because Congress has written the excusable neglect standard into statute. Id. Wander outside the safe harbor created by statute and you are simply out of luck. The court has no power to give you a break. See, e.g., Alwan v. Ashcroft, 388 F.3d 507, 512 (5th Cir. 2004) (“[W]e have no power of review unless it is conferred by statute.”); Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1320 (9th Cir. 1981) (“We are a court of limited jurisdiction and have no power to reach out beyond our jurisdiction to correct errors.”).
State courts have a bit more flexibility. Minnesota’s appellate rules allow both the Supreme Court and the Court of Appeals to exercise their discretion and allow appeals to continue in the interest of justice even if there are defects. Rule 102, Minn. R. Civ. App. P., for instance, allows Minnesota’s appellate courts to suspend certain appellate rules in limited circumstances. An express constraint on that power, however, is that the rule does not apply to suspending the time for appeal. Likewise, Rule 103.04 allows appellate courts to reach issues of merit or other matters not squarely presented to the court “as the interest of justice requires.”
These rules authorize appellate courts to use their inherent powers to give relief from some of the appellate rules if the court thinks it’s the “right” thing to do. Despite the greater flexibility of Minnesota’s appellate courts, this is a tricky and sometimes narrow standard. To paraphrase Justice Potter Stewart, courts “know the interest of justice when they see it.”
Generally, the Minnesota Supreme Court has been more flexible than the Minnesota Court of Appeals in allowing exceptions in the interest of justice. In part this is the result of the fact that the Supreme Court’s jurisdiction is prescribed by the Minnesota Constitution, while the jurisdiction of the Court of Appeals is prescribed by statute. See, e.g., Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 748 n.3 (Minn. Ct. App. 2001) (declining to exercise authority in the interest of justice because of perceived statutory constraints); Belisle v. Nova Barha Dori, No. C6–99–906, 1999 Minn. App. LEXIS 1218, at *3 (Minn. Ct. App. Nov. 16, 1999) (declining to recognize new cause of action “even when such actions appear to have merit”).
The Supreme Court has sometimes been lenient and allowed the merits of an appeal to be heard even if the appeal is not properly perfected. See Le Roy v. Marquette Nat’l Bank, 277 N.W.2d 351, 353 (Minn. 1979) (“Even though the appeal is defective, we will take jurisdiction under [Rule 102], where the facts and circumstances contributing to the defect persuade us that appellant was not inexcusably dilatory and that justice would be better served by reaching the merits of the case.”); see also E.C.I. Corp. v. G.G.C. Co., 237 N.W. 2d 627, 629 (Minn. 1976) (allowing full consideration of all issues on appeal from an amended judgment when technically only the amendments were before the court for review. “[O]n the peculiar facts of this case, justice is better served by allowing the appeal.”)
Similarly, minor defects, such as listing the wrong date for the order being appealed and other “clerical” errors have been held not to be fatal. In re Hore’s Estate, 220 Minn. 365, 19 N.W.2d 778 (1945). The Supreme Court has observed that such flexibility flows from the remedial nature of appeals themselves. Stebbins v. Friend, Crosby & Co., 191 Minn. 561, 254 N.W. 818 (1934).
The Court of Appeals, which has the same ability under the rules to proceed in the interest of justice, has generally been less flexible. Whereas the Supreme Court has allowed appeals from nonappealable orders, the Court of Appeals generally will not. See Setter v. Mauritz, 351 N.W.2d 396, 398 (Minn. Ct. App. 1984). An argument can be made that the Court of Appeals could construe its power to act in the interest of justice more broadly than it currently does, but it is the court’s power, and it wields it as it sees fit.
While there is no difference in the language of the rule that applies equally to both courts, the fact that they apply that rule differently is a strong indication that what appears to be in the interest of justice to one group of judges might not qualify when considered by a different group. For example, in In re J.R., Jr., the Supreme Court held that failure to serve a child’s guardian ad litem rendered the appeal defective and the court dismissed the action for lack of jurisdiction. 655 N.W.2d 1, 6 (Minn. 2003). Citing the court’s history of allowing some lenience for technical defects like service, at least two of the justices would have allowed the appeal in the interest of justice. See id. (Anderson, Paul H., J., concurring in part and dissenting in part). And it is fair warning that no one should count on the court seeing “justice” in a way that will enable the court to overlook a flaw in an appeal.
Which brings us back to the inspiration for this piece — the Supreme Court’s recent order in Hunter v. Anchorbank N.A. In that case, the appellant tried to serve her notice of appeal by facsimile. Consistent with its actions in similar prior cases, the Court of Appeals concluded that a facsimile was not an acceptable form of service under Rule 103.01, and dismissed the appeal as untimely. No. A14-–1599 (Minn. Ct. App. Oct. 28, 2014).
The appellant petitioned the Supreme Court for review. The court granted the petition, and, “in the interests of justice,” vacated the Court of Appeals and remanded “with directions to accept the Notice of Appeal.” Hunter v. Anchorbank, N.A., No. A14-–1599 (Minn. Jan. 20, 2015).
The appellant was able to revive her appeal because the Supreme Court thought that justice was best served by that result. After all, there was timely notice, and the flaw was technical only. But justice is sometimes in the eye of the beholder. While the appellant thought justice was served, the respondent probably felt that there was something unjust about the appeal going forward when the rules had not been followed.
Regardless of how any one of us might view justice in these circumstances, there is one thing about this tale upon which we should all be able to agree. The best way to avoid injustice is to make sure that you never have to ask for relief in the interest of justice. Follow the rules. That’s why they are there.Reprinted with permission of Minnesota Lawyer ©2015
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