Substitution: Avoiding an Evenly Divided Court

February 16, 2017

With an even number of Justices on the United States Supreme Court, the topic of tie decisions has received a lot of recent play.

On an appellate court of last resort—state or federal—an odd number of justices generally is considered necessary to ensure a clear victor, despite varying views on the law among justices. After all, courts of last resort take cases, usually on a discretionary basis, to answer important legal questions.

Even numbers increase risk of tie votes, which are in some ways worse than the proverbial kiss of a sibling. They result in affirmance without opinion, so a lower court decision with which a significant number of appellate judges may disagree stands as law of the case, and important questions of law go unanswered. See Eric Magnuson, 3-2-1? What kind of decision is that? Briefly, Oct. 20, 2014, at 3 (citing Englund v. MN CA Partners/MN Ventures, 565 N.W.2d 433 (Minn. 1997)).

Tie votes do nothing to offer guidance to prospective litigants on that issue arising in a later case. On occasion, the Minnesota Supreme Court may include opinions by the differing justices in an evenly-divided court’s affirmance where the issue is of statewide significance. See, e.g., In re the Guardianship of Jeffers J. Tschumy, Ward, 853 N.W.2d 728 (Minn. 2014); Sig Ellingson & Co. v. Polk County State Bank of Crookston, 186 Minn. 48, 242 N.W. 626 (Minn. 1932); Folev Bros. v. St. Louis County, 158 Minn. 320, 197 N.W. 763 (Minn. 1928); Gran v. Spangbergen, 53 Minn. 42, 54 N.W.933 (Minn. 1893); Nelson v. Minneapolis & St. Louis Railway Co., 41 Minn. 131, 42 N.W. 788 (Minn. 1889).

But even then, the opinions do not answer the substantive issues with the finality of a court that is not evenly divided. A grant of review and affirmance by an evenly divided court may show the world that there is an issue with the lower court’s opinion. The Court of Appeals has itself noted that when the Supreme Court grants further review of a decision of the court of appeals, that decision has only “minimal precedential value.” Fabio v. Bellomo, 489 N.W.2d 241, 247 n.1 (Minn. Ct. App. 1992). But the law remains uncertain.

To avoid affirmances by evenly divided courts, some courts, especially federal courts, are turning to dismissal of petitions for review as improvidently granted (DIG) as a means to prevent this result. See Justin Pidot, Tie Votes in the Supreme Court, 101 Minn. L. Rev. 245 (2016). But again, the law at issue on appeal remains undeveloped.

The practical solution in most state supreme courts is to add a justice to the cohort remaining—a replacement for the justice or justices who have stepped aside. Some states have, through laws or the judiciary’s policies, adopted broad-reaching policies to add a replacement justice anytime a justice recuses. For example, Article VI, Section 11 of the North Dakota Constitution directs the chief justice to assign either an active or retired judge of an inferior court or a retired justice to hear a pending case in place of a justice unable to sit because of conflict of interest or physical or mental incapacity.

In many ways, the safeguard of a full court makes perfect sense. If the state’s constitution has proclaimed that no fewer than seven and no more than nine justices should sit on the court and decide cases, then proceeding with fewer than seven justices has little justification. See Minn. Const., art. VI, § 2. That seems like a simple and straightforward approach, but it is not how we do it in Minnesota.

In this state, the Supreme Court adds a replacement only when the number of justices falls below five. This practice is not the result of a rule or statute, but a policy choice made by the court to protect a workable quorum without adding a replacement in all instances.

Keep in mind that the court decides cases collegially, as a unit that strives to work together to resolve the issues that come before it. Adding a stranger to that mix changes the court, no matter how qualified the replacement might be.

With those thoughts in mind, the court has determined that it is better to decide with fewer than with newer, unless an addition is needed for other reasons. Accordingly, like the United States Supreme Court, there are times when the Minnesota Supreme Court has an even number of justices (six), and ends up split.

Cases in which there are multiple recusals are more common than people think. One such recent example arose with the University of Minnesota—among the largest state institutions—wherein four justices recused as a result of ties to the school, and two replacements participated in their stead. See, e.g., Tatro v. Univ. of Minn., 816 N.W.2d 509 (Minn. 2012) (Gildea, C.J., Page, Anderson, Paul H., and Stras, JJ. took no part). Moreover, on occasion, the entire Supreme Court has recused, requiring the appointment of a court made up entirely of replacements. See, e.g., Page v. Carlson, 488 N.W.2d 274 (Minn. 1992); Wild v. Rarig, 234 N.W.2d 775 (Minn. 1975).

There is not much in the way of formal procedures for when to add a justice—only how to add one and who qualifies. Both the Minnesota Rule of Civil Appellate Procedure 141.01 on recusals and the Minnesota Code of Judicial Conduct, Rule 2.11 on disqualification are silent as to when the Supreme Court should temporarily assign a replacement for a recused justice or justices. But the issue comes up.

Authority to make temporary assignments of justices is found in Article VI, § 2 of the Minnesota Constitution, and at Minn. Stat. § 2.724, subdivisions 2 and 3. Both authorities offer the choice of a judge sitting on either the Court of Appeals or a District Court and the statute adds the possibility of a retired Supreme Court justice. See Minn. Const. art. VI, § 2; Minn. Stat. § 2.724, subd. 2. Section 2.724 further delineates between retired justices and retired judges, specifying that retired justices may be assigned to any court, including the Supreme Court, but retired judges from other courts may not fill a temporary role on the Supreme Court. Minn. Stat. § 2.724, subd. 3. Beyond Article VI, § 2 and Minn. Stat. § 2.724, there is no guidance for temporary appointments of justices. It is unknown whether the Supreme Court’s chief justice makes the selection from a list or by another method.

The Minnesota Supreme Court follows the same ‘five-or-more’ replacement rule when it comes to appellate matters other than written opinions. When recusals reduce the justice count from seven to five, the effect is often felt first at the petition for review stage. Regardless of the number of justices participating in a particular case, three votes are needed to grant review. Securing three out of five votes is considerably more difficult than securing three out of seven votes, in some cases. When there are only four justices, a replacement is added for consideration of the petition, preventing the need for petitioner to achieve three out of four votes.

If a case is important enough for the Minnesota Supreme Court to take it, then it is important enough for the parties—and the state in general—to get an opinion explaining what the law is. After all, that is the purpose of the state’s highest court. Affirmances by evenly divided courts leave important questions unanswered, and it may be time for the Minnesota Supreme Court to rethink its long-standing practice of waiting until the count drops to four before adding a temporarily-assigned justice.

Having the benefit of a full Supreme Court for each decision renders the judiciary better able to fulfill its public obligation. At the end of the day, courts are supposed to decide cases, not leave litigants and the public hanging without answers to important legal questions. And nobody really likes a tie.

Reprinted with permission of Minnesota Lawyer ©2017


The articles on our website include some of the publications and papers authored by our attorneys, both before and after they joined our firm. The content of these articles should not be taken as legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or official position of Robins Kaplan LLP.


Eric J. Magnuson


Chair, Appellate Practice
Pronouns: he/his

Nicole Frank

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