An Opinion Has Been Vacated – Now What?

The Court of Appeals has issued a published opinion. A petition for further review is filed.  The Supreme Court grants the petition but also asks the parties to weigh in on appellate jurisdiction. Written and oral arguments cover the substantive issues and the appellate jurisdiction questions. Finally, the Supreme Court issues its opinion: It concludes the Court of Appeals lacked appellate jurisdiction and vacates the published opinion. That is what happened in Howard v. Svoboda, a case decided last month by the Minnesota Supreme Court. No. A15-0896, 2017 Minn. LEXIS 54 (Feb. 15, 2017). Where does that leave the law?

While at first blush that procedural circumstance might seem highly unusual, it happens more often than you think.  Just last August, the Supreme Court had to determine if, and under what circumstances, Minnesota’s appellate courts have jurisdiction to review an order denying summary judgment to one of the parties in a civil case. The City of Vadnais Heights imposed an assessment on real property owned by McCullough and Sons, Inc. On appeal to the District Court, the city filed a motion for summary judgment seeking dismissal based on McCullough’s failure to file a written objection to the proposed assessment. The District Court denied the city’s motion, and the city appealed.

The Court of Appeals reversed the District Court decision. McCullough & Sons, Inc. v. City of Vadnais Heights, 868 N.W.2d 721, 728 (Minn. App. 2015). After granting McCullough’s petition for further review, the Supreme Court asked for supplemental briefing on jurisdiction, focusing on questions of finality in the context of a special proceeding and the collateral order doctrine.  The court ultimately concluded that neither principle supported appellate jurisdiction, and because the Court of Appeals lacked jurisdiction over the city’s appeal, dismissed the appeal and vacated the Court of Appeals’ decision. McCullough & Sons, Inc. v. City of Vadnais Heights, 883 N.W.2d 580 (Minn. 2016). The U.S. Supreme Court also vacates intermediate appellate opinions in similar circumstances. See, e.g., Swint v. Chambers County Comm’n., 514 U.S. 35, 41, 115 S. Ct. 1203, 131 L. Ed. 2d 60 (1995) (vacating the judgment of the Court of Appeals for lack of appellate jurisdiction).

Jurisdiction found and lost

What the Supreme Court did not say in either Howard or McCullough is what happens to the precedential force, if any, of the vacated Court of Appeals’ decision.  While the question may seem academic, in the real world, it is not. The vast majority of all cases end at the Minnesota Court of Appeals, and District Court judges and lawyers look to those decisions for guidance on the law.

And regardless of your view of the precedential weight of Court of Appeals decisions that remain on the books (compare Jennifer K. Anderson, Comment, The Minnesota Court of Appeals: A Court Without Precedent?, 19 WM. MITCHELL L. REV. 743 (1993) with Marcia A. Johnson, Advisory Opinion Service Update, BENCH & BAR OF MINN., Oct. 1993, at 13, opining that counsel has an ethical obligation to cite unpublished opinions by the Minnesota Court of Appeals adverse to his or her client, if that authority is the only opinion on point in the jurisdiction), a vacated opinion presents a whole additional layer for consideration.

In the interest of full disclosure, the authors of this article were among the attorneys of record for the medical malpractice plaintiff in Howard. However, this article is about vacated appellate decisions and not about the merits issue raised by Howard.  That being said, some background is useful.

The appeal concerned the statutory waiver of the physician-patient privilege in a health care malpractice action.  In such cases, Minn. Stat. § 595.02, subd. 5, allows counsel for the defendant provider to conduct “informal discussions” with health care providers.

The defendant sought an informal conference with one of plaintiff’s treating physicians, but the statute requires “an appropriate authorization” from the patient.  The parties could not agree on what authorization was “appropriate” and went to court over the issue – defendants to compel an authorization and plaintiff for a temporary injunction or protective order under the rules to limit the scope of the conference.  The District Court granted plaintiff’s motion for a protective order in part, restricting the defendants’ questioning of the treating doctor.

The defendants filed an interlocutory appeal, asserting that the order granted an injunction and was immediately appealable under Rule 103.03(b); they also sought an alternative writ of prohibition. In response to a motion to consolidate the two appeals, the Court of Appeals denied the petition for a writ and accepted jurisdiction of the appeal as being from an order granting a temporary injunction. The Court of Appeals reversed the District Court’s protective order.

The Supreme Court granted the plaintiff’s petition for further review but also sua sponte asked the parties to address whether the Court of Appeals properly exercised jurisdiction over an interlocutory order.  The Supreme Court ultimately concluded that the protective order was not an injunction, and thus, the Court of Appeals lacked appellate jurisdiction under Rule 103.03(b). The court also rejected alternative bases for exercising jurisdiction over the appeal.  Having determined that the Court of Appeals lacked appellate jurisdiction over the District Court’s interlocutory order, the Supreme Court vacated the Court of Appeals’ opinion.

‘Non-precedential precedent’

The Supreme Court clearly is the final arbiter of what is and is not appealable, and has plenary authority to vacate the decisions of the lower courts when the circumstances warrant that action. See State v. Ramey, 721 N.W.2d 294, 302 n.6 (Minn. 2006) (observing that the Minnesota Supreme Court reserves “supervisory powers” over other Minnesota courts); Powell v. Anderson, 660 N.W.2d 107, 113, 124 (Minn. 2003) (acknowledging that the Minnesota Rule of Civil Appellate Procedure 102, as well as the court’s supervisory powers, permit it to vacate a prior opinion of a lower court under special circumstances). In other situations, the parties may be able to negotiate a stipulated vacatur. See Eric Magnuson, Now You See It, Now You Don’t – Vacating Precedent, Minn. Lawyer (July 11, 2013).

So, the opinion on the substantive merits was vacated – it’s gone, right?  Maybe, maybe not.  In a thoughtful article appearing in the Journal of Appellate Practice and Process, the author concludes that vacated precedent does not disappear, but morphs from being binding to merely persuasive, or “non-precedential precedent.”  Michael D. Moberly, This Is Unprecedented: Examining The Impact Of Vacated State Appellate Court Opinions, 13 J.A.P.P. 231, 265 (2012), quoting Thomas L. Fowler, Holding, Dictum . . .  Whatever, 25 N. C. Cent. L. J. 139, 142 (2003).  Moberly’s article contains a thorough review of the law on vacatur, and an analysis of the impact of such action on the case itself and future cases. It is worth reading.

The mere fact that the Supreme Court has decided to review a Court of Appeals’ opinion also has an impact on the force of that decision.  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. App. 1992). In Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996), the Supreme Court declared that even unreviewed decisions of the Court of Appeals “do[] not represent a definitive statement of the law in Minnesota.”

When the Supreme Court reverses, it clearly negates the Court of Appeals’ holding.  In some instances, the Supreme Court has been blunt in explaining the impact of reversal of a Court of Appeals’ decision.  In Pike v. Gunyou, the Supreme Court wrote that the Court of Appeals’ opinion “far exceeded the bounds of appropriate appellate review.” 491 N.W.2d 288, 289 (Minn. 1992). It then explicitly spelled out the relief: “Opinion and concurrence of the Court of Appeals vacated and declared to be of neither dispositional nor precedential value….” Id. at 292.

But in Howard, the Supreme Court said nothing about the substance of the issue on appeal, or the substance of the Court of Appeals’ decision.  The absence of an interpretation of the “informal conferences” statute leaves a void, according to attorneys involved. William Davidson, an attorney for the defendants and a shareholder at Lind, Jensen, Sullivan & Peterson, and Mark Hallberg, who filed the amicus brief on behalf of the Minnesota Association for Justice, lamented that void.  See Court Vacates Ruling on Medical Malpractice ‘Informal Conferences, Minn. Lawyer (Feb. 21, 2017).  The appeal had the interest of the greater medical malpractice bar, with both the Minnesota Association for Justice and the Minnesota Medical Association having weighed in. Indeed, the Supreme Court litigants agreed that even if the Court of Appeals had erred and did not have appellate jurisdiction, the Supreme Court should have exercised its discretion and decide the merits of the case. The issue will clearly come up again.

The take-away?  First, it is clear that the current Minnesota Supreme Court takes jurisdiction seriously, and is more than willing to place limits on the cases that can come before the appellate courts. Second, parties seeking interlocutory appellate review need to be sure of the grounds upon which they base their appeal. No one wants a trip through the entire appellate system only for both sides to come away empty-handed.