How public is the law?


This is part of a continuing series about the ability of the public to obtain the law that they are being held accountable to.

For years, I have been signed up to receive cases through the Minnesota State Bar Association service.  I want to review both civil and criminal cases and state and federal, given my line of work.  The criminal cases include district (some) and Eighth Circuit for federal.  For the state, I receive only Court of Appeals and Supreme Court cases.

I have never been sure how it is decided what district court opinions will be passed alone by the MSBA.  I used to work at  West Publishing, and I still can’t figure out why certain district opinions are published by West, and others are not.

The word published used to mean in the hand copy books.  But now most publishing is online.

Curiously, the Minnesota Legislature has purported to be able to tell the Minnesota Court of Appeals what is can and cannot “publish.”  As you avid readers will note, that is particularly curious in light of the Bill of Rights in the Minnesota Constitution, that protects the right to free speak and publish.

Take a look at Minn. Stat. 480A.08, Subd. 3(c):

(c) The Court of Appeals may publish only those decisions that:

(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) would significantly aid in the administration of justice.

Unpublished opinions of the Court of Appeals are not precedential. Unpublished opinions must not be cited unless the party citing the unpublished opinion provides a full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trial. If cited in a brief or memorandum of law, a copy of the unpublished opinion must be provided to all other counsel at the time the brief or memorandum is served, and other counsel may respond.

This statute has been a big problem, in my view.  Over and above the separation of powers problem (I mean, really, the Legislature is trying to dictate what the courts can publish?), the criteria are not being followed, but yet numerous opinions are marked “unpublished.”

This creates a miasma in the law, because originally, lawyers were not permitted to cite to unpuslished opinions out of fairness.  Since they were not in the books available to everyone for free in the library, courts did not want parties being disadvantaged if a lawyer cited to an unpublished case.

That was also the basis for the original requirement that lawyers citing to an unpublished case must provide a copy of the case to opposing counsel.  Again, that was to ensure no one was disadvantaged by the inability to walk into a library and access the cases for free.

Times have changed.

Now, most attorneys use electronic databases to access the law.  Or, cases are now available on numerous websites for free.  There are exceptions to this, and I’ll get to that below.

Cases the Minnesota Court of Appeals marks as unpublished are regularly cited by attorneys.  The statute indicates that they have no “precedential” value, but that doesn’t have much meaning these days.  If attorneys are citing them, and judges are considering them, then they are functioning as precedent.

This has happened to me often.  A prosecutor comes to court with a copy of an unpublished case (I just can’t get most criminal prosecutors to alert me ahead of time what cases they will cite to the court, which is a real detriment to counter them), and the judge not only considers it, but rules on the basis of the holding in that case.

Why, then, are so few Minnesota Court of Appeals cases published?

I have teed up numerous “significant legal issues” and asked the court to “overrule” prior precedent, but most of my cases remain “unpublished.”

I have several theories that I am entitled as a Minnesotan and American to share with you.  These are intended to point out past problem, but also to tell government how I think it can do better.

1)  Cutting corners.  Unpublished cases appear less polished, the facts less well honed, the law less well researched.  That means someone is spending less time on those cases.  That usually is bad for parties, because it takes quite a bit of time to parse through an entire record in order to develop the factual portion of the case.  Using the “unpublished” moniker, then, can be a way of cramming opinions out the door, but feeling that perhaps the quality of the opinion won’t matter that much.  I’m sorry to have to say that, but I have encountered a number of COA opinions that just didn’t make sense, that cited poorly to past law, and other problems.  For someone who practices in the area under discussion, we often note macro problems showing that the author did not understand even the most basic tenets of that area of the law.  I’d like to be informed (as your public) whether clerks are writing these.  I’m sure there are a lot of smart and talented clerks, but my clients are paying a lot of money for appeals (by the time you add up the filing fee, transcript costs, brief printing costs and postage), and they deserve a quality process.  I have heard of a policy (please post to comments if I am wrong; I requested COA policies back in 2006, but never got a response to that letter) that requires COA judges to pump out x number of opinions per week.  This brings us back to the whole “efficiency uber alles” problem (go to “Judicial Misconduct Dictionary” to look for that post).  Some opinions can be handled quickly, but others cannot.  Have COA judges objected to this policy?  I wonder why judges who are learned in the law, know about separation of powers, and who appear to have been given discretion, would permit themselves to be mandated in this way.  I would argue that compliance with the mandate has caused COA judges to lose discretion, and therefore immunity.

2)  Precluding Supreme Court review.  Another reason to stamp a case “unpublished,” is to preclude Supreme Court review.  Although I have heard tell of the Supreme Court granting review of an unpublished case, for the most part, a petition seeking review by that Court must show the statewide significance of the opinion.  That’s hard to do with the COA says it’s unpublished (and therefore pursuant to statute, non-precedential).  I have noticed a high number of my cases being stamped unpublished, even though they clearly fit the criteria found in 480A.08, Subd. 3.  I have been told that the Supreme Court grants roughly 1 out of 10 petitions.  I have only had one petition granted, Rew v. Bergstrom, in all my years of appellate advocacy.  I have carefully selected cases that could assist our community to growing the law, and I am practiced at creating a district court record to permit intelligent review of the legal and policies issues.  So why not grant my petitions?  I will take that up ina later post.