David W. Larson

RECORD ON APPEAL

This chapter reviews the record on appeal. The record on appeal is that body of documents and recorded evidence that will provide the procedural and evidentiary basis for the court of appeals in its consideration of the case. Although the court has inherent power to look beyond the record when the administration of justice requires, this is rarely done. Because of the inability to expand the record once the appeal has been taken, counsel must be careful during the trial proceedings to see that all pleadings, documents, or evidence that may be needed in a later appeal are properly entered into the trial court record. The usual method for compiling an appellate record is ordering a transcript of proceedings. The method for ordering such a transcript, and the respective duties of the parties, is set forth in rule 110.02. If no report of all or any part of the proceedings at the hearing or trial was made, or if a transcript of the proceedings is unavailable, then the appellant may proceed under rule 110.03 to create a record by means of the compilation of a statement of the proceedings. Where the parties can agree on the facts or the record to be presented on appeal, they can forego the time and expense of the preparation of a transcript by filing an agreed statement as the record under rule 110.04. Procedures for correcting or modifying the record on appeal are set forth in rule 110.05.

JURISDICTION OF THE COURT OF APPEALS

This chapter reviews the jurisdiction ambit of the Minnesota court of appeals. Prior to the creation of the court of appeals, the Minnesota court system consisted of district courts, county courts, and municipal courts. The Minnesota Supreme Court was the only appellate court. Creation of the court of appeals brought fundamental jurisdictional changes to the court system. The jurisdiction of the new appellate court encompasses almost all traditional appeal and writ matters previously brought before the Supreme Court, and appeals from administrative agencies and county and municipal court appeals. The court of appeals reduces the original appellate jurisdiction of the Supreme Court to a small fraction of its former level. In creating the new court, the Minnesota Legislature intended to remove the responsibility for correcting trial court errors from the Supreme Court, yet did not intend that the court of appeals would interpret new statutes or establish new legal concepts. Under the rules, a case involving an ambiguous statute or an unsettled legal concept may receive accelerated review by the Supreme Court before being brought before the court of appeals.

BRIEFS AND APPENDIXES

This chapter reviews the briefs and appendixes of parties and of nonparties (Amicus Curiae) to the appeal. Minnesota Rules of Civil Appellate Procedure 128, 130, 131, and 132 govern the number, form, and other requisites of briefs to be filed by parties to the appeal. Rule 129 governs the filing of briefs by nonparties (amicus parties) to the appeal. The rules provide that the appellant and the respondent will each file a primary brief in the case. The appellant may also file a reply to the brief of the respondent. This brief must be confined to new matter raised in the brief of the respondent. No further briefs may be filed by the parties except with leave of the court of appeals. Briefs filed by the parties may be either formal or informal in nature. Rule 128.01 seems to imply that the filing of informal briefs must be authorized by a prehearing conference judge. However, form 133 (statement of the case), which accompanies the rules, requests that the submitting attorney designate whether formal briefs are required or whether trial memoranda, supplemented by a short letter argument are sufficient.

HISTORY OF THE COURT OF APPEALS

This chapter provides an overview of the history of the Minnesota court of appeals. In 1982, the Minnesota Legislature submitted to Minnesota voters a proposed amendment to the Minnesota constitution allowing the legislature to create an intermediate appellate court. A new tier of appellate review, and new statutory and procedural requirements, resulted from the establishment of the new court. In the late 1960s, Minnesota organizations and advisory committees began advocating an intermediate appellate court. While debate on the efficacy of a new appellate court continued, the Supreme Court attempted other less drastic measures to cope with the case load problem. Notwithstanding the efforts to improve the appellate process, the Supreme Courts case load continued to increase. In 1982, the Minnesota Legislature passed enabling legislation for the intermediate appellate court. Following the requirements for amending the state constitution, the proposal to create a court of appeals was presented to the electorate that same year. Voters approved the amendment and the Minnesota Court of Appeals was established in 1983.

WRITS OF PROHIBITION AND MANDAMUS

This chapter discusses the writs of prohibition and mandamus. Original writs of mandamus and prohibition are often brought in the court of appeals and are acceptable instruments for invoking appellate jurisdiction. However, the ability to utilize one of these remedies is generally restricted to situations where the decision of a lower court, or of an administrative body, is not directly appealable. Therefore, the body of law developed around rule 103.03, on appealable orders, is particularly relevant in deciding whether an extraordinary writ is an appropriate mechanism. A variety of extraordinary writs exist that are theoretically available to a party seeking unusual appellate relief. However, the two types of writs most frequently used by far are prohibition and mandamus, in that order. The reported instances of the use of other writs, such as Ne exeat , are very rare. The general procedure to be followed is contained in rules 120 and 121 of the Rules of Civil Appellate Procedure.

PREARGUMENT MOTION PRACTICE

This chapter discusses the way by which a pre-argument motion may be practiced. The general provisions governing motion practice in the court of appeals are set forth in rule 127. Unless a different form is specifically prescribed by the rules, an application for an order or other relief must be made by serving and filing a motion in writing for that order or relief. The motion must state with particularity the grounds for the motion and the order or other relief sought. If the motion is supported by briefs, affidavits, or other papers, they must be served and filed with the motion. Each motion must contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title of the paper. The motion papers must also be subscribed by the attorneys preparing the paper, together with their addresses and telephone numbers. Any party may file an answer in opposition to a motion within five days after service of the motion. Where the motion has been served by mail, three additional days are added to the prescribed time period. Any reply must be served within two days after the date of service of the. Four copies of all papers must be filed with proof of service. After the time for reply has expired, the motion will be deemed submitted.

DECISION AND POSTDECISION PROCEDURES

This chapter discusses the decision and post-decision procedures of the Minnesota appellate court. All cases, whether orally argued or not, are assigned to a panel of three judges by the courts calendar clerk. The judges to whom the case is initially assigned will normally be involved in the decision-making process. When an assigned panel judge does not participate or discontinues participation at any stage, the chief judge will assign another judge to the panel. The chief judge will designate who the presiding judge will be for each panel. The presiding judge will assign the judge for the writing of the opinion at the post-argument conference. After all arguments set for a particular morning have been heard, the panel of judges will immediately meet to review the cases just heard. If the case has been submitted non-orally, it will be discussed at a similar meeting for non-oral cases. The judges will discuss their first impressions, and a tentative vote will be taken. A judge who represents the apparent majority view will be assigned to prepare the opinion. The opinion-writing judge will proceed to draft an opinion in accordance with the decision of the panel unless, after research, that judge decides to change his or her opinion. If that happens, another judge will be assigned to write the opinion previously expressed by the majority

CHAPTER 9 – ORAL ARGUMENT

Publisher Summary This chapter reviews the instance of oral arguments under the Minnesota appellate court system. Minnesota Rules of Civil Appellate Procedure 134.01 sets forth the circumstances under which oral argument on the merits of a case will be allowed. If neither party requests oral argument in the statement of the case filed pursuant to rule 133.03, the right to oral argument will be deemed waived. Any request for oral argument must be made in the statement of the case. Rule 134.01 provides that oral argument will not be permitted if a party has failed to file a timely brief as required by Rule 128.02. Oral argument once allowed may be waived by agreement of the parties with consent of the court. Counsel will be notified of the date, time, and place of oral argument by the clerk of the appellate courts. Rule 134.09 sets forth the place where oral argument to the court of appeals is to be held. Counsel will be notified of the time of the argument by the clerk of the appellate courts. The appellant is entitled to open the argument. The respondent will then give the presentation, to be followed by the appellants rebuttal, if any. Nonappearance at argument constitutes waiver of argument. Counsel may use exhibits and graphic aids during argument. At the conclusion of oral argument, the case will be deemed submitted. A decision will be rendered within 90 days after submission.