May/June 2000 

In the Tower of London this year, there is a special exhibit of medieval legal documents. The Doomsday Book gets all the attention, but in one obscure side cabinet there are some small parchment scrolls. One, no bigger than a finger, is labeled "writ of certiorari". While the other, grander documents are now only artifacts, the process embodied in this modest parchment has lived on to complicate important procedural decisions when representing a public employee.

In English common law, certiorari review was a writ from a superior court to an inferior court requiring it to produce a record which the high court would review for "irregularities" -- by definition a limited scope of review. This procedure has fit well into the American principle of separation of powers by providing a limited judicial review of certain acts of legislative and administrative bodies -- those that are "quasijudicial" in nature.

Over the past ten years, the Minnesota courts have established that certiorari review is the usual and appropriate procedure to contest the quasijudicial decision of a public body to terminate a public employee. When certiorari review is the appropriate method, it is the exclusive method. But the courts have also recognized that not all employment-related claims proceed by certiorari. Moreover, some claims that would otherwise be subject to certiorari arise from statutes with procedures that preempt certiorari review.

A practitioner representing a public employee in an employment dispute must confront the sometime difficult question of whether a claim falls within or without certiorari review. For example, does a discrimination claim come within certiorari review? What about employment claims other than termination? Does a termination without any hearing or a minimal record qualify as "quasijudicial?" What about claims of state employees or non-management level terminations?

A practitioner does not have long to dwell on such problems since the certiorari statute, Minn. Stat. §606.01, establishes the period for seeking certiorari review at 60 days from notice of the action to be challenged. Almost every case upholding certiorari review or recognizing its exceptions arose from the failure of a public employee to seek certiorari in a timely fashion.

Making the right procedural decision requires some background on the basic principles developed in the Minnesota cases that have addressed when certiorari review is the appropriate remedy available to a public employee.

There are several fundamental principles about certiorari review. First, certiorari review is for a public bodies' "quasijudicial" decisions, and is rooted in the Minnesota Constitution. In re Haymes, 444 N.W.2d. 257 (Minn. 1989). Second, a "quasijudicial" decision is defined as a final decision based on a factual investigation into a disputed claim. Meath v. Harmful Substance Comp. Bd., 550 N.W.2d 275 (Minn. 1996). Third, certiorari review is subject to a narrow and deferential scope of review; a decision will be overturned only when arbitrary, capricious, or an error of law. Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992). Finally, the 60-day period to seek a writ of certiorari starts upon the receipt of notice of the adverse decision. Since it is jurisdictional it cannot be extended by the court or by stipulation of the parties. Mowry v. Young, 565 N.W.2d 717 (Minn. App. 1997).

The application of these basic principles to public employment law disputes has most commonly arisen in the challenges to public school district teacher terminations. The seminal case is Dokmo v. Independent School District 11, 459 N.W.2d 671 (Minn. 1990), in which the state Supreme Court held that any challenge to a teacher termination decision must proceed exclusively by writ of certiorari. In its analysis, the Court found that the separation of powers principle mandates the deference provided by certiorari review, as opposed to the de novo review that a district court would apply in a declaratory judgment or other action. Moreover, under Dokmo, the absence of an actual hearing record does not preclude certiorari review - the court can review whatever record exists or remand for further findings. The late Chief Justice Peter Popovich, the author of the majority opinion, made clear when later discussing the case that another reason for the Court's firm adherence to certiorari review was the practical necessity of obtaining a quick resolution to teacher termination decisions before the start of a new school year.

Over the last decade, the courts have extended the broad concepts underlying Dokmo to quasijudicial termination decisions concerning any public employee of a county, municipality, or any executive body that does not have statewide jurisdiction. Under the law today, any termination decisions by a public employer with less than statewide jurisdiction, with or without a true hearing, are "quasijudicial." The position formerly held by the claimant is not material: the cases upholding exclusive certiorari review have involved such diverse positions as a county department director, public nursing home administrator, police reserve unit members, and a University of Minnesota employee. Finally, creative pleading, such as framing a termination claim as a wrongful discharge or a breach of contract or a tort, will not circumvent certiorari review. If the claims concern any components of a public employer's termination decision, certiorari review is the exclusive remedy. This would include claims of fraud, reliance, breach of contract, violation of policies, and other standard variations in a wrongful termination claim.

The current state of the law was perhaps best summarized by Justice Coyne in Willis v. County of Sherburne:

[W]hen the alleged breach of the employment contract of a governmental employee results in termination of the claimant's employment by an executive body which does not have state-wide jurisdiction. . . . the claimant may contest the employer's action by certiorari alone, absent statutory authority for a different process. (555 N.W.2d 277, 282 (Minn. 1996).)

Neal T. Buethe is a shareholder at Briggs & Morgan, P.A. in St. Paul where he concentrates his practice in employment law and civil litigation. For the past 14 years, he has represented a professional association of public employees.

"Almost every case upholding certiorari view or recognizing its exceptions arose from the failure of a public employee to seek certiorari in a timely fashion."

While adhering to the basic separation of powers analysis of Dokmo, the Minnesota courts have also recognized exceptions to exclusive certiorari jurisdiction. These are: a) claims that have alternative procedures provided for by statute and; b) claims unrelated to a public body's discretionary decision to terminate the employee.

Claims that are preempted from certiorari review by statute include:

• Discrimination claims under the Minnesota Human Rights Act and the federal discrimination laws;
• State Whistleblower Act claims;
• Claims of state employees (which fall within the provisions of the state Administrative Procedures Act);
• Claims that are, by statute, provided collective bargaining grievance procedures, for example, PELRA-governed claims.

The challenge here is when a client's claims are multiple, with some proceeding by writ of certiorari and others by statutory procedures. For example, a teacher's termination might be challenged as in violation of the standards of the continuing contract law and as gender discrimination. The only choice left by the current law is to proceed in both forums.

Whether a claim falls outside certiorari review because it is unrelated to the termination decision may not be easy to determine. In essence, if a tort or contract claim can be regarded as wholly distinct from the internal management processes that led to a termination decision, then certiorari does not lie as to that claim. For example, a defamation claim that arose after a termination decision has been held not to be subject to certiorari review. Also, breach of contract claims that do not involve termination, such as disputes over benefits, fall short of the type of action protected by certiorari review. But a challenge to a termination on the basis of fraud or breach of employment policies must be part of a certiorari appeal since they cannot be extricated from the basic quasijudicial decision-making powers of the administrative body.

Given the basic principles of certiorari review and its somewhat nebulous exceptions, public employee claims present certain threshold procedural decisions quite unlike claims in the private sector. A practitioner needs to make the following analysis to determine whether certiorari review is necessary:

First, it must be a termination decision. No reported case concerns a dispute over discipline or benefits, transfers or demotions, but a termination decision clearly requires further certiorari analysis.

Second, it must have been a decision made by a public body with less than statewide jurisdiction. Any employee challenging a termination by a school district, county, city or state institution of higher learning, or other local governmental unit will fall within exclusive certiorari review.

Third, it must be a quasijudicial and final decision. Given the comprehensiveness of recent decisions, a practitioner who made too fine a point of contesting whether a termination decision was quasijudicial would be taking a substantial risk; even decisions without hearings or other formalities fall within the basic fact-finding definition of a quasijudicial act. As to finality, there may be an advantage in seeking confirmation from the employer that an act was a final act if the termination is not be implemented immediately. But if the 60 days has nearly run out and the question is unclear, the best practice would be to file and resolve the question at a later date. In delay, there is danger.

Fourth, determine whether there are also employment-related claims subject to a procedure other than certiorari review. As the cases have recently made clear, any tort or contract claims that are tied to the termination decision must be asserted in the certiorari review; creating separate pleadings will be futile. This may be frustrating to the client, given the narrow scope of review, but the cases clearly make this an exclusive method of review. However, discrimination, whistleblower, or other claims, which by statute are provided procedures outside certiorari review, are not part of certiorari review. The challenge in such cases will be to deal with the res judicata effect of a termination upheld on certiorari review by the Court of Appeals but still the subject of an ongoing discrimination claim. There is no reported case, but there may be a strong argument that a conclusion reached within the limited scope of certiorari review does not preclude a subsequent finding by a jury of discriminatory motives. Moreover, if there is a hearing, it is critical to raise and create a record concerning all claims subject to certiorari review.

What should be done in the truly close cases? The safe practice in an unclear case may be to start the certiorari action while seeking a determination as to the court's jurisdiction under the special motion rules of Minn. R. Civ. App. P. 127. Also, the court may itself raise jurisdictional questions in unusual cases and require preliminary briefing on such issues. This is one situation where it would be better to ask for permission rather than forgiveness.

If you are appropriately before the court on writ of certiorari, what other procedural pitfalls exist? A practitioner bringing certiorari review must spend some time with the Civil Appellate Rules governing certiorari, in particular Rules 115 and 116 on the mechanics of obtaining the writ and Rules 110 and 111 on transmission of the record. Certiorari is an unusual process by which the attorney representing the claimant obtains the writ and serves it. There are tight timelines on filing proof of service and clear guidelines on the contents of the writ and petition.

Perhaps the most challenging procedural issues are how the record is produced and when the brief is due. In cases where there has been no contested case hearing, the parties can work together on producing an Agreed Statement of Record under Rule 110.04, or a Statement of Proceedings when there is no agreement as provided for in Rule 110.07. But that is not required, and the public employer has considerable latitude in determining what constitutes the record. Thus, any opportunity to submit arguments and evidence to the public body during the quasijudicial process will be critical. Also, requests for a remand for a fuller, more complete hearing can be part of a certiorari appeal. Bear in mind Rule 131.01, which makes the petitioner's brief due 30 days after obtaining the writ if there is no transcript. If this is the case, and the parties are not proceeding under Rule 110 or 111, the petitioner's brief is due 30 days after filing the writ. Indeed, even if the parties are proceeding under a Rule 110 Agreed Record, the safe practice may be to seek court clarification on the briefing schedule.

This article has highlighted the procedural complexities caused by certiorari review when representing public employees. But beyond these procedural obstacles is a broader, substantive issue, that is, the impact of this limited, narrow scope of certiorari review on the overall analysis of the merits of a public employee's wrongful termination case. Many a decision that could be actionable in the private sector may not meet the standard for certiorari review. Challenges to policies, procedures, statements, and motives are much more difficult to make when the standard by which they are judged is whether they are arbitrary, capricious, or erroneous. Even the strategic advantages of starting litigation are reduced by the less expensive and more rapid process of certiorari review.

Thus, the necessity and impact of certiorari review is a key threshold consideration when representing a public employee. Quite simply, this medieval writ is alive and well and must be reckoned with by Minnesota practitioners.