|
|
|
|
| The
Guessing Game of Petition for Review The obscurity
of the decision-making process makes it sheer guess-work to gauge
the probability of having the Court review a case.
This uncertainty creates frustration for lawyers trying to
explain to clients the prospects for success of a Petition for Review
by the Supreme Court, why the Court refused to accept the petition
or, for that matter, why it chose to accept it. The agony
of engaging in a guessing game could be ameliorated by some modest
efforts by the tribunal to articulate the process and explain the
sparse, even somewhat conflicting, provisions of the applicable appellate
procedural rules. Apart
from some special categories of cases, such as first-degree murder
convictions and workers’ compensation cases, for which Supreme Court
review is mandatory, the tribunal has unlimited discretion to decide
what cases to take. But it exercises that authority sparingly. Over
the three years 2001-2003, 2,025 petitions for review were filed,
representing nearly one-third of the 6,667 cases decided by the Court
of Appeals. But only 15 percent — 315 petitions — were granted,
and the number is shrinking. In 2001,
the Supreme Court granted 119 petitions for further review, which
represented 17 percent of the 699 filed.
In 2002, 646 petitions were filed, and only 112 — again 17
percent — of the cases made it to the high court for review.
In 2003, only 68 — 10 percent — of the 680 petitions for further
review were granted. The Supreme
Court reviews civil cases more frequently than other types of proceedings. Over the three years in question, the top three
categories of cases petitioned for Supreme Court review were civil,
criminal, and family cases, with 783, 895, and 175 petitions respectively. The high court granted about 21 percent of the
petitions in all civil cases and in family court matters and only
12.52 percent of the petitions in criminal case proceedings. While
acceptance of a petition for review is rare, one consequence of being
anointed is a high probability of reversal or modification.
In the past five years, the Court reversed or modified 62 percent
of the cases for which it granted review. It reversed, or partially
reversed, 57 percent of the criminal decisions it reviewed in 2003. That same year, the Court reversed or partially
reversed 66 percent of the civil decisions it reviewed. ALTERNATIVE
AVENUES Some
cases other than first-degree murder and workers’ compensation matters
reach the high court directly in other ways.
For example, the Court has original jurisdiction over some
cases involving politics, such as election matters.1 The federal
district court may also direct certified questions of state law to
the state Supreme Court, as U.S. District Court Judge John Tunheim
did recently when he asked the Court, in Kahn
v. Griffin, to answer whether “the Minnesota Constitution provides
greater protection to the right to vote than does the United States
Constitution such that failure to hold prompt elections following
decennial redistricting violates (a) the Minnesota Constitution or
(b) state election laws?” 2 Cases
that are interlocutory in nature, but are deemed to raise “doubtful”
and “important” issues, may be heard by the Supreme Court, although
those cases generally pass through the appellate court first, under
Rule 103.03 of Minnesota Rules of Civil Appellate Procedure.3
In rare cases, the Court may allow lower court rulings to bypass
the appellate court for accelerated review by the top tribunal under
Rule 118.4 The Court also has broad “discretionary” authority
under the catch-all provision of Rule 105, which allows discretionary
review of cases that are not otherwise appealable,
although those cases are also generally heard first by the intermediate
appellate court. RULE
REQUIREMENTS Rule
117 of the Rules of Civil Appellate Procedure establishes the framework
for the bulk of cases that are brought to the attention of the Supreme
Court. It provides a set of criteria required to be
considered by the high court, not all of which are internally consistent. Under the rule, the Court, in exercising its
discretionary review, may consider:
Addressing
these many criteria creates a quandary for appellate advocates. A case that raises novel issues would seem to
be ripe for review. But an
issue that is idiosyncratic may not have the broad implications that
warrant devotion of resources at the Supreme Court level, as contemplated
by criteria (d)(2) and (3). Appellate
advocates, therefore, may sometimes be torn between emphasizing the
peculiar, or even unique, features of the case in order to catch the
Court’s attention and focusing upon the recurrent nature of the dispute
and the desirability of the Court’s providing guidance on issues of
ongoing concern GUIDANCE
GLIMMER Apart
from the provisions of Rule 117, the law provides very little guidance
to practitioners or petitioners for review.
Rules have been in effect for 20 years, since inception of
the intermediate appellate court.
Yet, in those two decades, the high court has not once articulated
what considerations it applies in determining which cases are worthy
of review. This
reticence is not a necessary element of appellate litigation. In the Minnesota Supreme Court, three or more
of the seven members of the court must concur before a Petition for
Review is granted.5 The United
States Supreme Court follows the “Rule of Four,” which requires that
four of the nine justices concur before a Writ of Certiorari will
be granted.6 For both the Minnesota Court and the U.S. Supreme
Court, the number of judges required to grant review is discretionary,
and these procedural rules are subject to change by the courts at
any time.7 On occasion,
individual justices of the U.S. Supreme Court in dissent offer comments
on why a case that has been turned down for review should have been
accepted, thereby offering a bit of guidance to lower courts, lawyers,
and litigants.8 But in This
vacuum of guidance would be minimized if, every once in a while, the
Court was to explain why a case has been granted or denied review
by having individual judges remark on the Court’s decision.
Doing so could help lawyers better
estimate the likelihood of achieving Supreme Court review, and so
provide better advice to their clients in this regard.
Without
such guidance, lawyers will have to continue guessing whether their
cases will be reviewed. Justice
is ill-served when the outcome or perception rests on chance.
By taking the “chance” to articulate why cases, or least some
of them, are accepted or denied review, the Court could reduce the
factor of chance in appellate practice. NOTES 2. Kahn
v. 3. See
e.g. Hallas v. Naegele Outdoor Adver., Inc., 541 N.W.2d 594, 596
(Minn. App. 1995). 4. See
e.g. Thorson v. Rice County District One Hosp., 437 N.W.2d 410 ( 5. 3
6. See
Harris v. 7. See
28 U.S.C.A. Pt. V, Ch. 131 §§2071, 2072; see also Minn. Stat. Ann.
§480.05. 8. See
Colorado Gen. Assembly v. Salazar, 124 S.Ct.
2228 (2004) (denied because the issues surrounding the separation
of power in state government raise no federal constitutional issues);
see also Cargill, Inc. v.
|
