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Bench & Bar of Minnesota

Vol. 65, No. 11 | December 2008

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Minnesotas Special Appeal Statutes: Traps for the Unwary

Counsel pursuing an appeal in an unfamiliar area must be very careful to make sure that there isnt a provision somewhere that specifies a different means for pursuing that appeal than a simple notice of appeal to the Court of Appeals or that imposes a special filing deadline. Failure to heed this admonition could lead to dismissal even before you get started. By Bruce Jones and John F. Beukema Your client has just suffered a defeat in a Minnesota court or administrative proceeding, and you are instructed to appeal. Your first questions probably will be, Whats my deadline for starting the appeal? What do I file? Where? Not unreasonably, you may assume that the answers to these questions can be found in the Minnesota Rules of Civil Appellate Procedure. After all, Appellate Rule 101 states that the rules apply in civil appeals; in criminal appeals insofar as the rules are not inconsistent with the Rules of Criminal Procedure; [and] in proceedings for review of orders of administrative agencies, boards or commissions . That seems to cover the waterfront, you think. These rules will apply to my appeal, and they will tell me what I have to do. So you continue reading and find Rule 103, entitled Appeal How Taken, which says that [a]n appeal shall be made by filing a notice of appeal with the clerk of the appellate courts . And Rule 104, entitled Time for Filing and Service of Notice of Appeal, provides: Unless a different time is provided by statute, an appeal may be taken from a judgment within 60 days after its entry, and from an appealable order within 60 days after service by any party of written notice of its filing.
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That was easy, you say. I must start my appeal by filing a notice of appeal in the Court of Appeals, and I have 60 days to do it. Not so fast! Although your reasoning seems perfectly sound, you may be about to take steps that will be fatal to your appeal. Despite the broad claims of Rule 101, the commencement of many appeals under Minnesota law isnt governed by the appellate rules. Rule 104 hints at this in its statement that it applies [u]nless a different time is provided by statute. But this bland phrase gives no sense of the scope of the problem. Minnesota Statutes contain more than 300 sections governing appeals in particular contexts, ranging from the mainstream1 to the literally exotic.2 If one of those statutes applies to your case, you may be required to take your appeal to a court other than the Minnesota Court of Appeals, to use a procedure other than filing a notice of appeal to do so, or to act more quickly than the 60 days allowed by Rule 104. This article cant begin to discuss all of these special appeal statutes. In particular, it doesnt address appeals to Minnesotas two subject-specific courtsthe Tax Court and the Workers Compensation Court of Appealsthat have appellate jurisdiction. But it will at least alert you to the other general categories of statutes that exist and give examples of the circumstances in which they apply. Appeals from District Court You need to be wary even if the decision from which you are appealing is a final judgment of a district court. A number of statutes establish special rules in which the time for appeal to the Court of Appeals from a district court decision is shorter than the standard 60 days. Most of these relate to actions challenging decisions of local governmental bodies, and they usually require the appeal, although otherwise governed by the rules, to be commenced within 30 days after the district court decision. For example, Minn. Stat. 562.04 provides that, in any action challenging the action of a public body (defined as including the state, any local governmental subdivision, or any board, commission, or agency of any of them) in issuing bonds, entering into a contract for public improvements, or altering the organization of a school board, an appeal from the decision of the district court must be taken within 30 days if the plaintiff has been required to post a surety bond as a condition of pursuing the action.3 These statutes may simply be vestiges of the days when the standard deadline for appeal from appealable district court orders was 30 days instead of the current 60 days.4 But regardless of the rationale, if your appeal is covered by one of these statutes, you will have to act more quickly than Rule 104 suggests. The time for appeal from a district court judgment is even shorter in cases involving disputes over the possession of rental propertyboth actions to evict a tenant (what used to be called unlawful detainer actions) and actions in which a residential tenant whom the landlord has excluded from the property seeks to recover possession. In these
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situations, an appeal must be filed within ten days,5 presumably because of the importance of resolving promptly disputes that affect peoples housing. A similar need for immediate resolution presumably underlies the five-day and ten-day periods for appealing from district court decisions in actions contesting the results of primary and general elections, respectively.6 An appeal in an action for partition of real property owned by joint tenants or tenants in common must be commenced within 30 days after the making and filing of the order or interlocutory judgment from which the appeal is taken.7 A variety of deadlines, none of them the same as those under Appellate Rule 104, apply to district court orders and judgments in proceedings with respect to registered (torrens) property. An appellant from a final decree concerning the registration of such property has 90 days within which to file the appeal, but if the appeal is taken from an order deciding a motion to reopen a decree or for a new trial in such a case, only 30 days are permitted.8 These limits correspond almost precisely to the limits imposed by Rule 104 until 1999, and they may represent simply legislative oversight in not amending the statute after the rule was changed rather than a conscious policy decision that a different time limit should apply in this context. You need to be alert to the possible effect of special appeal statutes even if they set the same time for appeal as the appellate rules, as a September 2008 special term decision of the Minnesota Court of Appeals demonstrates. In Housing & Redevelopment Authority v. Main Street Fridley Properties, LLC, A08-0880 (Minn. App. 09/16/08). the right to appeal was governed by a special statute providing that a court order approving the public use or public purpose, necessity, and legal authority for a condemnation of private property is final unless an appeal is brought within 60 days after service of the order on the party.9 Having lost its challenge to the condemnation of its property in the district court, the property owner first filed a motion for a new trial; in a regular appeal, of course, such a motion would toll the time for appeal, according to Appellate Rule 104.01, subd. 2(d). But the owner apparently then became concerned about the 60-day deadline, and it filed its appeal before the motion had been decided. The respondent argued, based on case law developed in the context of normal appeals, that the appeal was premature. The Court of Appeals disagreed. It pointed out that the provision in Rule 104.01 extending the appeal deadline while post-trial motions are pending expressly applies only [u]nless otherwise provided by law, and held that the language in the governing statute making the trial court decision final unless an appeal was filed within 60 days superseded the statute. It also noted that the statute did not indicate that an appeal was to proceed as in other civil actions or otherwise invoke the provisions of the appellate rules. Because the appellant had appealed within the statutory 60-day limit, its appeal was proper. But the clear implication of the decision is that, if the appellant had tried to rely on the tolling provision of Rule 104.01 to extend the appellate deadline, its later appeal would have been dismissed as
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untimely. We have found no other special appeal statute that uses exactly the same language that the Court of Appeals construed in Main Street Fridley Properties. But if your appeal is governed by a special appeal statute, you need to beware of the possible effect of the case, because the courts reasoning may lead to the same result under similar but not identical provisions in other statutes. Administrative Law Decisions The law governing appeals from decisions by administrative or regulatory entities, either state or local, is even more complicated. Although the appeal from such a decision is usually (but not always) taken to the Court of Appeals, the procedures and time limits for obtaining review are quite different from those for an appeal from a court decision. And it can be difficult to know exactly what procedure and time limit apply. Appeals Governed by the APA. The majority of Minnesotas special appeal statutes invoke the provisions of the Administrative Procedures Act (APA), Minn. Stat. chapter 14, which establishes procedures for appellate review of both administrative rule-making and contested case adjudication by state agencies. A rule for this purpose is any agency statement of general applicability and future effect adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.10 The Court of Appeals is the forum for a challenge to the validity of a rule or its threatened application.11 That review is obtained by a petition for a declaratory judgment, which, per Appellate Rule 114.01, is commenced by filing a petition with the clerk of appellate courts and serving it on the attorney general and the relevant agency. There appears to be no time limit within which such a petition must be filed.12 In contrast, a contested case is a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.13 Judicial review of a final agency decision in a contested case proceeding is obtained by filing a petition for a writ of certiorari with the Court of Appeals, and serving the petition on the agency, within 30 days after receipt of the decision.14 The writ, when issued, must also be served on all parties to the agency proceeding and provided to the Minnesota Attorney General, but these requirements are not jurisdictional.15 The APA itself doesnt create a right to a contested case hearing or, therefore, a right to an appeal in every administrative agency matter. It merely establishes the procedures to be followed when another statute grants such a right.16 More than 100 statutes do so.17
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In addition, the contested case appeal procedure may apply even if it is not specifically referred to in the relevant substantive statute. In In re Chisago Lakes School Dist., 690 N.W.2d 407 (Minn. App. 2005), that procedure was held to be the appropriate method for seeking appellate review of the decision of a Department of Education hearing officer reviewing a school districts finding that a child was no longer eligible for special education services. The relevant statute, Minn. Stat. 125A.091, subd. 24, permits an appeal to the Minnesota Court of Appeals within 60 days of receiving the hearing officers decision, but it does not specify the procedures for pursuing such an appeal. The appellant had filed a notice of appeal, which the court accepted because of the statutory ambiguity. The court made clear, however, that the proper procedure would have been to file a petition for writ of certiorari, stating the general rule that in the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari.18 The court also concluded that, because a previous version of the statute had referred to the APA in providing for a right of appeal and the administrative hearing resembled a contested case hearing, the contested case appeal procedures of the APA should govern the appeal, except that the longer period for commencing the appeal provided by section 125A.091 (60 days), rather than the period specified in the APA (30 days), would apply. A surprisingly large number of statutes, like the one at issue in Chisago Lakes, create a right of appeal from the decision of a state administrative agency but fail to specify the procedure by which that right should be asserted.19 Following Chisago Lakes, the proper procedure by which to pursue an appeal under these statutes is a writ of certiorari, and it seems likely that the APA procedure applies if the order appealed from results from a procedure akin to a contested case. The General Certiorari Statute. But you need to be cautious about following Chisago Lakes too far. Although its holding that a writ of certiorari is the correct method for obtaining review of a decision for which no other procedure is specified by statute undoubtedly applies generally, one cannot assume that the APA certiorari procedure always applies. Minnesota law also includes another certiorari statute, Minn. Stat. 606.01-606.02, establishing procedures for obtaining a writ of certiorari that differ in very important respects from the procedures for obtaining such a writ under the APA. This statute allows 60 days from receipt of the decision sought to be reviewed within which to obtain the writ, but it requires that the writ be issued and served on the adverse party within the period. By contrast, as has been noted, the APA allows only 30 days, but it requires only that the petition for the writ be filed within that period, allowing service after the 30 days. Chapter 606 has repeatedly been held to be the sole means by which to obtain judicial review of quasi-judicial decisions of local governmental bodies that are not covered by the APA because they lack statewide jurisdiction20 and for which no special statute provides another means of review.21 In particular, this procedure is the sole means of
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securing judicial review of most claims involving employee discharge in the public sector.22 It is also identified as the proper means for seeking appellate review in a handful of special appeal statutes, either expressly23 or by implication through a general reference to review by petition for writ of certiorari.24 And a court conceivably could hold that this statute, rather than the APA, also provides the procedure for securing review where a statute recognizes a right of appeal without specifying the procedure and one or more of the factors relied on in Chisago Lakesan administrative proceeding resembling a contested case hearing, a prior version of the statute invoking the APAis lacking. Appeals to District Court. As a final complication, more than 100 special appeal statutes provide that judicial review of particular administrative actions may be obtained, not from the Court of Appeals, but from a district court.25 Not all of these statutes result in an appeal in the usual sense of a review limited to the existing record and substantial deference to the original decision-makers findings and conclusions. Some of them expressly provide for a trial de novo in the district court,26 and others have been construed as requiring de novo review although the statute itself doesnt so provide.27 But regardless of the standard of review, the appellate proceeding obviously is commenced by a procedure other than filing a notice of appeal in the Court of Appeals, and the time for filing will be determined by the statute creating the right to appellate review. One particular point of caution should be noted in this connection. Two statutes, involving decisions of civil service commissions in cities of the first class and orders of the Metropolitan Airports Commission, provide that district court review in such cases may be obtained by petitioning the district court for a writ of certiorari.28 But in Heideman v. Metropolitan Airports Commn, 555 N.W.2d 322 (Minn. App. 1996) the Court of Appeals held that the statute applying to MAC orders was repealed by implication by a 1996 amendment of the general certiorari statute, section 606.01, specifying that writs under that statute are sought from the Court of Appeals,29 so that the appeal properly belonged in the appellate rather than the district court. The reasoning in Heideman seems equally applicable to the statute permitting district court certiorari review of civil service commission decisions. Therefore, at least one odd method of securing appellate reviewcertiorari review by a district courtmay no longer exist, despite the continued existence of statutes allowing such review. Conclusion To put it simply, despite the deceptive simplicity suggested by the appellate rules, the law in Minnesota governing judicial review is a mess. Legislative action to rectify the situation is desperately needed. In the ideal world, there would be a single set of rules applicable to all appeals from district court proceedings and another applicable to all appeals from administrative or quasijudicial proceedings of any state or local agency or body, with a single appeal deadline and a single procedure in each context. Exceptions to these general rules should be very rare and should exist only when the specific type of proceeding absolutely requires a different rule.
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If this ideal is unobtainable, the Legislature at least should direct that a comprehensive study should be made of all of the more than 300 special appeal statutes, to determine which are really necessary and which are simply vestiges of the days before the Court of Appeals was created and before the adoption of the current version of Appellate Rule 104. And the inconsistencies between the certiorari review provisions of the APA and the general certiorari statute should be eliminated promptly, so that the same procedures and deadlines govern all applications for a writ, in all cases, to protect against litigants losing their right of appeal because they seek the writ under the wrong statute. In the meantime, if you are called upon to pursue an appeal in a substantive or procedural context with which youre unfamiliar, be very careful to make sure that there isnt a provision somewhere in the substantive law governing your case that specifies a different means for pursuing that appeal than a simple notice of appeal to the Court of Appeals or that imposes a special filing deadline. As the Court of Appeals has said, It [is] incumbent upon appellants to search the applicable ordinances and statutes to confirm the appropriate forum in which to seek review.30 Failure to heed this admonition could lead to the dismissal of your clients appeal even before you get started. If that happens, your next step should be a call to your malpractice carrier. Notes 1 See, e.g., Minn. Stat. 525.71-525.714, governing appeals in probate proceedings, which generally follow the appellate rules but which authorize appeals from a number of types of orders that would not be appealable if entered in a normal civil action. 2 Minn. Stat. 84D.11, subd. 4, governing an appeal from the decision of the commissioner of natural resources on an application for a permit to propagate, possess, import, purchase, or transport an exotic plant species. A different statute specifying a different procedure for appeals, Minn. Stat. 84D.13, subd. 8, governs an appeal from the commissioners imposition of a civil penalty for violating the exotic species statute or the regulations thereunder. 3 See also Minn. Stat. 103E.091, 103E.095, 103E.351, subd. 4, and 103E.741 (actions relating to local drainage systems and assessments); Minn. Stat. 115A.57 (action challenging decision designating facility to which all solid waste must be delivered); Minn. Stat. 469.031 (action challenging validity of ordinance regarding a pedestrian mall); Minn. Stat. 469.046 (action challenging validity of action of city housing and redevelopment authority); Minn. Stat. 473.675 (action challenging order of Metropolitan Airports Commission). 4 Appellate Rule 104 was amended in 1999, extending the time for appeal from appealable orders of the district court from 30 to 60 days and reducing the time for appeal from district court judgments from 90 to 60 days. 5 Minn. Stat. 504B.371, subd. 2, and 504B.375, subd. 3. 6 Minn. Stat. 209.09 and 209.10. Such appeals are taken directly to the Supreme Court for elections to statewide and state legislative offices and to the Court of Appeals for other elections.
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7 Minn. Stat. 558.215. This time limit applies to decisions under 558.04 (judgment directing partition and appointing referees); 558.07 (order confirming or setting aside referees report and final judgment thereon), 558.14 (order directing that property be sold where it cannot be physically partitioned), and 558.21 (final judgment after sale, directing conveyance and application of proceeds). 8 Minn. Stat. 508.29. See also Minn. Stat. 508A.29. 9 Minn. Stat. 117.075, subd. 1(c). 10 Minn. Stat. 14.02, subd. 4. 11 The actual application of a rule may only be challenged by an administrative contested case proceeding. See, e.g., Minnesota Chamber of Commerce v. Minnesota Pollution Control Agency, 524 N.W.2d 30 (Minn. App. 1994). 12 See Fryberger v. Township of Fredenberg, 428 N.W.2d 601, 605 (Minn. App. 1988). 13 Minn. Stat. 14.02, subd. 3. 14 Minn. Stat. 14.63. See also Minn. R. Civ. App. P. 115. 15 In re License Application of Polk County Ambulance Serv., 548 N.W.2d 300 (Minn. App. 1996). 16 See, e.g., In re Northern States Power Co., 676 N.W.2d 326, 332 (Minn. App. 2004). 17 See, e.g., Minn. Stat. 115.05, subd. 11, and 116.072, subd. 6 and 7 (various decisions of Pollution Control Agency); Minn. Stat. 216.25 (various decisions of Minnesota Public Utilities Commission); Minn. Stat. 363.072 (final decision of Department of Human Rights). 18 Id. at 409, quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992). 19 See, e.g., Minn. Stat. 65A.29, subd. 9 (objection to cancellation or nonrenewal of homeowners policy); Minn. Stat. 65B.21, subd. 2 (same as to auto policy); Minn. Stat. 115.48 (issuance of bonds and levy of taxes on behalf of municipality); Minn. Stat. 473.149, subd. 3(f) (Metropolitan Councils long-range policy plan). 20 Minn. Stat. 14.02, subd. 2. 21 See, e.g., Dead Lake Assn, Inc. v. Otter Tail County, 695 N.W.2d 129 (Minn. 2005); Dietz v. Dodge County, 487 N.W.2d 237 (Minn. 1992). Determining whether a decision is quasi-judicial, and therefore reviewable, rather than legislative or administrative, and therefore usually nonreviewable, is beyond the scope of this article. But see Minnesota Center for Envtl. Advocacy v. Metropolitan Council 587 N.W.2d 838, 842 (Minn. 1999). 22 See generally 17 Stephen F. Befort, Minnesota Practice: Employment Law & Practice (2d ed. 2003) 12.42. Some employment actions of local governmental units or bodies, however, are governed by special statutes specifying different procedure for obtaining judicial review. See, e.g., Minn. Stat. 44.09; Minn. Stat. 383A.294; Minn. Stat. 383B.38, subd. 1a. 23 Minn. Stat. 356.96, subd. 13. 24 See, e.g., Minn. Stat. 127A.42, subd. 8a; Minn. Stat. 179A.051. 25 See, e.g. Minn. Stat. 373.09 and 373.11; Minn. Stat. 256.045. 26 See, e.g., Minn. Stat. 3.737, subd. 4(d); Minn. Stat. 72A.327; Minn. Stat. 383C.051.
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27 See, e.g., Buettner v. City of St. Cloud, 277 N.W.2d 199 (Minn. 1979). 28Minn. Stat. 484.01, subd. 2 (civil service commissions); Minn. Stat. 473.675 (Metropolitan Airports Commission). 29 See 1996 Minn. Laws ch. 307, 2. 30 Fryberger v. Township of Fredenberg, 428 N.W.2d 601, 605 (Minn. App. 1988). BRUCE JONES is a partner in the General Litigation Group of Faegre & Benson LLP and is cochair of the firms Appellate Advocacy Group. Bruce is a member of the Minnesota Supreme Court Advisory Committee on Rules of Civil Appellate Procedure and a contributing author to all four editions of the 8th Circuit Appellate Practice Manual (MCLE 2007). JOHN F. BEUKEMA is of counsel in the Business Litigation Group of Faegre & Benson and is a member of the firms Appellate Advocacy Group. John is the author of Post-Trial Motions: The First Step on the Appellate Road, 65 Bench and Bar of Minnesota 7 (August 1998), pp. 27-30.

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