minnesota’s special appeal statutes: traps for the unwary

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    Vol. 65, No. 11 | December 2008

    Classifieds| Display Ads| Back to contents

    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 admonitioncould 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 101states 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 ordersof 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 ofits 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 containmore 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 aschool 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

    inMain 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 Decis ions

    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 threatenedapplication.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 ofspecific 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. InIn 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 courtmade 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 thedecision 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 Lakestoo 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 servedon 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 befiledwithin 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

    novoin the district court,26 and others have been construed as requiring de novoreview 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 inHeidemanseems equally applicable to the

    statute permitting district court certiorari review of civil service commission decisions. Therefore, at least one oddmethod 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 whenthe 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 alsoMinn. Stat. 103E.091, 103E.095, 103E.351, subd. 4, and 103E.741 (actions relating to local drainagesystems 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 alsoMinn. 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 alsoMinn. R. Civ. App. P. 115.

    15In 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).

    18Id.at 409, quotingDietz 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. ButseeMinnesota Center for Envtl. Advocacy v. Metropolitan Council 587 N.W.2d 838, 842 (Minn. 1999).

    22 See generally17 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 See1996 Minn. Laws ch. 307, 2.

    30Fryberger v. Township of Fredenberg, 428 N.W.2d 601, 605 (Minn. App. 1988).

    BRUCE JONESis 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. BEUKEMAis 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.