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Order Promulgating Amendments to Rules of Civil Appellate Procedure

Supreme Court of Minnesota

February 28, 2014

ORDER PROMULGATING AMENDMENTS TO THE RULES OF CIVIL APPELLATE PROCEDURE

Lorie S. Gildea Chief Justice

The Supreme Court Advisory Committee on the Rules of Civil Appellate Procedure has recommended amendments to the Rules of Civil Appellate Procedure to address issues presented by the anticipated implementation of electronic filing and electronic service in the appellate courts, and to improve the efficiency and processing of appeals. By order, the court invited comments on the proposed amendments.

In addition, the court has considered recommendations for a pilot program to test the use of electronic filing and electronic service in the appellate courts and the effectiveness of the appellate rules, as amended herein.

The court has reviewed the comments received and the proposed amendments and is fully advised in the premises.

IT IS HEREBY ORDERED THAT:

1. The attached amendments to the Rules of Civil Appellate Procedure are prescribed and promulgated to be effective on July 1, 2014, and shall apply to all appeals pending or commenced on or after the effective date.

2. Other than as permitted by paragraph 3 of this order for a pilot program, or until the court orders otherwise, use of the appellate courts' electronic filing and service system is not authorized or permitted for purposes of Rule 125 of the Rules of Civil Appellate Procedure, as amended.

3. The Clerk of Appellate Courts is authorized to conduct a pilot program under the Rules of Civil Appellate Procedure, as amended. The pilot program shall initially be limited to criminal appeals in which the parties are represented by the Ramsey County Attorney and by the State Appellate Public Defender. Unless the Clerk of Appellate Courts permits otherwise based on individual case circumstances, participants in the pilot program shall file and serve documents in the case on appeal by using the appellate courts' electronic file and service system. The Clerk of Appellate Courts is authorized to expand the pilot program to other appellate case participants or case types, shall report to the court within 90 days after the start of the pilot program, and shall provide recommendations to the court for continuation or expansion of electronic filing and electronic service in the appellate courts. The Clerk of Appellate Courts is authorized to temporarily waive convenience fees associated with the processing of filing fees or other payments related to appeals for cases in the pilot.

4. For purposes of criminal appeals, and until further order of the court, Minn. R. Crim. P. 28.02, subds. 5(12) and 9, govern the time for ordering the transcript and for identifying the parts of the transcript to be relied upon or deemed necessary for the appeal. Paper copies of the transcript ordered for the appeal in a criminal matter shall be transmitted to the attorney for each party, as required by Minn. R. Crim. P. 28.02, subd. 9, whether or not a written request for a paper copy of the transcript is submitted pursuant to Minn. R. Civ. App. P. 110.02, subd. 2(b), as amended by this order. In all other respects, Minn. R. Civ. App. P. 110.02, as amended, shall apply to the transcript requirements in criminal appeals.

5. The Advisory Committee on the Rules of Criminal Procedure shall review the amendments promulgated here and consider whether amendments are needed to the rules of criminal procedure to implement electronic filing and electronic service in criminal matters filed in the appellate courts. On or before November 1, 2014, the Advisory Committee shall provide recommendations to the court for any proposed amendments to the rules of criminal procedure for purposes of electronic filing and service in appeals governed by those rules.

6. The Advisory Committee on the General Rules of Practice shall review the recommendation by the Advisory Committee on the Rules of Civil Appellate Procedure to require consecutive pagination of documents filed with the district courts, consider whether that recommendation should be implemented by amendment of the General Rules of Practice, and provide a recommendation to the court on or before July 1, 2015.

7. The Advisory Committee comments are included for convenience and do not reflect court approval of the statements made therein.

AMENDMENTS TO THE RULES OF CIVIL APPELLATE PROCEDURE

[Note: In the following amendments, deletions are indicated by a line drawn through the words and additions are indicated by a line drawn under the words.]

TITLE II. APPEALS FROM JUDGMENTS AND ORDERS

Rule 107. Bond or Deposit for Costs 107.01 WhenNo Cost Bond Required 107.02 When Bond Not RequiredRequest to Trial Court to Require a Cost Bond

107.03 Cases for Which a Cost Bond May Not Be Required

* * *

TITLE V. EXTRAORDINARY WRITS

Rule 120. Writs of Mandamus and Prohibition Directed to a Judge or Judges and Other Writs 120.01 Petition for Writ 120.02 Submission of Petition; Response to the Petition 120.03 Procedure Following Submission 120.04 Filing; Form of DocumentsPapers; Number of Copies 120.05 Review in Supreme Court

* * *

TITLE VII. GENERAL PROVISIONS

Rule 125. Filing and Service 125.01 Filing 125.02 Service and Filing of All DocumentsPapers Required 125.03 Manner of Service 125.04 Proof of Service

* * *

Rule 130. The Addendum Required; Appendix Not Permittedto the Briefs; Supplemental Record 130.01 Record Not to be Printed; Appellant to File Appendix Not Permitted 130.02 AddendumRespondents May File Appendix 130.03 Party May File Supplemental Record; Not Taxable Cost

Rule 131. Filing and Service of Briefs, the Appendix, and Addenda the Supplemental Record 131.01 Time for Filing and Service 131.02 Application for Extension of Time 131.03 Number of Paper Copies to be Filed and Served

Rule 132. Form of Briefs, Appendices, Supplemental Records, Addenda, Motions, and Other DocumentsPapers

132.01 Form of Briefs, Appendices, and AddendaSupplemental Records 132.02 Form of Motions and Other DocumentsPapers

132.03 Form of Documents Filed Electronically

* * *

TITLE I. APPLICABILITY OF RULES Rule 101. Scope of Rules; Definitions

* * *

101.02 Definitions

Subdivision 1. When used in these rules, the words listed below have the meanings given them.

Subd. 2. "Appellate court" means the Supreme Court pursuant to Minnesota Statutes, chapter 480, or the Court of Appeals pursuant to Minnesota Statutes, chapter 480A.

Subd. 3. "Judge" means a justice of the Supreme Court or a judge of the Court of Appeals.

Subd. 4. "Trial court" means the court or agency whose decision is sought to be reviewed.

Subd. 5. "Clerk of the appellate courts" means the clerk of the Supreme Court and the Court of Appeals.

Subd. 6. "Appellant" means the party seeking review including relators and petitioners.

Subd. 7. "Signed" with reference to a document filed or served using the appellate courts' electronic filing and service system requires that the document bear a facsimile of the filer's signature or a typographical signature of an attorney or declarant in the form: /s/ Pat L. Smith. Such a document shall be deemed to be "signed" by the filer for all purposes, and any similar indication that the document has been signed shall be treated as a "signature." Notarization shall be accomplished in accordance with Rule 14.04(c) of the Minnesota General Rules of Practice.

Advisory Committee Comment-2014 Amendments

Subdivision 7 of Rule 101.02 is new, implementing part of the electronic filing and service system for the appellate courts. It is substantially similar to Rule 11.01 of the Minnesota Rules of Civil Procedure, applicable in civil proceedings in the district courts. For documents filed using the appellate courts' electronic filing system, the electronically filed document is the original document. There is no requirement that a paper version be physically signed and retained, and such a paper duplicate should not be separately filed with the court, other than pursuant to a court order as referenced in Minn. R. Civ. App. P. 131.03.
This rule functions, in part, to thwart any claim that an electronically filed document is somehow not "signed" because there is no india-ink-on-parchment signed version of the document in the court file. An indication such as "[signed]" or "/s/" is sufficient both to comply with a requirement that a document be signed and to subject the filer to responsibility for that signing. See Minn. R. Civ. P. 11.01, Adv. Comm. Cmt.-2012 Amends.

TITLE II. APPEALS FROM JUDGMENTS AND ORDERS

Rule 103. Appeal-How Taken

103.01 Manner of Making Appeal

Subdivision 1. Notice of Appeal and Filings. An appeal shall be made by filing a notice of appeal with the clerk of the appellate courts and serving the notice on the adverse party or parties within the appeal period. The notice shall contain:

(a)a statement specifying the judgment or order from which the appeal is taken; and
(b)the names, addresses, and telephone numbers of opposing counsel, indicating the parties they represent.
The notice shall be accompanied by:
(c)proof of service on the adverse party or parties; and
(d) proof of filing with the administrator of the trial court in which the judgment or order appealed from is entered or filed.

The appellant shall, simultaneously with the notice of appeal, file the following with the clerk of the appellate courts:

(1) two copies of the notice of appeal,
(21) a certified copy of the judgment or order from which the appeal is taken, (32) two copies of the statement of the case required by Rule 133.03, and (4)3) a filing fee of $550.

The appellant shall at the same time also file the following a copy of the notice of appeal simultaneously with the trial court administrator:.

(1)a copy of the notice of appeal, and
(2)the cost bond required by Rule 107, or written waiver of it.

Subd. 3. When Filing Fee Not Required.

The filing fees set out in Rule 103.01, subdivision 1, shall not be required when:

(c) the appellant is a party to a proceeding pursuant to Minnesota Statutes, chapter 253B or 253D; or
(g) the appeal is taken by a claimant an applicant for unemployment compensation insurance benefits pursuant to Minnesota Statutes, chapter 268.
Advisory Committee Comment-2014 Amendments
Rule 103.01 is amended in several important ways. Together these changes will streamline the appellate process and make it easier to perfect appeals. First, the requirement for filing a certified copy of the trial court order or judgment from which the appeal is taken is modified to remove the certification requirement. The appellant must still provide a copy of the as-filed order or judgment, as the case may be, but it is no longer necessary that either be certified as authentic by the court administrator. The filing of these uncertified documents, however, does carry the implied representation of the filing party or counsel that they are indeed true and correct copies of the documents on file with the tribunal issuing them.
The second change is the removal of the requirement that a cost bond be provided. This change is a part of the amendment of Rule 107.
Only a single copy of any statement of the case need be filed.
A copy of the notice of appeal must be filed with the trial court administrator to alert the trial court to the pendency of an appeal. For this filing, the trial court's filing rules should be followed. Because this copy of the notice of appeal is filed with the district court, it is permissible under Rule 125.01(d), as adopted at the time of these amendments, to effect service of it on other parties by any means authorized by the trial court rules. This rule permits service by the trial court e-filing system, which should be useful for documents that may be filed with the trial court using the same system. Because that service would not result in proof of service being transmitted to the appellate courts' electronic filing system, separate proof of service must be filed with the clerk of the appellate courts.
Rule 103.01, subdivision 3, is amended to conform the terminology in the rule to that of the statutes governing the listed proceedings. This change is not intended to change the procedure under the rule.

103.02 Joint Appeals; Related Appeals; Consolidated Appeals

* * *

Subd. 2. Related Appeals. After one party timely files a notice of appeal, any other party may seek review of a judgment or order in the same action by serving and filing a notice of related appeal. The notice of related appeal shall specify the judgment or order to be reviewed. The notice of related appeal shall be accompanied by:

(a)a filing fee of $100,
(b)a certified copy of the judgment or order from which the related appeal is taken if different than the judgment or order being challenged in the original appeal, and
(c)two copies of a statement of the case. A separate cost bond is not required unless ordered by the court.
Advisory Committee Comment-2014 Amendments
The change to Rule 103.02, subdivision 2, is simply to remove the requirement for certified copies of the orders or judgment appealed from, and is a companion change to the amendment to Rule 103.01, subdivision 1. The amended rule continues to require providing copies of the judgments or orders; it is no longer necessary that they be certified by the trial court administrator.

Similarly, only a single copy of the statement of the case is required under this rule, and a cost bond is not normally required. These changes conform the procedure for a party filing a notice of related appeal to that for the appellant.

Rule 105. Discretionary Review

105.01 Petition for Permission to Appeal; Time

Upon the petition of a party, in the interests of justice the Court of Appeals may allow an appeal from an order not otherwise appealable pursuant to Rule 103.03 except an order made during trial, and the Supreme Court may allow an appeal from an order of the Tax Court or the Workers' Compensation Court of Appeals not otherwise appealable pursuant to Rule 116 or governing statute except an order made during trial. The petition shall be served on the adverse party and filed within 30 days of the filing of the order. The trial court should be notified that the petition has been filed and provided with a copy of the petition and any response. Four copies of the petition shall be filed with the clerk of the appellate courts, but the court may direct that additional copies be provided. A filing fee of $550 paid to the clerk of the appellate courts shall accompany the petition for permission to appeal.

Petitioner must, within 30 days of the filing of the order:

1. serve a copy of the petition on the adverse party;

2. file the petition with the clerk of the appellate courts, and

3. pay a filing fee of $550 to the clerk of the appellate courts.

Petitioner shall also at the same time file a copy of the petition with the trial court administrator and file proof of that filing with the clerk of the appellate courts.

105.02 Content of Petition; Response

The petition shall be entitled as in the trial court, shall not exceed ten 10 typewritten pages, and shall contain:

(a)a statement of facts necessary to an understanding of the questions of law or fact determined by the order of the trial court;
(b)a statement of the issues; and
(c)a statement why an immediate appeal is necessary and desirable.

A copy of the order from which the appeal is sought and any findings of fact, conclusions of law, or memorandum of law relating to it shall be attached to the petition included in an addendum, which shall be prepared as prescribed in Rule 130.02.

Any adverse party may, within five 5 days after service of the petition, serve and file with the clerk of the appellate courts four copies of a response to the petition, which shall not exceed ten 10 pages. Any reply shall be served within two 3 days after service of the response and shall not exceed five 5 pages. All papers documents may be typewritten in the form prescribed in Rule 132.02. No additional memoranda may be filed without leave of the appellate court.

A copy of the response and any reply shall also be filed with the trial court administrator, and proof of that filing shall be filed with the clerk of the appellate courts.

The petition and any response shall be submitted without oral argument unless otherwise ordered.

105.03 Grant of Permission-Procedure

If permission to appeal is granted, the clerk of the appellate courts shall notify the trial court administrator and the appellant shall file the bond as required by these rules, and then proceed as though the appeal had been noticed by filing an appeal.

Two copies of a completed The statement of the case shall be filed within five 5 days of the order granting the petition. The time fixed by these rules for transmitting the record and for filing and serving the briefs and appendix shall run from the date of the entry of the order granting permission to appeal.

Advisory Committee Comment-2014 Amendments

Rule 105 is amended to accommodate the changes brought about by use of electronic service and filing in the appellate courts. As part of these changes, and in anticipation of the expanding reliance on electronic records by the appellate courts, the courts have determined that multiple copies of many documents are no longer required.
Throughout these rules, the requirement for filing a statement of the case is now limited to a single copy, whether filed in electronic form or on paper. The amendment to Rule 105.03 applies this change to filings for discretionary review.
By amendment to Rule 107, cost bonds are not routinely required for appeals under these rules, and are not currently required for petitions under this rule. Rule 105.03 removes the requirement for a cost bond in the event the petition is granted.

The amended rule clarifies the duty to "provide" a copy of the petition to the trial court, requiring that it be filed with the trial court administrator. The same is required for any response or reply to the petition. Because this copy of the petition is filed with the trial court, it is permissible under Rule 125.01(d), as adopted at the time of these amendments, to effect service of it on other parties by any means authorized by the trial court rules. This rule permits service by the trial court e-filing system, which should be useful for documents that may be filed with the trial court using the same system. Because that service would not result in proof of service being transmitted to the appellate courts' electronic filing system, separate proof of service must be filed with the clerk of the appellate courts.

Only a single copy of the petition and addendum need be filed. The time for a reply has been extended from 2, to 3, days after service of a response.

Rule 105.03 is amended to remove a provision relating to timing for transmitting the record to conform the rule to practice within the appellate courts. The date for transmitting the record is not currently calculated from the date of granting the petition, so this provision is deleted.

Rule 107. Bond or Deposit for Costs

107.01 When Bond Required No Cost Bond Required

No cost bond is required for any appeal, unless ordered by the trial court on motion and for good cause shown.

Unless the appellant is exempt by law, a bond shall be executed by, or on behalf of, the appellant. The bond shall be conditioned upon the payment of all costs and disbursements awarded against the appellant on the appeal, not exceeding the penalty of the bond which shall be $500. In lieu of the bond, the appellant may deposit $500 with the trial court administrator as security for the payment.

Prior to filing the notice of appeal, the appellant may move the trial court for an order waiving the bond or setting a lesser amount or deposit. Upon the appellant's filing of the required cost bond or deposit, the respondent may move the trial court for an order requiring a supplemental bond or deposit.

The bond or deposit may be waived by written consent of the respondent, which consent shall be filed with the trial court administrator.

107.02 When Bond Not Required Request to Trial Court to Require a Cost Bond

The trial court may, upon motion of any respondent and a showing that extraordinary circumstances warrant the requirement of a cost bond, order that a bond be provided as follows:

(a) The bond shall be issued by a surety licensed to issue such bonds in the State of Minnesota and shall be conditioned upon the payment of all costs and disbursements awarded against the appellant on the appeal, not exceeding the amount of the bond, which shall not exceed $1, 000;
(b) In lieu of a required bond, the appellant may deposit the required amount with the trial court administrator as security for payment; and
(c) The court may require the bond to be filed when the notice of appeal is filed, or within 10 days of the order requiring a bond, whichever date is later.
No cost bond is required:
(a)in a criminal case; or
(b)in a case arising in juvenile court; or
(c)in a proceeding pursuant to Minnesota Statutes, chapter 253B; or (d)when the appellant has been authorized to proceed without a cost bond pursuant to Rule 109; or
(e)when the appellant is the state or a governmental subdivision of the state or an officer, employee or agency thereof; or
(f)when the appellant is a party to a public assistance appeal pursuant to Minnesota Statutes, chapter 256; or
(g) when the appellant is a reemployment insurance benefits claimant pursuant to Minnesota Statutes, chapter 268.

107.03 Cases For Which A Cost Bond May Not Be Required

The trial court may not require a bond in the following cases:

(a) a criminal case;

(b) a case arising in juvenile court;

(c) a proceeding pursuant to Minnesota Statutes, chapter 253B or 253D;

(d) when the appellant has been authorized to proceed in forma pauperis pursuant to Rule 109;

(e) when the appellant is the state or a governmental subdivision of the state or an officer, employee or agency thereof;

(f) when the appellant is a party to a public assistance appeal pursuant to Minnesota Statutes, chapter 256; or

(g) when the appellant is an applicant for unemployment benefits pursuant to Minnesota Statutes, chapter 268.

Advisory Committee Comment-2014 Amendments

The change in Rule 107.01 removes the requirement of a cost bond for most appeals. The respondent may still ask the district court to require a cost bond, but must make a motion supported by a showing of good cause for the requirement of a bond. This amendment does not change the process for taxation of costs and disbursements, but the appellant is not normally required to incur the expense of obtaining and posting a bond (formerly set at $500). The rule requires that a respondent seeking to require a cost bond proceed by motion in the trial court and demonstrate good cause.
Rule 107.02 sets forth the requirements for a party seeking to obtain an order requiring the appellant to post a cost bond, drawn primarily from the language formerly part of Rule 107.01. Because the district court applies discretion to order a bond in extraordinary circumstances, the committee recommends that the amount of a bond be determined by the trial court, up to $1, 000. The amount of bond should be lower in many cases under the new rules, as the measure of potential costs is the respondent's costs, not the appellant's, and all costs are expected to be reduced as fewer copies of paper briefs need to be prepared under the amended rules, the appendix is not allowed, and the cost of paper transcripts is not required for the court or for most parties.
Rule 107.03 retains the existing rule provisions that establish seven categories of cases for which a bond may not properly be required, even upon application to the trial court.

Rule 110. The Record on Appeal

110.01 Composition of the Record on Appeal

The papers documents filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.

110.02 The Transcript of Proceedings; Duty of Appellant to Order; Notice to Respondent if Partial Transcript is Ordered; Duty of Reporter; Form of Transcript

* * *

Subd. 2. Transcript Certificates. (a) If any part of the proceedings is to be transcribed by a court reporter, a certificate as to transcript signed by the designating counsel and by the court reporter shall be filed with the clerk of the appellate courts, with a copy to the trial court and all counsel of record within 10 days of the date the transcript was ordered. The certificate shall contain the date on which the transcript was requested; the estimated number of pages; the estimated completion date not to exceed 60 days; a statement that ...


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