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Order Promulgating Amendments To Rules of Civil Appellate Procedure

Supreme Court of Minnesota

May 30, 2019

ORDER PROMULGATING AMENDMENTS TO THE RULES OF CIVIL APPELLATE PROCEDURE

          G. BARRY ANDERSON ASSOCIATE JUSTICE

         The Advisory Committee for the Rules of Civil Appellate Procedure met in 2018 to consider suggested changes to the rules for consistency in practice and to clarify procedures. In a report filed on October 1, 2018, the committee recommended several amendments to the rules.[1] We opened a public comment period, which drew two written comments. The advisory committee considered the input provided in the written comments, and in a report filed on April 1, 2019, recommended additional amendments to the Rules of Civil Appellate Procedure.

         We have reviewed the proposed amendments and the committee's explanations of those amendments. We agree with the committee that the recommended amendments will clarify the procedures for appeals governed by these rules. In addition, we have made a clarifying amendment to Rule 134.02, which governs notices of hearings in the appellate courts and requests to postpone scheduled hearings. Currently, in addition to the procedures set out in Rule 134 of the Rules of Civil Appellate Procedure, the appellate courts have provided further direction in the Case Dispositional Procedures for the supreme court and in the Special Rules of Practice for the court of appeals. For consistency, the requirements to provide notice of conflicts with potential argument dates, to update those notices as soon as the information is reasonably available, and to identify the specific circumstances supporting a request to postpone a scheduled argument are now reflected in Rule 134.02.

         Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

         1. The attached amendments to the Rules of Civil Appellate Procedure are prescribed and promulgated to be effective as of September 1, 2019, and shall apply to all appeals filed on or after the effective date.

         2. 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.]

         MINNESOTA RULES OF CIVIL APPELLATE PROCEDURE

         TITLE II. APPEALS FROM JUDGMENTS AND ORDERS

         Rule 112. Confidential Or Sealed Information; Sealing of Portions of Record 112.01 Status of Confidential or Sealed Record Material on Appeal 112.02 Handling of Confidential or Sealed Portions of the Appellate Record

         TITLE VII. GENERAL PROVISIONS

         Rule 129. Brief of an Amicus Curiae

         129.02 Time for Filing and Service of Brief

         Rule 139. Costs and Disbursements

         139.01 Objections

         139.054. Disallowance of Costs and Disbursements

         139.065 Attorneys' Fees on Appeal - Procedure

         Rule 112. Confidential Or Sealed Information: Sealing of Portions of Record

         Rule 112.01. Status of Confidential or Sealed Record Material on Appeal

         Subdivision 1. Materials Not Available to the Public. Materials that are filed in the trial court as "confidential" or "sealed" as defined in Rule 14 of the General Rules of Practice under seal-or in another manner that makes the materials unavailable to the public pursuant to statute, court rule, or trial court order, as well as any documents containing restricted identifiers as defined in Rule 11 of the General Rules of Practice, will remain under seal or not available to the public restricted access on appeal unless either the trial court or appellate court orders otherwise.

         Subd. 2. Scaling of-Restriction of Access to Materials on Appeal. In situations where material in the record is confidential or trade-secret information that was not protected by a confidentiality order in the trial court, a party may move to have it filed under seal or otherwise restrict access to it on appeal. The motion must demonstrate the need for sealing restricting access to the information and must set forth the efforts made to maintain the confidentiality of the information before the motion was brought.

         Rule 112.02. Handling of Confidential or Sealed Portions of the Appellate Record

         Any materials that are filed under seal or in another manner that makes the materials unavailable to the public and that need to be included in an addendum shall be filed in a sealed envelope designated as "Filed under Seal pursuant to Order of the Court dated" or in substantially similar form that describes the basis for the assertion of confidentiality. Documents filed electronically must be similarly segregated and designated shall be segregated and designated as such, with a description of the basis for asserting the sealed or non-public status.

         Rule 115. Court of Appeals Review of Decisions of the Department of Employment and Economic Development and Other Decisions Reviewable by Certiorari and Review of Decisions Appealable Pursuant to the Administrative Procedure Act

         115.03. Contents of the Petition and Writ; Filing and Service

         Subdivision 1. Contents and Form of Petition, Writ and Response. The petition shall definitely and briefly state the decision, judgment, order or proceeding that is sought to be reviewed and the errors that the petitioner claims. A copy of the decision and the statement of the case pursuant to Rule 133.03 shall be inoluded in an addendum prepared as proscribed by Rule 130.02 filed with the petition. The title and form of the petition and writ shall be as shown in the appendix to these rules. The respondent's statement of the case, if any, shall be filed and served not later than 14 days after service of the petitioner's statement.

         Advisory Committee Comment-2019 Amendments

         Rule 115.03, subd. 1 is amended to make clear that the statement of the case must be filed as a separate document from the copy of the decision being appealed, and that an addendum is not required at this early stage in the case. The issues before the court at the time the statement of the case and decision being appealed are filed are (1) whether there is a final agency decision and (2) whether the appeal is timely. This amendment makes Rule 115.03, subd. 1 consistent with the corresponding provisions in Rules 103.01, 114.02, and 116.03.

         115.04. The Record on Review by Certiorari; Transmission of the Record

         Subd. 5. Transmission of Record. The record shall be retained by the agency or body until the clerk of the appellate courts requests that it be transmitted to the court. The record shall thereupon be transmitted promptly to the clerk of the appellate courts with a copy of the itemized list of the contents, in quadruplicate.

         Rule 117. Petition in Supreme Court for Review of Decisions of the Court of Appeals Subdivision 1. Filing of Petition.

         (a)Timing and service. Any party seeking review of a decision of the Court of Appeals shall separately petition the Supreme Court. The petition with proof of service shall be filed with the clerk of the appellate courts within 30 days of the filing of the Court of Appeals' decision. A filing fee of $550 shall be paid to the clerk of the appellate courts.

         (b)Failure to take other steps. A party's failure to take any step other than timely filing the petition does not require dismissal of the appeal, but permits any action the Supreme Court deems appropriate, including dismissal of the appeal.

         Subd. 5. Amicus Curiae. A request for leave to participate in the appeal as amicus curiae is governed by Rule 129. An applicant who requests leave to participate as amicus if review is granted, and wants to include an argument on the question of granting review, shall file its request to participate as amicus not later than 14 days after the petition is filed.

         Advisory Committee Comment-2019 Amendments

Rule 117, subd. 1 is amended to remove any implication in the rule that failing to take any step other than filing the petition for further review requires dismissal of the petition. This rule is derived from Minn. R. Crim. P. 29.04, which governs petitions for further review in criminal cases. The rule does not excuse non-compliance with the Court's rules, but confirms that the Court has the inherent authority to excuse noncompliance in die exercise of its discretion. Cf. In re J.R., 655 N.W.2d 1 (Minn. 2003) (mere 'oversight' or negligence in failing to follow the rules does not excuse noncompliance).
Rule 117, subd 5, is amended to make the same change made in Rule 129.01 to require that any request to participate on appeal as an amicus must be filed either within 14 days of the riling of the petition for further review (PFR) or after the petition has been decided. This change allows the parties an opportunity to respond to the request to participate while the PFR is pending if the request is filed while the PFR is pending.

         Rule 125. Filing and Service

         125.01. Filing

         (d) For any document that is required or permitted under these rules to be filed with the trial court at the time of commencement of an appeal, the filer may file or serve the document using the trial court's electronic service system or, except as otherwise excluded by Rule 125.03, any other means authorized by the trial court rules. Separate proof of such service must be filed with the clerk of the appellate courts. Any party to the trial court proceedings registered for use of the trial court's electronic service system shall be deemed to have consented to receive service in this manner.

         Except as expressly provided by rule, after an appeal is filed with the appellate courts, filings shall be made with the appellate court using that court's electronic filing system.

         Advisory Committee ...


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