Adopted October 19, 1988
Revised January 2011
Obtaining Discretionary Review
Motions and Extraordinary Writs
Calendaring and Assignment of Cases
Costs and Disbursements
Entry of Judgment and Remittitur
This document has been prepared to assist the public and practicing bar in understanding the processes by which the Supreme Court performs its judicial business. The Court continually reviews and refines its internal operating procedures to accomplish its goal of effective and efficient processing of judicial and administrative responsibilities. As a result, this document is informational only and does not bind the Court; the processes described may be changed at any time without prior notice.
The Court schedules its work based on an annual term that runs from September through August. The projected schedule of argument and special term dates for the full term is published on the judicial branch website, usually several months before the beginning of the term. While it generally adheres to the established schedule, the Court may supplement or otherwise modify the calendar as its workload requires.
The Court hears regularly-scheduled arguments each month, September through June. A typical monthly schedule for those months is as follows:
a. First week of the month: Oral arguments heard Monday through Thursday.
b. Second week: Oral arguments heard Monday through Wednesday; court meeting (administrative matters) on Thursday, unless conflict with Judicial Council meeting.
c. Third week: Special term conference on Tuesday; court meeting on Wednesday, if conflict with Judicial Council in the second week.
d. Fourth week: Special term conference on Wednesday.
Oral argument is typically not heard in July and August, with the exception of cases in which expedited consideration is warranted. One special term conference is scheduled on a Tuesday in mid-July and two special term conferences are scheduled in August. Court meetings are scheduled in July and August as needed.
The Minnesota Constitution, in Article VI, section 2, confers on the Supreme Court appellate jurisdiction in all cases, original jurisdiction in remedial cases as prescribed by law, and supervisory jurisdiction over all courts of the state. The Court's supervisory jurisdiction includes the authority to regulate procedural and evidentiary matters. The Court has authority to consider all petitions and motions relating to the exercise of its jurisdiction.
The Supreme Court has direct appellate jurisdiction over several categories of cases, as specified by law. Appeals may be taken directly to the Court from decisions of the Minnesota Tax Court and the Minnesota Workers' Compensation Court of Appeals. In addition, convictions of first-degree murder and decisions in postconviction proceedings involving convictions of first-degree murder are directly appealable to the Supreme Court, as are decisions in election contests involving a statewide or legislative office.
Most appeals, however, are taken initially to the Court of Appeals, and the Supreme Court has discretionary jurisdiction to review decisions of the Court of Appeals. That is, the Supreme Court may choose whether to grant review of a decision of the Court of Appeals. See "Obtaining Discretionary Review" below.
The Supreme Court has original jurisdiction in several categories of cases. These include petitions for writs of mandamus or prohibition, but only to the extent the relief sought is directed to the Court of Appeals, the Tax Court, or the Workers' Compensation Court of Appeals. The Supreme Court also has original jurisdiction over certain pre-election ballot challenges involving statewide or legislative office and over matters of attorney and judge discipline.
Obtaining Discretionary Review
A party may seek Supreme Court review of an adverse decision of the Court of Appeals by serving and filing a petition for review. The purpose of the petition is to persuade the Supreme Court that the case satisfies the criteria for review set out in the applicable appellate rule. (Minn. R. Civ. App. P. 117 subd 2 for civil cases and Minn. R. Crim. P. 29.04 subd 4 for criminal cases.) As the criteria for review reflect, the Supreme Court's primary role in reviewing Court of Appeals decisions is to set precedent that develops and clarifies the law on important issues of broad impact. The Supreme Court rarely grants review just to correct an erroneous decision that will affect only the parties to that case. As a result, the Court grants review in a small percentage of cases.
A petition for review must be served and filed within 30 days of the filing of the Court of Appeals' decision for which review is sought. Minn. R. Civ. App. P. 117 subd 1; Minn. R. Crim. P. 29.04 subd 2. The respondent has 20 days after service of the petition to file and serve a response.1 Minn. R. Civ. App. P. 117 subd 4; Minn. R. Crim. P. 29.04 subd 5. A respondent may request conditional cross-review in its response (civil), Minn. R. Civ. App. P. 117 subd 4, or file a cross-petition (criminal), Minn. R. Crim. P. 29.04 subd 6 to raise additional issues not included in the petition for review.
The Clerk of Appellate Courts forwards all petitions for review and responses to the Supreme Court Commissioner's Office for analysis prior to the Court's consideration. The Commissioner's Office prepares a memorandum for the Court on every case in which a petition is filed. In the memorandum, the Commissioner's Office summarizes the facts and procedural history of the case, describes the legal issues on which the petitioner seeks review, discusses whether the case satisfies the criteria for review, and makes a recommendation whether review should be granted.
The Court considers petitions for review at its special term conferences. Petitions are generally considered within 60 days of filing, with only rare exceptions. The Commissioner's Office memorandum and the Court of Appeals' decision are distributed to the justices a week in advance of the special term conference at which the petition will be considered.
At the special term conference, the Court considers each case individually, discussing whether to grant or deny the petition and, if review is granted, whether to specify the issues on which review is granted, whether to allow oral argument, and whether to grant any related pending motions. A petition for review is granted if three or more justices vote for review.
After special term, the Commissioner's Office prepares an order for each case decided. If the petition is granted, the order specifies which party will proceed as the appellant (normally the petitioner), any limitation of issues on which review has been granted, and the briefing schedule, typically by reference to the applicable rule of appellate procedure. The orders are signed by a single member of the Court, usually the Chief Justice, on behalf of the Court and filed with the Clerk of Appellate Courts. The clerk sends copies of the orders to the parties. No petition for reconsideration or rehearing of a denial of a petition for review is allowed. Minn. R. Civ. App. P. 140.01.
An alternative procedure to request discretionary review by the Supreme Court is a petition for accelerated review. After an appeal has been filed in the Court of Appeals, a party may petition for "accelerated" review, which means Supreme Court review of the case before the Court of Appeals has ruled. A petition for accelerated review must demonstrate not only that the case satisfies the criteria for Supreme Court review stated in Minn. R. Civ. App. P. 117 subd 2 but also that "the case is of such imperative public importance as to justify deviation from the normal appellate procedure and to require immediate determination in the Supreme Court." Minn. R. Civ. App. P. 118 subd 1. The procedures described above for consideration of a petition for review are also used for consideration of a petition for accelerated review. Although Rule 118 does not expressly provide for a response to a petition for accelerated review, the Court will allow a response if it is served and filed within the time allowed for a response to a petition for review under Minn. R. Civ. App. P. 117 subd 4.
Decisions of the Tax Court and the Workers' Compensation Court of Appeals are subject to direct review by the Supreme Court. The proceeding is initiated by presenting a petition for writ of certiorari, with a statement of the case and two copies of the decision to be reviewed attached, and proposed writ to the Clerk of Appellate Courts. Minn. R. Civ. App. P. 116.02 and 116.03 subd 1. The Clerk's Office issues the writ of certiorari, Minn. R. Civ. App. P. 116.03 subd 3 which then must be served by the petitioner on opposing parties and the court whose decision is to be reviewed, id., subd 4.
The Commissioner's Office reviews the petition, the statement of the case, and the decision to be reviewed and recommends to the Supreme Court whether the matter should be considered on the en banc oral calendar. The criteria employed in that recommendation include whether the appeal is based on legal or factual issues and whether oral argument will significantly enhance the decisional process. The Commissioner's Office notifies the parties whether the Court will hear oral argument on the case or consider it without oral argument. Appeals from the Tax Court are scheduled on the Supreme Court's en banc monthly calendar, whether for oral or nonoral consideration. Appeals from the Workers' Compensation Court of Appeals that are considered without oral argument are conferenced and decided by the Supreme Court at special term, based on a bench memorandum and recommendation from the Commissioner's Office.
Motions and Extraordinary Writs
A party may petition the Supreme Court for an extraordinary writ, that is, mandamus or prohibition, to review the action or decision of the Court of Appeals, the Tax Court, or the Workers' Compensation Court of Appeals. Minn. R. Civ. App. P. 120.01. Petitions for extraordinary writs are considered by the Supreme Court at special term.
Routine motions, such as motions for an extension of time or for leave to file an amicus curiae brief, are considered and decided on behalf of the Court by the Chief Justice, or the most senior associate justice available, based on the recommendation of the Commissioner's Office. Motions that are not routine are considered and decided by the entire Court at special term or based on circulated written materials. Decisions on some motions, such as motions to strike a portion of a brief or material in a party's appendix, may be deferred until the Court's consideration of the case on the merits.
In the event a motion or petition is filed with the Supreme Court seeking emergency relief, the Chief Justice calls a meeting of the available members of the Court for prompt consideration of the request. The Court will consider a request for emergency relief made orally only in the most extreme circumstances. The Court will require a written submission, by electronic means if necessary, and an opportunity for the opposing party to respond, unless the action complained of is imminent.
Calendaring and Assignment of Cases
Each month from August through May, the Commissioner's Office prepares the en banc calendar of cases to be considered by the Court the following month. A case is considered ready to be placed on the monthly calendar when the respondent's brief is filed. Cases are placed on the calendar roughly in the order of the filing of the respondents' briefs, although some categories of cases, such as juvenile protection and pretrial criminal appeals, are given priority. The calendar sets the date for oral argument or nonoral consideration. Generally, a case is designated for oral argument, rather than nonoral consideration, unless it appears from the briefs that argument would not sufficiently enhance the decisional process or a party is appearing pro se.
The Commissioner's Office tries to accommodate known scheduling conflicts of counsel, but it is difficult and disruptive for the Court to reschedule a case once it has been placed on the formal calendar. Counsel are therefore advised to anticipate that their case may be calendared starting with the first available calendar after the respondent's brief is filed and to notify the Commissioner's Office in advance, by letter filed with the Clerk of Appellate Courts, as soon as potential scheduling conflicts are known.
The monthly calendar is distributed to the Court at least 30 days before the first day set for argument on the calendar. At the same time, the Clerk of Appellate Courts sends a copy of the calendar to counsel for the parties in the scheduled cases, and the calendar is posted on the judicial branch website. Summaries of the issues presented by each case on the calendar are posted on the website approximately two weeks before the calendar begins.
The Commissioner's Office assigns the cases on the monthly calendar to members of the Court on a more-or-less rotational basis, modified based on an effort to equalize the workload and distribution of cases over the course of the annual term. After the calendar is distributed to the Court with these assignments, a law clerk prepares a bench memorandum on the assigned case that thoroughly analyzes the factual and legal issues in the case and recommends a disposition. The bench memo is distributed to all members of the Court a week before the case is scheduled for argument.
Generally speaking, oral arguments during the first week of the month's calendar are held in the State Capitol Courtroom, and arguments during the second week are held in Courtroom 300 in the Minnesota Judicial Center. As part of its outreach and public education efforts, the Court schedules two cases each term for oral argument at a high school in the metropolitan area or greater Minnesota. In addition, the Court hears arguments at the Minnesota law schools.
Usually two cases are heard each day of the calendar, with arguments beginning at 9:00 a.m. unless otherwise noted on the calendar. All counsel in all cases scheduled for the day must check in with the Court marshal in the courtroom by 8:40 a.m. and are to be present and prepared to argue at 9:00 a.m., in case the order in which the cases are argued must be changed. Counsel for the first case should be seated at the counsel tables before the Court enters the courtroom.
The appellant is allowed 35 minutes and the respondent 25 minutes, or such other time periods as the Court may specify. The appellant may reserve time for rebuttal, which should be communicated to the marshal when checking in. Counsel should be prepared to answer questions from the justices. Visual aids may be used at oral argument only with prior notice to the Court through the marshal. Use of such aids is not encouraged, however, because it is seldom effective and may be distracting in this setting.
Oral arguments are recorded and are available for viewing on the judicial branch website, usually by the next day. Other than the official video recording equipment, cameras and microphones are only permitted in the courtroom with prior Court approval, and use of such equipment is subject to the condition that it must not disrupt the proceedings or the formality of the courtroom.
After each day's oral arguments, the Court meets in conference to discuss the cases just argued, as well as any case scheduled for nonoral consideration on that day. The Chief Justice presides at the conference and directs the Court's discussion. The justice to whom the case was assigned first reports the case, providing his or her analysis of the issues and recommendation for disposition. Discussion follows, with the comments and votes of the other members of the Court, in descending order of seniority, although the Chief Justice speaks last unless the Chief Justice reported on the case. Although the Court reaches a tentative decision in each case based on the conference discussion, the vote is preliminary and a final decision awaits the circulation and approval of a formal opinion or opinions. Any member of the Court may request an additional conference for further discussion of a case.
If the justice to whom the case was assigned is in the majority at conference, he or she will prepare a draft opinion for the Court's consideration. Circulation of the draft majority opinion among the other members of the Court generally begins within 60 days after the case conference. If any member of the Court indicated at conference an intention to write a dissenting opinion, the draft of the majority opinion is circulated first to that justice, whose draft dissenting opinion is provided to the majority author for possible revision of the majority draft, which is then returned to the dissenting justice for potential revision of the dissent. A similar process occurs if any member of the Court is writing a concurring opinion. The majority draft and any dissenting or concurring drafts are then circulated together to each of the remaining justices. Each reviewing justice writes whatever comments or suggestions he or she has on the draft(s) and indicates on an accompanying cover sheet whether he or she will join the majority or some other opinion. After circulation is complete and the authoring justices have made any final revisions to their opinions based on the comments of their colleagues, the opinions are carefully cite-checked by a law clerk.
Opinions of the Supreme Court are formally filed with the Clerk of Appellate Courts and released to the parties and the public by posting on the judicial branch website on Wednesdays at 10 a.m. A notice is sent to the parties on Monday that the opinion in their case will be filed and posted the following Wednesday. Any concurring or dissenting opinions are filed and released with the majority opinion. The Clerk of Appellate Courts provides copies of the opinions to the parties and to publishers after the official release time.
A party may petition the Court for rehearing within 10 days of the filing of the Court's opinion. Minn. R. Civ. App. P. 140.01. An affirmative vote of a majority of the justices is necessary to grant rehearing. The grounds for rehearing are extremely narrow and, as a result, rehearing is seldom granted.
Costs and Disbursements
The prevailing party may seek an award of costs and disbursements. See Minn. R. Civ. App. P. 139. The claim must be served and filed within 15 days of the filing of the Court's decision. Minn. R. Civ. App. P. 139.03. An adverse party may file objections to taxation of the requested costs and disbursements within 5 days. Minn. R. Civ. App. P. 139.04. If no objections are filed, the Clerk of Appellate Courts taxes costs and allowable disbursements. If objections are filed, the request for taxation and the objections are submitted to the chambers of the justice who authored the majority opinion, usually with a recommendation from the Commissioner's Office. The majority author will decide the issues, if routine, or circulate a proposed resolution to the Court, if not.
Entry of Judgment and Remittitur
Unless the parties stipulate to immediate entry, the Clerk of Appellate Courts enters judgment not less than 30 days after filing of the Supreme Court's decision, except that judgment may be entered immediately on denial of a petition for review or rehearing. Minn. R. Civ. App. P. 136.02. When judgment has been entered, the Clerk of Appellate Courts transmits the judgment to the appropriate district court administrator or notifies the Court of Appeals if the case is remanded to that court. Minn. R. Civ. App. P. 136.03.