MINNESOTA LAWYER | April 20, 2015 | MINNLAWYER.COM | 3

BRIEFLY Eric Magnuson (left) is a partner at Robins Kaplan and has served as chief justice of the Minnesota Supreme Court. Lisa Lodin Peralta has joined Robins Kaplan after practicing appellate law for more than two decades.

‘Let’s certify it!’

Lots of trial lawyers and doubtful (the court might be wrong), then better to find out sooner rather lots of trial judges don’t than later. For example, the court may deny a motion for summary mind kicking the can judgment because it is unclear as to the down the road controlling law, even if the facts are not disputed. Certification is not, however, appropriate when summary judgment By Eric Magnuson and Lisa Lodin Peralta is denied because there are unresolved fact issues. The certified question must So you have a really tough legal issue be one of law, and not fact. See State v. in your case. Neither the lawyers nor Knoch, 781 N.W.2d 170, 176 (Minn. App. the judge quite know what to do with 2010) (stating purpose of certification it. Someone comes up with the brilliant procedure is to obtain answer on idea: “Let’s certify that for .” question of law, and mixed question of Oh, if it were only that easy. While the fact and law is not appropriate). appellate rules of many courts provide Like beauty, importance and doubt some mechanism for certification, an are in the mind of the beholder. What of any kind is an may seem important and doubtful to exception to the general rule of only you, especially because it would be a lot one appeal per case, which comes at more convenient to have that answer to the end of all proceedings. As such, that burning question now rather than the other defendants….” Only one case has parties seeking to avail themselves of later, is not necessarily going to be Also, the evidence questions been certified from a an early appeal may find the path more seen as “important and doubtful” by the arose at a time when Minnesota foreign court in the last challenging than it would appear. appellate courts. It is a two-part test, had not expressly recognized the three years: Lyon Financial The starting point in any quest for and both parts must be met. defense of reliance on the advice of Svcs. Inc. v. Ill. Paper & Copier certification is to identify the rule of Minnesota appellate courts are not counsel. You can see: important, and Co., 848 N.W.2d 539 (Minn. 2014). Lyon procedure or statute that authorizes always receptive to certified questions. doubtful. Financial is a case that highlights certification. Generally, these fall In Emme v. C.O.M.B., Inc, 418 N.W.2d In federal court, a judge can only another twist in presenting a certified into two camps — what might be 176 (Minn. 1988), the Supreme Court certify an order that involves (1) a question to an – the called vertical certification, that is reviewed the history of certification and controlling issue of law; (2) where there receiving court is not stuck with certification from the trial court to an then declined to accept a certification, is a substantial ground for difference of the question presented, but may appellate court in the same saying in no uncertain terms that there opinion on the issue; and (3) the appeal reformulate the question. In Lyon and justice system, and what might are limits on the rule. “[N]ot every will materially advance termination of Financial, the 7th Circuit had certified be called horizontal certification, that vexing question is important and the litigation. 28 U.S.C. § 1292(b). But as four questions to the Minnesota is certification from one court system doubtful. We have recently noted that in state court, certification by the trial Supreme Court. The Supreme Court to another. The latter often involves trial courts appear to be focusing more court is no guarantee that the appellate chose to “deviate from the 7th Circuit’s certification from a federal court to a on the ‘doubtful’ aspects of the question court will see the case in the same articulation of the certified questions state court for guidance on an undecided than on the ‘important’ aspects. . . . A light. Upon application, the Court of so that our analysis more closely tracks point of state law. The former, which is question is “doubtful” only if there is no having jurisdiction may, “in its the fundamental issue raised in the more common, involves certification of controlling . . . . In addition discretion,” permit an appeal to be taken case.” Id. at 542. Or, in other words, it an important legal issue from the trial to being ‘doubtful,’ the question must from an order. Id. Which means it may more closely tracked the one issue that court to the appellate court, on the be ‘important.’ Importance depends deny leave to appeal for any reason – the Minnesota Supreme Court believed theory that the issue is going to result in large measure on a weighing of such as docket congestion or the policy was the fundamental issue – regardless in an appeal anyway, and the parties are probabilities. Importance increases against piecemeal appeals. The result is of what the parties thought in the trial probably better off knowing the answer with the probability that resolution of the federal appellate courts routinely court, or what the certifying court early in the case than at the end. the question will have statewide impact reject certification appeals.See, e.g., thought was important. The Rolling In Minnesota state trial courts, parties and the probability of reversal.” The EEOC v. Old Dominion Freight Line, Stones were right – you can’t always get in civil cases can appeal to the Court of Court of Appeals has been similarly Inc., No. 13-8016, Order (8th Cir. July what you want, but sometimes, you get Appeals in limited circumstances if the strict in its application of the rule. See 8, 2013) (denying order certified by what you need. trial court “certifies that the question also Jane Doe 175, 842 N.W.2d at 42-47 district court in 2013 U.S. Dist. LEXIS Lots of trial lawyers and lots of trial presented is important and doubtful.” (refusing to accept certified questions 88352, 28 Am. Disabilities Cas. (BNA) judges don’t mind kicking the can down Minn. R. Civ. App. P. 103.03(i). Under for a variety of reasons.) 161 (W.D. Ark. June 24, 2013)). the road when it comes to a tough legal the rule, certification is limited to But certification is important and The Minnesota Supreme Court can issue. “Let’s certify it (and let somebody circumstances where the trial court has useful in the right case. State v. Jacobson of course answer a question of law else decide the tough question)” is denied a motion to dismiss for failure to is an example of an “important and certified to it by a foreign court. Minn. sometimes an attractive alternative to state a claim, or when the court denies doubtful” criminal case on which the Stat. § 480.065, subd. 3. Most commonly a long trial with a very real prospect of summary judgment. Criminal cases trial lawyers obtained certification and the questions come from a federal court. having to do everything over because have a separate procedural rule, Minn. won reversal, which was then affirmed These certified questions are sent to of a legal ruling gone bad. However, R. Crim. P. 28.03, governing certification by the Supreme Court. 681 N.W.2d 398 Minnesota’s highest court if the answer while certification is significantly more under the same standard. But there, the (Minn. App. 2004), aff’d by 697 N.W.2d may be determinative of an issue in probable than buying the winning criminal defendant must specifically 610 (Minn. 2005). Jacobson was the pending litigation in the certifying court, lottery ticket, it never has been, and consent to the certification. owner of a controversial strip club in and there is no controlling appellate never will be, a sure bet. The question certified to the appellate Coates. When the county received 93 decision, constitutional provision, or Eric Magnuson is a partner at court under Rule 103.01(i) cannot be voter change-of-address cards listing statute of this state. Id. Robins Kaplan, and served as chief unanswered or vague — it must actually the strip club as the voters’ place of While there are many courts from justice of the Minnesota Supreme be ruled on by the district court. See residence, Jacobson and several others which questions could come, certified Court from 2008 to 2010. He Jane Doe 175 v. Columbia Heights Sch. were charged with conspiracy to questions to the Minnesota Supreme can be reached at ejmagnuson@ Dist., 842 N.W.2d 38, 41 (Minn. App. commit voter fraud. A number of cases Court are not frequent. Since 2000, there RobinsKaplan.com. Lodin Peralta 2014) (dismissing appeal where, after were stayed pending Jacobson’s trial, have been only 16 filings, according to recently joined Robins Kaplan after denial of summary judgment, defendant where he sought to present evidence Cynthia Lehr, Chief Attorney at the practicing appellate law in state sought and received district court’s that his personal attorney had advised Minnesota Court of Appeals. Although and federal court for more than two certification of questions on newly him that the scheme to vote out some the Minnesota Supreme Court could decades. She has been sole counsel raised issues upon which district court local officials was legal. The district decline to answer a certified question, on many cases, where she did all did not rule). Appellate courts review court excluded the evidence but it issued opinions in 15 of the 16 filed research, briefing and oral argument decisions already made. The district certified two questions. The appellate cases – and the exception was a case — including en banc cases in the court rules on the law, and if the answer court agreed that the ruling would have where the certified question became 8th Circuit. She can be reached at to the legal question is important and “an immediate and substantial effect on moot because the case settled. [email protected]