Opinion
A20-1551
03-30-2021
Susan K. Musta, Respondent, v. Mendota Heights Dental Center and Hartford Insurance Group, Relators.
ORDER
This appeal was filed on December 8, 2020. In their petition for a wit of certiorari and the statement of the case filed on that date, relators Mendota Heights Dental Center and Hartford Insurance Group (collectively, the employer) identified a preemption issue: whether federal law preempts Minnesota law that requires a workers' compensation carrier to reimburse an injured employee for the purchase and possession of medical cannabis and, thus, whether the decision of the Workers' Compensation Court of Appeals "violates the Minnesota and federal constitutions (due process and supremacy)." As required by the rules governing appeals to this court, the employer served the Attorney General with the petition for a writ of certiorari, see Minn. R. Civ. App. P. 116.03, subd. 4 (requiring service of the petition and proposed writ on the Attorney General), as well as a copy of the WCCA's decision and the statement of the case.
On February 4, 2021, the Attorney General filed a notice of intervention in this appeal, stating that he intervenes "for the limited purpose of defending the constitutionality of the state statutes challenged in this appeal." The Attorney General stated in this notice that he has a right to intervene here because this appeal concerns the constitutionality of Minnesota's medical cannabis laws, and his office has an "inherent interest in defending the constitutionality of state statutes." The Attorney General asserted that his intervention was timely, would not affect the briefing schedule for the appeal, and because his interest most closely aligned with respondent Susan Musta, he would file his brief within the time allotted for a respondent's brief.
The employer provided the Attorney General with a copy of its brief, filed on February 4, 2021, pointed to the statement in its brief that "relators do not contend that Minnesota's [medical cannabis law] is unconstitutional," noted that preemption is a statutory rather than a constitutional issue, and asked the Attorney General to consider withdrawing from the appeal. The Attorney General disagreed with the summary the employer provided, stating that preemption ultimately "aris[es] under the Supremacy Clause of Article VI of the United States Constitution." Thus, the Attorney General concluded, his intervention in this appeal is proper. The Attorney General then filed his brief on March 8, 2021.
The employer moves to quash the Attorney General's intervention and also moves to strike the Attorney General's brief. The employer asserts that the Attorney General's intervention is improper because the constitutionality of Minnesota statutes is not at issue in this appeal, and it is unfair to permit the Attorney General to intervene in litigation between private parties. The employer acknowledges that the "root source of federal preemption is the constitution's supremacy clause," but asserts that this does not mean that the constitutionality of a state law is at issue.
The Attorney General opposes the employer's motion, arguing that this appeal raises an important constitutional issue that will have a statewide impact. As the state's chief legal officer, the Attorney General argues that he has broad constitutional power and common law authority to appear in litigation if necessary to enforce the laws and protect public rights. He contends that the issues presented by this appeal "fit squarely" within his broad authority and powers. Finally, he asserts that our court will benefit from his briefing on the important constitutional issue in this appeal.
There is no express rule that provides a procedure for intervening in appeals, as there is in the district court, see Minn. R. Civ. P. 24 (setting forth procedures for intervention as of right, permissive intervention, and the notice required to intervene). The Attorney General argues that he may intervene as a matter of right based on the notice provision in Rule 144 of the Rules of Civil Appellate Procedure. This rule states:
When the constitutionality of an act of the legislature is questioned in any appellate proceeding to which the state or an officer, agency or employee of the state is not a party, the party asserting the unconstitutionality of the act shall file and serve on the attorney general notice of that assertion within time to afford an opportunity to intervene.Minn. R. Civ. App. P. 144.
Rule 144 is solely a notice provision—notice must be provided "to afford an opportunity to intervene." The rule does not provide the steps for pursing the opportunity to intervene. Further, the opportunity to intervene arises under this rule only when the constitutionality of a state law "is questioned" in the appeal.
We need not decide whether the constitutionality of a state law is questioned in this appeal because, in our view, the Attorney General's intervention was untimely.
For this reason, we do not address the Attorney General's assertions of his constitutional, statutory, and inherent powers to participate in litigation.
First, because there is no comparable procedure in the appellate rules for intervention in a pending appeal, we have looked to the Rules of Civil Procedure when intervention arises in an appeal. See, e.g., League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 641-42 (Minn. 2012) (explaining the factors considered for intervention as of right under Minn. R. Civ. P. 24.01, in denying a motion to intervene in a pending case). We have said that the timeliness of intervention is "based upon the particular circumstances involved and such factors as how far the suit has progressed, the reason for any delay in seeking intervention, and any prejudice to the existing parties because of a delay." Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 207 (Minn. 2986); see SST, Inc. v. City of Minneapolis, 288 N.W.2d 225, 230 (Minn. 1979).
Based on the record for this motion, it appears that the Attorney General has been aware of a preemption challenge to Minnesota's medical cannabis laws, as asserted in a related workers' compensation proceeding, since November 2019. And, when the Attorney General was served on December 8, 2020, with the employer's petition for a writ of certiorari and statement of the case in this appeal, both of which plainly identified the preemption issue, the Attorney General had an opportunity to intervene in the appeal. Yet for reasons unknown, the Attorney General did not act until February 4, 2021, almost 60 days after this appeal was commenced and the same day on which the employer's brief was filed in this appeal. The rules that govern the schedule for an appeal before this court are relatively fixed; when no transcript is ordered, the first brief is due within 30 days after the appeal is filed. See Minn. R. Civ. App. P. 131.01, subd. 1 (requiring appellant to file the opening brief "within 30 days after the filing of . . . the petition which initiates the appeal" if a "transcript is obtained prior to appeal"). We recognize that the rules do not establish a specific deadline by which intervention must be sought, but the requirement to seek timely intervention is well-established. Minn. R. Civ. P. 24.01 (requiring a "timely application" to intervene). We cannot agree that the Attorney General's intervention in this case was timely when he was on notice of the specific preemption issue in this workers' compensation case more than 1 year before he intervened, and on notice almost 60 days before he intervened in our court that the preemption issue was part of this appeal.
The Attorney General was notified of this challenge in a separate case, Bierbach v. Digger's Polaris, No. A20-1525, while that case was before the WCCA. Counsel in that case provided the Attorney General with a letter describing the preemption issue and a copy of the employer's brief to the WCCA.
We granted the employer's motion for an extension of time for its opening brief. Musta v. Mendota Heights Dental Ctr., No. A20-1551, order (Minn. filed Jan. 4, 2021).
The statement of the case, which was served on the Attorney General on December 8, stated that the transcript for this appeal had already been filed with the WCCA. --------
Second, even though Rule 144 is silent on the procedure for intervention, other well-established rules provide ample guidance that allows the Attorney General to preserve his interest in defending the state's laws. For example, the Attorney General could have filed a timely motion to appear as an amicus in support of respondent, see Minn. R. Civ. App. P. 129.01(b) (requiring a motion to appear as amicus to be filed within 14 days "after the filing of . . . the petition which initiates the appeal"). Or, if the Attorney General preferred intervenor status to amicus status, a motion stating "with particularity the grounds" that entitled the Attorney General to that status and the "relief sought"—to intervene—could have been filed. Minn. R. Civ. App. P. 127. Indeed, once the employer notified the Attorney General of its objection to the announced intervention, a motion requesting an order that confirmed the Attorney General's intervention would have been prudent. See Minn. R. Civ. P. 24.03 (requiring a "motion to intervene" when the proposed intervenor has timely notice of an objection to the intervention).
Thus, we conclude that the Attorney General's intervention in this appeal was untimely and the motion to quash should be granted.
This leaves the employer's motion to strike the Attorney General's brief. If the Attorney General's intervention was untimely, then his brief is not authorized by our rules. The Attorney General suggests, however, that we can accept his intervenor's brief as that of an amicus, presenting arguments in support of respondent Musta's position. The Attorney General did not file a motion for leave to appear as amicus, see Minn. R. Civ. App. P. 129.01 (requiring a "request for leave" to file a brief as amicus). We are reluctant to waive the requirement for a timely amicus motion, particularly given the substantial advance notice the Attorney General had and the lack of any explanation for his inability to move sooner, either to intervene or to appear as amicus. On the other hand, the employer did not object to the Attorney General's proposal to treat his brief as that of an amicus, and the employer was able to respond to the Attorney General's arguments in its reply brief. Thus, in the specific circumstances of this appeal, we will accept the brief the Attorney General filed in this appeal as an amicus brief filed in support of respondent.
We caution parties, including the Attorney General, to view our decision here narrowly. Like other rules of court procedure, the Rules of Civil Appellate Procedure serve the important purpose of providing clear directions that allow for "the orderly and proper disposition of appeals." Schnedler v. Warren, 297 N.W. 35, 35 (Minn. 1941). We are unlikely to excuse a future failure to follow the clear and plain language of these rules.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED that the motion of relators Mendota Heights Dental Center and Hartford Insurance Group, to quash the intervention of the Attorney General, is granted.
IT IS FURTHER ORDERED that the motion of relators Mendota Heights Dental Center and Hartford Insurance Group to strike the brief of the Attorney General, filed as an intervenor, is denied. The Attorney General's brief will be accepted as the brief of an amicus in support of respondent, and the Clerk of the Appellate Courts is directed to designate the Attorney General's brief as the brief of an amicus filed under Minn. R. Civ. App. P. 129.
Dated: March 30, 2021
BY THE COURT:
/s/
Lorie S. Gildea
Chief Justice