February 5, 2014
IN THE MATTER OF THE RULES OF APPELLATE PROCEDURE
MIKE McGRATH JUDGE
Set forth below are proposed revisions to the Montana Rules of Appellate Procedure. Mainly, the proposed revisions constitute what could be described as housekeeping matters. Proposed revisions to M. R. App. P. 7, on mandatory appellate alternative dispute resolution, are the most substantive proposed changes.
The Court proposes to adopt changes to Rules 2, 4, 5, 7, 12, 13, 17, and 20. Those rules are set forth below, with language proposed to be deleted interlineated and language proposed to be added, highlighted:
Rule 2. Parties - amicus curiae - captions.
(1) The following are parties to proceedings before this court and shall be referred to as such in the caption of and signature block of documents filed with this court:
(a) Appellant. The party who appeals from and usually seeks reversal of a decision in the district court. A party who files a cross-appeal shall be referred to as a cross-appellant.
(b) Appellee: The party who usually responds to the appeal, seeking affirmance of the district court. A party who responds to a cross-appeal shall be referred to as a cross-appellee.
(c) Petitioner: A party who seeks relief by way of an original proceeding or a petition for an extraordinary writ.
(d) Respondent: The party against whom a petition is filed.
(e) Relator: The real party in interest in whose name the government brings an action or proceeding before this court.
(f) Intervenor: One who, because of an asserted interest in the outcome, has voluntarily entered into an action or who, on motion, is granted leave to enter a proceeding before this court, despite not being named originally as a party.
(2)Amicus curiae. One who is not a party, but who, upon invitation or leave of the supreme court granted on motion, files a brief in a pending proceeding because of a strong interest in the subject matter.
(3) Counsel - parties not represented by counsel. When these rules require an act by or upon a party, the act shall be performed by or upon counsel for the party or by or upon a party not represented by counsel.
(4) Captions. The caption of an appeal shall list the parties in the same order as the caption used in the district court, with the addition of the designations "appellant" and "appellee" as appropriate. On motion of a party, or on the court's own motion, the caption of a pending cause may be modified to more accurately reflect the actual alignment or status of a party. Upon entry of an order correcting the caption, the cause shall proceed under that caption thereafter.
Rule 4. How and when to take an appeal or cross-appeal.
(1) Judgments defined.
(a) Final judgment. A final judgment conclusively determines the rights of the parties and settles all claims in controversy in an action or proceeding, including any necessary determination of the amount of costs and attorney fees awarded or sanction imposed.
(b) Interlocutory judgment. An interlocutory judgment is an order or decree that determines a preliminary or subordinate question or issue and which enables the court to render a final judgment but does not finally decide the cause.
(2) How commenced.
(a) An appeal is taken by timely filing a notice of appeal in accordance with rule 10(1) of these rules in the office of the clerk of the supreme court substantially complying with Form 1 in the Appendix of Forms, along with payment of the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3. A copy of the notice of appeal and a copy of the judgment, decision(s), or order(s) from which appeal is taken shall be contemporaneously served for filing in the office of the clerk of the district court and served on all parties.
(b) A cross-appeal is taken by timely filing a notice of cross-appeal in accordance with rule 10(1) of these rules in the office of the clerk of the supreme court substantially complying with Form 2 in the Appendix of Forms, along with the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3. A copy of the notice of cross-appeal, together with a copy of the judgment, decision(s), or order(s) from which appeal is taken, shall be contemporaneously served for filing in the office of the clerk of the district court and served on all parties.
(c) Except where the supreme court grants an out-of-time appeal under section (6) of this rule, the timely filing of a notice of appeal or cross-appeal is required in order to invoke the appellate jurisdiction of the supreme court.
(d) A notice of appeal or cross-appeal shall not be filed by the clerk of the supreme court unless accompanied by both the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3 and a copy of the judgment, decision(s), or order(s) from which appeal is taken. If the notice of appeal or notice of cross-appeal is filed by facsimile in accordance with rule 10(l)(b) of these rules, either the filing fee or the affidavit to proceed without advance payment of fees must be paid (or filed) and actually received by the clerk of the supreme court with a copy of the judgment, decision(s), or order(s) from which appeal is taken within 5 business days of the facsimile filing; otherwise the filing shall be treated as void.
(3) Joint or consolidated appeals.
(a) If 2 or more parties are entitled to appeal from a judgment or order of the district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal or cross-appeal, or may join an appeal or cross-appeal after filing separate notices.
(b) Appeals or cross-appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party or parties.
(4) Content of notice of appeal or cross-appeal.
(a) The notice of appeal or cross-appeal shall specify the party or parties taking the appeal or cross-appeal, and shall designate the final judgment or order or part thereof from which the appeal is taken. An appeal from a judgment draws into question all previous orders and rulings excepted or objected to which led up to and resulted in the judgment.
(b) If an appeal is taken after certification by the district court under M. R. Civ. P. 54(b), the notice of appeal shall state that fact, and a copy of the certification order shall be attached to the notice. Upon the filing of such a notice, the clerk of the supreme court shall immediately forward copies thereof to the supreme court. The appeal shall not proceed further until the supreme court has reviewed the certification order, determined that the certification complies with M. R. Civ. P. 54(b) and rule 6(6), and entered an order allowing the appeal to proceed.
(c) The attorney for the appellant or cross-appellant, or the party, if not represented by an attorney, shall certify that the appeal or cross-appeal is or is not subject to the mediation process required by rule 7.
(d) The attorney for the appellant or cross-appellant, or the party, if not represented by an attorney, shall certify that a copy of the notice of appeal or cross-appeal was served by mailing a copy thereof to the clerk of the district court and to counsel of record and every party not represented by counsel.
(e) In the event the appellant or cross-appellant fails to comply with sections (4)(a) through (d) of this rule, the clerk of the supreme court shall issue a written notice, substantially complying with Form 4 in the Appendix of Forms, directing the appellant or cross-appellant to file an amended notice of appeal or cross-appeal within 11 days. A notice issued by the clerk of the supreme court pursuant to this section shall not affect the original filing date of the notice of appeal or cross-appeal.
(f) An appeal or cross-appeal shall not be dismissed for informality of form or title so long as the information required in section (4) of this rule is contained in the notice of appeal or cross-appeal. In the discretion of the supreme court, an appeal may be dismissed for failure of the appellant or cross-appellant to comply with section (4)(e)of this rule.
(5) Time for filing notice of appeal or cross-appeal,
(a) Appeals in civil cases.
(i) In civil cases, including proceedings regarding abused or neglected children under Title 41, Chapter 3, the notice of appeal shall be filed with the clerk of the supreme court within 30 days from the date of entry of the judgment or order from which the appeal is taken. In all other cases in which the United States of America or the State of Montana, or any political subdivision thereof, or any officer or agency thereof is a party, the notice of appeal shall be filed within 60 days from the entry of the judgment or order from which appeal is taken. If notice of entry of judgment or order is required to be filed under M. R. Civ. P. 77(d), the 30 days or 60 days, as the case may be, shall not begin to run until service of the notice of entry of judgment or order.
(ii) A notice of appeal filed after the announcement of a decision or order, but before either entry of the written judgment or order from which the appeal is taken or service of the notice of entry of judgment, shall be treated as filed on the day of such entry. The district court is not deprived of jurisdiction to enter the written judgment or order by the premature filing of a notice of appeal.
(iii) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within 15 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by section (5)(a) of this rule, whichever last expires.
(iv) If a timely motion pursuant to the Montana Rules of Civil Procedure is filed in the district court by any party:
(A) Under rule 50(b) for judgment;
(B) Under rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if granted;
(C) Under rule 59 to alter or amend judgment;
(D) Under rule 59 for a new trial; or
(E) Under rule 60(b) for relief from a judgment or order, the time for appeal for all parties shall run from the entry of the order granting or denying any such motion or, if applicable, from the time such motion is deemed denied at the expiration of the 60-day period established by M. R. Civ. P. 59(f). No notice of entry of judgment or order is required when any of the foregoing motions are granted, denied, or deemed denied. A notice of appeal filed before the disposition of any of the above motions, whether by entry of an order or by deemed denial, shall be treated as filed on the date of such entry or deemed denial. The district court is not deprived of jurisdiction to enter its order on any such motion by the premature filing of a notice of appeal.
(b) Appeals in criminal cases.
(i) An appeal from a judgment entered pursuant to section 46-18-116 must be taken within 60 days after entry of the judgment from which appeal is taken. A notice of appeal filed after the oral pronouncement of a decision or sentence but before entry of the written judgment or sentence is treated as filed on the date of the written entry. The district court is not deprived of jurisdiction to enter the written judgment or order by the premature filing of a notice of appeal.
(ii) After filing a notice of appeal, retained criminal defense counsel will remain as counsel of record on appeal until and unless counsel either obtains and files with the clerk of the supreme court the client's written consent to counsel's withdrawal, or obtains a supreme court order allowing counsel to withdraw.
(iii) An appeal from a judgment or order made appealable by section 46- 20-103 must be taken within 20 days of the entry of the written judgment or order from which appeal is taken.
(6) Out-of-time appeal. In the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, the supreme court may grant an out-of-time appeal. An out-of-time appeal must be requested by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed. Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect.
Rule 5. Proceeding without the required filing fee.
(1) Motion and affidavit to proceed without paying the filing fee - general. A party in a civil appeal or in an original proceeding for a writ in the supreme court who desires to proceed without payment of the required filing fee shall file a combined motion and affidavit in the supreme court for leave to so proceed, as prescribed by Form 3, showing the party's financial condition and inability to pay the filing fee, the party's belief that the party is entitled to redress, and a short statement of the issues the party intends to present. If necessary to determine a party's financial condition, the supreme court may remand a combined motion and affidavit to the district court for fact-finding.
(2) Motion and affidavit to proceed without paying the filing fee - incarcerated person. A person incarcerated in a correctional institution or facility who is a party in a civil appeal or in an original proceeding for a writ in the supreme court and who desires to proceed without payment of the required filing fee shall file a combined motion and affidavit in the supreme court for leave to so proceed, together with an unnotarized form as otherwise prescribed by Form 3, showing the party's financial condition and inability to pay the filing fee, the party's belief that the party is entitled to redress, and a short statement of the issues the party intends to present. The incarcerated party also shall file a statement of account prepared by the correctional institution or facility indicating the party's funds, if any, which are held by the institution or facility; no motion under this section will be granted without the required statement of account.
(3) Determination of indigency - party with court-appointed counsel. Court-appointed counsel for a party in an appeal or in an original proceeding for a writ in the supreme court shall file the determination of indigency previously made, which shall establish entitlement to proceed without paying the filing fee without further action by the party or the supreme court.
(4) Action by supreme court. The supreme court shall
, in its sole discretion, grant or deny the motion to proceed without payment of the required filing fee. The clerk of the supreme court is authorized to act on any motion to proceed without payment of the required filing fee. A party may request a review by the court if the clerk of the supreme court denies the party's motion.
(5) Limitations of waiver. The grant of a motion to proceed without payment of the required filing fee waives the filing fee but does not entitle the party to waive other fees or costs, such as transcript preparation costs or attorney fees.
Rule 7. Mandatory appellate alternative dispute resolution.
(1) Statement of purposes. The mandatory appellate alternative dispute resolution procedure is designed to achieve the following goals:
(a) Provide an alternative means to resolve certain civil appeals and to enhance public confidence in the appellate process;
(b) Help the parties avoid the additional legal expense and emotional cost of an appeal;
(c) Prioritize the use of court resources for cases that cannot be resolved between the parties;
Reduce the court's mounting backlog of civil appeals by settling cases with a minimal use of court resources;
(d) Help the parties realistically explore a settlement; and
(e) Provide a speedy and just resolution of the dispute.
(2) Appeals subject to rule. The following
categories of appeals shall be subject to the provisions of this rule:
(a) Workers' compensation. All appeals from the Workers' Compensation Court.
(b)Domestic relations. Appeals in domestic relations cases, including but not limited to all dissolution issues, child custody and support issues, maintenance issues and modifications of orders entered with respect to those issues; but excluding proceedings regarding abused or neglected children, paternity disputes, adoptions, and all juvenile and contempt proceedings when the excluded matters constitute the only issues on appeal. In addition, unless each party provides written, informed consent, the supreme court will not order appellate mediation in cases where the court has reason to suspect that one of the parties or a child of a party has been physically, sexually, or emotionally abused by the other party.—
If there has been a finding by a district court that one of the parties has been a victim of domestic violence, the appellate mediation may be conducted by telephone upon motion submitted to the mediator by either party.
(c) Money judgments. Appeals in actions seeking monetary damages/recovery.
(d) Appeals which the supreme court, in its discretion, designates as appropriate for mediation.
(3) Time Limitations and supplementary process.
(a) Time limitations. Upon filing a notice of appeal or cross-appeal in the manner and time required by rules 4 and 6, the parties and the mediator shall have 75 days within which to complete the process required by this rule. However, in the event the parties are made subject to this rule only as a result of a cross-appeal, the parties shall have 75 days from the filing of the notice of cross-appeal.
(b) Supplementary process. The process required by this rule shall be supplementary to, and have no effect on, the parties' duties, obligations, and time requirements otherwise provided for in these rules; provided, however, that the parties may, by stipulation filed with the clerk of the supreme court and served on the clerk of the district court, hold the time requirements of these rules in abeyance pending completion of the process required by this rule. In the event the parties stipulate to holding time requirements of these rules in abeyance, all such time requirements shall run from the earlier of the date of the filing of the mediator's report, or the expiration of the 75-day time limit.
(4) Selection or appointment and payment of mediator - immunity.
(a) Mediators shall be selected or appointed as provided in sections (4)(b) and (d) of this rule and shall enjoy such judicial immunity as the supreme court would enjoy if performing the same functions. Upon selection or appointment, the clerk of the supreme court shall mail to the mediator a copy of the notice of selection or order of appointment of mediator, the mediator instructions, and mediator's, attorneys', and parties' mediation evaluation forms.
(b) The parties may jointly select a mediator for purposes of complying with the mediation process required by this rule within 15 days of the filing of the notice of appeal or cross-appeal which subjects the case to the requirements of this rule; in the event the parties do not jointly select a mediator, one will be assigned by the clerk of the supreme court.
(c) In the event the parties voluntarily select a mediator, the appellant shall file with the clerk of the supreme court a notice of selection of mediator, substantially complying with Form 5 in the Appendix of Forms, within the above-referenced 15-day deadline.
(d) In the event the parties do not voluntarily and timely select a mediator, the clerk of the supreme court shall appoint as a mediator for the appeal the next self-nominated attorney, in reasonably close proximity to the parties, if possible, on a list maintained by the clerk for that purpose pursuant to section (4)(e) of this rule. The order of appointment, substantially complying with Form 6 in the Appendix of Forms, shall be signed by the clerk of the supreme court and served upon the mediator and the parties to the appeal. The parties may substitute a mediator of their choice for the mediator appointed by the clerk only if, within 10 days of the clerk's appointment, they file a written stipulation signed by all parties agreeing upon a substitute mediator. The parties must also serve a copy of such stipulation upon the mediator appointed by the clerk.
(e) The clerk of the supreme court shall maintain 3 lists of resident Montana attorneys who are members in good standing of the State Bar of Montana, have been licensed as attorneys for no less than 5 years, and have indicated their desire to be appointed as mediators for purposes of this rule by completing and submitting to the clerk an original and 2 copies of the mediator background information form available from the clerk. The separate lists will reflect those attorneys desiring appointment as mediators for the workers' compensation, domestic relations, and/or money judgment appeals which are subject to this rule.
(f) The parties shall share the mediator's fee and incidental expenses equally. However, in money judgment cases where there is $5, 000 or less at issue and the judgment is for $5, 000 or less, any mediator appointed by the clerk of the supreme court under section (4)(d) shall serve pro bono, and the mediator's incidental expenses shall be shared equally by the parties. All pro bono appointments shall be so indicated in the order of appointment, (g) If a party is unable to pay for mediation and if the parties are unable to secure the services of a mediator who is willing to serve without fee or at a reduced rate, the party may opt out of the mandatory alternative dispute resolution process by filing with the clerk of this court an affidavit stating the party is unable to afford appellate mediation.
(5) Mediation process. The mediation process required by this rule shall comply with the procedures provided in this section.
(a) The mediation required by this rule is an informal, confidential, nonadversarial process in which an impartial third person, the mediator, assists the parties to an appeal in resolving the differences between them. The decision-making authority remains with the parties; the mediator has no authority to compel a resolution or to render a judgment on any issue. The role of the mediator is to encourage and assist the parties to reach their own mutually-acceptable resolution by facilitating communication; helping to clarify issues, interests, and the appellate perspective; fostering joint problem-solving; and exploring settlement alternatives.
(b) Upon selection or appointment to mediate an appeal as provided by this rule, the mediator shall schedule a mediation conference between the parties for the purpose of attempting to resolve the issues on appeal.
(c) The conference shall be held in person; provided, however, that if distance, time, or other considerations make an in-person conference impractical, the mediator may hold the conference online or by telephone at such time and place as the mediator may determine. The mediation shall proceed in substantial compliance with the requirements of this rule and the guidelines and format set forth in the mediator's instruction sheet.
(d) The appellant, or the cross-appellant in those cases where only the cross-appeal results in the case being subject to this rule, shall submit the required statement of position to the mediator and to the responsive party within 15 days of the date the notice of selection or order of appointment of the mediator is filed under section (4) of this rule. The responsive party shall have 7 days to submit a responsive statement of position. In the event of a cross-appeal, the appellant shall have an additional 7 days to submit its statement of position relative to the issues raised by the cross-appeal.
(e) The parties' respective submissions shall not exceed 10 pages in length, double spaced, on standard letter-sized paper; provided, however, that the parties may attach such exhibits of record and transcript excerpts as the parties may wish the mediator to consider.
(f) The parties shall serve on the mediator and each party their written statement of position substantially complying with Form 7 in the Appendix of Forms and containing, at a minimum, the following:
(i) A statement of issue(s) on appeal and the manner in which each issue was preserved;
(ii) A statement of the standard of review applicable to each issue;
(iii) The position of the party with respect to each issue, with citations to legal authority; and
(iv) In the case of the appellant and any cross-appellant, a copy of the order or judgment from which the appeal is taken,
(g) In addition to the statements of position to be served on the mediator and opposing parties, each party may submit to the mediator a separate confidential submission containing such additional information relative to its position regarding settlement as it may wish to tender in order to facilitate the mediation process required by this rule. Unless otherwise agreed, such a submission shall not exceed 5 pages. The confidential submission, if any, shall be served on the mediator contemporaneously with the service of the party's statement of position. (h) Each party, or a representative of each party with authority to participate in settlement negotiations and affect a complete compromise of the case, shall participate in the mediation conference. If an insurance carrier, other indemnitor, or self-insurance administrator is involved, a representative with ultimate settlement authority shall participate in the mediation conference.
(6) Proceedings confidential. The mediation process shall be confidential. All proceedings held, submissions tendered, and statements made by anyone in the course of the mediation process required by this rule constitute offers to compromise and statements made in compromise negotiations pursuant to M. R. Evid. 408 and are inadmissible pursuant to the terms of that rule.
(7) Completion of mediation process.
(a) Immediately upon the conclusion of the mediation conference, the mediator shall file a mediator's report substantially complying with Form 8 in the Appendix of Forms with the clerk of the supreme court, and serve copies on the parties.
(b) If the mediator files a report, with proper notice to the parties, indicating that the matter has been settled, the court will dismiss the appeal 30 days later absent a motion to keep the cause number open.
(c) None of the forms, notices, or stipulations to be filed with the clerk of the supreme court shall contain any information relating to the parties' respective positions regarding the issues on appeal, the parties' positions regarding settlement, or any substantive matter which is the subject of the litigation; the exclusive and sole purposes of forms and notices to be filed with the clerk of the supreme court are to maintain status records and statistics, to ensure orderly compliance with the process required by this rule, and to provide a mechanism for returning the case to the ordinary appeal process where mediation has not resolved the case and resulted in a stipulation for dismissal.
(d) The parties are encouraged to continue to pursue settlement efforts in the event the mediation process required by this rule does not resolve the appeal and the case returns to the ordinary appeal process.
(8) Sanctions. Substantial noncompliance with this rule may, on motion of a party or by the supreme court sua sponte, result in the assessment of mediator fees, imposition of monetary sanctions, costs, dismissal of the appeal, or such other sanction as the supreme court deems appropriate.
Self executing, no motion practice. Except as provided in sections (7) and (8) of this rule and in addressing a motion to determine whether an appeal is subject to section (2) of this rule, the provisions of this rule are designed to be and are self executing and not subject to motion practice.— Motions to opt out of mediation, to substitute mediators, or for extensions of time to complete mediation will be subject to summary denial.
Rule 12. Briefs.
(1) Brief of the appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(a) A table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited;
(b) A statement of the issues presented for review. Parties are encouraged to limit the number of issues to 4 or fewer;
(c) A statement of the case. The statement shall first indicate briefly the nature of the case and its procedural disposition in the court below. Only that procedural background which is relevant to the issue or issues raised shall be included in the statement of the case;
(d) A statement of the facts relevant to the issues presented for review, with references to the pages or the parts of the record at which material facts appear;
(e) A statement of the standard of review as to each issue raised, together with a citation of authority;
(f) A summary of the argument.
An argument. The argument shall be preceded by a summary. The summary shall contain a succinct, clear, and accurate statement of the arguments made in the body of the brief and not be a mere repetition of the argument headings;
(g) An argument. The argument shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes, and pages of the record relied on;
(hg) A short conclusion stating the precise relief sought; and
(ih) An appendix that includes the relevant judgment, order(s), findings of fact, conclusions of law, jury instruction(s), ruling(s), or decision(s) from which the appeal is taken together with any written memorandum or rationale of the court, and those pages of the transcript containing any oral ruling in support. This appendix shall include a table of contents and colored page separators and may be a separately-bound document if the volume of the required attachments makes this necessary.
(2) Answer brief of the appellee. The answer brief of the appellee shall conform to the requirements of section (l)(a) through (hg) of this rule, except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant. Materials included in the appellant's appendix should not be duplicated in the appendix of the appellee.
(3) Reply brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross-appeal. The reply brief must be confined to new matter raised in the brief of the appellee. Only one reply brief may be filed, regardless of the number of appellees' briefs filed, and the rule 11(4) word or page limit for reply briefs applies even if the reply brief also contains a response to a cross-appeal. No further briefs may be filed except with leave of court.
(4) Briefs in cases involving cross-appeals. If a cross-appeal is filed, the party who first files a notice of appeal, or in the event that the notices are filed on the same day, the plaintiff in the proceeding below, shall be deemed the appellant for the purposes of this rule and rules 11 and 13, unless the parties otherwise agree or the court otherwise orders. The brief of the appellee shall conform to the requirements of section (l)(a) through (hi) of this rule. The cross-appellant shall file the cross-appeal brief combined in a single document with the answer brief, the appellant shall file the cross-appeal answer brief combined in a single document with the reply brief, and the cross-appellant shall file the cross-appeal reply brief within 14 days after service of the cross-appeal answer brief. Word limitations in combined briefs that raise or respond to cross-appeals shall not exceed those word limitations set forth in rule 11(4).
(5) Appendix. If desired, and in addition to the documents required under subsection (l)(ih) of this rule, the appellant or the appellant and the appellee jointly may file a separate appendix containing additional documents or materials that are referenced in the brief or may, otherwise, be of assistance to the supreme court in its review of the brief. Given that the court has available to it the entire record, parties are advised that a supplemental appendix is not required. If one is filed, it shall include only those documents essential to the arguments. Any supplemental appendix shall include a table of contents, and each document shall be tabbed using plain paper tabs and not plastic-coated tabs.
(6) Notice of supplemental authorities. When pertinent and significant authorities come to the attention of a party after the party's brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the supreme court, by "Notice of Supplemental Authority, " with copies to all parties, setting forth the citation(s) without argument. The notice shall reference either the page of the brief or the point argued orally to which the citation(s) pertain.
(7) Brief of amicus curiae. A brief of an amicus curiae may be filed only upon invitation or leave of the supreme court granted on motion. A motion for leave shall identify the interest of the applicant, state the reasons why a brief of an amicus curiae is desirable, identify the party whose position amicus supports, provide the date upon which the brief can be filed, and indicate whether the other party consents to the request.
(8) References in briefs to parties. Subject to the requirements of rule 10(6) and rule 14(5)(b)(v), references to parties by formal designations such as "appellant, " "appellee, " "petitioner, " "respondent, " "plaintiff, " or "defendant" are discouraged and the use of names or descriptive terms such as "John, " "Sue, " "the employer, " "the taxpayer, " "father, " or "mother" are encouraged.
(9) References in briefs to the record. Whenever a reference is made in the briefs to the record, the reference must be to particular parts of the record, suitably designated, and to specific pages of each part, e.g., Answer, p. 7; Motion for Summary Judgment, p. 3; Transcript, p. 231. Intelligible abbreviations may be used. If reference is made to an exhibit, reference shall be made to the pages of the transcript on which the exhibit was identified, offered, and received or rejected.
(10)Over-length and supplemental briefs and costs. Motions to file over-length and supplemental briefs will not be routinely granted. Motions to file such briefs must be supported by an affidavit demonstrating extraordinary justification.
(11)Disk copy of briefs. Original briefs filed under this rule and under rule 14 shall include a digital copy prepared on a Read Only Digital Video Disk (DVD-R), in Portable Document Format (PDF). This rule shall not apply to hand-written briefs or to those typed on a typewriter. Failure to include the DVD-R with the original brief shall not be grounds for dismissal or for refusal to file the brief. The DVD-R shall not include attachments or the appendix, and all confidential information shall be redacted in accordance with rule 10(7).
Rule 13. Filing and service of briefs.
(1) Time for filing briefs. The appellant shall serve and file a brief within 30 days after the date on which the record is filed. The appellee shall serve and file an answer brief within 30 days after filing
service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after filing service of the brief of the appellee. If a cross-appeal is filed and appellant desires to file a reply brief in appellant's appeal, appellant shall serve and file a combined reply brief in appellant's appeal and an answer brief in the cross-appeal within 30 days after filing service of the brief of the cross-appellant.
(2) Number of copies to be filed and served. For briefs containing no confidential information, a signed original and 9 copies of each brief shall be filed with the clerk of the supreme court unless otherwise ordered by the supreme court, and 1 copy of each brief shall be served on each party. For briefs containing confidential information, a signed unredacted original filed under seal and 7 copies of the unredacted original shall be filed along with 2 copies of the redacted brief for public access. 1 copy of the redacted and 1 copy of the unredacted versions of the brief shall be served on each party. The clerk of the supreme court will not accept a brief for filing unless it is accompanied by a certificate of service as required by rule 10. If a separate appendix is filed as allowed under rule 12(5), an original and 7 copies of the appendix shall be filed.
(3) Consequences of failure to file briefs. If an appellant fails to file a brief within the time provided by this rule, or within any extended time, an appellee may move for dismissal of the appeal.
Rule 17. Oral arguments.
(1) Standards. Oral argument will be allowed upon order of the supreme court. All cases not designated for oral argument will be decided on the basis of the briefs and the record on appeal.
(2) Order regarding argument. The supreme court shall, by order, schedule and specify the date, time, and place for the oral argument.
(3) Time allowed for argument. The supreme court's order granting oral argument will designate the amount of time each party will be allowed at oral argument.
(4) Order and content of oral argument. The appellant or applicant is entitled to open and conclude the argument. Closing argument shall be limited to rebuttal of appellee's or respondent's argument.
(5) Cross and separate appeals. If there is a cross-appeal, rule 12(4) determines which party is the appellant and which is the appellee for purposes of oral argument. If separate appellants support the same argument, care shall be taken to avoid duplication of argument at the hearing.
(6) Use of physical exhibits at argument.
(a)Use of physical exhibits and enlargements during oral argument is distracting to the supreme court and is discouraged. Any physical exhibit, handout, or enlargement that attempts to supplement the briefs with additional arguments shall not be permitted.
(b)Handouts are permissible provided there are sufficient copies for members of the supreme court and opposing counsel. If opposing counsel objects to the handout, counsel may make an objection on the record at an appropriate time.
(7) Arguments recorded. Oral arguments are electronically recorded. Absent a recusal, a justice not able to attend oral argument will participate in the supreme court's deliberations after listening to the electronic recording.
(8) Miscellaneous. The supreme court, sua sponte, or upon motion and good cause shown, may direct that oral argument times be extended or shortened; that the order or designation of parties arguing be modified; or that amicus curiae argue. Normally, any time granted to amicus curiae for oral argument will be subtracted from the time allotted to the party whose argument the amicus supports. Amicus curiae seeking leave to present oral argument must indicate whether such party consents to the motion.
Rule 20. Petitions for rehearing.
(1) Criteria for petitions for rehearing.
(a) Following the issuance of the supreme court's opinion in a direct appeal, tT-he
supreme court will consider a petition for rehearing presented only upon the following grounds:
(i) That it overlooked some fact material to the decision;
(ii) That it overlooked some question presented by counsel that would have proven decisive to the case; or
(iii) That its decision conflicts with a statute or controlling decision not addressed by the supreme court.
(b) The clerk of the supreme court will not accept a petition for rehearing for filing if the supreme court orders that remittitur, peremptory writ, or judgment issue immediately.
(c) The clerk of the supreme court will not accept a petition for rehearing for filing after remittitur has issued or after the time for filing such a petition has expired in a proceeding filed under rule 14.
Absent clearly demonstrated exceptional circumstances, Tthe supreme court will not entertain grant petitions for rehearing of its orders disposing of motions or petitions for extraordinary writs.
(e) Petitions for rehearing will not be argued orally.
(a) A party must file and serve a petition for rehearing within 15 days after the supreme court decision has been filed, unless the supreme court expressly shortens or enlarges the time by order.
(b) A party opposing the petition for rehearing shall have 15 days after the filing of the petition for rehearing in which to file and serve objections.
(c) Any motion for extension of time in which to file a petition for rehearing must be filed within the 15-day period for filing the petition for rehearing. The supreme court will grant extensions of time only upon a showing of unusual merit and in no event will grant an extension of time in excess of 15 days. The extension period will run from the date of the supreme court's order granting the extension. (d) The clerk of the supreme court shall not accept reply briefs for filing.
(3) Length. The text of the petition for rehearing and objections thereto shall not exceed 2, 500 words if proportionately spaced or 10 pages if prepared in monospaced typeface or typewritten.
(a) The parties shall file a signed original and 7 copies of the petition for rehearing and objections thereto with the clerk of the supreme court.
(b) The petition for rehearing and objections thereto must contain a certificate of service on the opposing party.
(c) The petition for rehearing and objections thereto must contain a certificate verifying that the document's word count and words per page comply with section (3) of this rule.
IT IS ORDERED that the Court will accept written comments on the above proposed changes to the Montana Rules of Appellate Procedure for a period of 60 days following the date of this Order. All comments shall be filed with the Clerk of this Court.
This Order shall be posted on the Court's website. In addition, the State Bar of Montana is asked to post a link to this Order on its website, and the Clerk is directed to provide a copy of this order to the State Bar of Montana.