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City of Missoula v. Sullivan

Supreme Court of Montana

January 2, 2018

CITY OF MISSOULA, Plaintiff and Appellee,
v.
TERRY JAMES SULLIVAN, Defendant and Appellant.

          ORDER

         On January 18, 2017, Appellant Terry Sullivan filed a notice of appeal in the Montana Fourth Judicial District Court, Cause No. DC-17-034, seeking review of an adverse judgment of criminal conviction entered by the City of Missoula Municipal Court in Cause No. CR-16-1045, On August 1, 2017, the District Court entered judgment dismissing Sullivan's pro se appeal pursuant to U. M. C, R. App.[1] 14 for failure to timely file an appellate brief Following remand to the Municipal Court, Sullivan filed a pro se motion in District Court asking the District Court to vacate its prior order of dismissal based on nine asserted grounds including, inter alia, that the City failed to serve him with a motion to dismiss the appeal, that the briefing requirements of the U. M. C. R. App. conflict with the M. R. App. P., and that the procedural dismissal violated his federal and state constitutional rights to present a complete defense. On September 7, 2017, the District Court denied Sullivan's motion to vacate its prior order of dismissal.

         On November 3, 2017, Sullivan filed a pro se notice of appeal in this Court seeking review of all judgments and orders entered by the Municipal and District Courts, including "the final written judgment or order" entered by the District Court on September 7, 2017. By order filed November 14, 2017, this Court dismissed Sullivan's appeal sua sponte on the grounds that: (1) the District Court's September 7, 2017 order denying his motion to vacate its prior order of dismissal was not an appeal of a "final judgment of conviction, " or an order "affect[ing] the substantial rights of the defendant, " as referenced in § 46-20-104(1), MCA; (2) the August 1, 2017 order of dismissal was the only appealable district court order under § 46-20-104(1), MCA; and (3) the 60-day deadline for filing an appeal under M. R. App. P. 4(5)(b)(i) expired on October 1, 2017. By petition filed November 22, 2017, Sullivan moved, through counsel, for leave to file an out-of-time appeal pursuant to M. R. App. P. 4(6). By separate petition filed November 27, 2017, Sullivan moved on similar grounds for rehearing on our November 14, 2017 order of dismissal. By order filed December 5, 2017, we denied Sullivan's petition for rehearing and further denied him leave to file an out-of-time appeal on the ground that he at best showed no more than "mistake and excusable neglect, neither of which are sufficient alone to constitute a supported showing of a gross miscarriage of justice resulting from extraordinary circumstances as required by M. R. App. P. 4(6)."

         By petition filed December 12, 2017, Sullivan now seeks rehearing on our December 5, 2017 order denying rehearing on our November 14th order and denying him leave to file an out-of-time appeal. Due to analytical imprecision in our November 14 and December 5 orders, we hereby: (1) grant Sullivan's December 12, 2017 petition for rehearing; (2) vacate and withdraw our November 14 and December 5 orders; and (3) issue the following superseding analysis and order on rehearing.

         The primary thrust of Sullivan's continuing assertions of error, and related request for leave to file an out-of-time appeal, is that he was unfairly "confused" about the deadline for filing a notice of appeal because neither Title 46, MCA, nor our Rules of Appellate Procedure, "squarely address the procedure that must be followed in an appeal from an order issued by an intermediate appellate court" upon review of a lower court judgment of conviction.[2] Unwinding Sullivan's various assertions requires recognition of the distinction between the original trial court and appellate jurisdiction of district courts with correlation to the pertinent Rules of Appellate Procedure.

         This Court has exclusive general supervisory control and appellate jurisdiction over district courts, justice courts, and all other courts provided by Montana law. Mont. Const. art. VII, §§ 1, 2(1), 2(2). District courts have original trial court jurisdiction over criminal felonies and concurrent original jurisdiction over misdemeanors as provided by the Legislature. Mont. Const, art. VII, § 4(1), (3); § 3-5-302, MCA. In the exercise of our supervisory control and jurisdiction over the courts of this State, we have exclusive authority to "make rules governing appellate procedure" and the "practice and procedure for all other courts" subject only to disapproval by Legislature "in either of the two sessions following promulgation." Mont. Const, art. VII, § 2(3). Subject to our supervisory and rulemaking authority, a criminal defendant may appeal an adverse municipal court judgment of criminal conviction to district court. Sections 3-6-110(1); 46-17-311(1), MCA.

         An appeal to district court from a municipal court judgment of conviction is not a criminal case within the original jurisdiction of district courts. See Mont. Const, art. VII, § 4(1). Rather, distinct from the original jurisdiction of the district court, and the lower court criminal case from which it arises, an appeal to district court from a municipal court is a separate appellate proceeding, within the appellate jurisdiction of the district court, for review of the underlying criminal proceeding for compliance with applicable law. See Mont. Const, art. VII, § 4(2). The Montana Uniform Municipal Court Rules of Appeal "govern [the] procedure for appeals from a municipal court judgment" to district court. U. M. C. R. App. 1(a). Under these rules, a criminal defendant may appeal an adverse municipal court judgment of conviction but "only from a final judgment of conviction" or subsequent orders "which affect" the defendant's "substantial rights." U. M. C. R. App. 1(b)(3); §46-20-104(1), MCA.

         In turn, our Rules of Appellate Procedure, codified in Title 25, chapter 21, MCA, govern all proceedings before this Court. M. R. App. P. 1(2). A party aggrieved by an order or judgment of a district court may appeal to this Court but only "from a final judgment in an action or special proceeding" or "from those final orders specified in" M. R. App. P. 6(2), through (4). M. R. App. P. 6(1). By their terms, M. R. App. P. 6(2) through (4) do not apply to judgments and orders issued by district courts in the exercise of their appellate jurisdiction under Article VII, Section 4(2) of the Montana Constitution and the U. M. C. R. App. To wit, M. R. App. P. 6(3) and (4) expressly apply only to orders and judgments issued by district courts in the exercise of their original trial court jurisdiction over general civil and estate, probate, and guardianship matters. See M. R. App. P. 6(3), 4). Similarly, by express reference to § 46-20-104, MCA, M. R. App. P. 6(2) applies only to appeals "from a final judgment of conviction, " and subsequent orders affecting "the substantial rights of the defendant, " issued by the district court in the exercise of its original trial court jurisdiction over criminal matters. See M. R. App. P. 6(2); § 46-20-104, MCA. However, in addition to authorizing the specific types of civil and criminal appeals referenced in subsections (2) through (4) that arise from the original jurisdiction of district courts, M. R. App. P. 6 also generally authorizes appeals to this Court from any "final judgment in an action or special proceeding" of a district court. M. R. App. P. 6(1). Though generally applicable to all final district court judgments, the reference in M. R, App. P. 6(1) to "a final judgment in a [district court] action or special proceeding" broadly encompasses, inter alia, final judgments issued by the district court in the exercise of its appellate jurisdiction. Thus, contrary to Sullivan's assertion, M. R. App. P. 6(1) clearly authorizes appeals of final judgments of district courts issued in the exercise of their intermediate appellate jurisdiction.

         Sullivan nevertheless asserts that our Rules of Appellate Procedure do not provide for appeal of district court orders denying post-judgment motions for reconsideration or rehearing on intermediate appellate judgments. Sullivan's assertion is correct, as far as it goes, but does not advance his cause. Unlike the M. R. App. P., [3] the U. M. C. R. App. neither expressly authorize, nor expressly prohibit, motions for reconsideration or rehearing on district court appellate judgments.[4] Regardless of whether the U. M. C. R. App. permit such post-judgment motions, M. R. App. P. 6(1), in pertinent part, only authorizes appeals from final intermediate appellate judgments, not appeals from orders denying post-judgment motions for reconsideration or rehearing on those judgments. See M. R. App. 6(1) ("party may appeal from final judgment in an action or special proceeding and from those final orders specified in" M. R. App. P. 6(2) through (4)). Here, the District Court's August 1, 2017 order of dismissal was "a final judgment in an action or special proceeding" as referenced in M. R. App. P. 6(1). In contrast, regardless of Sullivan's newly-asserted grounds for relief, the court's September 7, 2017 order was no more than an order denying a post-judgment motion for reconsideration or rehearing on its final appellate judgment. As such, the District Court's September 7 order was neither "a final judgment in an action or special proceeding, " nor other appealable "final order, " as referenced in M. R. App. P. 6(1). Thus, the District Court's August 1, 2017 order was an appealable order, but its subsequent September 7, 2017 order was not.[5]

         "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 [the] appeal is taken" M. R. App. P. 4(5)(b)(i) (filing deadline for appellate review in criminal cases (emphasis added)). Applied here, Sullivan's District Court appeal was "an appeal from a judgment" of a municipal court "entered pursuant to 46-18-116" and the District Court's August 1, 2017 order of dismissal was "the judgment from which appeal is taken."[6] M. R. App. 4(5)(b)(i) thus specified a 60-day deadline for Sullivan to appeal the District Court's August 1st order. The deadline expired on October 1, 2017. Sullivan did not file his appeal in this Court until November 3, 2017. Contrary to Sullivan's assertion, M. R. App. P. 6(1) and 4(5)(b)(i) authorize appeals of intermediate appellate judgments of district courts and specify a 60-day filing deadline. Sullivan's notice of appeal, filed November 3, 2017, was untimely under M. R. App. 4(5)(b)(i) and, thus, insufficient to invoke the jurisdiction of this Court. M. R. App. 4(2)(c).

         Nonetheless, "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice, " this Court may grant an otherwise time-barred appellant leave to file an untimely appeal. M. R. App. P. 4(2)(c), (6). The party seeking such relief must show entitlement to relief "by verified petition supported by affidavits, records, and other evidence establishing the existence of the extraordinary circumstances claimed." M. R. App. P. 4(6). Here, by unsupported verified petition, Sullivan essentially asserts that procedural waiver of his right to appeal will harshly result in a gross miscarriage of justice because he was an uninformed pro se litigant, who was vexed by unclear rules of procedure, and who detrimentally relied on inaccurate or incomplete filing deadline information provided by the Clerk of this Court.

         However, M. R. App. P. 6(1) clearly specifies that only "final judgments, " and certain other "final orders" not at issue here, are appealable. Nothing in M. R. App. P. 6(1) authorizes appeals from district court orders denying post-judgment motions for reconsideration or rehearing on final intermediate appellate judgments. M. R. App. 4(5)(b)(i) clearly specifies a 60-day filing deadline from the date of entry of the appealable order "from which appeal is taken." M. R. App. P. 4(2)(a) clearly requires timely compliance with the 60-day filing deadline. Though we recognize that technical rules of appellate procedure often create difficulty for laymen, lack of legal expertise is not uncommon and is rarely sufficient alone to constitute "extraordinary circumstances amounting to a gross miscarriage of justice" for purposes of M. R. App. 4(6).

         As to Sullivan's assertion that he detrimentally relied on inaccurate filing deadline information provided by the Clerk, the subject email from the Clerk, included in the appendix to Sullivan's petition, plainly manifests that, consistent with the express language of M. R. App. P. 4(5)(b)(i), the Clerk accurately stated only that "[y]ou must file your notice of appeal within 60 days of [the] date of the order you are appealing from." The fact that the Clerk did not make further inquiry and advise Sullivan as to what types of district court orders are appealable, and what types are not, does not render the Clerk's statement inaccurate, misleading, or conducive to a gross miscarriage of justice resulting from extraordinary circumstances. Sullivan's cursory assertion that he has multiple "meritorious" assertions of district court error and that several unnamed attorneys advised him that the District Court's dismissal order was "highly improper" are similarly insufficient to satisfy the M. R. App. P. 4(6) requirement for a supported showing of an infrequent harsh case involving a gross miscarriage of justice resulting from extraordinary circumstances.

         M. R. App. P. 4(2)(c) clearly mandates that "timely filing of a notice of appeal . . . is required to invoke the appellate jurisdiction of the supreme court." While we typically provide pro se litigants considerable latitude with technical pleading requirements, all litigants must strictly adhere to procedural rules, particularly those that are jurisdictional in nature. Xin Xu v. McLaughlin Research Inst. for Biomedical Sci., Inc., 2005 MT 209, ¶ 23, 328 Mont. 232, 119 P.3d 100. "Extraordinary circumstances" justifying an out-of-time appeal "do not include mere mistake, inadvertence, or excusable neglect." M. R. App. P. 4(6). Even liberally viewed, Sullivan has at best shown no more than his own mistake, or otherwise excusable neglect, neither of which is sufficient alone to constitute a supported showing of an infrequent harsh case involving a gross miscarriage of justice resulting from extraordinary circumstances. Therefore, on rehearing, IT IS ORDERED that Sullivan's Petition For Out-of-Time Appeal filed November 22, 2017, and related Petition For Rehearing filed November 27, 2017, are hereby DENIED.

         The Clerk is hereby respectfully ordered to serve a copy of this Order to counsel ...


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