Big Sky Blawg

The Montana Supreme Court has proposed a series of amendments to the Montana Rules of Appellate Procedure (M. R. App. P.) and published the proposed revisions for comment.  This article is a bit tardy, considering that the period for comment ends today (March. 31) at 5:00 p.m., but the substance of the changes will likely prove relevant for future reference.  The proposals center around reducing the time necessary for SCOMONT to deal with the cases filed each year and deal largely with reducing time limits and word counts.

Below I’ve reproduced the rules bearing actual changes and, where appropriate, reduced the language to save myself some typing (while trying to keep the meaning clear).  Hopefully, these still make sense out of context.  At the bottom of the post I’ve linked to the full set of rules with the proposed changes included.

And finally, I apologize in advance for any typing mistakes in these rules.  If you notice any, please contact me or leave a comment and I’ll fix it.

Rule 4(5)(a)(i): In all 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 judgement 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 judgement 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 judgement or order.

Rule 4(5)(b)(i): In all criminal cases, an appeal from a final judgement entered pursuant to section 46-18-116 must be taken within 60 30 days after entry of the judgement from which appeal is taken…

Rule 4(5)(b)(ii): In criminal cases, an appeal from a judgement or order made appealable by section 46-20-103 must be taken within 20 30 days of the entry of the written judgement or order from which appeal is taken.

Rule 7(7)(b): Where the mediation results in resolution of the appeal, dismissal will be governed by rule 16(5) of these rules.  In the event the appeal is resolved, the parties shall execute a settlement agreement and file a stipulation for dismissal within 15 days of the filing of the mediator’s report.  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.

Rule 7(9): 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 self-executing and not subject to motion practice…

Rule 9(3)(b):  [...] [A] motion for extension of time for transmission of the record may be filed with the district court by the appellant or the court reporter based on the court reporter’s inability to timely prepare a transcript [...].  The district court may grant the motion for a period not to exceed 90 60 days from the filing of the first notice of appeal.  The clerk of the district court shall immediately transmit any such order to the clerk of teh supreme court, and the clerk of the supreme court shall file the order and cause it to be docketed.  Any further requests for extension of time for transmission of the record shall be made, with supporting affidavit of good cause, to the supreme court.

Rule 11(4)(a):  A principal brief shall not exceed 10,000 8,000 words and a reply brief or amicus brief, or petition for rehearing shall not exceed 5,000 4,000 words.  This includes reply briefs which also answer a cross-appellant’s principal brief.

Rule 11(4)(b): A principal brief prepared in a monospaced typeface shall not exceed 30 24 pages and a reply brief or amicus brief, or petition for rehearing shall not exceed 14 12 pages.  This includes reply briefs which also answer a cross-appellant’s principal brief.

Rule 11(4)(c): Petitions filed under rule 14 shall not exceed 5,000 4,000 words or 14 12 pages.

Rule 11(4)(e):  A brief must be accompanied by certification of compliance which states the document’s line spacing and states either: (1) [...]; or (2) the document uses monospaced typeface, together with the number of charactesr per inch and word count, or, the number of counted pages, pursuant to section (4)(b) or (c) of this rule. [...]

Rule 12(1)(b): A statement of the issues presented for review.  Parties are encouraged to limit the number of issues to 4 or fewer;

Rule 12(1)(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;

Rule 12(1)(d):  A statement of the facts relevant to the issues presented for review, with references to the pages or parts of the record at which material facts appear.  Factual statements or background which are not relevant to the issues raised and which merely generate sympathy or inflame the reader are not to be included in the statement of facts;

Rule 12(1)(h): The judgement, order, findings of fact, conclusions of law, or decision in question, together with the memorandum opinion, in any, in support thereof.  An appendix that includes the relevant judgement, order, findings of fact, conclusions of law, jury instruction, ruling, or decision 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 ma be a separately-bound document if the volume of the required attachments makes this necessary.

Rule 12(5): If desired, parties may attach an appendix to their briefs, or may submit a separately bound appendix, to provide the judgment or order from which appeal is taken, challenged jury instructions (whether given or offered but not given), statutes and other legal sources, or to reference matters from the record necessary to their argument.  The appendix shall include a table of contents and colored page separators.  If desired, and in addition to the documents required under subsection (1)(h) of this rule, a party may include in the appendix 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 to include in their appendix only those documents essential to their arguments.  The appendix shall include a table of contents and colored page separators and may be separately-bound document if the volume of the required attachments make this necessary.

Rule 12(8):  References to parties by such formal designations as “appellant” and “appellee” shall be minimal.  It promotes clarity to use names or descriptive terms such as “John,” “Sue,” “the employee,” “the injured person,” or “the taxpayer.”  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.

Rule 14(9)(b): All filings made pursuant to section (5)(a) of this rule shall conform to the requirements of rule 11, except that neither the text of the petition nor any response shall exceed 5,000 4,000 words if proportionately spaced or 14 12 pages if prepared in monospaced typeface or if typewritten.

Rule 17(3):  Upon oral argument of an appeal or original proceeding, 40 minutes will be allowed to appellant or applicant and 30 minutes to appellee.  Appellant or applicant may reserve no more than 15 minutes of the 40 minute allocation for rebuttal.  The supreme court’s order granting oral argument will designate the amount of time each party will be allowed at oral argument.

Download the Proposed Amendments to the Montana Rules of Appellate Procedure (in its entirety)

A possible demise for Montana’s death penalty vanished today when Senate Bill 236 failed to make it past the state House Judiciary Committee by a vote of 10-8.  Although it had narrowly passed the Republican controlled Senate, this failure makes it unlikely that the bill will return this year.  

Proponents of SB 236 argued that executing a convicted criminal costs more than imprisoning him for life without parole.  This, combined with the risk of executing an innocent man simply make the law too costly in all senses of the word.

Those arguing to keep the death penalty say that some crimes are so heinous that ending the convict’s life is the only appropriate response.  Additionally, they claim the deterrent aspect of capital punishment serve an important purpose and should not be ignored.

Churchill once said something to the effect of democracy being the worst form of government, except all the others.  The same could probably be said for our judicial system. For all the many benefits, it is all too fallible.  Headlines abound announcing newly tested DNA evidence that has set free a man on death row.  Personally, I simply find the risk too great.

Rohrer v. Knudson, 2009 MT 35

Rohrer bought a lot from Knudson and built a house where he experienced significant settling of the land underneath the building causing cracked walls, broken tile floors, and sticking doors.  After investigating the history of the area, Rohrer found that a ditch and steep railroad embankment existed there and that major earth moving activities filled in the ditch and eliminated the embankment sometime before 1964.  Claiming that Knudson should have been aware of and disclosed the fill conditions, Rohrer filed suit alleging negligence, negligent misrepresentation, and violations of the Montana Consumer Protection Act.

Issue 1: Whether the District Court abused its discretion in prohibiting the Rohrers from presenting evidence of differential settlement damage to other residences in Bel View Palisades.

At trial, Knudson claimed that the settlement problems resulted from Rohrer’s own negligence and submitted expert testimony stating that the cause of the settlement was invariably a water problem resulting from irrigation next to the foundation, poor site grading, and the failure to install drains around the foundation footings.

Before trial began, Knudson moved to preclude Rohrer from presenting evidence of differential settlement damage to neighboring residences claiming that such evidence was irrelevant and prejudicial.  Despite Knudson’s counsel stating that he did not intend to argue that Roher’s house was a unique anomalous occurrence, SCOMONT found that they presented evidence calculated to imply that damage to other homes did not exist.  By “eliciting testimony of the reputation for settlement in the area and suggesting that no extraordinary foundations were required for other houses in the area,” Knudson’s counsel opened the door to rebuttal.  The District Court abused its discretion by excluding the evidence of settling in neighboring homes after such insinuations.  The “exclusion of such rebuttal testimony affected the result since any change in the apportionment of negligence would alter the Rohrers’ recovery.”  Reversed and remanded for retrial where Rohrer should be allowed to present evidence of settlement of other houses in the area to rebut any contention that there is no reputation for settlement in the area or that neighboring houses do not require extraordinary foundations because they are not built on fill.

Issue Two:  Whether the District Court’s instruction defining “unfair practice” under the Montana Consumer Protection Act was a correct statement of the law.

Rohrer’s counsel offered a jury instruction defining an “unfair” act or practice as “one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”  Ultimately though, the court agreed with Knudson’s counsel and struck “substantially injurious” from the jury instruction defining an “unfair” act or practice.

As a matter of first impression, SCOMONT joined at least a dozen other states and adopted a version of the U.S. Supreme Court’s standard from FTC v. Sperry & Hutchinson Co. (S&H), which used the following criteria to determine whether a practice is unfair:

(1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise – whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen).

FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244, n. 5 (1972).  SCOMONT held as a matter of law that under the Montana Consumer Protection Act,  an unfair practice is “one which offends established public oplicy and which is either immoral, unethical, oppresssive, unscrupulous or substantially injurious to consumers.” Rohrer, ¶ 31.

Download Rohrer v. Knudson

Montana West Bank v. Western Skys Ltd. Co. – 2008 MT 54

Although a case from last year, woe to the lawyer who ignores its holding.  Pursuant to M. R. App. P. 4(2)(a), notice of appeal must be filed with the clerk of the supreme court within the time allowed.  Counsel for Western Skys et. al. made the mistake of filing their notice of appeal in the district court, where the trial had been held.  By the time their error was discovered, the time to file the appeal had expired.  Western Skys petitioned for an out of time appeal pursuant to M. R. App. P 4(6).

SCOMONT decided that the present facts did meet the standard of M. R. App. P. 4(6), which reads:

(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.

On that basis, the petition was denied and Western Skys was not allowed to appeal.  Ouch.

Download Mountain West Bank v. Western Skys

The U.S. District Court for the District of Montana certified the following question to the Montana Supreme Court:

Does § 45-8-321, MCA, prohibit a county sheriff from issuing a concealed weapon permit to a person described in subsection (1)(c) of the statute, or does the sheriff have discretion to issue a permit falling within that category?

In 1983, Van der hule pled guilty in Montana state court to one count of sexual assault and four counts of sexual intercourse without consent. Both felonies are punishable by a term of not less than four years.  In 1993 he was paroled, and in 1999 he received a “Final Discharge” from the Montana Board of Pardons and Parole stating his civil rights were restored.

In 2003, he filed an action in the U.S. District Court in Missoula seeking declaratory relief from the FBI’s refusal to issue him a firearms license.  The federal court granted summary judgement in favor of the U.S. on all issues except the question certified in this appeal.

The statute at issue, § 45-8-321(1)(c) provides that, except as provided in subsection (2), a concealed weapon permit “may not be denied an applicant unless” the applicant:

(c) has been convicted in any state or federal court of a crime punishable by more than 1 year of incarceration or, regardless of the sentence that may be imposed, a crime that includes as an element of the crime an act, attempted act, or threat of intentional homicide, violence, bodily or serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent.

Subsection (2) grants a sheriff the discretion to deny a concealed weapon permit to an applicant based on “reasonable cause” to believe the applicant is “mentally ill, mentally defective, or mentally disabled or otherwise may be a threat to the peace and good order of the community.” § 45-8-321(2), MCA.

Because Van der hule’s past convictions were punishable by more than a year in prison and included sexual abuse and sexual intercourse without consent, his application for a concealed weapon permit was denied.  Van der Hule argued, however, that county sheriffs are allowed to make a case-by-case determinination because of the word “may” in the statutory phrase “may not be denied an applicant unless” is permissive.

Acknowledging that the word “may” generally designates discretionary conduct, SCOMONT pointed out that “may not” is consistently interpreted as mandatory.  Ulimately though, it was the larger structure of the statute, and not the definition of “may” or “may not” the decided the issue.  Because § 45-8-321(a)-(h), MCA, consists of individuals who are ineligible under Montana Law or federal law to own, possess, or receive a firearm, it would be nonsensical to allow a sheriff discretion to issue a concealed weapon permit to such an individual.

In closing, SCOMONT stated:

We conclude, based on the language and structure of § 45-8-321, MCA, that the eight categories listed under subsection (1)(a) through (h) describe applicants to whom issuance of a concealed weapon permit is prohibited.

Download Van der Hule v. Mukasey

Last month, at a news conference, Attorney General Eric Holder said that there would be no more federal prosecutions of cases involving medical cannabis dispensaries. He said they would be left alone as long as they were complying with state laws.  The decision affects Montana and 12 other states that have legalized marijuana for medical purposes: Alaska, California, Colorado, Hawaii, Maine, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington state.

Meanwhile, a Montana bill seeking to expand the State’s medical marijuana program has passed the Senate and is beginning hearings in the House.  Senate Bill 326 increases the amount of marijuana that a patient or “caregiver” can possess, from one ounce to three ounces. It also allows patients to get the drug from more than one licensed caregiver, allows licensed growers to have six “mature” plants rather than just six plants, and adds some additional medical conditions or diseases that can be legally treated by marijuana, such as Alzheimer’s disease, diabetes and post- traumatic stress syndrome.

Click here to read the text of SB 326

In June 2004, Thornton sued Deist in Federal Court in Missoula.  Following dismissal of that claim, in May 2006, Deist filed a malicious prosecution complaint in Missoula District Court (state court).  Thornton moved to have venue changed to Flathead County, arguing that because both parties reside there, it is where the suit should have been commenced.  The District Court denied the motion. 

Deist argued that because the tort (malicious prosecution) was committed in Missoula County, it was the proper venue.  Despite Thornton’s argument that she was required to file suit in Missoula because it was the location of the federal court, SCOMONT ruled that the:

purported breach of duty occurred when she intentionally and with alleged malice filed and prosecuted an unsupportable federal cause of action against Deist.  To do so, she willingly traveled to Missoula County where, for approximately two years, the federal court prosecuted this matter before terminating it in favor of Deist.  Moreover, substantial evidence supports Deist’s claim that he suffered damages in Missoula County as a result of Thornton’s suit.  The concurrence of breach and damages in Missoula County support the District Court’s conclusion that Missoula County was a proper venue for Deist’s malicious prosecution claim.

Deist, ¶ 15.

Download Deist v. Thornton

Although a trustee is required to perform an annual accounting, failure to do so does not require removal.  The District Court’s determination not to remove the trustee for failing to file an annual accounting was not an abuse of discretion.  However, SCOMONT did stress that remembering to do so in the future would be advisable.

Download Matter of Trust Est. by Baird