Big Sky Blawg

Amicus Curiae is latin for “friend of the court” and refers to someone who is not a party, but volunteers to provide a brief to assist the court. An amicus brief does not make the party an intervenor, it merely gives the author (or more commonly the author’s client) a voice in the case. Often, advocacy groups will file a brief in appeals where it is not a party but has an interest in the subject matter. Where a case has broad implications, these briefs are a way to introduce varied concerns and make the court aware of the possible effects of its decision.

In Montana, amicus briefs are governed by Rule 12(7) of the Montana Rules of Appellate Procedure. The rule states:

Brief of amicus curiae. A brief of an amicus curiae may be filed only opon 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 briefs can be field, and indicate whether the other party consents to the request.

Interestingly, no reference is made in the Montana rules regarding what sort of content is acceptable from amicus. The U.S. Supreme Court has promulgated Rule 37(1) on this topic, stating:

An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

While I have no hard data on the topic, my assumption would be that amicus briefs are much more common at the U.S. Supreme Court than in Helena. This may explain the lack of guidance in the Montana rules regarding proper content. And perhaps SCOMONT assumes that Montanans have enough common sense to obviate the need.

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)

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

On appeal, C.D.H. argued that it was an ex-post facto violation to apply a version of MCA § 41-5-1513 not in effect at the time of his crime. SCOMONT ruled that C.D.H. had not preserved the issue for appeal because the objection at trial was too generalized. Citing State v. LaFreniere, 2008 MT 99 ¶ 12, the Court reiterated that an “objection must be specific in order to preserve the issue for appeal.” An objection that is “very generalized in nature and which does not specify what authority, rule, statute, or constitutional provision might be violated by the court’s decision, is insufficient to preserve that issue on appeal.” LaFreniere, ¶ 12.

Here, the Court described C.D.H.’s trial argument:

C.D.H. mainly argued in support of his ex parte motion to the District Court to remove the registration requirement that the court should apply the former version of § 41-5-1513,MCA [sic]. C.D.H. argued that this Court long has held “that the person must be sentenced under the statute in effect at the time of the offense.” C.D.H. cited for support, our decision in State v. Southwick, 2007 MT 257, ¶ 25, 339 Mont. 281, ¶ 25, 169 P.3d 698, ¶ 25, and other related cases. C.D.H.’s motion made no mention of any constitutional prohibitions on application of the 2007 amendment to § 41-5-1513, MCA.

At the hearing, C.D.H. conceded that the legislature intended for the 2007 amendment to § 41-5-1513, MCA, to apply retroactively. He then argued “I think it’s still an ex post facto application of the statute … this case was going on pending this legislature doing this.” The court attempted to solicit further argument and authority for C.D.H’s constitutional claim. The court noted that registration also was a possibility under the old statute. The court specifically asked C.D.H.: “Where is the ex post facto argument?” C.D.H. responded again that it was ex post facto as his case was pending “and just for the record judge, I would like to make that argument.” The court asked C.D.H. if it should consider another brief on that point. C.D.H. responded “no, you have everything that you need to make that decision, judge.”

The Court’s reliance on LaFreniere seems misplaced. There, the defendant’s counsel made no ex post facto argument. “At no time did LaFreniere argue before the District Court the issue of an ex post facto violation.” LaFreniere, ¶ 13. I have not read the transcript from the District Court, but the summary reproduced above indicates that C.D.H. did make such an argument. An ex post facto violation derives its name from the ex post facto clause of the United States Constitution, found in Article 1, Section 10, and its corollary in the Montana Constitution. By stating the name of the violation, C.D.H. referenced the authority his argument relied upon. And not only did C.D.H. reference the relevant constitutional provision, but he also cited to Southwick. A case that, by my reading, stands for the proposition that sentencing under a newly enacted statute, not in effect at the time of the defendant’s crime, is an ex post facto violation.

Could C.D.H. have made a more thorough, eloquent argument? Probably. But were the attorney’s statements so deficient as to render Constitutional protections void for his client? I simply cannot see how.

Finally, my favorite discovery from reading these cases. In LaFreniere, SCOMONT states its reason for requiring specificity in order to preserve an issue for appeal as this:

it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.

I’m glad we’re looking out for the feelings of the state Judiciary. And if a few fundamentals get trampled in the process? Oh well.

Download Matter of C.D.H.
Download LaFreniere
Download Southwick