IN THE SUPREME COURT OF THE STATE OF MONTANA



IN THE MATTER OF THE ADOPTION )

OF EMERGENCY INTERNAL            OPERATING ) ORDER

PROCEDURES AND APPELLATE )

PRACTICE RULES )



After careful consideration we have determined to adopt the hereinafter described
emergency internal operating procedures and modifications to the Montana Rules of
Appellate Procedure (M.R.App.P.). These procedures and rule modifications are being
adopted pending further study and order of this Court, but with a view toward amending this
Court’s Internal Operating Rules and the M.R.App.P. These procedures and rule
modifications are being implemented on an emergency basis for the following reasons.

First, because of the steady increase in our workload, this Court is concerned that the
constitutional right of meaningful access to the courts and to the administration of speedy
and efficient justice guaranteed under Article II, Section 16, of Montana’s Constitution is
being and, increasingly, will continue to be jeopardized by delays in the appellate process
both at the briefing stage and at the opinion-writing stage. Accordingly, it is necessary that
we modify certain internal practice and appellate procedure rules to address these issues.

Second, while over the past several years we have implemented reforms in both procedures
and rules to better manage our workload, these measures have neither significantly reduced
this workload, relieved appellate delays, nor adequately addressed the mounting pressure to
sacrifice quality for quantity--pressure which is inherent in any process where the workload
threatens to overwhelm the persons and the resources of the institution responsible for its
management.

Third, in recent years this Court has made a concerted effort to increase the number of cases
orally argued. In so doing we have attempted to reverse the trend toward fewer oral
arguments--a trend which greatly concerned the practicing Bar and which, concededly, did
not well serve the administration of justice. Our increasing workload threatens this effort,
and we believe that, unless we take steps to more effectively manage this workload, it is
likely that fewer cases will be set for oral argument and oral arguments may, necessarily, be
shortened.

Fourth, the above-described problems of increasing workload and delay will be significantly
       exacerbated until well into the next biennium for two reasons.

        1. On August 1, 2000, Chief Justice Jean A. Tumage and Justice William E. Hunt will no
       longer be assigned to case classification panels. This is necessary because the retiring
       justices need time to clear their own assignments of unwritten opinions prior to the end of
       the year and because, by that same date, the remaining justices will have to clear opinions in
       which the Chief Justice and Justice Hunt are panel members. To the extent that opinions are
       not written and signed by December 3 1, 2000, in cases in which the Chief Justice and
       Justice Hunt are panel members, many of those cases will have to be re-classified in 2001.
       Thus, not only will these retirements cause an increase on all justices in their work of
       opinion writing, but the remaining five members of the Court will be responsible for reading
       and attempting to decide all cases for classification sent to the Court from and after August
        1.2000.

       2. While the person elected to till Justice Hunt’s seat will come into the panel rotation early
       in January 2001, it will likely be several months until the newly elected governor appoints a
       justice to fill the seat which will be vacated by one of the two sitting justices presently
       running for the office of Chief Justice. Accordingly, it is unlikely that the Court will be at
       full strength until the spring of 2001. During the period of August 1, 2000, to the spring of
       2001, when the Court is not effectively or actually at full strength, the backlog of cases
       undecided and opinions unwritten will likely increase substantially. It will just as likely take
       many additional months to bring this backlog current.

       Fifth, in its October 27, 1998 Final Recommendations, the Intermediate Appellate Court
       Study Committee, acknowledging that “the Supreme Court of Montana is approaching a
       maximum productivity level,” recommended, among other things, that we

                  study various procedural changes [we] could make to assist the Court in handling
                  its workload. [And that we examine]        . . procedural changes [including]
                  expedited calendars, staffing, and memoranda opinions.

       Likewise, the September 15, 1998 report prepared for the Study Committee by Roger A.
       Hanson of the National Center for State Courts made, among others, similar
       recommendations. In response to these recommendations we have determined to implement
       the procedures and rule modifications set forth below, and may, in the event these reforms
       are not sufficiently effective, consider for implementation further suggestions outlined in the
       Committee and Hanson reports.

       Accordingly, for the foregoing reasons, we have determined to and do hereby adopt and
       implement the following procedures and rule modifications, effective August 1, 2000,
       (unless a different effective date is specified), pending further order of this Court:

       1. Shortened Briefs and Petitions. The word and page limitation for briefs specified in
       Rule 27(d)(i), M.R.App.P., is modified as follows: A principal brief must not exceed 10,000


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         words and a reply brief, amicus brief or petition for rehearing must not exceed 5,000 words.
         Rule 27(d)(ii), M.R.App.P., is modified as follows: a principal brief must not exceed 30
         pages and a reply brief, amicus brief or petition for rehearing must not exceed 14 pages.
         Petitions tiled under Rule 17(b), M.R.App.P., must not exceed 5000 words or 14 pages.
         These modifications apply to all briefs and petitions tiled on or after August 1,200O. Except
         as modified herein, all other provisions of the referenced Rules remain unchanged.

         2. Over Length and Supplemental Briefs. From and after August 1, 2000, motions to file
         over length and supplemental briefs will no longer be routinely granted except in capital
         cases. Motions to file such briefs in other cases must be supported by an affidavit
         demonstrating extraordinary justification. To this extent, Rules 22 and 23(g), M.R.App.P.,
         are modified accordingly.

         3. Regulating the Court’s Weekly Reading Load. From and after August 1, 2000, the
         Clerk of this Court will send up to this Court no more than seven (7) new cases for
         classification in each week (a week, for this purpose being Thursday through Wednesday).
         In a week following a week in which there was no classification conference, the Clerk will
         send up to this Court a number of new cases for classification which, when added to the
         number of cases sent up during the previous week, will not exceed ten (10). The Clerk will
         send new cases for classification to this Court on a first-in-first-out basis unless otherwise
         ordered by this Court. To this extent, Section I, Montana Supreme Court 1996 Internal
         Operating Rules, is modified accordingly.

         4. Motions for Extension of Time. Recognizing that a significant part of the delay in the
         present appellate system is at the briefing stage and that it is necessary we eliminate this
         source of delay, commencing January 1, 2001, motions for extension of time to tile briefs
         will no longer be routinely granted except in cases where the inability to timely file a brief is
         caused by the inability of the court reporter to timely transcribe the proceedings.

         All motions for extension of time to file briefs must be supported by an affidavit
         demonstrating diligence and substantial need. All such motions must be filed at least seven
         (7) days before the expiration of the time prescribed for the filing of the brief. The affidavit
         in support must state: (1) when the brief is due; (2) when the brief was first due; (3) the
         length of the requested extension; (4) the reason the extension is necessary; (5) the movant’s
         explanation establishing that the movant has exercised diligence and has substantial need for
         the extension and that the brief will be filed within the time requested; and (6) whether any
         other party separately represented objects to the request. A conclusory statement of
         justification being the “press of other business” will not constitute a showing of diligence
         and substantial need.

         To this extent Rule 21(b), M.R.App.P., is modified accordingly.

         5. Non-cite and Memorandum Opinions. We will attempt to dispose of more cases using
         non-cite and memorandum opinions. Furthermore, we will attempt to reduce the length of


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these types of opinions.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by mail
as follows:

1. To the District Judges and the Clerk of each District Court;

2. To Judith Meadows, State Law Librarian, with a request that she post this Order on the
Montana Law Library website (www.lawlibrary.state.mt.us);

3. To Edward F. Bartlett, President of the State Bar of Montana, and George Bousliman,
Executive Director of the State Bar of Montana, with a request that this Order be distributed
to each member of the State Bar of Montana along with the 2000 Annual Meeting Notice
and that this Order be posted on the State Bar of Montana website (www.montanabar.org);

4. To Charles Wood, Editor, The Montana Lawyer, with a request that this Order be
published in the next available issue of that publication;

5. To James H. Goetz, Chairman, Advisory Commission on Rules of Civil and Appellate
Procedure;

6. To Gregory J. Petesch, Code Commissioner and Director of Legal Services;

7. To State Reporter Publishing Company and West Group with a request that this Order be
published in the publications of those respective companies; and

8. To Rick Day, Director, Montana Department of Corrections, with a request that this
Order be made available to the men and women inmates of the Montana State Prison
system.

DATED this 28th day of June, 2000.

lS/ JAMES C. NELSON

/S/ JIM REGNIER

ISI TERRY N. TRIEWEILER

/S/W. WILLIAM      LEAPHART

/St WILLIAM    E. HUNT, SR.



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IS/ KARLA M. GRAY




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