Thermal Design v. Thorson ( 2022 )

05/04/2022
Toward justice for all . . . Case Number: DA 21-0516
Proceeding before the Montana Supreme Court
without an attorney
CIVIL HANDBOOK
The Supreme Court Mike McGrath
Chief Justice
of
Justice Building ♦ 215 North Sanders
Montana PO Box 203001 ♦ Helena, MT 59620-3001
Phone (406) 444-5490 ♦ Fax (406) 444-3274
June 1, 2011
This booklet is designed to assist individuals who are unable to obtain
the assistance of an attorney to navigate through the appellate process. These
materials provide the minimum amount of information you need to pursue a
case in the Montana Supreme Court.
Neither this handbook nor the attached forms are intended to provide
legal advice. Nor are they a proper substitute for having an attorney advise
you or represent your interests before the Court.
Appellate practice is complicated and failure to follow proper appellate
procedure can result in your case being dismissed. We recommend you
consult an attorney if at all possible.
The Court understands that sometimes an attorney is not available to
provide you with all of the assistance you need. In those situations, we hope
you will find this handbook useful.
Good luck with your appeal.
Mike McGrath
Chief Justice
P.S. Pay close attention to the filing deadlines listed on page 33. Failure to file
the proper papers on time is the most common reason for an appeal to be
dismissed.
Table of Contents
STARTING AN APPEAL.............................................................................................................. 3
What can be appealed? [Rules 4 and 6] .................................................................................... 3
How do I file an appeal? [Rule 4]............................................................................................... 3
I can’t afford to pay the filing fee. How do I ask the Court for permission to appeal without
paying the fee? [Rule 5] ............................................................................................................. 4
When do I file a Notice of Appeal? [Rule 4] .............................................................................. 4
How do I count the days? [Rule 3] ............................................................................................. 4
What if I didn’t file my Notice of Appeal on time? [Rule 4(6)] ................................................. 5
Where do I file my Notice of Appeal? [Rule 4] .......................................................................... 5
Does filing an appeal stop the district court’s judgment from being enforced? [Rules 22 and
23] ............................................................................................................................................... 6
SERVING DOCUMENTS ............................................................................................................ 6
What does “serve” mean and how do I prove I served someone? [Rules 10 and 13] ............. 6
RECORD AND TRANSCRIPTS..................................................................................................... 6
What happens after I file my Notice of Appeal? [Rule 8 and 9] ............................................... 6
Do I have to pay for the transcripts I request? [Rule 8] ............................................................ 7
What if the court reporter can’t get the transcript prepared on time? [Rule 9(4)] ................. 7
What if there is no transcript? [Rule 8] ..................................................................................... 7
What else should I be doing while the record and transcripts are being prepared?............... 7
MEDIATION [Rule 7] ................................................................................................................ 8
What is mediation? .................................................................................................................... 8
What is a mediator? ................................................................................................................... 8
What cases must be mediated? [Rule 7(2)] .............................................................................. 8
Do I appeal and mediate at the same time? [Rule 7(3)(b)] ...................................................... 8
How does the mediation process begin? [Rule 7(4)] ................................................................ 8
Is the mediator paid? [Rule 7(4)] ............................................................................................... 8
What happens after a mediator is chosen? [Rule 7(5)] ............................................................ 8
What is a statement of position? [Rule 7(5)] ............................................................................ 9
What happens after the mediator gets the statements? [Rule 7(5)]....................................... 9
Can things that are said or documents that are shared during mediation be used later in the
appeal if the case doesn’t settle? .............................................................................................. 9
If the case does not settle, what happens next?..................................................................... 10
BRIEFS ................................................................................................................................... 10
i
I. If I am the Appellant, when do I file my Appellant’s Brief? [Rule 13] ................................ 10
What is the purpose of an Appellant’s Brief? ......................................................................... 10
What does an Appellant’s Brief look like? [Rule 11]............................................................... 10
As Appellant, what must my Brief contain? [Rules 11 and 12] .............................................. 11
Is there any information I may not include in the briefs? [Rule 10(6)] .................................. 13
How do I file my brief? [Rule 13] ............................................................................................. 13
II. What if I am the Appellee? [Rules 11, 12 and 13] .............................................................. 14
If I am the Appellant, may I respond to the Appellee’s Brief? [Rules 11 and 13] .................. 14
III. What happens after the Supreme Court receives all the briefs?...................................... 14
MOTIONS .............................................................................................................................. 14
What is a motion? .................................................................................................................... 14
What kinds of motions can be filed with the Supreme Court? ............................................... 14
What must a motion contain? [Rule 16] ................................................................................. 14
What does a motion look like? [Rule 11] ................................................................................ 15
How do I file a motion? [Rule 10] ............................................................................................ 15
Do I serve my motion and all supporting documents on the other parties? [Rule 16].......... 15
What if the other party filed a motion, may I respond to it? [Rule 16] ................................. 15
If I filed the motion, may I reply to the other party’s response? [Rule 10] ............................ 15
Motion for Extension of Time .................................................................................................. 16
What is a Motion for Extension of Time and how do I file one? [Rule 26]............................. 16
DISMISSING AN APPEAL [Rule 16] ......................................................................................... 16
What if I want to dismiss my appeal? ..................................................................................... 16
What if the other party moves to dismiss the appeal?........................................................... 16
FINAL DECISION BY THE SUPREME COURT ............................................................................. 17
What kind of rulings does the Court issue? [Rule 19] ............................................................. 17
Can the Supreme Court order a losing party to pay the costs of the winning party? [Rule 19]17
What if I don’t agree with the Supreme Court’s decision? [Rule 20] ..................................... 18
GLOSSARY OF LEGAL TERMS .................................................................................................. 19
APPENDIX .............................................................................................................................. 28
INDEX .................................................................................................................................... 31
IMPORTANT TIMELINES ......................................................................................................... 33
FORMS .................................................................................................................................. 35
ii
BASIC INFORMATION ABOUT THE MONTANA SUPREME COURT AND THIS HANDBOOK
The Montana Supreme Court is the highest (pronounced pro-say) litigant. You cannot
court in Montana and is the final court of represent yourself and be represented by
appeals. The purpose of a court of appeals an attorney at the same time. If you are
is to review decisions of lower courts or represented by an attorney, you personally
administrative agencies to determine if cannot file documents in your case.
those decisions were legally correct. Seven
judges, called justices, serve on the A list of legal terms appears on pages 19-27
Montana Supreme Court. When an appeal of this Handbook. This list, or Glossary,
is filed with the Court, the justices review defines many of the legal terms that are
the briefs filed by the parties and then issue used by parties and by the courts. For
a ruling, called an opinion. example, the Glossary defines the terms
Appellant and Appellee. The Appellant is
When the Court reviews the district court’s the person appealing the district court’s
decision, it does not hold a new trial or take decision because he or she lost in the
new evidence. It only looks at the record on district court. The Appellant is asking the
appeal. The record includes the original Supreme Court to reverse or change the
documents and exhibits filed with the district court’s decision. The Appellee is the
district court, the orders issued by the person who won in the district court. The
district court judge, and the transcripts of Appellee will argue that the district court
any hearings or trials that have been got it right and the Supreme Court should
prepared by a court reporter. affirm, meaning agree with the district
court. When you don’t understand a word
The Supreme Court has written rules used in the Rules, this Handbook, or your
regarding documents to be filed in an research, you should first refer to the
appeal. These rules are called the Montana Glossary.
Rules of Appellate Procedure (M. R. App.
P.). Anyone filing an appeal, petition or All references in this Handbook to the Rules
motion with the Supreme Court must follow are to the Rules of Appellate Procedure,
these rules. which can be found at Title 25, Chapter 21
of Montana Code Annotated. You can also
This Handbook is for people who are access the rules through the State Law
representing themselves in a civil appeal, as Library of Montana at
opposed to a criminal appeal, from a district http://courts.mt.gov/library/montana_laws.
court ruling. It may not be used to appeal a mcpx. Scroll down to the Montana
case from justice court to a district court or Supreme Court Rules, Montana Rules of
from an administrative agency to a district Appellate Procedure.
court. This Handbook should not be used in
any criminal case. Separate handbooks This Handbook also includes forms that you
have been created for criminal proceedings, should use to file documents with the
habeas corpus and extraordinary writs. Court. You are not required to use these
forms, but you may find them helpful.
A person representing himself or herself is
called a self-represented or pro se
1
Lastly, this Handbook does not provide all
the details that are included in the Montana
Rules of Appellate Procedure. If there is
any conflict between this Handbook and the
Rules, the Rules govern.
2
STARTING AN APPEAL 4. Pay a $100 filing fee to the Clerk of
the Supreme Court at the time you
What can be appealed? [Rules 4 and 6] file your Notice of Appeal.
Most appeals are from a district court’s final
judgment. That is the written order issued a. If you cannot afford to pay
at the end of a case that settles all claims of the filing fee, you may ask the Court
both parties. It’s also called an order or final for permission to appeal without
order. It may be the verdict of a jury or a paying the fee. (The following
ruling made by the trial judge. section explains how to do this.)
Also, people may appeal from an order that b. If you file the Notice of
is issued after the final judgment. These are Appeal by fax, you must either pay
called postjudgment orders. the filing fee or file a motion to
proceed without paying the filing fee
Often the district court makes many rulings (the following section explains more
before the case is over. These rulings are about this) with the Clerk of the
called prejudgment rulings. Most Supreme Court within 5 business
prejudgment orders are not appealable at days. Otherwise, the Clerk of the
the time they are issued but some are. Supreme Court will not file your
Review Rule 6 if in doubt. appeal.
How do I file an appeal? [Rule 4]
Once the ruling you are appealing has been IMPORTANT: If you do not pay the filing
issued, you must do the following five fee or file the motion to proceed without
things: paying the filing fee, the Clerk of the
Supreme Court will not file your appeal.
1. Complete a Notice of Appeal. Form
4(2) is included in this Handbook. 5. Serve a copy of the Notice of
(Form numbers match the applicable Appeal, Form 4(2), and the original
Rule.) transcript request, Form 8(3), on the
clerk of the district court. Also serve
2. Complete a request for transcripts. a copy of each on: (1) the other
Form 8(3) is included in this parties in the case, or their
Handbook. attorneys, and (2) the court
reporter. For more information, see
IMPORTANT: The following steps 3 – 5 SERVING DOCUMENTS and RECORD
must be done on the same day. AND TRANSCRIPTS on page 6.
6. Some cases require mediation. See
3. File the original Notice of Appeal
and a copy of the request for pages 8-10 for more information.
transcripts with the Clerk of Also now is the time to decide if
Supreme Court. Address of Clerk’s you’re going to ask for a stay of
office can be found on page 5. execution of your judgment. See
page 6 for more information.
3
IMPORTANT: Be sure to keep a copy of the proceed without paying the filing fee.
Notice of Appeal and all other documents However, you must pay all other costs, such
that you file during your appeal for your as the costs of transcripts.
own records.
If the Court denies your motion, you will
I can’t afford to pay the filing fee. How do receive an order telling you that you must
I ask the Court for permission to appeal pay the fee by a certain date. If you do not
without paying the fee? [Rule 5] pay the fee by the date stated in the order,
If you cannot afford to pay the $100 filing the Clerk of the Supreme Court will not file
fee when you file your Notice of Appeal, your appeal.
you may file a “motion” asking the Court to
allow you to appeal your case without When do I file a Notice of Appeal? [Rule 4]
paying the fee. Form 5(a) is included in this The answer to this question depends on
Handbook. who the other party to the case is and what
kind of case it is.
Form 5(a) is a combined Motion and
Affidavit in Support of Motion to Proceed In most cases, you have 30 calendar days to
on Appeal without Paying the Filing Fee. file your Notice of Appeal after the ruling
Use this form to explain your financial you are appealing was filed in the district
circumstances to the Court and prove that court. However, if any government or
you cannot afford to pay the fee. You must government agency or employee is a party,
swear that everything in the motion is true including the United States, the State of
and you must sign the motion in front of a Montana, a city or a county and any
notary public. (A notary public is a special governmental officer or agency, you must
official who is allowed to witness a file your Notice of Appeal within 60
signature and testify that it is authentic. calendar days. If your appeal involves a
Banks, insurance companies and State and “youth in need of care,” and the
federal government offices usually have a government is the other party, you must file
notary public who can notarize the form for your Notice of Appeal within 30 calendar
you.) days. For information on counting the 30 or
60 days, see the following section.
File your notarized Form 5(a) with the Clerk
of the Supreme Court at the same time you How do I count the days? [Rule 3]
file your Notice of Appeal. If you are an It is very important that you file all required
inmate filing a civil appeal, file Form 5(a)I documents, not just the Notice of Appeal,
which does not need to be notarized. with the Clerk of the Supreme Court on
Unlike most other motions (discussed later time. If you do not file a required
in this Handbook), you need to file your document on time, the Clerk of the
original motion but you do not need to file Supreme Court can refuse to file the
copies of your motion, supporting document and the Court may deny or
documents, a proposed order or envelopes. dismiss your appeal.
If the Court grants your motion, you will Because filing even one day late can cause
receive an order telling you that you may you to lose your right to appeal, you must
4
know how to count the days. The following
example may help: To ask the Court’s permission, file a
document called a “Petition for An Out-of-
If you want to appeal a judgment or order Time Appeal,” also called a “Petition for
that was filed in the district court record on Late Appeal.” Form 4(6) of this Handbook is
March 1 and you are allowed 30 days to file a sample Petition to help you. In the
your appeal, begin counting the days on petition explain why you did not file your
March 2. March 31 would then be the 30th appeal on time and why you should be
day and the day on which the Notice of allowed to file a late appeal. Explain how
Appeal must be filed. you will be harmed if the Court doesn’t let
you file your appeal.
This same counting method is used for all
deadlines for all documents. Just The Court does not usually allow late
remember, do not count the day that your appeals. And it will not let you file a late
appealable judgment or order was filed. appeal if you simply forgot to file on time,
Also, don’t count the day the brief or you were unsure whether you needed to
document you are responding to was filed. file a Notice, or you didn’t know how to file
an appeal.
If the day your document is due falls on a
weekend or a legal holiday, you must file Attach any records, partial transcripts and
your document on the next business day. other evidence that proves that what you
For example, if your filing date falls on say in your petition is true. You must also
Thanksgiving, you must file by close of swear, in an affidavit, that what you say in
business on the Friday after Thanksgiving. the petition is true.
All filings must be made between 8 a.m. and
5 p.m. If you are going to mail your File your original petition and 7 copies with
document to the Clerk, allow enough time the Clerk of the Supreme Court. Also serve
for the mail to deliver it. The Clerk of the a copy of your petition on the other parties.
Supreme Court must receive the document
by 5 p.m. on the day it is due. A petition under this rule is the only way to
ask the Court for permission to file a late
If you think you’re running out of time and appeal.
might not be able to file your document on
time, you may file a Motion for Extension of Where do I file my Notice of Appeal? [Rule
Time. To learn how to do this, see the 4]
Motion for Extension of Time section of this You file your Notice of Appeal with the
Handbook on page 16. office of the Clerk of the Supreme Court at
the following address:
What if I didn’t file my Notice of Appeal on
time? [Rule 4(6)] Clerk of the Supreme Court
If you did not file your Notice of Appeal on Room 323, Justice Building
time, the Court will probably not consider 215 N. Sanders
your appeal, but you may ask the Court to P.O. Box 203003
let you file a late appeal. Helena, Montana 59620-3003
5
deliver the document. But you must do it
Phone: 406-444-3858 on the same day you file or send the
FAX: 406-444-5705 document to the Clerk of the Supreme
Hours: Monday - Friday 8 a.m. to 5 p.m. Court.
Does filing an appeal stop the district To prove that you served a document,
court’s judgment from being enforced? attach a “Certificate of Service” to the
[Rules 22 and 23] document you’re filing. This certificate also
No. To stop the judgment against you from may be called a Proof of Service, Proof of
being enforced while you appeal, you must Mailing, or Certificate of Mailing. A
file one of the following with the district Certificate of Service is included in each
court: form provided in this Handbook. Form
● a motion for a stay of execution of 10(4) is an example of a Certificate of
the judgment or order during Service. The certificate lists the names and
appeal; addresses of the people served. If you are
● a bond for enough money to cover serving a party who has an attorney, you
the amount of the judgment, must serve the attorney, NOT the party.
interest and costs, or The Certificate of Service also states
● a motion for injunctive relief. whether you mailed the document or hand-
delivered it and the date you mailed or
The order of the district court granting or delivered it.
denying a stay of execution of judgment
must be filed promptly with the Clerk of the You will use this Certificate of Service on
Supreme Court. every document you file during your appeal.
If you make a master copy of it, you will
If the district court grants you a stay of save yourself time and you will know that
execution, the Court may require you to file the right people were served at the correct
a bond for enough money to cover the addresses.
judgment, interest and costs on appeal. A
mere promise to pay if you lose the appeal For the Notice of Appeal, remember you
is not enough. The rule for bonds is very must also serve the clerk of the district
technical. If you want to use this method to court and the court reporter.
stay your judgment, read Rule 24 carefully
and make sure you file all necessary RECORD AND TRANSCRIPTS
documents on time. If you can’t afford a
bond, you can file a motion asking the Court What happens after I file my Notice of
to allow you to appeal without a bond. Appeal? [Rule 8 and 9]
Several things happen after you file your
SERVING DOCUMENTS Notice of Appeal. First, the clerk of the
district court begins preparing your trial
What does “serve” mean and how do I record. This record is made up of all the
prove I served someone? [Rules 10 and 13] original documents and exhibits filed in
“Serving” a document means to give a copy your case with the district court. In other
of it, and any attachments to it, to the other words, all documents from the complaint
parties. You may either mail or hand-
6
through the final judgment, plus any If you cannot afford the whole transcript,
postjudgment rulings. The clerk of the you may be able to work with the court
district court also keeps a list of all the reporter to get a partial transcript. If you
documents and the date they are filed. This can’t get a partial transcript, you may go
list is called a docket, or case register. On forward with your appeal, but know that
the docket sheet, each document is given a without the transcript you may not be able
number. to show that the trial court made a mistake.
While the clerk of the district court is What if the court reporter can’t get the
preparing the trial record, the court transcript prepared on time? [Rule 9(4)]
reporter is preparing the transcript you At times, the court reporter may be so busy
requested. (See subparagraph 5 of How do I that he or she cannot get your transcript
file an appeal?) When the transcript is prepared and sent to the Court within 40
ready, the court reporter may send it to the calendar days. If this happens, the court
clerk of the district court or send it directly reporter will ask the district court for an
to the Supreme Court. extension of time. The district court will
probably give the court reporter an
The trial record, the docket, and the additional 50 days to complete your
transcript make up the record on appeal. transcript. If the transcript is still not ready
The record on appeal must be sent to the when the extension expires, you must file a
Supreme Court within 40 calendar days of Motion for Extension of Time to Transmit
the day you filed your Notice of Appeal. the Record with the Clerk of the Supreme
The clerk of the district court usually sends Court. The court reporter must prepare an
the record automatically, but you should affidavit explaining why the transcript is late
check to make sure. Under the rules, the and when it will be ready. You must attach
Appellant is responsible for making sure the this affidavit to your motion. See the
Supreme Court gets the record and any MOTIONS section of this Handbook on page
transcripts. The Appellant is required to pay 14 for information on filing motions with
the district court’s transfer fee. The the Supreme Court.
Appellant is not required to pay the costs of
mailing the record to the Supreme Court but What if there is no transcript? [Rule 8]
is required to pay the mailing costs when Sometimes there is no transcript available.
the record is returned to the district court at For example, if the judge decides the case
the end of the appeal. [Rule 9] based upon documents filed with the
district court, rather than at a hearing or a
Do I have to pay for the transcripts I trial, there may not be a transcript. If this
request? [Rule 8] happens, review Rules 8(7) and 8(8) to see if
Yes, you must either pay for the transcript you should use another method to get your
at the time you order it or make payment statement of the evidence before the Court.
arrangements with the court reporter.
Transcripts can be expensive and generally What else should I be doing while the
cost about $1,000 for a full day of trial. The record and transcripts are being prepared?
Supreme Court will not order a court You must decide whether:
reporter to give you a transcript if you
cannot afford to pay for it.
7
● your case involves a constitutional Do I appeal and mediate at the same time?
question that requires a special [Rule 7(3)(b)]
notice (see Rule 27), Yes. You must file your Notice of Appeal,
● your case requires mediation, or request transcripts, and meet all briefing
● you want to ask the district court to deadlines in your appeal while you go
stay execution of your judgment. through mediation. Then, if you don’t
settle your case in mediation, the Court has
MEDIATION [Rule 7] everything it needs to decide your appeal.
The Rules require that parties to certain
types of cases go through mediation as part Know that your Opening Brief with the Clerk
of the appeals process. The goal of of the Supreme Court may be due before
mediation is to see if the parties can resolve mediation is complete.
their differences before the Court actually
considers the issues on appeal. How does the mediation process begin?
[Rule 7(4)]
What is mediation? If your case must be mediated, you and the
Mediation is a process where the parties other party must choose a mediator within
meet in person or by telephone with a 15 calendar days after the Notice of Appeal
“mediator” and try to settle their case. is filed. The Clerk of the Supreme Court can
give you the names of mediators that may
IMPORTANT: Mediation takes place at the be able to help you.
same time you are appealing your case.
What is a mediator? If you and the other party agree upon a
A mediator is someone who is trained to mediator, you must notify the Clerk of the
help people who are having a legal dispute Supreme Court, in writing with signatures
find an agreeable solution. A mediator is a from all parties.
neutral third party who does not represent
either side. He or she will conduct the If you and the other party cannot or do not
meeting with the parties and try to help agree on a mediator within the time
them settle the case. allowed, the Clerk of the Supreme Court will
appoint one.
What cases must be mediated? [Rule 7(2)]
The types of cases that must go through Is the mediator paid? [Rule 7(4)]
mediation are: In most cases, the parties must share the
● workers’ compensation cases;
cost of the mediator. But in money
● cases where one of the parties asked
damages cases where less than $5,000 was
for money damages or money awarded to a party, the mediator does not
damages were awarded by the get paid.
district court to one of the parties; What happens after a mediator is chosen?
● cases involving certain family issues, [Rule 7(5)]
such as divorce and child custody. Within 15 calendar days after the mediator
Child abuse and neglect cases, is selected, you must write a statement of
paternity disputes, and adoptions do position and give it to the mediator and the
not require mediation. other party. The other party will respond
8
to your statement of position within 7 everyone together in person, he or she may
calendar days. allow a telephone meeting.
What is a statement of position? [Rule The mediator will choose how to conduct
7(5)] the meeting and will explain the process to
A statement of position tells the mediator the parties. The mediator will ask questions
what issues you will be asking the Supreme to see if there is anything in the case the
Court to rule on and why you think the parties agree upon. The mediator is trying
Court should rule in your favor. Your to find common ground that may let the
statement must “cite legal authority.” This parties settle the case without the expense,
means that you must find cases or statutes time, and stress of preparing briefs and
that support your argument and include getting an opinion from the Supreme Court.
these citations in your statement. Refer to The mediator is also trying to make sure the
“Citation to Authority” in the Glossary for Court doesn’t waste time on issues not in
an example of how to cite a case and a dispute. Mediation may last one full day or
statute. more.
The other party’s response should contain After the mediation meeting, the mediator
his or her argument why the Court should files a report with the Clerk of the Supreme
rule in his or her favor. Court telling the Court whether the case
settled or not. The mediator gives the
The statement of position cannot be longer parties a copy of this report. If the case
than 10 typewritten pages and must be settled, the Court will dismiss the appeal 30
double spaced. calendar days after settlement unless one
of the parties files a motion to keep the
At the same time you give your statement case open.
of position to the mediator and the other
party, you may also give the mediator a Mediation must be completed within 75
separate Confidential Statement. If you calendar days after the Notice of Appeal is
choose to give a Confidential Statement, it filed. The Court is not involved in the
cannot be longer than 5 double-spaced mediation process.
pages. The Confidential Statement would
include any additional information that you Can things that are said or documents that
think could help settle the case. You do not are shared during mediation be used later
have to serve the Confidential Statement on in the appeal if the case doesn’t settle?
the other party and the mediator will not No. Everything that is said or shared during
share this information with the other party. mediation is confidential. If the parties
continue with their appeal, they may not
What happens after the mediator gets the refer to any statements or documents given
statements? [Rule 7(5)] to the mediator, unless the statements or
After the mediator receives both documents are part of the record on
statements of position, the mediator appeal.
arranges for everyone to meet. If the
mediator decides it’s too hard to get
9
If the case does not settle, what happens
next? IMPORTANT: If you do not file your brief or
Your appeal goes forward. While mediation motion asking for more time within 30
was taking place, you probably received a calendar days, the Supreme Court may
notice from the Clerk of the Supreme Court dismiss the appeal, without any further
telling you that the Clerk had received the notice to you.
district court record. That notice told you
that you had to file your opening brief What is the purpose of an Appellant’s
within 30 calendar days after the Clerk Brief?
received the record. You must file your Your brief is your chance to tell the
brief by the date it is due even if mediation Supreme Court why you think the district
is still taking place. court’s decision is wrong. You need to tell
the Court what mistake or mistakes the
You may file a motion for extension of time district court made. You should be
to file an opening brief on appeal. The respectful to the opposing party, the district
Court will give you a 30 day extension if court and the Supreme Court. The focus of
your case is in mediation. For more the brief should be on the law and the facts.
information, see the section below on page You need to explain how the law applies to
16 called Motion for Extension of Time. the facts of your case. You must not lie or
misrepresent the facts. You may not
include new facts that were not presented
BRIEFS to the district court.
I. If I am the Appellant, when do I file my The Supreme Court will not do legal
Appellant’s Brief? [Rule 13] research for you or try to guess what your
The Clerk of the Supreme Court will send a argument is. Also, you need to know that a
“Notice of Filing” to all the parties when it district court’s decision is presumed to be
receives the district court record. This correct. You have the burden of showing
notice will state that the Appellant’s brief is that the district court was wrong. If the
due 30 calendar days from the date the Court can’t figure out what you are arguing
record was filed. The Notice will not tell in your brief, you will lose.
you the actual date your brief is due. You
must figure that out yourself. Use the How What does an Appellant’s Brief look like?
do I count the days? section on page 4 of [Rule 11]
this Handbook. The Rules describe how a brief must look
and what it must contain. A Brief Checklist,
If you cannot file your brief within 30 days Form 11, is included to help you with the
of the date the Notice was filed, you may information in the next two sections of this
ask the Court for more time by filing a Handbook. You may use it to make sure
Motion for Extension of Time. Form 26 is a you completed all of the necessary steps.
sample Motion for Extension of Time. Also,
the MOTIONS section of this Handbook on All briefs must be on white paper that is 8.5
page 14 will give you more information on inches by 11 inches. Every page must be
filing a motion with the Supreme Court. numbered and have 1 inch margins all
10
around. The text of the brief must be available on the Court’s website,
double-spaced. Your brief may not be more www.courts.mt.gov. You can search these
than 30 typewritten pages or 10,000 words. documents online by using words or legal
If you prepare your brief on a computer, terms. For example, if you want to find
use 14 point Times New Roman font. The briefs or decisions about easement or right-
word and page limits do NOT include the of-way disputes, type in easement or right-
table of contents, table of authorities, of-way. Reviewing briefs in other cases may
certificate of service, certificate of help you draft your brief. Also researching
compliance, or any appendix or and reviewing decisions by the Supreme
attachments. Court, whether these decisions are on the
Court’s website or on a legal internet
Use a light blue cover page on your opening database, is a necessary part of writing your
brief. (Dark or bright blue is discouraged brief and identifying legal authority. The
because it’s hard to read and may not State Law Library can provide you with
recycle.) Do not use clear plastic cover copies of briefs, decisions, court rules,
sheets over your cover page. Form 11(6)(b) statutes, and cases you have found during
is an example of a cover page. Review it so your research. But the Library WILL NOT do
you will know what information you must your research for you. The Library can be
include on your cover page. reached at 1-800-710-9827 or 1-406-444-
3636. You may also contact the library by
Bind your brief on the left side. Spiral sending an e-mail to mtlawlibrary@mt.gov.
binding is preferred but if that is not
available, you may simply staple the brief As Appellant, what must my Brief contain?
together in the upper left corner. [Rules 11 and 12]
The first page of your brief is a copy of your
If the Court determines that you didn’t brief’s cover sheet only on white paper.
sufficiently comply with these Rules, your The second page of your brief is a Table of
brief may be returned to you. If it is Contents that lists the following; together
returned to you, the Court will bill you for with the page number upon which each
the costs of postage. The Court will attach section starts:
an order telling you what you did wrong. ● Table of Authorities
The order will also tell you how long you ● Statement of the Issues
have to correct your brief and re-file it. If ● Statement of the Case
you don’t correct it and re-file it in time, the ● Statement of the Facts
Court will probably dismiss your appeal. ● Summary of Argument
● Standard of Review
If your argument is so confusing or poorly ● Argument
developed that the Court is left to guess ● Conclusion
what your argument is and what law might ● Certificate of Service
support it, the Court will probably dismiss ● Certificate of Compliance
your appeal. ● Attachments
Briefs filed with the Montana Supreme A Table of Authorities lists the cases you
Court, as well as decisions by the Court, are refer to in your brief in alphabetical order.
11
It then lists the statutes or rules that you first page of each document. For example,
refer to. It also shows which page the cases the complaint is usually the first document
and statutes are referenced in your brief. on the docket. You would cite to it as
Form 12(1)(a) is a sample Table of follows: Complaint, District Court Doc. 1,
Authorities. page 3. Identifying the page number where
the information can be found is helpful.
Usually the issues in the Statement of the
Issues are questions that tell the Court what Again, do not refer to facts or documents
mistake the district court made. For that are not in the district court record. The
example: Did the district court err in Supreme Court will not consider testimony,
granting Appellee John Smith’s motion for documents, exhibits or records that the
summary judgment? district court did not see or hear. The
purpose of your appeal is to show that the
The Statement of the Case is usually a district court made a mistake. If you did not
paragraph or two telling the Court what ask the district court to consider a fact or an
type of case it is and what the district court issue, you may not ask the Supreme Court
decided. For example, the type of case to rule on it.
could be a child support case. Or it could be
breach of contract or a disagreement over If you or your trial counsel failed to include
property rights. an important fact, or evidence in the
record, you have no right to appeal based
In your Statement of Facts, you may not on that fact or evidence because it was your
rely upon any facts that the district court mistake, not the district court’s. However,
did not have before it. The Supreme Court if the district court refused to admit and
will decide your case based on the evidence consider evidence you offered, you may
in the record on appeal. Therefore, each include the court’s refusal as an issue in
time you list a fact in your case, you must your appeal.
tell the Court where that fact can be found
in the transcript or district court record. For In your Summary of Argument, give a very
example, if you want to use a fact that you short version of each argument you will
gave the district court during trial, you make in the Argument section.
would find that fact in the record or trial
transcript. You would then tell the Supreme Before you present any arguments, you
Court in your Statement of Facts what page must tell the Court how it should review the
it is on. If it was on page 57 of the district court’s decision. How the Supreme
transcript, it would look like this: Tr. 57. Court reviews a district court’s judgment is
called the Standard of Review. The Court
If the fact you wish to tell the Supreme has several different standards it uses. For
Court is in a document you filed in your example, the Supreme Court reviews
case, you would tell the Court the name of whether the district court wrongly admitted
the document and the docket, or case evidence for an abuse of discretion. It
register, number the district court gave that reviews whether the district court got the
document. The document number usually facts wrong for clear error. And it reviews
appears in the bottom right corner of the
12
the district court’s legal conclusions for The Certificate of Compliance may be on
correctness. the same page as the Certificate of Service
or on a separate page. It states that your
You must tell the Supreme Court the proper brief is not too long and complies with Rule
standard of review for each issue you raise. 11. As required in the Rules, your opening
Give the name of at least one case that brief may not be longer than 30 typewritten
shows you have identified the correct pages or 10,000 words. The Certificate of
standard. This is called “citing legal Compliance tells the Court how many pages
authority.” or how many words your brief has. Form
11(4)(e) is an example of a Certificate of
Only cite published Montana Supreme Compliance.
Court Opinions. If the first paragraph of an
opinion states that it “shall not be cited as The only Attachment you must include is a
precedent,” it is a non-published opinion copy of the district court’s final order or
and you may not cite it. Examples of case judgment you are appealing. But you may
citations are: attach other documents from the record
that you believe support your argument. If
In re Marriage of Maxwell, 248 Mont. 189, you are attaching only the judgment, you
810 P.2d 311 (1991). may bind it with your brief. If you are
attaching the judgment and several other
State v. Abe, 1998 MT 206, 290 Mont. 393, documents, put them in a separate binding
965 P.2d 882. named Appendix. Put a white cover page
on it and include a table of contents listing
The Argument section of your brief is where each attached document. Separate each
you explain why the district court wrongly document with a tabbed page using only
decided each of the issues you raise. Make paper, not plastic-coated, tabs.
your argument as understandable as
possible. You must recite the facts and law Is there any information I may not include
that support each argument. Refer to in the briefs? [Rule 10(6)]
Montana case law, statutes, rules, or Yes. Carefully review Rule 10(6) and use
sections of the Montana constitution that initials instead of full names of parties and
support your argument. their children if you appeal involves
proceeding under any of these titles and
Your Conclusion should tell the Court what chapters.
you are asking it to do. For example: The How do I file my brief? [Rule 13]
Court should reverse the judgment of the Hand-deliver or mail your original brief and
district court and remand the case to the 9 copies to the office of the Clerk of the
district court for a trial on the merits. Supreme Court at the address on page 5 of
this Handbook. Before you file it, be sure to
The Certificate of Service is discussed in the review the Brief Checklist, Form 11, to make
SERVING DOCUMENTS section on page 6. sure you have complied with all the rules.
Form 10(4) is an example of a Certificate of You may NOT fax your brief to the Clerk for
Service. filing.
13
When all the briefs have been filed with the
On the same day you mail or hand-deliver Clerk of the Supreme Court, the Clerk will
your brief to the Clerk’s office, serve your deliver them to the Supreme Court justices.
brief on the other parties. See the section The Chief Justice will then assign the case to
above called What does “serve” mean and a panel of five justices or to the entire
how do I prove I served someone? Court. This process is called classification.
After the Court decides how the case will be
II. What if I am the Appellee? [Rules 11, classified, it will issue an Order letting the
12 and 13] parties know the Court is reviewing the
If you are the Appellee in a case, after case. The Court may issue its Opinion
receiving a copy of Appellant’s opening within days or months of receiving the
brief, you will have 30 calendar days from briefs, depending on the complexity of the
the date on the Certificate of Service in the case.
Appellant’s brief to file your answer. Your
brief is called Appellee’s Response Brief. MOTIONS
You may file a Motion for Extension of Time
if you can’t file the brief on time. What is a motion?
This Handbook has stated several times that
Unlike the Appellant, you may file only one parties to an appeal may file a motion with
brief on appeal—your Appellee’s Response the Court. A motion is a written document
Brief. a party files with the Court asking the Court
to do something or to permit the parties to
The Appellee’s brief must have a salmon- do something.
colored cover. Other than the color of the
cover page, all the requirements for the What kinds of motions can be filed with
Appellant’s brief apply to the Appellee as the Supreme Court?
well. Motions typically filed during a civil appeal
are:
If I am the Appellant, may I respond to the ● Motion to Proceed without Paying
Appellee’s Brief? [Rules 11 and 13] the Filing Fee
Yes, you may file a reply brief, but you are ● Motion for Extension of Time
not required to do so. You must file it and 9
copies within 14 calendar days of the What must a motion contain? [Rule 16]
Certificate of Service date in Appellee’s If you file a motion with the Court, you must
response brief. In your reply brief, you may clearly tell the Court what you want, and
ONLY address arguments raised in the why you need it.
Appellee’s brief. You may not raise any new
arguments or rehash issues that were raised You must also tell the Court in your motion
in your opening brief. Your reply brief may whether any of the other parties object to
not be longer than 14 typewritten pages or your motion. This means you must ask each
contain more than 5,000 words. The cover opposing party if he or she objects to it. If
page must be gray. the party has an attorney, ask the attorney.
If you do not tell the Court whether another
III. What happens after the Supreme party objects, the Clerk will not file your
Court receives all the briefs? motion. (If you or the other party is an
14
inmate, neither party is required to contact The Court will use these envelopes to send
the other or to tell the Court that the other its Order to you and the other parties.
party was contacted.)
If the other party objects to your motion,
If you have any documents that support file your original motion stating that there is
your motion, you may attach them to your an objection, attach any supporting
motion. documents and 7 extra copies of the motion
and the supporting attachments with the
What does a motion look like? [Rule 11] Clerk. You do not need to attach a
The following rules that apply to briefs also proposed order or addressed envelopes.
apply to most motions, including motions Just because the other party objects, this
for extension of time discussed below: does not mean that the Court will deny your
● 8.5 x 11 inch white paper motion. The Court will rule on your
● 1 inch margins motion, prepare an order, and send it to
● Double spaced you and the other parties.
● Each page numbered
● 14 point Times New Roman font if If you are filing a Motion for Extension of
computer generated Time, see the section below for more
● Sign the original motion information.
● Attach Certificate of Service
● Attach Certificate of Compliance Do I serve my motion and all supporting
● Staple in the top left corner documents on the other parties? [Rule 16]
● Serve all the parties Yes.
The following rules apply just to motions: What if the other party filed a motion, may
● 5 typewritten pages or no more than I respond to it? [Rule 16]
1,250 words Yes. If you oppose the other party’s
● No cover sheet motion, you may file an objection asking the
Court to deny the motion. Form 16(2) is a
How do I file a motion? [Rule 10] sample Response and Objection to Motion.
If the other party does not object to your Your objection to the motion must be filed
motion, file your original motion, with any within 11 calendar days of the day the
supporting documents you may have, with motion was filed. Your response to the
the Clerk of the Supreme Court. You do not motion must meet the requirements of Rule
need to include extra copies of the motion, 11 listed above in the section What does a
but you should include a proposed order motion look like?.
that you would like the Court to sign. There
are examples of several motions in the If I filed the motion, may I reply to the
Forms section of this Handbook. At the other party’s response? [Rule 10]
time you file your motion, give the Clerk No.
envelopes that are addressed to yourself
and to each party, or his or her attorney.
Make sure to put stamps on the envelopes.
15
Motion for Extension of Time If the other party does not object to the
Court giving you extra time, the Clerk will
What is a Motion for Extension of Time and grant your motion and give you 30 more
how do I file one? [Rule 26] days to complete the task. Thirty calendar
If you have a good reason for not days is usually the most the Clerk or the
completing a task during the time allowed, Court will grant in extensions.
you may ask the Court for more time. You
do this by filing a Motion for Extension of Just because the other party objects does
Time. You may ask for extra time to file not mean that the Court will not grant your
your opening brief, a response, or to comply motion for extension of time.
with a deadline or order from the Court.
If you ask for a second extension, you must
In your motion, tell the Court: have a very good reason. You also have to
● what task you need more time to attach a notarized affidavit to your motion
complete, explaining in detail the reasons why you
● when the task was due, need more time than the Court gave you in
● how much more time you need, your first extension. A statement that you
● why you should be allowed to were busy, or had other business that kept
complete the task late, and you from filing the brief on time will not be
● whether or not the other party good enough to persuade the Court to grant
objects to the Court granting you your motion.
extra time.
After you file the motion for more time, the
Also, be sure to: other party may file an objection to the
● sign and date your motion, extension of time, or move to dismiss the
● attach a Certificate of Service, appeal because you did not follow the Court
● attach a proposed order with Rules, or both.
enough copies of the order to be
sent to you and the other party (or DISMISSING AN APPEAL [Rule 16]
his or her attorney),
● provide addressed and stamped What if I want to dismiss my appeal?
envelopes for each party (or his or At any time during the appeal before the
her attorney) and yourself, and Court has issued its Opinion, you may
● serve your motion with all dismiss your appeal. To do this, you must
supporting documents on the other file a motion to voluntarily dismiss. Form
parties. 16(4) is included in this Handbook. Also
review the How do I file a Motion? section
Form 26 is a sample Motion for Extension of of this Handbook on page 15. That section
Time. will give the information you need about
filing your motion.
File this motion at least 7 calendar days What if the other party moves to dismiss
before the task is due. the appeal?
You may file an objection asking the Court
to deny the motion. If you agree to dismiss
16
the appeal, you should notify the Court that parties settled the appeal by
you agree. agreement; or the appellant
decided to dismiss the
appeal after it was filed. The
FINAL DECISION BY THE SUPREME COURT Court can also dismiss an
What kind of rulings does the Court issue? appeal for failure to follow
[Rule 19] the rules of the Court.
After the Court decides a case on appeal, it Can the Supreme Court order a losing party
issues its ruling, called an Opinion. The to pay the costs of the winning party?
Court’s Opinion may be one of the [Rule 19]
following: Three types of money issues may arise in an
● The Court may uphold, or “affirm,”
appeal—costs of the appeal, interest on
the district court’s decision. This judgments, and sanctions.
means that the Supreme Court
agreed with the district court’s A winning party may ask the Supreme Court
decision. to make the losing party repay it for the
● The Court may “reverse” the district
money spent on the appeal. Typical costs
court’s decision. Sometimes after a include:
reversal, the Court may “remand,” ● copying briefs and documents
meaning it will send the case back to ● mailing or sending the record
the district court, for another ● transcripts, if necessary to decide
hearing or entry of a judgment in the appeal
your favor. ● the appellate filing fee, if it was paid
● The Court may reverse some of what
the district court decided and affirm Attorney’s fees are NOT costs. Montana
some of it. follows the general rule that each party
● The Court may dismiss the appeal.
pays its own attorney. A self-represented
There are two types of dismissals: litigant is not an attorney licensed to
with prejudice and without practice law and is not entitled to claim
prejudice. Dismissal with prejudice attorney’s fees. However, if your appeal is
means the case is over. The parties determined to be frivolous, you may be
cannot litigate the issues again ordered to pay the other party’s attorney
either in the district court or the fees.
Supreme Court. An appeal that is
dismissed without prejudice can be If you are appealing a money judgment, and
re-filed later. This usually occurs you lose in the Supreme Court, you must
when the appeal was filed too soon, pay interest on the judgment from the time
for example, before a final order the judgment was made final in the district
was issued. court. Under Montana law, interest is 10%
○ Dismissal can occur for other
annually.
reasons too. For example,
the appeal did not meet the It is possible that the Supreme Court may
requirements of Rule 6; the award sanctions against a party. A sanction
17
is a punishment for failing to do something
the Court told you to do or for filing a
frivolous or mean-spirited appeal, petition
or motion. This is not a common thing for
the Court to do, but you should know the
Court has the power to do it.
If the Court awards costs, fees, or sanctions,
the district court will determine the
amount.
What if I don’t agree with the Supreme
Court’s decision? [Rule 20]
Rule 20 allows a party to ask the Supreme
Court to reconsider its ruling only if the
Court made one of the errors listed in Rule
20.
Generally, a Supreme Court ruling is the
final decision in a case.
As noted above, the Clerk of the Supreme
Court will return the district court record to
the clerk of the district court at the end of
the appeal. The Clerk of the Supreme Court
will charge the Appellant for the mailing
costs of returning the record.
18
GLOSSARY OF LEGAL TERMS
Administrative Agency: A public agency usually associated with the State or Federal
government. For example, the Montana Department of Labor is an administrative agency.
Affidavit: A voluntary written statement that the writer swears contains only the truth. It must
be signed in front of a notary public.
Affirm: To confirm or agree with the decision or action taken by the district court.
Anders Brief: A brief filed by a court-appointed criminal defense attorney who wants to
withdraw from the case on appeal because the attorney believes the appeal is frivolous.
Appeal: A review of a case requested by one of the parties to the Montana Supreme Court. In
the appeal, the Montana Supreme Court will review what happened before the district court to
determine if errors occurred that were significant enough to require some form of relief to the
party that filed the appeal.
Appellant: The party appealing a decision. This is the party who lost in the district court and
wants the Supreme Court to reverse or modify the judgment of the district court. The
Appellant has the burden of proving that a significant error or mistake occurred in district court.
Appellee: The party who won in the district court. This party usually wants the Supreme Court
to agree with the decision of the district court.
Attorney: A person who has been trained and licensed to represent others in legal matters.
Also known as a lawyer or counsel.
Bench Trial: A trial without a jury in which the trial judge makes the final decision in the case.
As an appellate court, the Montana Supreme Court does not conduct trials. District courts
conduct trials.
Bond: An appeal bond is a written promise to pay the cost of the appeal and the judgment you
are appealing if you lose your appeal.
Burden of Proof: The duty to prove a disputed claim or charge. It includes burden to produce
information and the burden to persuade. For example, if you file an appeal in the Montana
Supreme Court, you have the burden of proof. As another example, if you are a prisoner filing a
petition for a writ of habeas in the Montana Supreme Court, you have the burden of proof.
Brief: A written presentation of arguments. The Appellant argues how the district court made
legal mistakes in its decision. The Appellee argues that the district court was correct.
19
Caption: The part of a legal document that includes the name of the court where the
proceeding is taking place, the cause number, and names of the parties and their respective
designations, e.g., appellant, appellee, petitioner or respondent.
Certificate of Service: A written statement truthfully explaining how and when you provided a
document to other parties. The rules require that you send a copy of any document including
the brief that you file with the Court to each opposing party, or the party’s attorney.
Sometimes this is called Proof of Service, Proof of Mailing, or Certificate of Mailing. These
terms mean the same thing. You need to sign the Certificate of Service and date it on the day
you hand delivered the document or put it in the mail.
Citation: A legal citation contains words, abbreviations and numbers in a format that allows a
reader to locate the material in a library, law library, the internet, etc. For example, the
following is a citation to a case: In re Marriage of Pfeifer, 2000 MT 100, 299 Mont. 268, 999
P.2d 340. A statute citation would be Section 20-25-1301, MCA.
Citation to Legal Authority or Cite to Legal Authority: A reference to specific legal authority
such as cases that have been already decided by a court, or laws of the state or the state or U.S.
Constitution that supports the argument a party is making.
Citing: See “Citation to legal authority” above.
Civil Case: A non-criminal lawsuit brought by a Plaintiff who believes the other party, the
Defendant, has committed a wrong against him, such as breach of contract the parties had
entered or damage to a Plaintiff’s property. An appeal of a civil case is a civil appeal.
Clerk of District Court: The district court official who keeps court records and official files. The
clerk of district court also administers oaths to jurors and witnesses. When an appeal is filed,
the Appellant is responsible for promptly contacting the clerk of district court to request the
clerk to send the district court file to the Clerk of Supreme Court.
Clerk of Supreme Court: The Supreme Court official who keeps court records and official files.
When an appeal is filed, the Appellant’s and Appellee’s briefs are filed with the Clerk of
Supreme Court. The Clerk of Supreme Court receives and keeps the district court file until the
appeal is over.
Complaint: A document filed with a district court or justice court to begin a civil case. A
criminal case can also begin by the filing of a complaint by a law enforcement officer or city or
county prosecutor.
Confidential Statement: A written statement given by a party to a mediator containing
information that may help the mediator settle the case.
20
Counsel: An attorney or a lawyer.
Counterclaim: After a plaintiff sues a defendant, the defendant will be served with a
complaint. The defendant will answer the complaint but may also counter-sue the plaintiff.
This countersuit is called a counterclaim.
Criminal Case: A case brought by the government against a person accused of violating
Montana’s criminal laws. An appeal of a criminal case is called a criminal appeal.
Cross-Appeal: An appeal by the Appellee. After an Appellant files an appeal, if the Appellee
believes the district court also made an error that hurts the Appellee, the Appellee will answer
the Appellant’s Brief but will also file a cross-appeal.
Defendant: In a civil case, the person against whom damages or another solution is sought. In
a criminal case, the person who is charged with a crime.
Designation of party: What role the parties have in a case. The party designations are usually
the Plaintiff (the person suing or the State prosecuting), the Defendant (the person being sued
or being prosecuted), the Appellant (the person appealing), and the Appellee (the person or
party who won in the district court).
Discretionary Duty: A duty performed by a public officer that allows the exercise of judgment.
In other words, the public officer may choose to perform that task or may choose to not
perform it. Compare with Ministerial Duty.
District Court: In most cases, the district court is the trial court. However, trials may be held in
justice or city courts and before administrative agencies and then appealed to district court.
This Handbook is only for civil appeals from district court to the Montana Supreme Court.
Department of Corrections (DOC) Commitment: When a defendant is found guilty of a felony
offense based upon a verdict of guilty, a plea of guilty or nolo contendere, the district court
may commit the defendant to the DOC for placement in an appropriate program or facility to
serve a sentence. The DOC then assesses the defendant and determines whether the sentence
will be served in prison, in a special program, on intensive supervision or probation. See
Section 46-18-201(3)(a)(iv)(A), MCA, for exceptions. A DOC commitment may also be imposed
when a revocation of a previous sentence is ordered. All except five years must be suspended
on a DOC commitment. If the suspended portion of the DOC commitment is revoked, however,
the district court does not have to suspend any portion of the commitment.
Docket: A list of documents filed with the Clerk’s office which shows the date on which each
document was filed.
Evidence: Legally relevant information presented at trial through witnesses, documents,
physical objects, etc., for the purpose of convincing the court or jury.
21
Extraordinary Remedy or Relief: When an ordinary remedy such as a direct appeal will not
provide an adequate solution, a person may petition for extraordinary relief under M. R. App. P.
14. The petitioner must establish that urgency or emergency factors exist and the petitioner is
entitled to an order requiring a party or parties to do something, or refrain from doing
something. The petitioner has the burden of proving entitlement to relief, including providing
the Montana Supreme Court with arguments and documents supporting the petition.
Facially Invalid Sentence: A sentence that the court lacked authority to impose. The sentence
is enhanced beyond the term allowed by state law or constitutional limitations. Facial invalidity
can be determined by reviewing only the law or constitutional provision (such as the guaranty
against double jeopardy) and the sentence imposed.
Felony: A major crime punishable by a prison sentence and/or fine.
Filing: Used at times in this Handbook as a noun meaning a document to be filed.
Final Judgment: The final appealable order by the district court in a civil or criminal case. The
order or judgment that resolves all the issues presented to the district court. Also known as the
final order or judgment.
Findings of Fact/Conclusions of Law: Frequently the district court’s final order or judgment is
called “Findings of Fact, Conclusions of Law and Order.” It is a written order where the district
court decides which of the facts are true and relevant and what law applies.
Habeas Corpus: A petition for a writ of habeas corpus may be filed directly with the Supreme
Court as an original proceeding asking the Court to issue a writ of habeas corpus that concludes
that a person is being unlawfully imprisoned or detained. Unless your sentence is facially
invalid, you will not be entitled to habeas relief if your argument was raised or could have been
raised on appeal or in a timely petition for postconviction relief.
Judgment: See “Final Judgment.”
Jurisdiction: The authority or power the court has to act or hear a case and make a decision.
Justices: Judges of the Supreme Court.
Litigants: Parties to a case; the persons named in a lawsuit.
Mediation: A way to settle a case without going to trial. A “mediator” works with the parties
to help them compromise and reach an agreement. In certain cases, the parties to the case
must work with a mediator to try to settle the case while, at the same time, proceeding with
the appeal.
22
Mediator: A person, often an attorney, who is skilled in resolving conflicts between people.
Ministerial Duty: A duty performed by a public officer that is required. No exercise of
judgment is allowed.
Misdemeanor: In Montana, a minor offense punishable by no more than one year in jail, and a
fine of no more than $1,000.
Mistake of Law: A mistake about the legal effect of a fact or situation.
Motion: The written document a party files asking the Court to do something or permit the
parties to do something. (Never send the Court a letter—file your request to the Court as a
motion.) Typical motions filed during an appeal include a motion for extension of time, motion
to proceed without paying the filing fee, and motion to dismiss.
Notary Public: A public official that has the power to witness signatures and have people swear
to oaths.
Notice of Appeal: The written notice filed with the Clerk of Supreme Court and served on the
clerk of the district court, the parties (or their attorneys) to the case, and the court reporter
notifying them that the Appellant is appealing the judgment.
Notice of Filing: Written notice sent to the parties by the Clerk of the Supreme Court.
Opinion: The written decision issued by the Supreme Court at the end of an appeal.
Order: A written decision issued by a court that resolves a petition/motion or directs a party or
parties to do something.
Original Jurisdiction: Not only does the Supreme Court review decisions by the district courts,
but there are issues the Supreme Court will sometimes review before the district court decides
the case. An original petition may be filed by a party to request a form of extraordinary relief
not available through an appeal. Montana Rule of Appellate Procedure 14 explains the Court’s
original jurisdiction.
Parole revocation: When a parolee has violated conditions of parole supervision, there are
procedures the Board of Pardons and Parole must follow to take back the parole. A parole
revocation proceeding allows parolees minimal due process procedures.
Party/Parties: The persons, governmental agencies, companies, or other entities named in a
lawsuit.
Petition: A formal written request made to a court. Also a document filed with a district court
or justice court to begin a civil suit.
23
Petition for Late, or Out-of-Time, Appeal: A formal written request by an Appellant asking the
Court for permission to file an appeal even though the time for filing a Notice of Appeal has
passed.
Petition for Rehearing: A written document arguing why the Supreme Court should reconsider
its ruling on appeal. The petitioner has the burden of proving that the Supreme Court should
rehear the appeal because it overlooked a very important legal principle or fact.
Petition for Writ: A petition filed directly with the Supreme Court that is based upon urgent or
emergency circumstances that requests an extraordinary remedy. Petitions for a writ are the
way to access the court when an appeal is not available or will not provide an adequate
solution to the problem. A petition for a writ of habeas corpus is one type of petition that
alleges that a person is illegally incarcerated.
Petitioner: The party who files a petition. The petitioner has the burden of proof.
Plaintiff: The party who files a complaint in a civil case or the prosecution in a criminal case. In
justice, city, or district court, the plaintiff has the burden of proof.
Plea: A defendant’s response to a criminal charge: “guilty,” “not guilty,” or “nolo contendere”
(not contested).
Plea Bargain: An agreement between a defendant (usually through counsel) and a prosecutor
in which a guilty plea or plea of nolo contendere is exchanged for either a plea to a less serious
charge or lesser sentence and/or dismissal of some charges.
Postconviction Relief: A statutory procedure for a prisoner to ask a district court to vacate or
correct a conviction or sentence.
Postjudgment Ruling or Order: Orders resolving issues after entry of judgment, such as an
order granting or denying a motion to set aside or vacate a judgment for a new trial, or that
maintain the positions of the parties pending the appeal.
Prejudgment Ruling or Order: Any order issued by the district court before the final order.
Proceeding: Examples of legal proceedings are a trial or a hearing.
Pro Se: The Latin term meaning self-represented.
Protected Person: A child under the age of 18 or someone with a guardian to make legal
decisions for him or her.
24
Question of Fact: A question that depends on an examination of facts. Questions of fact are
usually decided by a jury (or by the trial judge in a non-jury trial or proceeding) and are
generally NOT considered in an appeal.
Question of Law: A question that depends on analyzing, interpreting and applying the law.
Such questions are decided by a judge, and are often raised in an appeal.
Record on Appeal: The original papers—complaint, petition, motions, affidavits, exhibits and
court orders filed with the clerk of the district court. The record includes the transcript if it is
used to support an argument made in a brief. The Appellant is responsible for promptly asking
the clerk of district court to transmit or send the record on appeal to the Clerk of Supreme
Court.
Relief/Remedy: A solution to a legal problem. What the party requests the court to order.
Remand: When the Supreme Court returns the case to the district court so that the district
court can correct or change its ruling.
Remittitur: The written document issued by the Clerk of the Supreme Court indicating that an
appealed case is closed. The Supreme Court loses jurisdiction over the appeal when remittitur
is issued.
Respondent: The party against whom a petition is filed.
Reverse: When the Supreme Court sets aside or cancels the result of a district court by making
a different decision.
Revoke or Revocation: When a convicted person has violated the conditions of a deferred or
suspended sentence, a petition for revocation has been filed, and the procedures were
followed to take back the previous sentence and resentence the person to another legal
sentence.
Ruling: Any decision a court makes.
Sanctions: A penalty or punishment imposed by the court for a party’s failure to comply with a
rule, law, or order.
Self-Represented Litigant: A party to a case who does not have an attorney and is representing
himself or herself. Also called a pro se litigant.
Sentence Review: Within 60 days from the date a sentence is imposed, a person sentenced to
a term of one year or more in prison or to the DOC, may petition to have a sentence reviewed
by a three-judge panel appointed by the Chief Justice. The sentence is presumed to be correct,
25
but the judges can increase or reduce the sentence. You have a right to counsel before the
Sentence Review Division.
Serve: To mail or hand-deliver documents in a law suit or an appeal to the other parties, and at
times other relevant persons such as the clerk of the district court and the court reporter. If the
other party has an attorney, you must serve the attorney and NOT the party.
Standard of Review: How the Supreme Court reviews the decision of the district court. The
applicable standard may be whether the district court abused its discretion, the district court’s
decision was clearly erroneous, whether the findings of fact are correct and the court correctly
interpreted the law or others.
Statement of Position: A written statement issued by the parties during mediation setting out
the disputed issues and each party’s legal position on those issues.
Statute of Limitations: The time limit for bringing suit in a civil case. Also, the time limit for
prosecuting a crime, based on the date when the offense occurred.
Stay of Execution: An order postponing enforcement of a judgment until after an appeal has
been decided.
Stipulation: A voluntary agreement signed by opposing parties.
Summary Judgment: A legal ruling issued by a trial judge in a case where the parties agree
about all the relevant facts or the judge concludes that no important facts are in dispute. The
judge’s ruling relates only to legal issues. It usually provides a faster resolution to a case
because no trial is held.
Supervisory Control: The control exercised by the Supreme Court over the other courts in
Montana. A petition for supervisory control asks the Supreme Court to supervise the work of
the lower court, is very difficult to obtain, and is rarely granted.
Table of Authorities: A listing of the legal cases, statutes and other sources used in the brief,
and the page on which each authority was cited.
Time Bar: When the time for raising an issue in a criminal proceeding has passed. For example,
a postconviction petition must be filed within one year of when a conviction became final. If
the defendant fails to file a petition for postconviction relief within that time, the defendant is
usually “barred” from litigating all postconviction issues. Another time bar is when the time for
filing a notice of appeal has elapsed. See section 46-21-105, MCA.
Transcript: The typewritten version of everything that was said at the trial or hearings in the
case. The transcript is prepared by a court reporter. A CD that recorded all the spoken
proceedings may be in the record when you appeal from small claims court, a city court or a
26
justice court. The Appellant is responsible for ensuring the transcript is prepared and sent to
the Supreme Court.
Trial Record: All original documents—from the complaint to the judgment—filed during a case
by the parties to the case in justice, city, or district court.
Venue: The proper place for a trial to be held or a lawsuit to be filed.
Verify: To prove to be true or to swear to the truthfulness of.
Verified Petition: A petition filed with the Court that the petitioner swears in an affidavit is
truthful. Records, transcripts, and other evidence may be attached to help prove the
truthfulness of the petition statements.
Weapon Enhancement: When the use of a weapon can be used to increase a sentence for an
offense that did not require the use of a weapon.
Writ: When a court grants relief in a written order in response to a Petition for a Writ.
Youth in Need of Care: A child, under the age of 18, who a court has determined is or has been
abused, neglected or abandoned.
Definitions in this Glossary came from the following sources: Black’s Law Dictionary, 7th Edition,
Indiana Pro Se Guide to Appellate Procedure, and Dictionary.com.
27
APPENDIX
Resources for Montana Self-Represented Litigants doing Legal Research and Writing
There are books and other resources available to help you learn about legal research and legal
writing. Some are available online, but the majority will require making a trip to a Law Library or
requesting materials on Inter Library Loan through your local library.
The two law libraries in Montana open to the public are:
State Law Library of Montana Jameson Law Library
215 North Sanders University of Montana
Helena MT 59620 Missoula MT 59812
406-444-3660 406-243-2699
http://courts.mt.gov/library www.umt.edu/law/library/
Monday – Friday, 8-5 Hours vary (call for information)
These basic materials about current Montana law are available to anyone with a computer and
an internet connection. Most local Montana public libraries have internet computers that
patrons can use. These core materials are:
● Montana Code Annotated,
The present code, http://leg.mt.gov/bills/mca_toc/index.htm and all
previous versions starting in 1997,
http://leg.mt.gov/css/Laws%20and%20Constitution/Past%20Laws.asp
● Court Rules,
The Rules of Civil Procedure, http://leg.mt.gov/bills/mca_toc/25.htm
The Rules of Criminal Procedure, http://leg.mt.gov/bills/mca_toc/46.htm The
Rules of Evidence, http://leg.mt.gov/bills/mca_toc/26_10.htm
The Rules of Appellate Procedure,
http://leg.mt.gov/bills/mca_toc/25_21_.htm
● Montana Supreme Court Opinions and Briefs,
The most recent 35 years of opinions and the accompanying briefs are in a
searchable data file, http://searchcourts.mt.gov/
Books on Legal Research:
The resources listed above are the bare minimum that you will need to look at when writing
your brief. The two Law Libraries have complete collections of all the primary legal materials for
Montana. Your appeal may involve many issues. You may have questions about family law or
contracts. There may be issues about evidence or procedure. Specialized books and materials
can help focus your research quickly. See Secondary Sources Resource Guide, listed under
http://courts.mt.gov/library/guides. Other resources available on the State’s Law Library site,
include:
Whelan, Robert K., Meredith Hoffman and Stephen R. Jordan. A Guide to Montana Legal
Research.
28
Check with a reference librarian to see which materials might best suit your needs. Public
access to either Westlaw or Lexis online legal research service is available at both Law
Libraries. Access to Westlaw or Lexis is important so that you can check whether the cases
and laws that you are relying upon are still good law.
These are some good beginning books about legal research which self-represented litigants will
find useful.
Berring, Robert and Elizabeth Edinger. Finding the Law, 12th ed. West, 2005.
Cohen, Morris L. and Kent C. Olson. Legal Research in a Nutshell, 10th ed. West, 2010.
Elias, Stephen. Legal Research: How to Find and Understand the Law, 15th ed. Nolo, 2009.
State Law Library of Montana, 2003 and 2012. http://courts.mt.gov/content/library/guides.
Books on Legal Writing, Appellate Briefs and Appellate Practice:
In addition to knowing the law, a self-represented litigant can help herself by learning about
legal writing, how briefs are written and what makes an effective argument. The following
bibliography is of materials which are suited to many self-represented litigants. Both Law
Libraries have additional resources which can be located by using the “catalogs” on their
websites.
Aldisert, Ruggero. Winning on Appeal: Better Briefs and Oral Argument, 2d ed. NITA, 2003.
Bahrych, Lynn and Marjorie Dick Rombauer. Legal Writing in a Nutshell, 4th ed. West, 2009.
Ciampi, Maria L. and William Manz. The Question Presented: Model Appellate Briefs. Anderson,
2000.
Fine, Ralph Adam. The How-to-Win Appeal Manual: Winning Appellate Advocacy in a Nutshell.
JurisNet, 2008.
Garner, Bryan. The Elements of Legal Style, 2nd ed. OUP, 2002.
Garner, Bryan. Winning Brief: 100 Tips for Persuasive Briefing in Trial & Appellate Courts. OUP,
2003.
Lebowitz, Gerald. Writing Bad Briefs: How to Lose a Case in 100 Pages or More.
http://works.bepress.com/cgi/viewcontent.cgi?article=1181&context=gerald_lebovits
Hornstein, Alan D. Appellate Advocacy in a Nutshell, 2nd ed. West, 1998.
29
Re, Edward Domenic. Brief Writing & Oral Argument, 8th ed. Oceana, 2005.
Information on Legal Citation
Lawyers have their own method of “citing” materials in their writing. It will help you to do your
research and writing if you understand citation shorthand. There are two style manuals used
by lawyers presently –
The Bluebook: A Uniform System of Citation, 20th ed; and
ALWD Citation Manual: A Professional System of Citation, 5th ed.
Either system can be used when writing for the Montana Supreme Court. Pick one style
manual and then be consistent. The best way to learn the basics about citation is through the
Internet. These are good sites to help you get started.
Martin, Peter. Introduction to Basic Legal Citation (online ed. 2016)
http://www.law.cornell.edu/citation/index.htm
Martin, Peter. Basic Legal Citation (2016)
https://www.cali.org/sites/default/files/basic_legal_citation_1.pdf
Georgetown Law Library (2016)
http://guides.ll.georgetown.edu/bluebook
Resources for Self Represented Litigants:
The website http://courts.mt.gov/dcourt will give you information about the district courts. To
find the names and addresses of each district court clerk in Montana, just click on the county or
one of 22 judicial districts on the map.
This link will direct you to the various self-help centers around Montana:
http://courts.mt.gov/selfhelp
30
INDEX
Appellee · 1, 12, 14, 19, 21
argument · 9, 10, 11, 12, 13, 20, 25, 29
$
$1,000 · 7, 23 B
$100 · 3, 4
bond · 6, 19
brief · 5, 10, 11, 12, 13, 14, 16, 19, 20, 25, 26, 28
1
1,250 words · 15 C
10 typewritten pages · 9
10,000 words · 11, 13 Certificate of Compliance · 12, 13, 15
11 calendar days · 15 certificate of service · 11
14 calendar days · 14 citation · 20, 30
14 point Times New Roman · 11, 15 cite · 9, 12, 13
15 calendar days · 8, 9 citing · 13, 30
civil · 1, 14, 20, 21, 22, 23, 24, 26
Conclusion · 11, 13
3 Confidential · 9, 20
Confidential Statement · 9
30 calendar days · 4, 9, 10, 14 constitutional · 8
30 typewritten pages · 11, 13 court reporter · 1, 3, 6, 7, 23, 26
criminal · 1, 20, 21, 22, 24
5
D
5 typewritten pages · 15
5,000 words · 14 deny · 4, 15
dismiss · 9, 10, 11, 16, 17, 23
docket · 7, 12
6
60 calendar days · 4
E
evidence · 1, 5, 7, 12, 13, 27, 28
7
7 calendar days · 9, 16
F
7 copies · 5
75 calendar days · 9 filing fee · 3, 4, 17, 23
final judgment · 3, 7
final order · 3, 17, 22, 24
9
9 copies · 13, 14
H
holiday · 5
A
Affidavit · 4, 19
J
affirm · 1, 17
appellant · 17 judgment · 3, 5, 6, 7, 8, 10, 12, 13, 17, 19, 21, 22, 23, 24,
Appellant · 1, 7, 10, 11, 14 26, 27
31
L R
late appeal · 5 record · 1, 6, 7, 8, 10, 12, 13, 17, 25, 26
Library · 11, 28, 29 record on appeal · 7
remand · 13, 17
reply · 14, 15
M reverse · 1, 13, 17, 19
ruling · 1, 3, 4, 17, 24, 25
mediation · 3, 8, 9, 10, 26
mediator · 8, 9, 20, 22
motion · 1, 3, 4, 6, 7, 9, 10, 12, 14, 15, 16, 18, 23, 24 S
Motion for Extension of Time · 5, 7, 10, 14, 15, 16
sanction · 17
sanctions · 17, 18
N serve · 6, 9, 14, 15, 16, 26
standard of review · 13
non-published · 13 statement of position · 9
Notice of Appeal · 3, 4, 5, 6, 7, 8, 9, 23, 24 Statement of the Case · 11, 12
Statement of the Facts · 11
Statement of the Issues · 11, 12
stay · 3, 6, 8
O Summary of Argument · 11, 12
opinion · 1, 9
original · 1, 3, 5, 7, 13, 15, 25, 27
T
Table of Authorities · 11, 12, 26
P transcript · 3, 7, 12, 25, 26
petition · 1, 5, 18, 22, 24, 25, 27
pre-judgment · 3
prejudice · 17
W
proposed order · 4, 15, 16
published · 13 weekend · 5
32
IMPORTANT TIMELINES
APPEALS
Notice of Appeal in case without a government party or in a youth case* 30 days from date ruling being appealed was filed Rule 4
Notice of Appeal in case with a government party* 60 days from date ruling being appealed was filed Rule 4
Appellant's Opening Brief due 30 days from the date the record is filed Rule 13
Appellee's Response to Appellant's Opening Brief due 30 days from Opening Brief's Certificate of Service date Rules 11, 12, 13
Appellant's Reply to Appellee's Response Brief due 14 days from Response Brief's Certificate of Service date Rules 11 and 13
Notice to Attorney General of intent to challenge constitutionality of statute 11 days from date Notice of Appeal is filed Rule 27
Petition for Rehearing due 15 days after Court issues its Opinion Rule 20
Response to Petition for Rehearing due 15 days from Petition for Rehearing Certificate of Service date Rule 20
MOTIONS
Motion for Relief from Order of Stay 11 days from date district court ordered judgment stayed Rules 22 and 23
Motion for Extension of Time 7 days before the task's due date Rule 26
Response to a motion 11 days from original motion's Certificate of Service date Rule 16
MEDIATION
Choose mediator and notify Clerk of Court 15 days from day Notice of Appeal is filed Rule 7(4)
Submit Statement of Position to mediator 15 days after mediator selected Rule 7(5)
Response to a statement of position filed during mediation 7 days from when Statement of Position submitted Rule 7(5)
Mediation must be complete 75 days after Notice of Appeal is filed Rule 7(5)
*Transcripts must be ordered the same day you file your Notice of Appeal Rule 8
33
FORMS
Form 4(2) - Notice of Appeal
Form 4(6) - Petition for an Out-of-Time Appeal
Form 5(a) - Motion to Proceed on Appeal Without Paying the Filing Fee
Form 5(a) Inmate – Motion to Proceed on Appeal Without Paying the Filing Fee
Form 8(3) - Request for Production of Transcripts
Form 10(4) - Certificate of Service
Form 11 – Brief Checklist
Form 11(4) - Certificate of Compliance
Form 11(6)(b) – Cover Page
Form 12(1)(a) - Table of Authorities
Form 16(2) - Response and Objection to Motion
Form 16(4) - Motion to Dismiss Appeal
Form 26 - Motion for Extension of Time
________________________________________________ Form 4(2)
Name
____________________________________________________
City State Zip
_____________________________________
[e-mail address]
[Designation of Party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant,
v. NOTICE OF APPEAL
,
Appellee.
Notice is given that , the Appellant
[Name]
named above and who is the in
[Designation of party]
the cause of action filed in the Judicial District, in
[Judicial district]
County as Cause No.
[District Court Cause No.]
appeals to the Supreme Court of the State of Montana from the final written
judgment or order entered in the District Court on the day of
© Montana Supreme Court NOTICE OF APPEAL
PAGE 1 OF 4
, 20 .
[Date final judgment was entered]
I CERTIFY: [Check one]
□ This appeal is subject to the mediation process required by M. R. App. P.
7, or
□ This appeal is not subject to the mediation process required in M. R.
App. P. 7.
I CERTIFY: [Check one]
□ This appeal is NOT an appeal from an order certified as final under M. R.
Civ. P. 54(b), or
□ This appeal is an appeal from an order CERTIFIED as final under the M.
R. Civ. P. 54(b). A true copy of the District Court’s “CERTIFICATION ORDER” is
attached as exhibit “A.”
I FURTHER CERTIFY: [Check one]
□ All relevant transcripts of the proceedings in this cause have been
ordered from the court reporter, or
□ I have complied with the provisions of M. R. App. P. 8(3).
INCLUDED WITH THIS NOTICE IS: [Check one]
□ A copy of the order or judgment from which I am appealing, or
© Montana Supreme Court NOTICE OF APPEAL
PAGE 2 OF 4
□ I will file a copy of the order or judgment from which I am appealing as
soon as possible. I have requested a copy of the order or judgment from the Clerk
of District Court.
[Check one of the following]
□ the filing fee of $100.00.
□ a Motion to Proceed Without Payment of Filing Fee.
Respectfully submitted this day of , 20 .
[Signature]
[Printed name]
Appellant
CERTIFICATE OF SERVICE
I certify that I have filed this Notice of Appeal with the Clerk of the
Montana Supreme Court; and that I have mailed or hand delivered copies to the
Clerk of the District Court, each attorney of record, each court reporter from
whom a transcript has been ordered, and any party not represented by counsel as
follows:
_______________________________________________________
[Clerk of the District Court]
[Address]
___________________________________________________
[Court Reporter]
© Montana Supreme Court NOTICE OF APPEAL
PAGE 3 OF 4
[Address]
_________________________________________________
[Name of opposing counsel]
[Address]
Counsel for
______________________________________________________
[Party representing himself or herself]
[Address]
DATED this day of , 20 .
[Signature]
[Print name]
© Montana Supreme Court NOTICE OF APPEAL
PAGE 4 OF 4
_______________________________________________ Form 4(6)
Name
City State Zip
[e-mail address]
[Designation of party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant, PETITION FOR
AN OUT-OF-TIME
v. APPEAL
,
Appellee.
[To ask the Court to allow you to file an out-of-time appeal, give the reasons why the appeal was not
timely filed. State in the petition or supporting affidavit the issues you wish to raise on appeal and explain in
detail the reasons that you did not file a timely appeal. Give only true and accurate explanations that support
your petition. Include a copy of the final order or judgment from which you wish to appeal. M. R. App.P. 4(6)]
I petition the Court to allow me to file an out-of-time appeal for the
following reason: [Check one]
□ I improperly filed a timely Notice of Appeal only with the District Court,
as more fully explained below.
© Montana Supreme Court OUT-OF-TIME APPEAL
PAGE 1 OF 4
□ I discussed filing a timely appeal with my attorney, but he or she failed to
file it for me, as more fully explained below.
□ I failed to file the Notice of Appeal for the following reason:
.
□ Attached as Exhibit “A,” a copy of the judgment or order from which I
wish to appeal.
As legal authority for filing an out-of-time appeal, I cite the following which
supports this petition:
.
DATED this day of , 20 .
© Montana Supreme Court OUT-OF-TIME APPEAL
PAGE 2 OF 4
[Signature]
[Print name]
VERIFICATION UPON OATH OR AFFIRMATION
STATE OF MONTANA )
: ss.
County of )
I swear that everything stated in this petition is true and correct to the best
of my knowledge.
DATED this day of , 20 .
[Signature]
[Print name]
Signed and sworn to or affirmed before me on this date by
.
[Seal]
[Signature of Notary Public]
[Typed or printed name]
[Title]
[Residing at]
My Commission expires: .
© Montana Supreme Court OUT-OF-TIME APPEAL
PAGE 3 OF 4
CERTIFICATE OF SERVICE
I certify that I have filed a copy of this Petition for an Out-of-Time
Appeal with the Clerk of the Montana Supreme Court and that I have mailed or
hand delivered a copy to each attorney of record and any party not represented by
counsel as follows:
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
DATED this day of , 20 .
[Name]
[Print name]
© Montana Supreme Court OUT-OF-TIME APPEAL
PAGE 4 OF 4
________________________________________________ Form 5(a)
Name
City State Zip
[e-mail address]
[Designation of party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant,
MOTION TO PROCEED
v. ON APPEAL WITHOUT
PAYING THE FILING
, FEE
Appellee.
I move the Court to allow this appeal to go forward without paying the filing
fee and submit this Affidavit in support of my motion:
I, , am the
[Name] [Appellant or Appellee]
in the above-entitled matter. In support of my application to proceed without
paying the filing fee, I state that because of my financial condition, I am unable to
pay the filing fee. I believe the District Court made mistakes and that this Court
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE
PAGE 1 OF 5
will decide these issues in my favor on appeal: [List the mistakes you believe the District Court
made.]
1.
2.
3.
I swear my answers to the following questions are true:
1. Do you have a job?
□Yes □No
If you do, state the amount of your last paycheck, and give the name and
address of your employer:
If you do not have a job, when did you last work, and how much did you
make the last month you worked?
2. Did anyone give you money for work you have done, for sale of art or crafts
you have made, day labor, or any other source during the past year?
□Yes □No
If you answered “yes,” please describe the source of the income or
assistance and the amount of income per month.
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE
PAGE 2 OF 5
3. Has anyone given you a loan or other money as temporary assistance?
□Yes □No
If you answered “yes,” please give the amount and when the money is to be
repaid:
4. Are you receiving any checks, money or benefits from any of the following
sources?
Social Security Disability Insurance (SSDI) □
Social Security Income (SSI) □
Temporary Assistance for Needy Families (TANF) □
Workers Compensation benefits □
Other disability benefits □
Public assistance of any type □
Give the sources and amounts of the benefits or assistance:
5. Do you have any checking or savings accounts?
□Yes □No
If your answer was yes, state the present balance in each account:
6. Do you own any vehicles, land, buildings, stocks, bonds, notes, or other
valuable property (do not include ordinary home furnishings and clothing)?
□Yes □No
If you said, “yes,” describe each item and give its approximate value:
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE
PAGE 3 OF 5
7. Are you married?
□Yes □No
Name of spouse:
8. Does your spouse have a job or have any resources to assist you by paying the
filing fee?
9. Do you have an obligation to support anyone else?
□Yes □No
If you said, “yes,” give each person’s name, how you are related, and how
much you pay toward each person’s support per month:
STATE OF MONTANA )
: ss.
County of )
I swear that everything stated in this motion and affidavit is true and
correct to the best of my knowledge.
DATED this day of , 20 .
[Signature]
[Seal]
[Signature of Notary Public]
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE
PAGE 4 OF 5
[Typed or printed name]
[Title]
[Residing at]
My commission expires: .
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE
PAGE 5 OF 5
______________________________________________ Form 5(a) Inmate
Name
City State Zip
[Designation of Party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant,
v. MOTION TO PROCEED
ON APPEAL WITHOUT
, PAYING THE FILING
FEE
Appellee.
I move the Court to allow me to proceed on appeal without paying the filing
fee in this cause. I am incarcerated and because of my financial condition, I am
unable to pay the filing fee. I believe I am entitled to legal redress. The issues I
will present on appeal are the following:
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE-INMATE
PAGE 1 OF 2
.
DATED this day of , 20 .
[Signature]
[Print name
© Montana Supreme Court APPEAL WITHOUT PAYING FILING FEE-INMATE
PAGE 2 OF 2
________________________________________________ Form 8(3)
Name
City State Zip
[e-mail address]
[Designation of Party]
Montana Judicial District Court, County
Cause No.
,
[Designation of Party]/Appellant,
v. REQUEST FOR
PRODUCTION OF TRANSCRIPTS
,
[Designation of Party]/Appellee.
Pursuant to Rule 8(3), Montana Rules of Appellate Procedure, I request
that you prepare and deliver the transcripts for the following hearing/trial dates
for purposes of appeal:
Date of hearing Name of court reporter
© Montana Supreme Court REQUEST FOR TRANSCRIPTS
PAGE 1 OF 3
□ I certify that I have made arrangements with each court reporter to pay
for the transcripts.
Upon completion of the requested transcripts, the court reporter shall serve
one original (reduced format) plus one DVD-R containing PDF to the Clerk of the
Supreme Court, one copy to each opposing counsel, and one copy to me.
Respectfully submitted this day of , 20 .
[Signature]
[Print name]
CERTIFICATE OF SERVICE
I certify that I have filed a copy of the Request for Transcripts with the
Clerk of the Montana Supreme Court; and that I have mailed or hand delivered a
copy to the Clerk of the District Court, each attorney of record, each court
reporter from whom a transcript has been ordered, and any party not represented
by counsel as follows:
[Clerk of the District Court]
[Address]
© Montana Supreme Court REQUEST FOR TRANSCRIPTS
PAGE 2 OF 3
[Name of court reporter]
[Address]
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
DATED this day of , 20 .
[Signature]
[Print name]
© Montana Supreme Court REQUEST FOR TRANSCRIPTS
PAGE 3 OF 3
Form 10(4)
CERTIFICATE OF SERVICE
I certify that I filed this
□ Petition
□ Motion
□ Other
[Name of document]
with the Clerk of the Montana Supreme Court and that I have mailed or hand
delivered a copy to each attorney of record and any other party not represented
by counsel as follows:
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
DATED this day of , 20 .
[Signature]
[Print name]
© Montana Supreme Court
Form 11
BRIEF CHECKLIST
Cover sheet [Rule 11(6)(b)]
• Name of this Court (Supreme Court of Montana)
• Case number on appeal (Clerk of Supreme Court will issue)
• Title of the case from the trial court (the parties’ name with designation)
• Trial Court and trial court judge’s name
• Title of the document (For example: Appellant’s Brief)
• Names, addresses, telephone and FAX numbers, and email addresses (if any) of
all parties or their attorneys. If listing an attorney, identify the party the
attorney represents
Cover sheet color [11(6)(a)]
• Appellant’s Brief is light blue
• Appellee’s brief is salmon
• Appellant’s reply brief is gray
• Do NOT use transparent covers
First page [Rule 11(6)(a)]
The same as the cover sheet except on white paper
Paper size and color [Rule 11(3)(a)]
8.5 x 11 inches white paper
Computer type size [Rule 11(2)]
14-point Times New Roman or similar typeface
Margins [Rule 11(3)(a)]
1 inch on top, bottom and both sides
Line spacing [Rule 11(3)(b)]
Double space all text except footnotes and quoted indented material
Page numbering [11(3)(b)]
Number each page
Page or word limit [Rule 11(4)]
• Appellant’s brief - 30 pages or 10,000 words
• Appellee’s brief - 30 pages or 10,000 words
• Appellant’s reply brief - 14 pages or 5,000 words
• Word and page limits do not include table of contents, table of authorities,
certificates or service and compliance, or any appendix containing statues, rules,
regulations and other pertinent materials.
Sign your brief [Rule 13(2)]
Attach Certificate of Service to brief [Rule 10(4)]
Attach Certificate of Compliance [Rule 11(4)(e)]
Judgment [Rule 12(1)(h)]
The judgment or order being appealed must be attached to Appellant’s brief
Binding [Rule 11(3)(b)]
Bind or staple brief on left
File an original and 9 copies of the brief with the Clerk of the Supreme Court the same
day you sign the Certificate of Service [Rule 13(2)]
Serve all parties or their attorneys [Rules 10(2) and (3)]
Form 11(4)(e)
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing brief is proportionally spaced typeface of
14 points and does not exceed 10,000 words.
[Signature]
© Montana Supreme Court
Form 11(6)(b)
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case No.
[to be assigned by Clerk of Supreme Court]
,
/Appellant,
[Designation of Party in District Court]
v. APPELLANT’S BRIEF
[or name of document being filed]
,
/Appellee.
[Designation of Party in District Court]
On appeal from the Montana Judicial District Court,
County of _,
Cause No. , [District Court Cause No.]
Honorable Presiding [District Court Judge’s name]
Appearances:
Name Name
Address Address
Telephone number Telephone number
FAX number FAX number
e-mail address e-mail address
Attorney for Appellants Attorney for Appellees
Form 12(1)(a)
TABLE OF AUTHORITIES
Cases
American Cancer Society v. State, 2004 MT 376, 325 Mont. 70, 103
P.3d 1085 ........................................................................................................ 28
Brady v. PPL Montana, LLC, 2008 MT 177, 343 Mont. 405, 185 P.3d
330 .................................................................................................................. 19
Columbia Falls Elem. Sch. Dist. No. 6 v. State, 2005 MT 69, 326
Mont. 304, 109 .3d 257 .................................................................................... 6
Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128 ................... 8, 20
Harris v. McRae, 448 U.S. 297 (1980) ................................................................ 8
In re Lacy, 239 Mont. 321, 780 P.2d 186 (1989) ................................................ 6
Krishcher v. McIver, 697 So.2d 97 (Fla. 1997) ................................................. 20
Olmstead v. United States, 277 U.S. 438 (1928) ................................................. 4
State v. Bilant, 2001 MT 249, 307 Mont. 113, 36 P.3d 883 .............................. 14
Walker v. State, 2003 MT 134 Mont. 103, 68 P.3d 872 .................................... 26
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................. 21, 22, 24
Statutes
Mont. Code Ann. § 25-10-711 ........................................................................... 27
Mont. Code Ann. § 50-16-525 ........................................................................... 13
Wash. Rev. Code § 70.245................................................................................. 23
Regulations and Rules
M.R. Civ. P. 59(g).............................................................................................. 27
Other Authorities
Clifford, Matthew O. & Huff, Thomas P., Some Thoughts on the
Meaning and Scope of the Montana Constitution's "Dignity" Clause
with Possible Applications, 61 Mont. L. Rev. 301, 305 (2000) ..................... 25
_______________________________________________ Form 16(2)
Name
City State Zip
[e-mail address]
[Designation of Party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant,
RESPONSE AND
OBJECTION TO
v.
MOTION
,
Appellee.
[Use this form to respond and oppose a motion the opposing party has filed. M. R. App P. 16(2)].
I object to the Court granting this motion for the following reasons:
© Montana Supreme Court RESPONSE AND OBJECTION TO MOTION
PAGE 1 OF 3
.
DATED this day of , 20 .
[Signature]
[Print name]
CERTIFICATE OF SERVICE
I certify that I have filed this Response and Objection to Motion with
the Clerk of the Supreme Court and that I have mailed or hand delivered a copy
to each attorney of record and any other party not represented by counsel as
follows:
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
© Montana Supreme Court RESPONSE AND OBJECTION TO MOTION
PAGE 2 OF 3
DATED this day of , 20 .
[Name]
[Print name]
© Montana Supreme Court RESPONSE AND OBJECTION TO MOTION
PAGE 3 OF 3
________________________________________________ Form 16(4)
Name
City State Zip
[e-mail address]
[Designation of party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
Appellant, MOTION TO
DISMISS APPEAL
v.
,
Appellee.
[Use this form to ask the Court to dismiss the appeal whether you are the appellant and are voluntarily
asking for dismissal of the appeal, or if you are the appellee and seek dismissal.]
I move the Court to dismiss this appeal for the following reason:
□ The appellant failed to comply with M. R. App. P. 7 and refused to
participate in the mediation process. [M. R. App. P. 7(9)]
□ The appellant failed to file a timely brief within the time provided in M.
R. App. P. 13 or within the time allowed by any extensions. [M. R .App. P. 13(3)]
© Montana Supreme Court MOTION TO DISMISS APPEAL
PAGE 1 OF 3
□ As the appellant, I no longer wish to pursue this appeal. [M. R. App. P. 16(4)]
□ Other reason:
.
Briefly explain the reason you wish to dismiss this appeal:
.
I have contacted opposing counsel or who
[Name of party representing himself or herself]
is not represented by counsel, and
□ there is no objection to the motion.
□ there is an objection to the motion.
[M. R. App. P. 16, 26]
DATED this day of , 20_ _.
[Signature]
[Print name]
© Montana Supreme Court MOTION TO DISMISS APPEAL
PAGE 2 OF 3
CERTIFICATE OF SERVICE
I hereby certify that I have filed this Motion to Dismiss Appeal with the
Clerk of the Montana Supreme Court and that I have mailed or hand delivered a
copy to each attorney of record and any party not represented by counsel as
follows:
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
DATED this day of , 20 .
[Name]
[Print name]
© Montana Supreme Court MOTION TO DISMISS APPEAL
PAGE 3 OF 3
___________________________________________________ Form 26
Name
City State Zip
[e-mail address]
[Designation of party]
IN THE SUPREME COURT OF THE STATE OF MONTANA
No.
[to be assigned by Clerk of Supreme Court]
,
MOTION FOR
Appellant, EXTENSION OF TIME
v.
,
Appellee.
[Use this form to ask the Court for more time to file a brief or other document.]
I move the Court for 30 days of additional time to:
□ File an opening brief on appeal. [M. R. App. P. 26]
© Montana Supreme Court MOTION FOR EXTENSION OF TIME
PAGE 1 OF 3
□ File a response brief. [M. R . App. P. 26]
□ File a .
The current due date is , 20 .
If this is a second or subsequent request for an extension of time, you must
explain the reason the extension is needed. You must also state a good reason
why you need the extension of time. [Rule 26(2)]
Briefly explain the reason you need additional time:
.
I have contacted opposing counsel or who
[Name of party representing himself or herself]
is not represented by counsel, and
□ there is no objection to the motion.
□ there is an objection to the motion.
[M. R. App. P. 16, 26]
□ I am incarcerated and not required to contact opposing counsel.
DATED this day of , 20 .
[Signature]
[Print name]
© Montana Supreme Court MOTION FOR EXTENSION OF TIME
PAGE 2 OF 3
CERTIFICATE OF SERVICE
I certify that I have filed this Motion for Extension of Time with the
Clerk of the Montana Supreme Court and that I have mailed or hand delivered a
copy to each attorney of record and any party not represented by counsel as
follows:
[Name of opposing counsel]
[Address]
Counsel for
[Other party representing himself or herself]
[Address]
[Name]
[Print name]
© Montana Supreme Court MOTION FOR EXTENSION OF TIME
PAGE 3 OF 3