10/20/2020
641
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0313
DA 20-0313
FILED
JAMES T. and ELIZABETH GRUBA,and ocT 20 2020
LEO G. and JEANNE R. BARSANTI, Bower] Greermv000
Cterk of Supreme Couri
.Rtmtp• •-•‘r nitor,ter,
Petitioners and Appellants,
v. ORDER
MONTANA PUBLIC SERVICE COMMISSION,
and NORTHWESTERN ENERGY,
Respondents and Appellees.
By order filed August 25, 2020, this Court granted the motion of Respondents
Montana Public Service Commission (PSC) and Northwestern Energy (NWE) to strike
from the record on appeal various excerpts from the underlying administrative proceeding
record not included in the record before the District Court on judicial review. On
August 24, 2020, Appellants filed a related "Motion to Correct the Record" raising the
same or substantially similar issues and arguments raised in opposition to the prior
PSC/NWE motion to strike. On September 9, 2020, Appellants filed a related motion
seeking reconsideration of our prior order granting the PSC/NWE motion to strike. On
September 15, 2020, we denied Appellants' August 24 "Motion to Correct the Record" as
well as their related September 9 Motion for Rehearing on our August 25 Order granting
the PSC/NEW motion to strike.
By motion filed September 29, 2020, Appellants now again raise essentially the
same issue for the fourth time, this time by motion pursuant to M. R. App. P. 12(5)
(inclusion in appendix of"additional documents or materials .. . referenced in . .. brief'
which are "essential to the arguments"therein)for leave to attach/include a specified subset
of the extrinsic records which we have thrice previously rejected as or in appendices to
their briefing on appeal. Appellants' latest motion is a manifest attempt to shoehorn
previously barred extrinsic records into M. R. App. P. 12(5), thereby backdooring them
into the record on appeal in disregard of our prior rulings.
However, the clear and unmistakable essence, if not express provision, of our prior
rulings was and remains that the subject records extrinsic to the underlying district court
record, including the subset now again at issue here, were and remain not essential to the
matters at issues on appeal due to the narrow procedural posture ofthis appeal. Appellants'
latest motion has made no additional or more compelling showing to the contrary.
THEREFORE,
IT IS ORDERED that Appellants' September 29 "Opposed Motion to Attach
Appendices B,C 1 & C2 to Opening Brief' is hereby DENIED.
IT IS THUS FURTHER ORDERED that the Clerk shall STRIKE Appellants'
previously filed Opening Brief from the docket in this matter. Appellants shall have TEN
(10)DAYS from the date of this order TO REFILE their Opening Brief without reference
to records not included in the underlying administrative record before the District Court in
this matter. Failure to timely comply with this order may, in the discretion of this Court,
result in dismissal of the appeal pursuant to M. R. App. 13(3).
The Clerk is directed to give notice ofthis Order to all counsel ofrecord.
Dated this 20th day of October, 2020.
Chief Justice
Justices
2