May 8 2013
IN THE SUPREME COURT OF THE STATE OF MONTANA - -". ~ - LED
No. AF 07-0016 ~ 1
MAY 08 2013
IN RE ADDING TO THE MONTANA RULES OF ) 'Ed Smitli
APPELLATE PROCEDURE A RULE ON JUDICIAL ) oRDER _",RK OF THE SUPREME COURT
STATE OF MONTANA
WAIVER APPEALS )
In November of20 12, the People ofthe State ofMontana approved by referendum the
Parental Notice ofAbortion Act of20 11. That Act provides, in pertinent part, that this Court
may adopt rules providing for an expedited confidential appeal by a petitioner if the youth
court denies a petition for a waiver of the Act's parental notification requirement. The
Office of the Appellate Defender (OAD) proposed a rule to be added to the Montana Rules
of Appellate Procedure to address expedited confidential appeals in such matters. We
published the proposed rule and invited public comment. Numerous comments were filed;
the comment period has now expired.
In the meantime, the 2013 Montana Legislature enacted HB 391, which repeals the
Parental Notice of Abortion Act as of July 1, 2013. HB 391 generally requires parental
consent prior to an abortion for a minor and, in a provision that parallels the expedited
confidential appeal provision of the Parental Notification of Abortion Act, provides for an
expedited confidential appeal by a petitioner if a youth court denies a petition for waiver of
the parental consent requirement. HB 391 has an effective date of July 1,2013.
With some modifications, including some suggested in the public comments already
filed and some suggested by members of the Court, OAD's proposed rule for expedited
confidential appeals appears to be appropriate for adoption for use with the statutes enacted
under HB 391 (2013).
Therefore,
IT IS ORDERED that, for 30 days following the date ofthis Order, public comments
will be accepted on the attached proposed rule on judicial waiver appeals under HB 391.
Persons wishing to make such comments shall file their comments, in writing, with the Clerk
of this Court. Following the expiration of the public comment period, the Court will take
such further action as it deems appropriate.
This Order and the attached proposed Rule 30 of the Montana Rules of Appellate
Procedure shall be published on this Court's website. The Clerk is directed to provide copies
of this order and the attached proposed Rule to OAD and to the State Bar of Montana, with
the request that the State Bar provide notice of, and a link to the text of, the proposed rule on
its website and in the Montana Lawyer.
DATED this 'b day of May, 2013.
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Justices
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Rule 30. Judicial waiver appeals.
(1) Scope. This rule applies to an appeal from an order denying or dismissing a petition
filed by a minor under age 16 to waive parental consent to an abortion, pursuant to
Title 50, Chapter 20. In such appeals, this rule supersedes the other appellate rules to
the extent they may be inconsistent with this rule.
(2) Notice of appeal.
(a) A minor may appeal an order denying or dismissing a petition to waive parental
consent by filing a notice of appeal with the clerk ofthe supreme court. The notice of
appeal may be filed in person, by mail, or by fax. If a transcript or written order is
available, it should be attached to the notice of appeal, but such notice shall not be
defective if it does not include such transcript or order.
(b) If a notice of appeal is incorrectly filed in a youth or district court, the clerk
thereof shall immediately notify the clerk of the supreme court of such filing, and
shall transmit a copy of the notice of appeal by fax or e-mail for filing with the
supreme court.
(c) The notice of appeal must indicate that the appeal is being filed pursuant to this
rule, but the court will apply this rule to cases within its scope whether they are so
identified or not.
(d) Blank notice ofappeal forms and copies of these rules will be available at all court
locations and will be mailed, emailed, or faxed to a minor upon request.
(e) No filing fees or fee for any service may be required of a minor who files an
appeal under this provision.
(3) Record on appeal; standard of review. A youth court that conducts proceedings for
judicial waiver of consent shall issue written and specific findings of fact and
conclusions of law supporting its decision and shall order that a confidential record of
the evidence, findings, and conclusions be maintained. The record on appeal consists
ofthe confidential record ofthe youth court, including all papers and exhibits filed in
the youth court, the written findings and conclusions of the youth court, and, if
available, a recording or transcript of the proceedings before the youth court. If the
appellant has counsel, counsel shall serve the clerk of the youth court with a copy of
the notice of appeal, request the record from the clerk of the youth court, and arrange
for expedited preparation of the transcript immediately upon filing the notice of
appeal. If the appellant does not have counsel, the clerk of the supreme court shall
request the record immediately upon receiving notice that a self-represented minor has
filed a notice of appeal, and the clerk of the youth court shall arrange for expedited
preparation of any transcript directly with the court reporter. Upon receiving a request
for the record from counsel for the appellant or from the clerk of the supreme court,
the clerk of the youth court shall forthwith transmit the record to the supreme court by
fax, e-mail, overnight mail or in another manner that will cause it to arrive within 48
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hours, including weekends and holidays, after the youth court's receipt of the request
for the record.
(4) Brief. A brief is not required. However, the minor may file a memorandum in support
ofthe appeal within 48 hours, including weekends and holidays, after filing the notice
of appeal.
(5) Disposition. The supreme court may designate a panel offive or more of its members
to consider the appeal. The supreme court shall review the decision ofthe youth court
de novo. The supreme court shall enter an order stating its decision within 72 hours,
not including weekends and holidays, after the record referred to in (3) is filed. The
supreme court shall issue an opinion explaining the decision as soon as practicable
following entry of the order.
(6) Confidentiality.
(a) Documents, proceedings, and audio or video recordings in an appeal under this
rule are sealed. All persons are strictly prohibited from notifying the minor's parents,
guardian, or custodian that the minor is pregnant or wants to have an abortion, and
from disclosing this information to any person. The court shall not release the name
of, or any other identifying information concerning, a minor who files a judicial
waiver appeal.
(b) All statistical and general information that the court system may have concerning
judicial waiver appeals is confidential, except the number of appeals filed, granted,
and denied statewide each year is public information.
(7) Attorney. If the minor is not represented by an attorney, the clerk of the supreme
court shall appoint the office ofthe state public defender to represent the minor in the
appeal. If counsel was assigned to represent the minor in the youth court, the
appointment continues through the appeal. All counsel shall immediately be served
with copies of the Court's order by fax or e-mail. In the event a minor waives the
right to have counsel appointed on appeal, then notice of the court's order will be
served upon her at the address or location she has provided to the clerk ofthe supreme
court. The minor or her counsel shall be provided a certified copy of the order upon
request.
(8) Filing defined. For purposes of this rule only, an appeal is deemed filed at the time
and on the date it is received by the clerk of the supreme court.
(9) Special rule for interpreting time requirements. Ifthe end ofa time limit set out in
this rule falls upon a weekend or holiday, then the time limit is extended to noon on
the next business day.
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