rN THE SUPREMECOURT OF THE STATE OF MONTANA . ‘~1J
-; :;: 7Gm.><
‘““\
‘y:“; ;! ,.;-
I
8:‘, ,’ ‘-; “,5;-
: 3, ‘;,Jl
IN RE: AMENDMENTS TO
THE MONTANA RULES OF i 0 RDER :;I: G
APPELLATE PROCEDURE 1 ..;. ,I, ,,,_.._.,,_
On June 28,2000, the Montana SupremeCourt adopted certain emergency internal
operating procedures and modifications to the Montana Rules of Appellate Procedure
(M.R.App.P.). Our order of that date, captionedIn the Matter of the Adoption OfEmergency
Internal Operating Procedures and Appellate Practice Rules, set forth the reasons the
changeswere necessary.
Those temporary modifications to the M.R.App.P. have now been in effect for a
substantial period of time. They have causedno discernible hardship on litigants or their
counsel and, indeed, the modifications have helped this Court to address the concerns
expressed in our June 28, 2000, order. For those reasons, we have concluded that the
administration ofjustice in Montana will be best servedby officially amendingRules 2 1,22,
23(g), and 27(d)(i) and (ii), M.R.App.P., to reflect last year’s emergency modifications to
those Rules.
Therefore, pursuant to the authority granted this Court by Article VII, Section 2(3) of
the Montana Constitution,
IT IS ORDERED that the attachedamendmentsto Rules 21,22,23(g), and 27(d)(i)
and (ii) of the Montana Rules of Appellate Procedure are hereby adopted, effective
immediately.
IT IS FURTHER ORDERED that the Clerk of this Court shall prepare and mail
copies of this Order and the amendmentsto:
The Code Commissioner and Director of Legal Services for the State of Montana;
The District Judges of the State of Montana;
1
The Clerks of the District Courts of the State of Montana;
The Clerk of the United StatesDistrict Court of the State of Montana;
The Chairman of the Advisory Commission on Rules of Civil and Appellate
Procedure;
The President and Executive Director of the State Bar of Montana with the request
that this Order be published in the next availableissueof TheMontana Lawyer; and that the
Order and the amendmentsbe posted to the State Bar’s website;
To the Director of the State Law Library with the request that this Order and the
amendmentsbe posted to the Law Library’s website; and
To West Publishing Company andto the StateReporter Publishing Company with the
request that this Order be published in the Montana Reports.
DATED this&%y ofJ\r! \{ ,200l
Justice
2
Rule 21. Computation and extensions of time.
(a) Computation of time. In computing any period of time prescribed by these rules,
by an order of court, or by any applicable statute, the day of the act, event, or default from
which the designatedperiod of time begins to run shall not be included. The last day of the
period shall be included, unless it is a Saturday, Sundayor a legal holiday. When the period
of time prescribed or allowed is lessthan 11days, intermediate Saturdays,Sundaysand legal
holidays shall be excluded in the computation.
(b) Extensions of timeGenerallv. Except as provided in subsections(c) and fd) of
this rule, fi
m the court for good causeshown may upon motion extend the time
prescribed by these rules or by its order for doing any act, and may thereby permit an act to
be done after the expiration of such time if the failure to act was excusable under the
circumstances; except the court in a civil casemay not extend the time for filing a notice of
appeal,except asprovided in Rule 5. Within the text of eachmotion requesting an extension
of time submitted to the court for its consideration, counselshall note that opposing counsel
has been contacted concerning the motion and whether opposing counsel objects to the
motion. All motions and orders for extensionoftime shall include a date certain on or before
which date the act for which an extension of time is requestedmust be performed.
(c) Extensions of time-Filing briefs &r appealsof termination of parental rights and
abused; &pert&m and neglected children cases;: tThere shall be a presumption against
granting motions for extensionof time to file briefs. Any motion for extension of time to tile
a brief in the referenced cases may be granted only upon written motion supported by a
showing of diligence and substantialneed. Sucha motion shall be filed at least 7 days before
the expiration of the time prescribed for filing the brief, and shall be accompanied by an
affidavit stating:
(1) when the brief is due;
(2) when the brief was first due;
3
(3) the length of the requestedextension;
(4) the reason an extension is necessary;
(5) movant’s explanation establishing that movant has exercised diligence and has
substantial need for the extension, and that the brief will be tiled within the time requested;
and
(6) whether any other party separatelyrepresentedobjects to the request.
A conclusory statement as to the pressof businesswill not constitute a showing of diligence
and substantial need.
(d) Extensions of time-Filing briefs in other cases. In all cases except those
addressedin subsection (c) of this rule. a uartv may move for. and. without obiection. be
granted one 30-dav extension of time in which to tile a brief reauired or allowed to be filed
under theserules. Anv secondor subseauent
motion for extensionof time to file a brief shall
meet the requirements of subsection(c) of theserules.
(&) Additional time after service by mail. Whenever a party is required or permitted
to do any act within a prescribed period after service of a paper upon such party and the
paper is served by mail, 3 days shall be addedto the prescribed period.
Rule 22. Motions.
Unless another form is prescribed by theserules, an application for an order or other
relief shall be made by filing a motion in writing for such order or relief. The motion shall
state with particularity the grounds therefor and shall set forth the order or relief sought.
Counsel shall also note therein that opposing counsel has been contacted concerning the
motion and whether opposing counsel objects to the motion. If a motion is supported by
briefs, affidavits or other papers, whether reauired bv these rules or otherwise, or submitted
in a nartv’s discretion, they shall be servedand filed with the motion. The supreme court may
authorize disposition of motions for procedural orders by a singlejudge. If a motion seeks
dismissal of the appealor other substantialrelief, any party may file an answer in opposition
4
within 7 days after service of the motion, or within such time as the court may direct. A
motion to dismiss made by an appellant in a civil or criminal case, except for an Anders
motion pursuant to 5 46-S-103(2), MCA, must be signed by the appellant personally, as
well as by appellant’scounsel. Motions, supporting papersand any responsethereto may be
typewritten.
At the time of filing a procedural motion counsel shall present a proposed order,
together with sufficient copies for service upon all counsel of record, as well as stamped
envelopes addressedto all counsel of record.
Rule 23. Briefs.
(g) &e@h-&Overlength and sunnlementalbriefs and costs.
(i) Motions to file overlenpth and sunolementalbriefs will not be routinelv granted
exceot in cauital cases. Motions to file such briefs in other casesmust be SUDDOlkd bv an
affidavit demonstratinv extraordinarv iustification.
mm
m For purposesof assessing
costs in civil casesunder section 25-10-104, Montana
Code Annotated, reasonablecosts shall be determined as follows: Costs will be allowed for
the actual cost per page for up to 9 copies of each brief plus 2 copies for each party to be
served, unlessthe court shall direct a greater number ofbriefs to be tiled. In taxing costs for
printing or photographing documents, the clerk shall tax costs at a rate not to exceed .20
cents per page or at actual cost, whichever shall be less. If a cross appeal is filed, the
appellant will bear the original costs of the transcript.
.
Rule 27. Form of briefs and other papers - duplication.
5
b.,, .,,,-,
(d) Calculations and length.
(i) Proportionately spacedbriefs. A principal brief must &aJ not exceed -l4$3@3
10,000 words and a reply brief, amicus brief or petition for rehearing must not exceed‘F;eee
5JXJI words. No brief or petition may have an averageof more than 280 words per page,
including footnotes and quotations.
(ii) Monotype or typewritten briefs or petitions. Briefs A minciual brief prepared
in a monospaced typeface shall either not,exceed 40 jtJ pagesw and 20
pages-k a reply brief, amicus brief; a petition for rehearing 6
f shall not exceed 14 nages. Petitions filed under
Rule 17(b) shall not exceed 5.000 words or 14 vages.
Justice Terry N. Triewciler dissenting.
I concur with those parts of this Court’s Order which retain the temporary
modifications made to Rules 22 (motions), 23(g) (motions for over length briefs). and
27(d)(i)(ii) (length of briefs), to the Montana Rules of Appellate Procedure.
I dissent from this Court’s permanentadoption ofthe temporary modification to Rule
21 regarding extensions of time. I believe it is unrealistic, unnecessarily burdensome and
typical of this Court’s increasing tendency to assumethat bureaucratic rules will make the
Court’s job easier. As another example, see Rule 54, M.R.App.P., regarding mandatory
mediation and this Court’s recent decision in Dobvocke v. City ofColumbia Falls, 2000 MT
179, 57 St. Rep. 718, where the majority held that failure to comply with the requirement for
appellate mediation will result in dismissal of an appeal.
Former Rule 2 1 was simpler, clearerand more appropriate to the realities of every day
law practice. It provided that extensionsof time could be granted basedon a demonstration
of good cause and it relied primarily upon whether the opposing party felt he or she was
inconveniencedby the extension. Good causewas frequently demonstratedby the “press of
other business” which is now an inadequatereason for the majority but is one of the harsh
realities of every day life to the averagelitigator.
Furthermore, I can seeabsolutely no connection between today’s revisions to Rule 2 1
and the purpose for which we adoptedemergencyrevisions to the rules in June2000. Those
rules were purportedly adopted to help with this Court’s increasingwork load during a time
when we were understaffed following the removal of two justices from our normal rotation
in anticipation of their retirement. Making it more difficult for attorneys to get needed
extensions does nothing to lessenthis Court’s workload. In fact, it doesjust the opposite.
It createsa whole new function for someoneat this Court to perform becausethe applications
for extensions now require closer scrutiny and occasionalconsideration by the entire Court.
7
I am told, however, at our conference where these matters are discussed.that it is
important for people to submit their briefs in a timely fashion so this Court can consider the
merits of appeals in a timely fashion. That argument might have some merit under other
circumstances. but seemsdisingenuousin light of this Court’s simultaneous amendment to
our internal operating rules on June 28, 2000, which prohibits the Clerk of Court from
sending us anymore than sevennew casesa week for consideration. As a result, we had as
of June 20, 2001, a backlog of 52 casessitting in the Clerk of Court’s office waiting to be
sent to us at the rate of seven casesper week. At that rate, and based on the number of
appealswe expect to be filed this year, the backlog by the end of this year will be just under
four months. That means that from the time all briefing is completed by both parties, a case
can expect to sit and gather dust in the Clerk of Court’s office for two months before even
being delivered to the members of this Court for their consideration and vote. It appearsthen
that the theory of maintaining the revisions to Rule 2 1 is that litigants should hurry up and
wait.
My strongest objection to the majority’s order, however, is the action taken concurrent
with the order but not specified in the order. At the same time the Court voted to make
permanent the changes to appellate procedure, it also voted to retain the change made to
Section I, Montana Supreme Court 1996Internal Operating Rules which prohibits the Clerk
of Court from sending this Court more than sevencasesper week. I originally supported that
temporary modification in an effort to deal with the unique situation in which the C0~n-t
found itself in mid-2000. As noted in the Emergency Order, Chief Justice JeanA. Tumage
and Justice William E. Hunt would no longer be participating in classification panels as of
August 1,2000, and it was necessaryto complete all casesin which they had participated by
December 3 1.2000. However, that is no longer the situation. This Court is at ftlll strength.
The average age is 20 years younger than when I joined the court in 1990 and there is no
reason that this Court cannot handlemore than seven new casesa week. (It must be kept in
8
mind that all casts arc assignedto a five-person pancl so that in reality eachjustice is now
reading only four to five new casesper week.)
Arbitrarily limiting the number of new casesthat this Court will consider per week
is nothing short of a work stoppage. It is a simple refusal of this Court to decide appeals as
they arrive. It is an historic first and unworthy of a court of this caliber. Work stoppagesare
for labor unions - not supreme courts.
Peoplesought this job by appointment or election. If after arrival it turns out that the
work is too much, there are other options. However, refusing to do the work is not one of
them.
What is worse is that the majority hasno plan for dealing with this increasing backlog
in the future. Last week the backlog was 52 cases. By the end ofthe year the backlog could
be over 100 cases. By the next time the Legislature meets, the backlog could be over 200
casesor a nearly eight month delay from the time an appealis~fullysubmitted until the Court
will even consider it.
I expect that the purpose of this arbitrary refusal to accept casesasthey are presented
is to bring public attention to this Court’s workload. The majority of the Court’s members
are disappointed with the fact that the Legislature did not enact an intermediate appellate
court and feel that a substantial backlog ofwork will re-focus attention on the need for one.
However, the majority’s frustrations aremisdirected. An intermediate appellatecourt
will not be passedor defeatedbasedon perceptionsamong the legal profession. Creation of
an intermediate appellate court dependson views at the Montana Legislature. Based on my
observations of the last legislative session,there is no misunderstandingthere about the need
for an intermediate appellate court. The bill which had broad support when introduced
simply failed becauseit was commandeered the majority party’s amendmentswhich made
by
it little more than a partisan agency rather than an independently functioning judicial body.
To the extent that this Court and its chiefjustice and chief lobbyist tacitly approved those
9
amendments, this Court can accept responsibility for failure of the intermediate appellate
court.
Sevennew casesa week (or in reality, the four or five that we actually participate in)
together with the reduced length of briefs is frankly not that much work and is substantially
less than this Court has done in the previous ten and a half years that I have been here.
Furthermore, the last sessionof the Legislature authorized three new clerkship positions to
assistwith the Court’s workload. Maybe we should give them back. I doubt they would have
been authorized had the Legislature known that, in fact, the Court pianned a work stoppage.
Still unansweredarewhether the Court intends to suspendoperationsindefinitely and,
if we don’t start now, when will the backlog be addressed? The majority has no plan other
than to make its political point.
The majority’s refusal to increasethe number of new caseswe consider each week
until we resolve this Court’s growing backlog is peevish andmisguided. Therefore, I dissent
from the majority’s decisions to make it more difficult for parties to get extensions of time
within which to file their briefs and at the same time refuse to read those briefs once they
arrive.
DATED this 24th day of July, 2001.
10
justice James C. Nelson concurs.
1concur with the rule amendmentsthat we have made. My perception of the necessity
for making these changesmay be different than those of other members of the Court, but,
speakingfor myself, I am satisfied that we are not punishing practicing attorneys, prejudicing
litigants, or shirking our judicial responsibilities in adopting these amendments.
At the outset, I believe that it is appropriateto put this matter in the context of certain
background facts:
As our Order points out, we adopted essentially these same rule changes on an
emergencybasis on June 28,200O. We did so for five reasons: (1) to addressthe impact on
Montanans’ Article II, Section 16 constitutional rights of meaningful accessto the courts
incident to delays in the appellate process at both the briefing and opinion-writing stage;
(2) to better manage our increasing workload to the end that quality is not sacrificed for
quantity; (3) to maintain the current Court’s philosophy of trying to hear more caseson oral
argument, despite our increasing workload; (4) to deal with the impact on our i!??&tral
operations occasionedby the retirements of then Chief Justice JeanA. Tumage and Justice
William E. Hunt; and (5) to implement, to the extent feasible, the October 27, 1998 Final
Recommendationsof the Intermediate Appellate Court Study Committee (Study Committee)
and the September 15, 1998 report preparedby Roger A. Hanson, of the National Center for
State Courts, for the Study Committee (Hanson Report). These recommendationsand this
report acknowledgedthat this Court was approachinga maximum productivity level and that
11
we neededto study various procedural changesincluding expedited calendars,staffing, and
the use of memorandaopinions. SeeIn TheMatter of TheAdoption of Emergency Internal
Operating Procedures and Appellate Practice Rules (June 28, 2000), 57 St. Rep. 701.
SinceJune28,2000, only one of the reasonsnecessitatingour adopting the emergency
order has beenrendered moot. Chief JusticeTumage and Justice Hunt have retired, and the
Court is now back to full strength by reasonof the election of Justice Patricia 0. Cotter and
the appointment of Justice JamesA. Rice. The first, second, third and fifth reasonsfor the
emergencyrules remain as valid now as they were over a year ago. In fact, our workload--
the driving force behind our appointment of the blue-ribbon Study Committee; our
commissioning of the Hanson Report; our requestin the past two legislative sessionsthat an
intermediate appellatecourt be created; and our adoption of the subject rule revisions, both
on an emergencyand permanentbasis--hascontinuedto increase. At present,new filings are
well over 20 percent greater than they were in 1998 (when the Study Committee and Mr.
Hanson conceded that this Court was “approaching a maximum productivity level”). New
filings in 2001 even exceedthe number of new filings in the year 2000--itself a record year
with new filings that year approximating 23 percent more than new tilings in the previous
year, 1999.
The point is that the problems and challengesthat necessitatedthe rule amendments
in the first place have not been resolveddespiteour best efforts. Indeed, for reasonsbeyond
our control, the problems have only gotten worse.
Accordingly, in my view at least, if the members of this Court are going to avoid
becoming little more that glorified paper shufflers, then it is incumbent that we manage our
workload and internal operating procedures as aggressively as possible. We were charged
to do precisely that by the Study Committee three years ago and we have been subject to
criticism by members of the Bar and by the Legislature for failing to follow the
recommendations of the Study Committee. These changes should, thus, come as no
particular surprise to anyone. They have been urged upon us from all fronts.
As for the rule changes themselves, Rule 21, M.R.App.P., has been amended to
require that, except in termination of parental rights and dependent and neglect cases,
extensionsof time to file briefs beyond the first unopposed30-day extension,be justified by
the attorney or party seeking the extension. The Hanson Report concluded that, especially
in criminal appeals, substantial delays in the appellate process are being occasioned by
litigants failing to timely file briefs. Accordingly, since briefing delays were identified as
one of the sources of appellate delay, it is appropriate that we addressit.
That said, in my eight-plus years as a member of this Court, I am not aware of the
denial of any good faith, legitimate motion for extension of time to tile a brief--opposed or
not. Even since we adopted our June 28,200O emergency order that, to my knowledge, has
remainedthe case. I do know for a fact and from personalexperience,however, that, at least
until our June 28, 2000 order, in many casesseriatim motions for extension of time were
cavalierly requestedby certain practitioners and were just as routinely granted by this Court.
13
This practice made a mockery of the filing times specified by the rules, delayed the
resolution of appealsto the detriment of opposing parties, and, in some cases, resulted in
appealssimply falling through the cracks by reasonofprocrastination on the part of counsel.
To the extent that attorneys now have to give some thought to requesting a secondor
subsequentextensionof time to file a brief and have to justify the request by showing good
cause, I believe that, ultimately, appealswill be more expeditiously resolved.
With regard to the Rule 23 and Rule 27 amendmentspertaining to the length of briefs,
againI believe that this is a legitimate exerciseof our responsibility to manageour increasing
workload. In the year since the adoption of our emergency order, I have seenno decline in
the quality of briefing becauseattorneys are being compelled to shorten their briefs. In fact,
I believe that the opposite has beentrue. Briefs have become lessverboseand, becauseeach
word and sentencehas to count, argumentsare more consideredand to the point. Moreover,
in those rare casesthat require briefing in excessof the new page and word limitations, we
have accommodated counsel on demonstration of good cause.
As to our internal determination to only consider sevennew casesfor classification
eachweek, this decision is also fully justified. While this practice was first implemented in
conjunction with our June 28, 2000 emergency order, the underlying problem existed for
some time. Indeed, the problem would still exist if we had not done something about it.
Prior to our initiation of the seven-new-cases-for-classification-per-week rule, the Clerk of
Court’s office would send up to the Court all new classification casesfor which briefing had
14
beencompleted in that week. Sometimes,the membersof the Court might get only three to
five new sets of briefs in a week (consistingusually of three, but sometimesmore, individual
briefs per set). Very often, however, eachmember of the Court would get substantially more
than that-- 10, 12 or even 15 sets.
Sincethe panel members assignedto a casehave only one week to read the briefs and
do whatever additional research and record review each deems necessarybefore having to
vote, the concernwas that conferencevotes were often being made on the basisof a lessthan
thorough review. This problem was exacerbatedwith each year’s steady increase in new
filings. Not only have the filings of new casesfor classification increased,but new filings
of petitions for writs, motions, applicationsfor original proceedings,and lawyer disciplinary
proceedings--all of which have to be read and decidedby every member of the Court--have
also increasedsubstantially in the last few years.
This Court’s seven-sets-of-briefsrule was designedto control our weekly reading load
of new casesfor classification to the end that, as to those casesat least, the panel members
could give eachcasemore deliberateand thorough considerationand thus be better prepared
to render a more informed and intelligent conference vote. Again, in my opinion, this
protocol has worked well.
The suggestion that we have adopted this internal rule for the ulterior purpose of
shirking our judicial responsibilities or to engage in a union-type work stoppage is as
ridiculous as it is demeaningto the membersof this Court. 1know of no Justiceon this Court
15
who does not take work home at night and on weekends, who does not spend a number of
holidays in the office, who doesnot read briefs while traveling (often on vacations) and who
does not work as long, if not longer, hours than before June 28, 2000. Attempting to
intelligently managea crushing workload--which increasesevery year--in order to maintain
the quality of the Court’s work product should be commended, not condemned.
Moreover, as to the contention that the seven-sets-of-classifxation-briefs per week
rule has resulted in backlogs and delays, I have several observations. First, it is true that
briefs for classification have accumulatedin the Clerk of Court’s office. Notwithstanding,
I do not believe that this has resulted in any delay in our resolution of appeals. The fact is
that most members of the Court are already carrying a substantial backlog of unwritten
opinions by reasonof the sheernumbers of casesthat we each consider and are, ultimately,
assignedto write. Where the delay in opinion writing is six months or more--as it is now--the
fact that a set of briefs sits in the Clerk of Court’s office for eight weeks before being sent to
the Court delays the ultimate resolution of the casenot at all.
Of more concern, to this writer at least, is that there is a substantial delay in getting
opini.onswritten. And, that brings me to my second observation. While some members of
this Court are concernedabout appellatedelay--and for that reasonurged the creation of an
intermediate appellatecourt to pro-actively addressthe problem--we were told by members
of the Bar that delay was not a big concern. Randy Bishop, a respectedand experiencedcivil
trial and appellate lawyer from Billings (and, at the time, President of the Montana Trial
16
Lawyers Association) testified in March of this year before the Legislature in opposition to
the creation of an intermediate appellate court. He stated:
Six to seven months is a long time when you’re waiting for an opinion, there
is no questionabout that. But the 18 months my clients wait from the time that
a casegoesto preliminary pre-hial conference and a jury trial actually occurs
is even longer. Delay is part of this system.
. I am not saying that further delay or that extendedbacklogs in the
Supreme Court, appellate level, are a good thing but I am suggestingto this
committee that the full blown creation of a permanent judicial intermediate
layer of courts is unnecessary.
Unfortunately, Mr. Bishop’s comments were fairly typical of those heard by the
members of this Court who spent countless hours writing articles and speaking to bar
associations and to individual attorneys on behalf of the intermediate appellate court
legislation. Delays in the appellateprocessin this State were, and apparently are, viewed by
attorneys as perfectly acceptable,and, when comparedto delaysin the trial courts and in the
federal court system, are considerednot worthy of much concern at all.
That is not my view now, nor has it been. I still firmly believe that taking six months
or more to write an opinion once a caseis submitted after the conference vote is too long. I
still believe that litigants are being deniedtheir Article II, Section 16 constitutional rights to
meaningful accessto the courts and to speedyand efficient justice by this delay. And, I am
absolutely convinced that this delay is going to get progressively worse until the Legislature
seesfit to create an intermediate court of appeals.
And, that brings me to my final observation. I could not agreemore that the matter
of creating an intermediate appellatecourt in the 200 1 sessionof the Legislature ultimately
17
degenerated into a politicized debacle. In fairness, various members of this Court. some
members of the Bar, and a few legislators from both sides of the isle, worked tirelessly and
cooperatively in an attempt to cause a fair and properly structured court of appealsto be
created. The citizen groups we visited were in favor of creating an intermediate appellate
court, and the State’s major newspapers all gave editorial endorsements to the proposed
legislative effort.
Notwithstanding, in the end a worthy and much-neededpiece of legislation died in a
typical end-of-sessionpeeing match driven by special interest groups and characterized by
partisan one-upmanship. In short: politics as usual, 1; litigants, courts, and the people of
Montana, 0. Disappointing? Yes. Surprising? No. Deal with it? We will.
In conclusion, I have signed our Order becausewe are attempting to responsibly
managea staggering amount of work, knowing full well that our situation is going to get a
lot worse before it gets any better. We are following the recommendationsof the blue-ribbon
Study Committee and the Hanson Report. We are attempting to do what the practicing
membersof the Bar, special interest groups, and legislators have demandedof us and what
those same people have criticized us for not doing. And, most importantly, we are
attempting to preserve the quality of our work product.
For these reasons,I concur.
18
Justice W. William Leaphart concurs in the foregoing special concurrence.
19
Justice W. William Leaphart specially concurring:
The dissent contends that the Court is engaged in a “work stoppage.” Normally I
would not respond to such an absurdproposition. However, since it is unfortunately a public
accusation, a reply is appropriate. Furthermore, since the members of the Court have been
depicted by the dissentas conniving laggards,my responseis somewhat lessdiplomatic than
I would ordinarily considerjudicious. But then diplomacy is not the order of the day.
Justice Trieweiler characterizes the weekly brief limit as “arbitrary” and “peevish.”
As the initial proponent of the weekly brief limit, I can offer a more positive perspective.
A majority of the Court felt that we could not continue to entertain an untold number
of briefs in any one week; that the reading demandsof the workload (over 3000 pagesper
month as of 1999) had progressedto the point that we were having to cast our weekly votes
based upon a very rushed reading of the briefs and little or no time to review the record or
cited authorities. In short, we felt that, in order to do each casejustice, we neededto devote
more, not less, time reviewing casesbefore we cast our votes. Given that there are only so
many hours in the day and given the ever-increasingnumber of motions, petitions for writs
and lawyer disciplinary matters coming before the Court, we decidedit madesenseto budget
our time so that each set of briefs would be assured a greater period of reading time.
Accordingly, in the spring of2000 we analyzedthe Court’s workload over the previous three
to four years to determine how many casesa week we would have to vote on and still keep
abreastof the workload. That number was seven. The problem, of course, is that since that
time, the number of caseshascontinued to increasewhile the number of hours in the day has
20
not. Not surprisingly, we presently have a backlog of casesin the Clerk of Court’s Office.
Obviously there is no magic to the number seven. The question is do we continue with our
efforts to maintain quality with some sort of weekly limit or throw in the towel and start
pumping out votes and decisions at whatever speedthe filings demand.
This State is fortunate to have a young and energetic Court. Every member is
extremely dedicated and hard working. This Court produces as many if not more written
opinions, on a perjudge basis, than any other appellatecourt in the country. It goes without
saying however that at somepoint, the quantity of opinions being issuedbegins to take a toll
on the quality. The more time we have to work on a case, the better job we do. The
frustrating truth is that, despite our efforts to manageour time through shorter briefs and the
seven case per week limit, we still do not have sufficient “quality time.” Due to the
significant increasein motions, writs and prisoner petitions we are, again, merely treading
water. That is all the more reasonto keep the limit, not jettison it.
Needless to say, we each have different work habits. I, for example, start reading
briefs at 6:00 a.m. every day of the week, including weekends and vacations. I read briefs
late at night and while riding in cars and planes. With the assistanceof my very able law
clerks, I have, over the last five years averaged56 opinions per year. Like other members
of this Court, my number of yearly opinions is more than twice the national average for an
appellatejudge. As these figures attest, Justice Trieweiler’s suggestion that I and the other
members of the Court are engagedin a “work stoppage” is simply vacuous.
21
As Justices we have individual lives, livelihoods and fortunes in our hands. In terms
of fulfilling our responsibility to provide quality justice, we should be spending more, not
lesstime on eachcase. As a litigant before the Court, I would not want my caseto be the last
in a long string of casesthat a justice is reading late at night before the Court’s Thursday
morning conference, any more than I would want to be a patient scheduledfor a late after-
noon operation by a surgeonwho concedesthat, due to the large number of cases,his or her
patients are not getting the attention they deserve.
This whole fracas about a weekly brief limit is, in the final analysis, a tempest in a
teapot. Even if we abolish the weekly caselimit, we will still havejust as big a back log.
The only difference is whether the back log is at the front end or back end of the process.
Under the present system, casesbecome back-logged waiting to be voted on. Without the
weekly limit, the cases get voted on sooner but then pile up waiting for justices to draft
opinions. Either way, the casestake the same amount of time to move through the system.
The difference is that the weekly limit allows us more time to spend digesting the briefs
before we vote. The alternative requires that we hastily consider and vote in a week’s time
and then allow the case to languish on onejustice’s writing assignmentlist for months.
The Spartan approach of trying to read all briefs, regardlessof number, in a week’s
time, hasno place in a deliberative system ofjustice. If there is a problem with backlog, the
answer lies in more courts or more judges-not in expecting the presentjustices to “bite the
bullet” and rush to judgment.
22
Setting a new standardin collegiality, JusticeTrieweiler suggeststhat those ofus who
do not accept his casemanagementapproach should consider other “job options.” As much
as I value this advice, the fact is that I am proud to serve as a justice on the Montana
Supreme Court. The members of this Court are hard working, dedicated public servants.
Like them, I do not in the least begrudgethe long hours that I work. Although I am confident
that I am doing a goodjob, I would like the opportunity to do a better job by focusing more
time on briefs and opinions than I presently can.
As justices, we are responsiblefor managing our workload so that we have sufficient
time to give eachset ofbriefs a fair reading, anintelligent vote and a consideredopinion. The
number of tilings is increasing each month. In the absenceof some effort to manage our
workload and budget our time, we will be reducedto black-robed automatonsmechanically
issuing one line rulings; affirmed or reversed. The public deservesbetter from its highest
court.
I concur.
Chief Justice Karla M. Gray specially concurring:
I join in Justice Nelson’s concurring opinion in its entirety. I also join in Justice
Leaphart’s concurring opinion, writing separatelyonly to say that I organize the substantial
numbers of “extra” hours I work each week differently than Justice Leapiart does.