June 27 2013
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. AF 07-0016
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IN RE ADDING TO THE MONTANA RULES OF )
APPELLATE PROCEDURE A RULE ON JUDICIAL ) ORDER
WAIVER APPEALS )
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Chapter 307, 2013 Laws of Montana, generally requires parental consent prior to an
abortion for a minor, and provides for an expedited confidential appeal to this Court by a
petitioner if a youth court denies a petition for waiver of the parental consent requirement.
Chapter 307, which has an effective date of July 1, 2013, includes a provision allowing this
Court to adopt rules providing for such expedited confidential appeals.
Based in part on a proposed rule submitted to the Court by the Office of Appellate
Defender (OAD), the Court has crafted the attached rule regarding those expedited
confidential appeals. On May 8, 2013, we published the rule as a proposed rule and allowed
30 days for public comment. No comments were filed with the Clerk of this Court within the
time allowed.
Therefore,
IT IS ORDERED that the attached rule is adopted. It shall be added to the Montana
Rules of Appellate Procedure as Rule 30.
This Order and the attached 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 Rule to OAD; to Kevin Hayes and Todd Everts at Montana
Legislative Services Division; to Helene Haapala and Louise Ricci at Thomson Reuters; to
Robert Roy at Lexis; and to the State Bar of Montana, with the request that the State Bar
provide notice of the new rule on its website and in the Montana Lawyer.
DATED this 27th day of June, 2013.
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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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 of the 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 of appeal 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
of the confidential record of the 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 hours, including weekends and holidays, after the youth court’s
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receipt of the request for the record.
(4) Brief. A brief is not required. However, the minor may file a memorandum in support
of the appeal within 48 hours, including weekends and holidays, after filing the notice
of appeal.
(5) Disposition. The supreme court may designate a panel of five or more of its
members to consider the appeal. The supreme court shall review the decision of the
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 of the 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 of the
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. If the end of a 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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