APPELLATE ADVOCACY
FIRST STEP IN ANSWERING EXAM QUESTION: READ THE RULE
I. Preface: First step in handling an appeal in any court is to read the rules
for that court.
II. Amendments to Montana Rules of Appellate Procedure.
a. Officially amending Rules 21, 22, 23(g), and 27(d)(i) and (ii).
b. Regarding MT Supreme Court case load – 7 cases a week. Debate
over not allowing attorneys extensions for filing briefs.
c. MT Supreme Court said extensions add to back log of cases in clerk’s
office. (Perhaps Justices way of putting pressure on court to add more
justices to the Supreme Court)
d. Trieweiler dissent: Extensions don’t matter because only 7 cases are
allowed in per week, no matter the extension or not.
e. Howell: Supreme Court split down the middle in their opinions.
f. Nelson concurs (w. MT Supreme Ct) about shorter brief length: It’s
harder to write something good when it’s short than to write
something good when it’s longer. 7 cases per week will allow them
to spend more time on the briefs in front of them.
III. Deciding to Appeal
What is your ethical duties to your client? Then:
a. Must evaluate the likelihood of success and the potential cost of
failure before you can make a professional recommendation whether
to appeal.
b. Have an obligation to the judicial system to recommend an appeal
only in those cases because: (1) errors are both clear and prejudicial, OR (2)
because of the seriousness of the policy issues involved.
c. Most important consideration: whether a basis exists for reversing
the decision of the trial court. Standard of Review: Unless it’s a
clearly erroneous issue of law, which is de novo at Appeals level, standard is
favoring discretion of District Court.
d. Most appeals are unsuccessful. Appellate judges generally respect
lower court rulings.
e. Consider following questions in deciding whether issue worth pursuing on appeal:
i. Does the appeal raise an issue of law?
ii. Has the point been authoritatively decided?
iii. What are the equities? (human sympathies of judges)
iv. Is the issue relatively important?
f. Function of Appellate Court: to determine the law.
g. Appellate courts publish their opinions to provide precedents for
future disputes involving comparable facts.
h. Appellate courts do NOT resolve factual disputes. That is uniquely
within the province of trial courts. Ordinarily, you should accept these
findings, supplement them with other facts in the record, and argue
that the trial court applied the wrong rule to the facts.
i. A factual issue involves a direct attack on a factual determination, in which a
party argues that an error occurred in weighing the evidence.
j. Summary judgment/disposition substantially reduces possibility of a reversal because an appellate court is reluctant to reverse a lower court’s ruling without
providing plenary consideration and issuing an opinion.
k. Because of crowded dockets, you may need to show not only that a ruling is wrong, but important enough to merit serious consideration.
l. Indigent Criminal Appeals – For those who can’t afford own attorney, the 6th
Amendment provides an attorney for these people and they have no expense from
taking an appeal. Sixth Amendment requires counsel to prosecute a nonfrivolous appeal for an indigent client.
IV. What is An Appealable Order or Judgment?
Fontham § 9.1-9.2
a. Most important decision: identification of appealable issues-
those for which the record provides a basis for appeal-and the evaluation of
whether an appeal is worthwhile.
b. Factors for attorney and client to consider:
i. Court must have jurisdiction to hear your appeal. In addition, appellate
court must have jurisdiction over the type of case in which the ruling is
rendered.
ii. Must determine whether trial counsel properly preserved issues in the
lower court record.
iii. Must evaluate likelihood of success, importance of issues, and other
factors in determining whether to appeal.
Appellate Rule 1 – Scope of Rules – from what judgment or order appeal may
be taken.
c. See Rule 1 on page 3. (a) Governs appeals in civil and criminal cases to MT Supreme Court from the MT District Courts and original proceedings in MT Supreme Court.
(b) In civil cases, may appeal from:
i. final judgment entered in an action or special proceeding
commenced in district court or brought into district court
from another court of administrative body (e.g. justice ct)
ii. from an order (note: some of these are interlocutory orders –
you MUST appeal immediately when they are entered IF the
other side files a notice of entry of judgment)
1. granting a new trial (policy: its inefficient to not allow that
to be reviewed)
2. refusing to permit an action to be maintained as class action
(policy: don’t want to force each case to be tried separately
before appealing)
3. granting or dissolving an injunction
4. refusing to grant or dissolve an injunction
5. dissolving/refusing to dissolve an attachment
6. changing/refusing to change place of trial when county
designated in complaint is NOT proper county
7. appointing/refusing to appoint a receiver
8. directing delivery, transfer, or surrender of property
(see Bank of Baker – but Hamilton and Baker did a different
analysis. This rule says it’s an appealable interlocutory order,
but the analysis in Baker said it was final judgment)
9. any special order made after final judgment
10. in actions for partitions: from such interlocutory judgments
or orders as determine the rights and interests of the respective
parties and direct partition to be made
In any of the cases mentioned above, the supreme court, or a justice thereof, may
stay all proceedings under the order appealed from, on such conditions as may
seem proper.
iii. From judgment or order (note: some of these are interlocutory. The
theme here is probate and family law matters, where (2) is a
catch all, no theme)
1. granting/refusing to grant, revoking/refusing to revoke letters
testamentary, or of administration or of guardianship
2. admitting/refusing to admit will to probate
ivP 54(b).
h. Alternative procedure to ask for MT Supreme Court to review key interlocutory
rulings – Writ of Supervisory Control – based on MT Supreme Court’s
supremacy over all courts. Allows you to get to MT Supreme Court even if you
have no other way to appeal. RARE. Court hears your case outside the avenue for
direct appeal.
i. MRCivP 54
1. Facilitates entry of judgment on one or more claims, or as to one or more parties, in a multi-claim or multi-party action
2. Where multi-claims for relief/parties are involved in an action, any order/
decision that adjudicates less than all the claims or rights and liabilities of less than all the parties DOES NOT terminate the action as to any claims/parties, but
the District Court may direct entry of a final judgment as to one or more, but
fewer than all of the claims/parties only when there is no just reason for delay and upon request.
3. In multi-claims/party action, an adjudication lacks finality if District Court adjudicates one or more, but less than all of the claims.
Cases
1. Inthe Matter of B.P. and A.P.,Youths in Need of Care (2000) – page. 81
Facts: District Court entered order granting petition of MT Dept Public Health &
Human Services for temporary investigative authority and protective services for
minor kids of Ronda Pavek.
Issue: Is such an order appealable? (Does MT Supreme Ct have jurisdiction to hear the appeal?)
Analysis:
MT Supremes’ jurisdiction is set forth in MT Constitute – Article VII, Sect. 2
Sect. 2(1) vests MT Supremes with appellate jurisdiction
Sect. 2(3) authorizes MT Supremes to make rules governing appellate
procedure (MT legislature cannot say anything on that)
MRAppP 1(b) sets out judgments and orders from which appeal may be taken in
civil cases.
1(b)(1) – expressly provides that appeal may be taken from a final judgment entered in a District Court
Final Judgment: Judgment that constitutes a final determination of the
rights of the parties – any judgment, order, or decree that leaves matters
undetermined is interlocutory and not a final judgment for the purpose
of appeal.
à Rule 1(b)(1) does not provide basis for hearing appeal b/c an order for TIA is
not a final judgment. (often the first order entered in an abuse and neglect
proceeding which ultimately may encompass numerous orders)
1(b)(2) & (3) provide for appeals from specified interlocutory orders – from those
listed. An appeal from interlocutory order not specified there is premature and
must be dismissed for lack of jurisdiction to entertain it.
Rule 3 allows MT Supremes to suspend the rules of appellate procedure. MT Supremes created the rule. “We can suspend the rules.”
Holding: Interlocutory order granting TIA not appealable under Rule 1, but used
Rule 3 to suspend appellate procedures.
Why: Because of the welfare of the children. Bad analysis and interpretation of
the previous case (overrules the previous case that did allow appeal of TIA). Also, appellant likely to petition for writ of cert, habeas corpus, or supervisory control regarding these same issues.
