IN THE SUPREME COURT OF THE STATE OF MONTANA

AF 06-0632

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IN RE THE INTERNAL OPERATING RULES 

OF THE MONTANA SUPREME COURT O R D E R

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Following a publication of proposed revisions to the Internal Operating Rules of the 

Montana Supreme Court, a comment period, and a public meeting on November 14, 2023, 

Section V is amended as follows:

SECTION V. ORDERS OF THE COURT

1. This section is designed to provide a more efficient procedure for issuing 

and executing orders of the Court, and to conserve its judicial resources. All 

orders covered by paragraph 2 of this section shall may be signed by the chief 

justice or in his or her absence, the acting chief justice, on behalf of the Court 

in this manner:

 For the Court,

 By _____________________________________

 Chief Justice

2. The following orders shall may be signed as provided in part 1:

(a) All orders based on stipulation of counsel, including stipulated 

orders of dismissal.

(b) All voluntary orders of dismissal if the motion to dismiss 

complies with M. R. App. P. 16(4).

(c) All orders covering matters decided by the Court in conference, 

with the exception of orders granting or denying petitions for rehearing.

(d) All orders fixing or extending the time within which an act must 

be done.

11/14/2023

Case Number: AF 06-0632
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(e) All orders concerning court calendars, case classifications, 

overlength briefs, participation in and time limits for oral argument, 

applications for filing of briefs or for oral argument for amicus curiae, and 

related orders.

(f) All orders reinstating attorneys to active status if the attorney had 

voluntarily chosen inactive, emeritus, or senior status, except when the 

attorney has been on inactive status for five or more years.

(g) All interlocutory orders.

3. The following matters shall require the individual signatures of a majority 

of the justices:

(a) All opinions.

(b) Orders granting or denying rehearing, non-stipulated or 

non-voluntary orders of dismissal, or and other final dispositions.

IT IS THEREFORE ORDERED that the Proposed Revisions to the Internal 

Operating Rules of the Montana Supreme Court are ADOPTED. The Rules are amended 

to read as shown above, effective immediately.

IT IS FURTHER ORDERED that this Order shall be posted on the Montana Judicial 

Branch website and copies provided to the State Bar of Montana and the Montana State 

Law Library. 

DATED this 14th day of November, 2023.

/S/ MIKE McGRATH

/S/ BETH BAKER

/S/ JAMES JEREMIAH SHEA

/S/ INGRID GUSTAFSON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE
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MONTANA SUPREME COURT INTERNAL OPERATING RULES

SECTION I. CLASSIFICATION AND CONSIDERATION FOR SUMMARY 

DISPOSITION, REBRIEFING, AND SUBMISSION ON BRIEFS

1. Upon receipt of appellant’s reply brief, or after the time for filing the same has expired, 

the office of the clerk of court shall promptly deliver copies of the briefs to all justices. All 

documents subsequently received pertaining to such appeals shall be promptly delivered to 

the justices.

2. Court staff then shall assign each case to the next available panel of five justices under 

the Court’s panel rotation system and place each case on a conference agenda at least one 

week later.

3. On the conference date the following procedure will be used in considering the cases 

set for conference:

(a) Each case will be discussed by the justices assigned to that case. The first issue shall 

be oral argument. If three justices request oral argument, the case will be set for oral 

argument en banc, and no further discussion will be held on that case. If a justice would 

like to discuss assigning a case for oral argument prior to the conference for which the case 

is scheduled, the case shall be placed on the next appropriate classification conference 

agenda en banc for purposes of discussing oral argument of the case.

(b) If an appeal is deemed frivolous, it will be summarily dismissed. If a case is found to 

be insufficiently briefed, it may be returned to counsel for such rebriefing as is required.

(c) (i) If an appeal presents no constitutional issues, no issues of first impression, does not 

establish new precedent or modify existing precedent, or, in the opinion of the Court, 

presents a question controlled by settled law or by the clear application of applicable 

standards of review, the Court may classify that appeal as one for a memorandum opinion. 

(ii) The decision of the case will provide the ultimate disposition without a detailed 

statement of facts or law. The decision shall not be citeable as binding precedent, but may 

be cited when relevant to establishing the application of law of the case, res judicata, or 

collateral estoppel; or in a criminal action or proceeding involving the same defendant or 

a disciplinary action or proceeding involving the same person. The opinion shall be filed 

as a public document with the clerk; shall be reported by result only to the LexisNexis 

Group and to West’s Pacific Reporter along with the case title and Supreme Court cause 

number in the quarterly table of unpublished opinions issued by this Court; and shall be 

assigned a public domain, neutral-format citation in accordance with the Court’s order 

dated December 16th, 1997, and posted to the State Bulletin Board.

(iii) A memorandum opinion may be entered pursuant to this subsection on a majority 

vote, even if the opinion is not unanimous, provided that all justices participating in the 

action shall agree that such summary disposition of the action may be made.

(iv) A petition for rehearing of a cause decided under this subsection may be served and 

filed pursuant to the provisions of Rule 20, M. R. App. P.
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(d) If the case is classified as submitted on briefs, the five justices on the panel will discuss 

the merits of the case and take a tentative vote. If four or more justices reach a conclusion, 

the chief justice then will assign the case to one of the five justices on the panel for opinion 

writing, and that date will be the submission date for that case. If four justices do not vote 

for one position, the case will be assigned for en banc consideration at the conference one 

week later.

(e) The Court will enter an appropriate order in each case, advising counsel or the parties

of summary disposition, rebriefing requirements, or submission on briefs.

(f) Cases classified for oral argument shall be placed on the calendar. The Court will enter 

an appropriate order giving notice of the time set for hearing oral argument.

SECTION II. ORAL ARGUMENT

1. A conference will be held following oral argument. The members of the Court will 

discuss and vote on the case.

2. Oral argument cases on which a vote has not yet been taken will receive first priority at 

all Court conferences. A justice absent at a subsequent conference will be responsible for 

presenting his or her views in writing in time for conference.

3. When four justices have reached a tentative decision on a case, that case will be assigned 

for opinion writing by the chief justice. The date the case is assigned for opinion writing 

is the submission date for the case.

SECTION III. OPINIONS

1. The basic aim is that the final opinion in each case shall be signed and filed with the 

clerk not later than 180 days following the submission date. Complexity of issues and case 

load may require additional time for filing of the final opinion with the clerk.

2. Within the foregoing period of 180 days, the following apply:

(a) Within ninety days of the submission date, the opinion-writing justice shall circulate 

an opinion draft. The ninety-day period for circulation of an opinion draft is a basic aim; 

however case load and complexity of issues may require additional time. The draft opinion 

shall be considered at the next conference, subject to the requirement that the opinion must 

be circulated by noon on Friday in order to be considered at the next week’s conference.

(b) At the conference, the opinion draft shall be voted upon. If four justices vote in favor, 

the draft shall be finalized.

(c) A justice shall circulate copies of his or her signed dissenting or concurring opinion as 

soon as practical after the date on which a majority approve a proposed opinion.

SECTION IV. OPERATION AS SEVEN-JUSTICE AND FIVE-JUSTICE COURT

1. The Supreme Court en banc shall consist of seven members. The Court en banc shall 

hear all cases in which the accused shall have been sentenced to death, cases in which a 

bona fide challenge is made to the constitutionality of a statute, cases involving a question 
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certified to the Court by another court pursuant to Rule 15, M. R. App. P., and such cases 

as shall be determined by two or more justices to require a hearing en banc.

2. Any petition for rehearing shall be considered by those justices hearing the case in the 

first instance. Whether decided by a five judge panel or en banc, if four members would 

grant a petition for rehearing, the petition shall be granted. Those justices hearing the case 

in the first instance shall then determine whether to decide the case on the briefs or after 

oral argument. If a petition for rehearing is granted, the parties to the appeal will be notified 

as to whether the case will be decided on briefs or after oral argument.

3. All proposed opinions shall be circulated to all justices, whether members of the panel 

or not. Any justice who is not a panel member may request participation in the panel 

conference on such proposed opinion.

SECTION V. ORDERS OF THE COURT

1. This section is designed to provide a more efficient procedure for issuing and executing 

orders of the Court, and to conserve its judicial resources. All orders covered by paragraph

2 of this section may be signed by the chief justice or in his or her absence, the acting chief 

justice, on behalf of the Court in this manner:

 For the Court,

 By _____________________________________

 Chief Justice

2. The following orders may be signed as provided in part 1:

(a) All orders based on stipulation of counsel, including stipulated orders of dismissal.

(b) All voluntary orders of dismissal if the motion to dismiss complies with M. R. App. P. 

16(4).

(c) All orders covering matters decided by the Court in conference, with the exception of 

orders granting or denying petitions for rehearing.

(d) All orders fixing or extending the time within which an act must be done.

(e) All orders concerning court calendars, case classifications, overlength briefs, 

participation in and time limits for oral argument, applications for filing of briefs or for 

oral argument for amicus curiae, and related orders.

(f) All orders reinstating attorneys to active status if the attorney had voluntarily chosen 

inactive, emeritus, or senior status, except when the attorney has been on inactive status 

for five or more years.

(g) All interlocutory orders.

3. The following matters shall require the individual signatures of a majority of the 

justices:

(a) All opinions.
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(b) Orders granting or denying rehearing, non-stipulated or non-voluntary orders of 

dismissal, and other final dispositions. 

SECTION VI. JUDICIAL RULEMAKING

1. An application for the adoption, rescission, amendment, or implementation of a rule or 

program regulating Montana’s lawyers may be made to the Supreme Court at any time. 

The moving party’s application and all supporting documents shall be filed with the clerk 

of court.

2. The Court may provide a comment period for proponents and opponents to state their 

views on the application. The Court may also use this opportunity to voice its comments 

on the subject.

3. The Court shall consider the application at a public meeting.

4. If comments are received, the Court may provide the moving party an opportunity to 

respond to the comments. Response of the moving party includes not only substantive 

discussion of the comments received, but also potentially substantive changes to the subject 

matter of the application.

5. If substantive changes are made to the proposed rule or program by the applicants, the 

Court may re-open the comment and response periods.

6. Free flow of information is encouraged.

7. The publication of the application for the adoption, rescission, amendment, or 

implementation of a rule, program, or order, whether for comment or after final action by 

the Court, may be accomplished, at the Court’s discretion, by publication in the Montana 

Lawyer magazine, by electronic publication on the websites of the State Law Library, the 

Court, or the State Bar of Montana, or by any combination thereof.

8. The adoption of this process is in no way intended to interfere with or preclude operation 

of the Court’s original, inherent, and exclusive jurisdiction and responsibility under 

Article VII, Section 2(3) of the Constitution of the State of Montana to make rules 

governing the conduct of Bar members.

SECTION VII. GENERAL

1. The chief justice shall assign all cases for opinion writing among the justices. The chief 

justice shall rotate on the five-member panels in the same manner as other justices and shall 

hear a like number of cases. The chief justice may be assigned up to one-third fewer cases 

for opinion writing than other justices because of his or her additional administrative duties.

2. The Court shall generally hold a conference on Tuesday afternoon. At all conferences, 

oral argument cases without a submission date shall be given top priority. The chief justice 

shall prepare an agenda for each conference. Each week’s conference agenda shall be 

distributed by the preceding Friday afternoon. A conference agenda listing the appeals to 

be considered for classification and original proceedings and motions to be considered will 

be made public. In the event any justice is unable to attend a conference, if possible he or 
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she shall advise the chief justice two days prior to the date of the conference. In addition,

the justice shall submit a written vote setting forth his or her decisions on matters to be 

discussed at the conference.

3. The chief justice shall preside over all matters on which he or she sits. If the chief 

justice is not sitting on that case, the member of the Court with the shortest time to serve 

shall be the acting chief justice for that case.

4. In those cases in which a justice disqualifies himself or herself, the chief justice or acting 

chief justice shall designate a replacement.

5. These rules may be suspended or waived by order of the Court.

6. At the first weekly conference in each month, the clerk shall prepare and circulate 

among the justices a written report listing all matters which are past due under these rules, 

and giving the status of all uncompleted applications for writs, motions, and other matters 

requiring the attention of the Court.

7. A full written opinion shall be prepared unless the Court shall determine the disposition 

shall be by order or by memorandum opinion. An example of disposition by order is the 

following:

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. ___

[Title of Cause] ORDER

______________________________________

The appeal in this case is dismissed for failure of appellant to order or file a 

transcript within the time allowed by law. See Rules 8(3) and 9, M. R. App. P.

(DATED AND SIGNED)

8. Upon the filing of petitions, applications, or motions with regard to habeas corpus, 

post-conviction relief, mandamus, prohibition, supervisory control, extraordinary writ, or 

other requests not pertaining to a pending appeal, the clerk shall deliver a copy of the same 

to the justice assigned to be the lead justice on that case. Such assignments shall be made 

in rotation, by court staff. If the assigned justice deems it necessary, he or she shall order 

a response. When the ordered response is filed, the clerk shall deliver to each justice a 

copy of all papers filed and the matter will be placed upon the next Tuesday conference 

agenda. If the assigned justice determines that the Court should consider the petition or 
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application before ordering a response, the matter shall be put on the next conference 

agenda, and the clerk will be requested to deliver to each justice a copy of the papers filed.

9. In all opinions regarding the abuse and neglect of children and the termination of 

parental rights pursuant to Title 41, chapter 3, MCA, the Court shall attempt to maintain 

the confidentiality of children by referring to both the children and the parents involved by 

their initials or first names only, as justice requires.

10. The foregoing rules supersede all prior internal rules of this Court, whether or not 

specific reference is made to such prior rules.