Thread by @ReavisforMT

Yesterday @GovGianforte made a big splash in the news by asking the MT Supreme Court to reconsider its privacy protections in light of the Dobbs decision. The Governor’s attorneys, in filing this brief, stampede over the MT Rules of Appellate Procedure. A thread. #mtpol 1/

Amicus briefs are controlled by M. R. App. P. 12(7). “A brief of an amicus curiae may be filed only upon invitation or leave of the supreme court granted on motion.” Motions must provide a date when the amicus brief can be filed. 2/

Amicus briefs are almost always filed while a case is being briefed, that is, when the lawyers are making their legal arguments, but before the Court starts deliberating. Filing motions after a case has been fully briefed is something pro se litigants do, not State attorneys. 3/

The MT Supreme Court does not want lawyers to file things after briefing is done. That ends once the reply brief is filed. M. R. App. P. 12(3) says that after a reply brief is filed, “No further briefs may be filed without leave of court.” 4/

Once the reply brief is filed, the case then goes to the MT Supreme Court for a decision. This means the clerk’s office sends all the briefs over to the justices at the same time for them to read, deliberate, and research the law to arrive at a decision. 5/

Filing motions and briefs after the clerk has transmitted the case to the justices is extremely disruptive. Under section I of the Internal Operating Rules, cases are already being assigned to court staff, justice panels, and conference agendas. 6/

Section I(1) of the internal rules state these late filings “shall be promptly delivered to the justices.” This means the Governor’s attorneys are just swamping the justices with paper in a pell-mell way. 7/

Now, there is ONE right way to file a document after briefing is done, and that’s a notice of supplemental authority, covered by M. R. App. P. 12(6). This is a simple notice to inform the court that a significant authority has come out after briefing but before decision. 8/

A notice of supplemental authority is not a chance to make new legal arguments. You are only “setting forth the citation(s) without argument.” M. R. App. P. 12(6). If the Court wants you to do more briefing, they’ll let you know; otherwise, they can read the case themselves. 9/

Now let’s get into Planned Parenthood v. State, DA 21-0251. Briefing finished on April 19. Dobbs case comes out on June 24. State filed a notice of supplemental authority informing the Court of this on June 27. Proper procedure followed. Should be no more filing. 10/

But that wasn’t enough for @GovGianforte and his political agenda. So, about a month later (just long enough for an attorney to write a brief), they file this very questionable amicus motion the Court did not ask for and is not needed. 11/

Furthermore, by lodging the brief along with the motion, @GovGianforte is pulling off a clever roundabout. Even if the Court denies the motion, they’ve still aired their legal laundry to the Court and to the public, generating press coverage. 12/

Filing motions for leave to file amicus briefs while a case is already being deliberated is extremely poor form and is a tactic of pro se litigants, not legal professionals. Don’t be surprised when the MT Supreme Court denies these improper motions or ignores them. 13/

If these amicus motions are denied, the @GovGianforte messaging team will likely cry fowl and paint the Court as partisan. Don’t take the bait, press. It is the Governor’s attorneys that are stampeding over the court rules to gain attention and coverage, nothing more. 14/