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Helena Independent Record - "Supreme Court Backlog"

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Location: Helena, MT

Helena Independent Record - "Supreme Court Backlog"

In Butte, a dispute over building a road to the Our Lady of the Rockies statue has been before the Montana Supreme Court more than 2.5 years — with no decision in sight.

In Billings, Peggy Jackson has been waiting more than two years for the high court to rule on the terms of her divorce, which her husband appealed in October 2005.

"I am 65 years old and would like to get my life in order for my kids," she wrote in a letter to the court clerk in December. "Would you please check and see if you can give me any idea when the court will decide my case?"

And in Kalispell, landowner Harry Blazer has been trying for months to sell a piece of property, but cannot because of a pending court appeal affecting access to the land. The appeal, filed with the Montana Supreme Court by his neighbors, has been before the court since September 2005.

"It's really creating quite a hardship on him," says his attorney, Randy Ogle of Kalispell. "This is the longest time I have ever waited for a decision from the Montana Supreme Court. It doesn't make the judicial system look good at all."

All told, nearly 70 of the approximately 360 cases being considered by Montana's seven-member Supreme Court have been before the justices more than a year, awaiting a decision.

Justices on the court say they're not happy about the long wait, and realize it creates problems for those awaiting a decision. But they also say there's not much they can do about it.

"I would stack this court's work ethic against any court that has ever existed (in Montana)," says Chief Justice Karla Gray. "I don't think we can do better by any means that any of us haven't thought of — and we have tried."

Gray also says lengthy cases are the exception rather than the rule, noting that the vast majority of decisions are processed in less than a year. About half the decisions also come in under a six-month goal the court sets in its own operating rules.

Nonetheless, attorneys who spoke to the Lee Newspapers State Bureau said the wait on some cases is unusually long, and that long waits seem more frequent than they used to be.

Most attorneys declined to speak on the record, saying they don't want their comments to affect cases they have pending before the Supreme Court.

Attorney General Mike McGrath, however, is not shy about giving his opinion on the delays.

McGrath, who is running to succeed Gray as chief justice of the Supreme Court, says the current situation is "unacceptable" and that streamlining the process would be a top priority for him as chief justice.

"There frankly is no excuse for keeping a case up there for more than a year," McGrath says. "It's not fair to the litigants, it's not fair to the public."

McGrath so far has no opponent in the election. Gray is retiring this year after eight years as chief justice and 18 years on the high court.

Supreme Court justices say reasons for delays are many, and that most are beyond their control.

For starters, Montana's Supreme Court has no control over the number of cases it considers, they point out. It must accept and consider any appeal, and Montana is one of only 11 states without an intermediate court of appeals, so appeals from state district court go directly to the high court.

The court caseload increased dramatically from 1995 to 2004, rising from 580 that first year to a peak of 882 in the final year. Since then, the load has leveled off a bit, down to 676 cases in 2007, which is only slightly more than the average caseload of the early 1990s.

The court also has added four new law clerks since 2001, giving it a total of 25 on staff. Each justice has two clerks that help draft opinions; three clerks rotate among the seven justices; one clerk handles "pro se" cases that are filed by people without an attorney's assistance.

Once a case record is complete and sent up to the justices, the case gets assigned to a five-judge panel. If at least four of them agree how to rule, that panel assigns someone to write the majority opinion.

But if the vote is 3-2, the case must be reviewed by the other two justices, adding more time.

Justice William Leaphart says a closely divided case can stretch on for months, because it may take time to convince four justices which side to join, and there's also a dissent to be assigned and written.

"If it's a sticky issue, you may have some discussion one week and people aren't ready to vote, and want to do some further reading," he says. "It could go on for a couple of months. Then there is the dissenting justice, who may not get around to finishing (his or her opinion) for several months."

Also, the minority dissenters may end up writing a strong opinion, causing one justice to switch — and the process of crafting a majority opinion starts again, Leaphart says.

This internal back-and-forth is evident in the Lady of the Rockies case, which involves several landowners who say the statue and tourist attraction doesn't have a right to build a paved road through their property en route to the statue on the Continental Divide overlooking Butte.

The case, appealed to the Supreme Court by the landowners in February 2005, was sent to the justices in July of that year with its written record and arguments. It was classified by a five-judge panel in November 2005, meaning the panel had a majority and assigned someone to write the opinion.

But just last week — more than two years later — the court said the case had been reclassified for consideration by the entire seven-member court, and that Gray had excused herself from the case, substituting a District Court judge. The case now must wait for the majority opinion to be written and, possibly, a minority dissent.

Justices say they also give higher priority to some cases, such as those involving child custody and commitment of the mentally ill, most criminal cases, and time-sensitive cases, such as imminent death-penalty sentences or election disputes right before an election.

"When those happen to you, it blows your best plans right out of the water," says Justice Jim Rice. "Things that were a little lower priority go to a real low priority."

Yet one delay factor is something the court does control: Its scheduling conferences and how it classifies the cases.

Four years ago, the court changed this procedure, deciding it would review and assign only seven cases a week at one scheduling conference every Tuesday.

Before, the court went through however many cases were sent up in a given week, be it three or 23.

Gray and other justices say the change gives them more time for writing and allows them to apply even scrutiny to all cases.

"We didn't think it was a good idea to have to take every case that came up, read it and be ready to discuss it the following week," she says. "You don't want a group of justices in their 80th hour of work that week trying to cram that case into a decision."

Still, the change has added time to the process. Supreme Court Clerk Ed Smith says cases used to be classified and assigned within four to six weeks of the court receiving the full case record. Now, it routinely takes four to five months.

Gray also says the court has been assigned more administrative duties in recent years. For example, the 2003 Legislature placed the entire state District Court system under administration of the Supreme Court — a huge job that took many hours to put into place.

"It's very easy for some people who aren't here to talk about all these wonderful changes you could make," she says. "It's just not easy to do it."

McGrath says he's convinced changes could be made to help get cases out the door more quickly. Some procedural matters could be delegated to law clerks, for example, or justices could simply decide to write shorter opinions and more memorandum opinions, which decide a case but cannot be cited as legal precedent.

"A lot of these cases, people just want an answer," McGrath says. "They're not major cases that require lengthy opinions. There's just no need to write lengthy dissents in some cases, either."

Justice James Nelson, easily the longest writer on the court, says the court has gone to more "memo" opinions in recent years. But on some cases, a long opinion is needed, he says.

"Some of these cases involve millions of dollars; criminal cases involve people's lives," he says. "Those are the type of cases that you just want to get absolutely correct."

Nelson's majority opinions average nearly twice as long as his nearest colleague and he sometimes writes lengthy dissents as well.

That's just the nature of the job, Nelson says. Complex cases require a thorough review of the law and the record, and an equally thorough explanation of why the court ruled the way it did, he says.

"When you write an opinion that's going to be published, it's going to serve as precedent for other cases, for years, maybe decades," he says. "They have to be well-researched and well-written."

Reporter Mike Dennison: 443-4920 or

High Court to take closer look at performance measures

IR State Bureau

Montana's Supreme Court, which has seen its workload increase steadily for most of the past two decades, will be taking a closer look at performance measures for the court.

Staff from the National Center for State Courts, funded by a $28,000 grant, are coming to Montana next month to meet with the high court and discuss whether it might adopt a performance-measure system.

Chief Justice Karla Gray said the project will examine court procedures and perhaps suggest changes that could help the court be more efficient.

"We don't know what (performance measures) are or what may be appropriate,'' Gray said recently. "We hope the discussion will lead to finding ways to do what we do more efficiently, (and) that are acceptable to the court.''

Gray said Montana's high court is one of the first state appellate courts in the nation to examine possible performance measures.

The project is funded by a grant from the State Justice Institute, a nonprofit organization in Alexandria, Va., that distributes federal money for projects to improve the court system.

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