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The state of Montana, like all states, has an appellate court of last resort. How many justices do you think the state has? Which state supreme court, California's or Montana's, writes more opinions every year? If you guessed the Montana Supreme Court, then you are right. There is NO intermediate appellate court in Montana, and most appeals to the supreme court are mandatory, though few cases are set for oral argument. Can you imagine the consequences of this? There is no recourse once a person appeals his case to the Supreme Court, unless he luckily has a federal issue, and the federal supreme court decides to grant certiorari. Of course there are exceptions where a criminal defendant can start a new action in federal court, and others. So, a person's fate is determined by seven justices. The current justices are: Mike McGrath (Chief), Patricia Cotter, James Rice, Mike Wheat, Beth Baker, Joyce McKinnon, and James Shea. Shea was appointed in 2014 after a year or more of vacancy on the court. I think it was Justice McKinnon who commented about my enthusiasm, after the official swearing in, I was able to talk to some of the justices. I think it was Justice Wheat who told me to use Lexis Nexis to get my questions about the court caseload answered, perhaps an early indication that the practice of law would not be any fun, but expensive and time-consuming. One would think that most appeals involve criminal defendants, but this is not the case in Montana.
Yes, the justices swear in all attorneys to the state bar, in a ceremony which occupies a negligible part of the court calendar for that day. The court is nice enough to provide refreshments to the young attorneys. Justice Baker, although young, appeared to be the most standoffish of all justices. The supreme court has its own building and courtroom in Helena. The room may be fairly imposing for some. I recall a lot of red, which probably also existed at Nuremberg. Sometimes the supreme court travels to other cities, but not often. Montana attorneys spend a lot of time driving to court. It is such an issue that attorneys often charge clients for driving and there are some rules regarding this practice.
Justices in Montana are elected by the voters to eight-year terms, although most probably start out being appointed to fill vacancies between elections. They must have practiced law for at least five years before becoming justices. As far as I know, there is no requirement that federal supreme court justices practice law, though they all probably have. The governor has 30 days to make his pick after being present with a list of 14 or so prospective justices, and all of their resumes and writing samples.
The public is also entitled to read the qualifications, writing samples, resumes, other work, of prospective justices, and make their opinions known in a public hearing. The justices review all matters submitted by applicants from lower courts, grant all necessary motions and handle a limited number of their own trials, It is my understanding that trial courts provide court recorders as a matter of course, which makes appeals a little easier to manage in Montana. In California, only family matters and few others have court-appointed reporters, as an attempt to save money. Most civil cases have no such thing. Unless a party provides his own reporters, gathering the record for an appeal is an awful mess, involving the parties' attempts to submit a stipulated record, with disputes over all rulings upon which they cannot agree.
Unlike California, there are lower courts in Montana, city courts, and justice-of-the-peace courts handling small misdemeanors and limited civil cases. In California, there are divisions which handle smaller matters, but these are housed at the Superior court in each county (such matters also have another level of review in the appellate division of the superior court). All such trials are entitled to an automatic appeal (essentially a retrial) in the district court. Montana is divided into 22 districts spread over 56 counties, Where do you suppose district one is located? Why, in Lewis and Clark County, of course (Where Helena, the state capital, is located). My conjecture is that the most legal cases are heard in Missoula, where the only state law school is located, though Billings is the largest city in Montana. Missoula is a fairly close second, and, due to its liberal nature, probably more litigious, though this may be overcome by the increased business activity near Billings, in eastern Montana. I have not found a district with more than four judges, though this may have changed recently. All courts are small and quaint, like the courts in small northern-California counties. Jurors there are referred to by their given names, not numbers. Imagine, 56 counties spread over a large area, more than half the size of California, though covering a population of just over one million. This, and the fact that its people tend not to be litigious, might explain why lawyer salaries are THE lowest in the nation. One justice of the peace (limited criminal judge), Daniel Wilson, told me that the state is currently overrun by large firms which leave too few matters for the small firms. This would make sense. Also, California has a massive need for attorneys, at least in the public interest (clients who cannot pay), so it can handle a fair number of attorneys who were not educated at ABA-approved lawschools. Montana does not admit attorneys who did not attend ABA schools. Most attorneys entering the state either attended The University of Montana (the only state lawschool), or are coming to Montana to retire, after a successful practice in another state. On the other hand, there is the possibility of admission by motion, and the supreme court is contemplating the option to lower standards for passing the new UBE exam, which is also recognized by several states. At my administration, I passed at a time when the pass rate had been the lowest ever, 2/3. How pathetic, by California standards. Oh well, I suppose the state wants anyone who asks to be miserable to have that opportunity. The supreme court admits attorneys and also handles most, if not all, attorney discipline. There is almost nothing private, and maybe one in ten attorneys are subject of client complaints every year. Imagine a frivolous report triggering a red flag on the attorney file for all to see. The California Bar has a very efficient means of disposing of such claims. Also, Montana adopted the model rules of professional responsibility, which requires attorneys to report other attorneys who appear to be engaging in malpractice. So, any time a new attorney appears not to have every detail well rehearsed and polished, he could be subject to an investigation. No such law, to my knowledge, exists in California. Little income and exacting standards, No thank you.
You would think that, because Montana is a small, relatively rural state, law is practiced with a degree of informality. I assure you, this is very wrong, at least since the new state constitution was ratified in 1972. However, Montana does not seem to place much stock in common law, relying on the legislature to spell out the laws, which judges often apply in as mechanical a fashion as possible. Still, however, there are several unanswered questions, to which the judges look to other states, such as Wyoming and Idaho, for guidance. To facilitate the process, Montana has adopted mostly Model and Uniform Laws. This is a questionable practice in and of itself. Model and uniform laws are written mostly by businessmen, and may be adopted wholesale by state legislatures. This is an especially large problem if the businessmen who write the laws write them to benefit themselves at the expense of others. Some of the uniform laws may make a lot of sense, but they need to be judged on their own merits. Montana is NOT a community-property state, opting instead for an all-property common-law system, which requires judges to exercise discretion to a much larger extent in dividing property than in California, and has adopted the Model Penal Code, which is very different from the California penal code. The definition of murder or "intentional killing" is much more straightforward in Montana. Perhaps the most interesting law, in my opinion, is that no employee is an at-will employee. Most states, including California, hold the presumption of at-will status. This means that an employer in Montana needs cause to fire an employee, unless the employee clearly understands his job is probationary, and then only for a limited time. In California, at-will employees still find ways to access the courts on wrongful termination actions. Great solace for employees there, who can slave away for 26,000 a year; they have the job for life. There are also water courts and workers compensation courts. Workers Compensation law is also very interesting in Montana, as is contract law. Montana is probably as adamant as California about eliminating the protections for business under the FAA. There is a great argument to make, that poor, uneducated, unsophisticated people have arbitration clauses and class action waivers shoved down their necks in adhesion contracts, for which there is little, and in some cases, no alternatives, and for which they had or took no time to examine before entering the contract, thanks to government intervention in such areas as healthcare. The law is very objective, however, so I can see myself on the losing end of this debate, especially when I am up against some thoroughly-read libertarians. Perhaps a better objective law is to state that parties may never, a priori, agree to change any legal procedure, for that vitiates the legal procedure in the first place. Courts, which are a legitimate exercise of government, exist in order to provide justice and prevent one party from initiating force against another, and the legal procedure is an integral part of that function. If parties come to an argument and find it in their interests to arbitrate the dispute, that is a different story.
Montana also adopted the vast majority of the Federal Rules of Civil Procedure as their own I am not a fan of this action. The FRCP may suit the federal courts, but are way too restrictive to handle the diversity of state actions, and unforgiving of pro-per litigants. I would hope federal courts never have the problem of pro-per filers in civil litigation. Bankruptcy is a different story.
Montana cities don't usually have rent control, but there is a state law which provides significant protection for tenants. As far as practicing law in Montana, there are significant differences.
People may not have even heard of the IRAC style of writing papers, briefs, etc in that state. and the decisions and briefs look very different. There is no pleading paper, and very unusual, but simple, headings.
When I reviewed several laws and decisions in 2014, I came to the assumption that Montana is trying to be as liberal, and that is to say, statist as California. So, who would want to live in a state that has all the disadvantages of California (very tough business climate) and none of the advantages (no large cities, beaches, or good weather)? However, this may not be the case, and the justices may actually be attempting to break with California precedent. In the federal system, to which Circuit Court do you suppose Montana belongs? The Ninth Circuit, which also includes California, Hawaii, Alaska,and most every state west of Montana. It is by far the largest federal circuit. I don't recall if I joined the Ninth Circuit. I joined the state and US District Courts in Montana. There appears to be one justice stationed in Montana at the circuit level, as well as Federal District Courts in Helena, Missoula, Great Falls, and perhaps other cities.
Perhaps because the supreme court has so many mandatory appeals, the judges appear very unforgiving: most any incorrect procedure is dismissed immediately, without any consideration of the merits. In the criminal arena, a large percentage of the cases seem to involve sex with children, A most unfortunate feature of Montana culture.
As far as I know, there is a state income tax, lower than California's, but no state sales tax, though local jurisdictions may create their own sales taxes. Property tax rates don't appear much higher than those in California, though it may not have the family transfer protections of property that California does. Consult an attorney, NOT me, on any legal matter.
CORRECTIONS:
Montana Justices are elected for EIGHT-year terms.
Montana has 56 counties, not 46. California, by the way, has 58. Montana's least populous county is called Petroleum, the seventh least populous in the US. The least populous in the US is Loving County, Texas. Good inaptronym, huh?
Since I wrote this article originally, the Montana Supreme Court has approved a motion to lower the bar-passing score from 270 to 266, and making the change retroactive for the past three years.
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