Opinion
DA 21-0367
04-19-2022
MATTHEW RYAN AILER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.
ORDER
The State of Montana moves this Court to strike the appendices that self-represented Appellant Matthew Ryan Ailer has filed with his reply brief. Ailer has filed a response in opposition.
The State argues that the twenty-two appendices are not part of the record on appeal contending that "[t]he reply brief must be confined to [any] new matter raised in the brief of the appellee." M. R. App. P. 12(3). The State argues that Ailer s Appendices A-V are from other proceedings not presently part of this appeal. The State points out that the record on appeal has only the documents presented to the Fourth Judicial District Court when it granted the State's motion for relief in the underlying proceeding. M. R. App. P. 8(1). The State adds that these documents in his appendices do not appear in the District Court record. The State further points out that Ailer is raising an argument about judicial notice that he has not previously raised. See State v. Sebastian, 2013 MT 347. ¶ 26, 372 Mont. 522. 313 P.3d 198 (-Legal theories raised for the first time in an appellant's reply brief are outside the scope of such a brief"), The State concludes that striking these appendices is warranted.
Ailer argues that “[t]his Court has the inherent authority to take judicial noticef, ]" pursuant to Mont. R. Evid. 202(b)(6), 201(b)(2), and 201(d). Ailer includes a copy of the case register of actions for a criminal case in Lewis and Clark County District Court (Cause No. CDC-2014-98) and the case register of actions for the civil postconviction proceeding in the Lewis and Clark County District Court (Cause No. CDV-2019-514) along with copies of medical records and reports. He states that this Court should take judicial notice of the medical records because the records "clearly, obviously, and objectively prove [Ailer] is innocent. . . ."
The District Court's record has thirteen documents. Ailer again attempts to include documents or to raise issues outside of this appeal. See Ailer v. State. No. DA 21-0367, Order (Mont. Oct. 12, 2021) (Ailer I): Ailer v. State, No. DA 21-0367. Order (Mont. Oct. 26. 2021) (Ailer II); Ailer v. State. No. DA 21-0367. Order (Mont. Jan. 11, 2022) (Ailer III): Ailer v. State. No. DA 21-0367. Order (Mont. Mar. 1, 2022) (Ailer IV) and Ailer v. State, No. DA 21 -0367, Order (Mont. Mar. 22, 2022) (Ailer V). We decline to consider the medical reports. Appendices C-V, that are not part of the record on appeal from the Fourth Judicial District Court. Missoula County.
If we determine they are relevant to this appeal, the Court may consider the two case registers to demonstrate the history of Ailer s other proceedings in the Lewis and Clark District Court. The criminal case register of actions remains on file here from Ailer"s 2018 appeal. State v. Ailer. 2018 MT 18, 390 Mont. 200, 410 P.3d 964.
On March 29, 2022, this case was sent to this Court, and pending classification, a decision will be issued in due course. Accordingly.
IT IS ORDERED that the State's Motion to Strike is GRANTED in part and that Ailer's Appendices C-V are STRICKEN and REMOVED from this record on appeal.
The Clerk is directed to provide a copy of this Order to counsel of record and to Matthew Rvan Ailer personally.