About

With the launch of this blog, we seek to discuss issues relating to appeals and appellate law in Maine, including the activities and decisions of the Maine Supreme Judicial Court and First Circuit Court of Appeals relevant to Maine, and other participants in the Maine appellate community.

Back from the Future

I have returned from The American Academy of Appellate Lawyers’ conference on the future of appellate practice, leaving San Francisco just before the fires put an orange glow in the sky. While I was there, the weather was terrific and clear, with the Blue Angels flying overhead in a spectacular display. As reported by the program participants, the future of appellate practice may not be quite as bright. If you are a glass half-empty person with a vested interest in the status quo, it’s pretty darn bleak. If you are a glass half-full person with no legacy advantages, then the future is simply different than it has been, with upsides if you think outside the box.

To set the stage: we had sessions with judges and in-house counsel (heavy hitters from Schwab, Sony, Facebook and The Gap). Most interestingly, the judges of the Ninth Circuit, trial and appellate level, were polled on their views, and the anonymous results shared. While the title of the program focused

The future is in San Francisco

Next week I am off to the biannual meeting of the American Academy of Appellate Lawyers in San Francisco, and the program looks great.  A gaggle of in-house counsel will be discussing the future of legal practice, taking a snapshot of 2027.  Then law school representatives will speak about what they are doing to meet the needs of that future, and making sure students are getting trained in appellate practice, now that it has become an accepted specialty field.  Then panelists are going to talk about suggested changes in the Federal Rules of Appellate Procedure, and then, more generally, spearheaded by the Chief Judge for the Ninth Circuit, the future of the federal appellate courts.  We wrap up with a session on access to justice, on recent developments in that arena.  As always, your intrepid reporter will provide a full download.

As our regular readers know, the last AAAL meeting was held in Boston.  The last issue of my AAAL Appellate Advocate has

2017 statistics

Practice area:

We last reported on the Maine court statistics in this blog entry – http://www.maineappeals.com/still-here/ – covering 2012-16.  The 2013-2017 period has now been posted (the FY ends June 30).  The 2017 numbers reflect a continuation of the trend we commented upon in our discussion of the 2012-16 period:  the total number of appeals are declining, with a big drop in civil commercial appeals. http://www.courts.maine.gov/news_reference/stats/pdf/year-trend/law-court.pdf

More specifically, the total number of civil appeals went down from 478 to 430 from FY16 to FY17, while criminal appeals declined from 174 to 160, so the total number of appeals went down from 652 to 590.  Worker’s comp appeals increased from 12 to 18.  80B and 80Cs went down from 28 to 24, probate halved from 27 to 13, and “general civil” went down from 150 to 134.  Family law appeals basically held steady.  

The same trends seem to be on the horizon, if you look at the Superior

Judge Posner and Mary Ann Lynch, Esq.

Practice area:

There are two names that have probably never been juxtaposed before.  One is a judge on the Seventh Circuit Court of Appeals; the other Government and Media Counsel for the Maine Judicial Branch.  What do they have in common?  They are both retiring!

Mary Ann Lynch

After serving in this position for nine years, as of January 1, she is off to other things (running for office!).  It will be a big loss to the Court.   She was an invaluable resource, interfacing with the public, the Legislature, and the media, and will be sorely missed.  Good luck, Mary Ann!

Richard Posner

After 35 years on the bench, Judge Posner abruptly retired.  Here’s an exit interview with him – “An Exit Interview With Richard Posner, Judicial Provocateur”, The New York Times.  As he explains here, his immediate decision to leave the bench was precipitated by the lack of interest his colleagues on the bench showed to

Municipal mess

Practice area:

Recently, I blogged on a Law Court decision reflecting the predicament that arises with ordinances with appellate, not de novo, ZBA review of CEO decisions. See Appletree, or CEO, J.D.? I’m now updating the chapter on civil appeals in A Practical Guide to Superior Court Practice in Maine (MCLE 2015), a process that involves reviewing all the Law Court’s published 80B and 80C decisions from 2015-2017. That exercise underscores (a) what an unholy mess things are; and (b) the Court’s multiple, as-yet unheeded pleas for action.

To trace the Court’s mounting frustration, see CJ Saufley’s concurrence in Beckford v. Clifton, 2014 ME 156; then footnote 2 in The Withram Family Limited Partnership v. Town of Bar Harbor, 2015 ME 12; then note 1 in Hartwell v. Town of Ogunquit, 2015 ME 51; then Justice Gorman’s description of the incomprehensible ordinance the

They’re back!

Practice area:

In our last entry, we took a look backwards at decisions issued by the Law Court in August.  Now let’s look forward, at arguments scheduled for September 12-14. These arguments will be held in Augusta, as the SJC continues to ride the circuit.  Of the ten sessions schedule from September 2017 through July 2018, five are scheduled outside Portland, in Augusta, the high schools, and Bangor. (This is what happens when enough money is finally found by the Legislature – good for you – to spruce up the courts.)

Here’s a link to the full argument list: http://www.courts.maine.gov/maine_courts/supreme/oral_arguments_schedule.shtml

There are lots of criminal cases.  If you are a newbie at arguing, I’d suggest checking out the first one, with veteran and ace advocate AAG Macomber – someone who has argued in front of the Law Court even more than I have! Remember, if you can’t schlep over to the court to hear it in person, you can listen, either live or when

Law Court round up

Practice area:

Now that we are approaching the end of summer and the beginning of a new term for the Law Court, let’s peruse some recent rulings.  While you may have been frolicking in the ocean’s surf or skimming your jet ski across a lake this month, our SJC justices were cranking out decisions.

UM InsuranceAllocca v. York Insurance Company of Maine, 2017 ME 186.  This one brought out a gaggle of veteran insurance defense counsel – John Whitman, Martica Douglas, and James Poliquin.  They prevailed.  The question was whether UM insurance covered an event in which an assailant, operating another vehicle, forced the insured’s car onto a median, rammed the car, and shot the insured dead.  By contract and statute, the Court said, the UM insurance covered accidents, and not intentional torts.

Distracted drivingState v. Palmer, 2017 ME 183

Appletree, or CEO, J.D.?

Practice area:

The Law Court issued a ruling in a Rule 80B appeal that once again underscores how, in the absence of the Legislature stepping in to tidy up in this area, applicants for municipal approvals will continue to act at their peril without knowledgeable counsel guiding their development efforts, and even then, they could be caught in a loop of unavoidable delay. Appletree Cottage, LLC. v. Town of Cape Elizabeth, 2017 ME 177.

The facts are simple. On June 30, 2015, a property owner submitted an application for a building permit to build two structures on his lot. The town’s code enforcement officer (“CEO”) issued the permit. As is typical, there was no record but the application, and no explanation by the CEO regarding the approval, just his stamp and notation of approval. The abutter appealed to the Town ZBA, arguing that the structures weren’t accessory as required under the zoning ordinance. The ZBA made a record and heard testimony, including from

From Ulane to Hively

Practice area:

What’s the greatest joy for a federal district court judge? One happy day might be if he’s flipped by the Court of Appeals, certiorari is granted, and the Supreme Court flips again, saying the trial court was right all along. But recently something happened even rarer, that might be even more satisfying to the Judge I clerked for: after the Seventh Circuit reversed him, that court itself later said it was wrong. It only took twenty-four years.

In 1983, Judge John Grady, appointed by a Republican President, issued a decision ruling that discrimination against someone for being a transsexual violated Title VII. Ulane v. Eastern Airlines, Inc., 581 F.Supp. 821 (N.D.Ill. 1983).

The Seventh Circuit promptly reversed. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). According to the Court of Appeals, “because of sex” as used in Title VII couldn’t mean sexual orientation or identity.

The Supreme Court denied

A History of Jews in America

Practice area:

Long ago, I had to decide between getting a doctorate in history at Princeton or going to law school at Northwestern. I did not want to risk living in penury and picked the latter. On August 2, the First Circuit issued a decision involving the interface between these two worlds, history and law – or, more precisely, a difference of opinion between the trial and appellate court as to the relevance of historical background, at least when the parties are religious organizations.

The First Circuit decision is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, No. 16-1756. The decision was authored by frequent First Circuit visitor, ex-Supreme Court Justice Souter, joined by Judge Lynch and Judge Boldock of the Tenth Circuit.

The District Court decision (Judge McConnell, D.R.I), containing a much fuller historical discussion (back to the Spanish Inquisition), is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, Docket No. 12-CV-822 (D.