Maine Appeals

Nelson, agency deference & the AG as big kahuna

The SJC decided an administrative appeal on Thursday that has multiple points of interest. Nelson v. Bayroot:

http://www.maine.gov/tools/whatsnew/attach.php?id=56491&an=1

The most obvious aspect of the decision of general import goes to the issue of standing.  Justice Levy includes a fulsome 9-page discussion of why the Nelsons, owners of property in a 31,000 acre subdivison, had standing to complain about an amendment of the subdivsion plan relating to a portion of the property 3500 feet across the lake and a peninsula from the Nelsons.  Justice Silver has a succinct concurrence presenting the opposite view -- why he believes there was no standing.  There are several observations that could be made about the development of law in this area, but let's leave this issue for another day.

Instead, I want to focus on another issue buried in paragraphs 15 and 17 of the decision, relating to agency deference. 

In paragraph 15, the Court notes that the deciding agency (LURC) took one point of view at the administrative level, then another later.  In paragraph 17, the Court notes the generic rule on agency deference -- to defer unless the rule compels a contrary interpretation.  The Court then finds such a compelled different interpretation (from the agency's subsequent view).

The interesting part of this discussion is what the Court does not say.  The federal law of agency deference is, of course, the wonderful world of Chevron, which is notable for that fact that even this writer can find the nuances of the steps and levels of deference to be mind-numbing.  One of the many Chevron principles is that less deference is given to an agency position if it has changed.  See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1992).

The SJC has indicated that it follows the Chevron template.  Cobb v. Board of Counseling Professionals Licensure, 2006 ME 48, P13, 896 A.2d 271.  Since the SJC was disagreeing with LURC in Nelson, it could have cited this principle as support.  Why didn't it?

This is, of course, excessive tea-leaf reading.  The SJC didn't have to cite the principle.  I happened to be at the oral argument for this case, and if I'm remembering correctly, the explanation provided, and as briefly alluded to in the decision, was that LURC just being very conservative in requiring permitting action at the administrative level, and, on ultimate reflection, thought it wasn't necessary.  The fact that the Court didn't want to get into what impact this train of thinking had on its degree of deference isn't a big surprise.

It does, nevertheless, provide an opportunity for abstract musing upon whether there is anything different about Maine law from federal law that could lead to divergence on this nuance regarding deference -- whether consistency should make less or more difference in judicial deference under Maine law.

One interesting aspect of Maine law goes to the role of the Attorney General.  The AG is the agency's representative in court.  See 5 M.R.S. s. 191(3)(B).  So what happens if the AG and agency differ as to a statutory or regulatory interpretation?  What happens if the agency interpreted a law or rule one way when making its decision, but the AG disagrees when it comes time to defend the agency's decision on appeal?

The SJC has said that the issue whether the AG has ultimate control - i.e. whether it can tell the agency that not only will it not defend the agency's position, but no one will, so the other side wins - is still open in Maine.  See Superintendent of Ins. v. AG, 558 A.2d 1197, 1200 (Me. 1989).  Notably, the Court cited a Massachusetts case that said the AG could take this action -- "the Attorney General's control of the conduct of litigation ' includes the power to make a policy determination not to prosecute the Secretary's appeal in this case'."  (citing Secretary of Admin. and Finance v. AG, 367 Mass. 154, 326 N.E.2d 334 (1975).)   

As a practical matter, that's not what happens in Maine (as far as I know).  When there is a disagreement, as the Superintendent of Ins. case reflects, it's been my experience that the AG lets the agency hire independent counsel.

But the at least strong suggestion that it's the AG, not the agency, that determines what position to take in court, does lead to some interesting theoretical questions about agency deference.  In 99% of the cases, the agency and AG appear to agree, and there's no switch in position between the administrative decision and the appeal.  But if there is, it could be because of this difference of opinion between the AG and the agency.  Since the reason for deferring is because the agency is the expert, can you argue that there should be no deference to an interpretation taken in a judicial appeal different from that of the agency below because this disparity must mean that the AG is imposing his will, and it's not the agency's view?  What if the briefing on behalf of the agency (filed by the AG) says no, no, it's the agency's view now, too, it's just changed its mind -- should that make a difference in degree of deference?  Hmmm.   

Hiyo Silver and the AUSA

So I was roaming through the wedding notices in the Style section of the Sunday New York Times last week, when who should I see getting married but Justice Silver's son.  Congratulations!  The blurb said that he is an Assistant U.S. Attorney in the Eastern District of New York.  This leads me to muse upon my experience interning at the U.S. Attorney's Office in Chicago during my third year of law school.   

I had spent my first two years at Northwestern working for a criminal defense attorney, who did mostly federal cases (which was great, great fun, but that's for other postings).  It was illuminating and very useful, as a threshold matter, to work on the other side.  (The next year, I clerked, so I got to see the whole loop - prosecution, defense and judging).  At the time, the U.S. Attorney was Dan Webb, and one of the AUSAs was Scott Turow.  (Does it make you feel better to know that he's really short?)

They were all great people and I learned a ton.  I try to keep in my head two related points I learned from that experience, because I think they are some of the most important lessons for this profession:  #1:  Have fun.  #2:  Don't be afraid of losing.

Everyone there was an AUSA because they wanted to be.  They could've made a lot more money in private practice, but they just loved the job.  This made it a great place.  All the AUSAs in the criminal division worked like maniacs, because that's what they wanted to spend their time doing.  We hear all this flack about how unhappy lawyers are.  Well, if you don't like what you are doing, then stop.  Life is too short.  None of these people were driving BMWs -- but they were very happy.  It's like those Mastercard commercials about having prices put on everything, but some things are priceless.  We know very well from our practices what dollar sign is put on our price per hour in terms of what we charge; that calculation doesn't work as well the other way.

Moving on to profound philosophical point #2.  Everyone was very good there, but it didn't take long for me to learn that the best AUSA was named David Stetler.  (Through the wonders of the internet, I notice that he's still practicing -- see www.stetlerandduffy.com.  This gives me comfort for several reasons, including the fact that he drank about 16 cans of diet soda a day, so I'm thinking I'm safe with one or two.)

Most AUSAs have very high conviction rates.  When they have wiretaps, their percentages rise above 90%.  Dave had one of the lower rates of anyone in the office (it was still very high).  This is because he took on the hard cases.  Some AUSAs just didn't want to go to the mat if they thought there was even a tiny risk of losing.  Dave didn't care.  Everyone in the office knew it, and he was the go-to guy.

To translate this lesson into private practice, obviously you aren't reckless with your clients' interests.  But worrying about your winning percentage not only does them no favors, but it can lead to situations where the other side in a settlement discussion knows that you never go to trial, because you never take any risks at all.  Given the rarity of any trials these days, adding this kind of hesitation doesn't help.  Conversely, if the other side knows that you like trials, and you aren't afraid to go to the mat, this not only helps the client, but keeps you focused:  if you like what you are doing, then you are actually going to do it, which makes you better at doing it, and so on.  You become a better tennis player by playing with people better than you are and losing.  The same principle follows in most things.

Which is, of course, one of the reasons why I focus on appeals, not trials.  I had a great time working on trials with the AUSAs when I was interning, and knowing how trials work certainly helps in appellate work.  But in the end, you need to do what you like.  The Chicago office had all AUSAs spend their first year working on appeals, so they would learn all the rules and not goof up when they were promoted to doing trials, which is what they all really wanted to do.  I guess I just work in reverse.

Cultural Defenses & Ignorance of the Law

On Tuesday, the First Circuit issued U.S. v. Ortiz-Graulau, 06-1768: 

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=06-1768.01A

There, the Court affirms a conviction for exploiting a minor (taking sexually explicit photos).  The defendant had been living with the 14-year old girl, and the Court noted that he probably did not understand that his conduct was illegal:  "the government points to no proof that Ortiz knew the law, and his lack of concealment and the then-applicable age of consent in Puerto Rico support his factual claim."  But, the Court stated, nothing suggested that "this is a rare instance in which ignorance of the law is a defense, although this might well be relevant in sentencing," citing Cheek v. U.S., 498 U.S. 192-199 (1991).  (Cheek, in turn, is a tax case that goes into the required state of mind for violations of the tax laws.) 

This raises the question of what those rare instances are in which ignorance should be a defense.  I've got one.  State v. Kargar, 679 A.2d 81 (Me. 1996).  We handled this case starting at sentencing and on appeal, and I ended up co-authoring a law review article on it (Culture and Crime: Kargar and the Existing Framework for a Cultural Defense, 47 Buff.L.Rev. 829 (1999).)

If you google, you'll get a number of hits about the case and article, and there is a fair amount of literature on the case, because it deals with an issue of particular relevance these days -- whether/how a defendant's cultural background should affect guilt -- ; crosses multiple subject areas - law, sociology, etc.; and is one of the few published decisions that deals with this issue in terms of a defense, as opposed to just a mitigating factor for sentencing.  I've gotten calls, for example, from professors using the case in their classes.

The determining facts in Kargar were fairly straight forward and undisputed.  Basically, there was a photograph of Muhammad Kargar kissing his baby's penis at his circumcision.  The State conceded that there was no sexual intent to this act, and in Kargar's culture the act was deemed deemed neither illegal nor immoral.  Under the Maine statute for gross sexual conduct, however, nothing is required except mouth touching genitals -- no mens rea, nothing.  Kargar admitted to the elements of the crime, and the Cumberland County District Attorney's office chose to prosecute.

The Superior Court found Kargar guilty at trial, and while it did not impose any jail time, the problem was that he is an Afghan immigrant, and was going to be subject to deportation due to the conviction.  The whole episode was a nightmare, since, among other things, he wasn't allowed to live with his family for two years while all this was going on.  (Welcome to America.)

In the end, justice was done, thanks to a Maine SJC that looks at the big picture, and to a Maine Legislature that gave the SJC a platform for doing so:  the de minimis statute:

http://janus.state.me.us/legis/statutes/17-A/title17-Asec12.html.

This statute allows a court to dismiss a prosecution when activity, while falling within the letter of a criminal statute, does not constitute the sort of conduct intended to fall within the ambit of a crime.  The statute is derived from the Model Penal Code, and about half the states have similar legislation.  For more details, you can read the law review article or email me.

The SJC reversed the conviction.  I am happy to say that the Kargars still live in the Portland suburbs.  They've worked hard, accumulated some property, pay their taxes and are the kind of citizens that personify the melting pot paradigm.  Chalk one up for the good guys.

The hot topic in the literature now is when a defendant's culture should be taken into account, and how, and how such consideration jives with the general premise, noted in Ortiz, that ignorance of the law is no excuse.  Again, the article goes into these points in more detail; its general thesis is that each jurisdiction should have this sort of statute to provide an off ramp for the relatively rare situations when justice demands relief. 

One obvious question is what to do when your jurisdiction doesn't have this kind of  statute.  Then you've got to rely on our old standby, fuzzy due process, with the leading precedent Morrisette v. U.S., 342 U.S. 246 (1952).  I threw that argument into the briefing in Kargar, along with some other defenses that the Court didn't have to address.

There are a couple of morals to this story.  One is that some of the most rewarding work you can do is pro bono - the Afghan Embassy had called us to see if we could help.  I always get more out of these freebies than I put in.  Perhaps the Memorial Day weekend is a good time to think about doing our bit as officers of the court, and what exactly the American culture is that the Kargars came here for.

First Females - a correction and amplification

Clarifying my entry from yesterday, Judge Lynch will be the first female Chief Judge for the First Circuit.  The first female Chief Judge of any U.S. Court of Appeals was Florence Allen, of the 6th Ciruit, who became the first female judge on any U.S. Court of Appeals in 1934.  Since then, there have been at least 9 female chief judges, including the second, Patricia Wald (D.C. Cir. 1986-1991), and Dolores Sloviter (3rd Cir. - 1991-98).  Having argued in front of Judge Wald, I can attest that soon-to-be Chief Judge Lynch will be among some great company when she joins this august group.   

Hail to the Chiefs & more women in charge

As I mentioned in an earlier posting, next month Judge Lynch will become the first Chief Judge of a U.S. Court of Appeals.  The NLJ did a nice write-up:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202421470384

This article mentions, among other things, that she is the most-cited judge outside her circuit, citing a law review article studying that point.  If you look at that article, basically, the authors were identifying a methodology for choosing who should be on the U.S. Supreme Court, if the selection process took a more scientific approach.  For various reasons, they came up with this test.  From my own purely non-scientific experience, I can say that their conclusion was right:  this is about one of the best judges around.  The only unfortunate thing about any elevation to the Supremes would be that we would lose her as a First Circuit judge.

Aside from being very, very brainy, she has lots of other valuable traits.  For example, I think she's the James Brown of the federal courts -- the hardest working judge in the law business.  Her opinions are always thorough and thoughtful -- in a court that really is overworked.  And she does lots of other things besides judging, for the community.  For example, she graciously participated in a conference in Boston for the American Academy of Appellate Lawyers when we asked, and frankly, the woman must never sleep.  And I know that she won't let her new chiefing responsibilities slow her down, so if she ever did sleep before, that's over now.  (Maybe we should get her a loaded Starbucks card to help out). 

For a part of the time that I clerked, my judge was the Chief Judge for his court (the Northern District of Illinois).  It was largely an administrative post, and if you want a tough job, try herding 20+ district court judges, all with life tenure.  Hopefully Judge Lynch will have an easier time, with a smaller group of appellate judges, and I wish her luck.

We in Maine are of course graced with another poster child for overachieving women, Chief Justice Saufley.  Not only does she have the same crushing workload judging (yet always seems prepared) and administering, but she has to do it no money.  And she also will participate on panels etc. -- she was another welcome participant in that Boston conference -- and she does it with incomparable good humor.

So let's hear it for women in charge.  I muse upon all this after spending yesterday watching the class of 2008 graduate from Smith College.  If you're a woman and want to feel good about the future, then just go to one of these commencement exercises at Smith, or Wellesley, or Mount Holyoke or the other handful of schools still dedicated to educating women.  They all look great, and much more together than I ever was at that age (or maybe after ...).  I'm sure we've got some future Chief Lynches and Saufleys in the pipestream from just the 700 Smith women I saw yesterday.

When you read those depressingly regular statistical reports of women hitting glass ceilings, or how few women partners in large firms there are, etc., etc. & you want to feel better, go to one of these commencements, or think about how lucky we are here with our exceptional chiefs.  It's like that old adage:  Ginger Rogers could do everything Fred Astaire did -- only backwards and in high heels.

 

            

Recent First Circuit Decisions - Part III

3.  Trans-pec Truck Service, Inc. v. Caterillar, Inc.

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-1476.01A

The third decision of interest relates to procedural issues relating to affirmative defenses.

This was a case brought under the Massachusetts unfair trade practice law, Ch. 93A, as well as some other counts, relating to allegedly defective engines.  The district court (Lindsay, J.) granted a motion to dismiss on the grounds that the action was time-barred.  The Court of Appeals affirmed.  The decision, by Judge Lipez, provides a tidy primer on a series of procedural issues and the consequences of failing to grasp them fully.

Basically, there was a breach of warrantly claim.  The defendant raised a statute of limitations defense.  The plaintiff responded with an equitable estoppel argument -- but did not, the Court of Appeals said, do the right things procedurally to avoid dismissal. 

The Court starts by first noting the standard of review for motions to dismiss, citing Bell At. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007).  There have been a number of First Circuit decisions noting the new world under Twombly.  Remember, Twombly nudges in the direction of having to put more concrete factual allegation into a complaint to avoid dismissal.

Next, the Court notes that affirmative defenses, like the statute of limitations, can be addressed under F.R.Civ.P. 12(b)(6) if the facts establishing the defense are clear on the face of the complaint.

Next, the Court discusses what can be cited in support of a motion to dismiss (versus a summary judgment motion) besides the complaint itself.  Consistent with First Circuit precedent, Judge Lipez notes that one can cite documents "expressly linked" to the complaint whose authenticity are not challenged.  Conversely, one does not look at documents, such as affidavits, like the plaintiff wanted, to raise an equitable estoppel defense to the statute of limitations point.  The Court goes into the discretion of the district court to convert motions to dismiss, what forms the record on review, and notes that arguments not raised in the opening brief are waived.  There was an initial magistrate recommendation, and the Court of Appeals discusses when additional evidence can be presented after the recommendation to the district court.  Apparently, the plaintiff didn't argue that the error in not converting the dismissal motion into one for summary judgment to support its position that its materials precluded dismissal.

Perhaps you can see where this is going -- the Court ended up looking only at certain appended contractual materials, not the materials allegedly supporting the estoppel defense -- because of an insufficient articulation of relevant factual allegations (the plaintiff, the Court said, should have pleaded in its complaint the estoppel facts) -- which didn't get fixed later, through, inter alia, waiver.  (There was also a motion to amend -- that came too late.) 

Finally, there was a summary judgment ruling on one of the counts, so we get all the rules about those summarized here, too.   

In sum, the decision is a nice blueprint on many issues, and, in particular, provides a clear warning about pitfalls for a plaintiff if it knows a statute of limiations or other affirmative defense is lurking on the horizon. 

Recent First Circuit opinions - Part II

The second recent First Circuit decision of interest is Hannon v. Cook:

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-2272.01A

This goes to the issue of personal jurisdiction.  The primary plaintiff was a prisoner who filed lots of lawsuits on behalf of himself and other prisoners challenging their conditions of confinement.  He alleged that the defendants had transferred him out of state in order to get rid of him and in retaliation.  He sued in the state he ended up, Massachusetts, against, among other people, officials in the Department of Correction for Pennsylvania, where the plaintiff had been convicted.  One Pennsylvania defendant was the prison librarian; the other was the Secretary of the Pennsylvania DOC.  The Court ruled that there was jurisdiction over the Secretary, who allegedly authorized and directed the transfer, but not the librarian, who was only alleged to have responded to his requests for legal materials that he sent from Massachusetts.  Noting that the Massachusetts long-arm statute's requirement of "transacting business" was to be construed broadly, the Court of Appeals found that the Secretary's contacts necessary to arrange the transfer were enough. The Secretary's contacts were purposeful; the librarian's were not.  The Court then examined whether the Secretary's contacts were sufficient under the Constitution, using the 3-part relatedness, purposeful availment/minimum contacts and reasonableness test, and found them met.  The decision sets forth a thorough analysis and application of the 3-part test. 

For another First Circuit decision that applies the test, involving a New Hampshire forum, see Northern Laminate Sales v. Davis, 403 F.3d 14 (1st Cir. 2005).  That's a case where we represented the plaintiff.  The suit was for fraud.  The plaintiff was located and sued in New Hampshire; the defendant lived and worked in New York.  The defendant invited the plaintiff to New York, where the fraudulent statement was allegedly uttered (the plaintiff prevailed at trial and the judgment was upheld).  The Court found that the emails and letters sent to the plaintiff in NH, along with the injury occurring in NH, met the constitutional test (the NH statute is co-extensive with the constitution).  Aside from presenting another application of the test, Northern Laminates is a useful decision because it discusses the burden of proof and mode of analysis depending on the stage of the case at which the motion to dismiss is made.   

   

Recent First Circuit decisions of interest - Part I

The First Circuit recently decided several cases with language of general interest.  Here's one of them.

1.  Torres-Rivera v. O'Neill-Cancel, No. 07-1806

http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=07-1806.01A

This decision addresses attorney's fees under 42 U.S.C. sec. 1988.  It goes into multiple issues:  (a) apportioning who pays among multiple defendants; (b) the degree of discretion in reducing fees based on bad timekeeping; and (c) the general rule that if you are entitled to fees, then that includes your fees to get your fees. 

Aside from providing a nice general discussion of building the lodestar and other basics, the interesting part of the decision is its discussion of apportionment based on relative liability v. vigor of defense.  While one defendant had a larger damages award assessed against him in this case, he defaulted; the other one, who, unlike the defaulter, was provided a defense by the Commonwealth, more vigorously defended.  The district court apportioned fees by relative liability.  The First Circuit vacated, finding it an abuse of discretion not to consider the vigor of defense differential.

I don't know much about Puerto Rican law, but it could be that what was going on here was the fact that the defaulting defendant was judgment proof, while the other is not, so the plaintiffs will be stiffed of more of their fees if only the relative liablity measure is applied.  The underlying civil rights violation was, the Court noted, "egregious"; according to the Court's recitation, the non-defaulting defendant was certainly not blamless; and the plaintiffs' situation seems generally very sympathetic.   The Court of Appeals upheld the district court's 15% reduction for overly generic time descriptions, but vacated as to apportionment and on the lack of explanation for rejecting a supplemental motion for the fees expended in seeking fees.

The results can hardly be faulted here, but the general concept of having to pay more the more vigorous your defense is would seem to raise some questions in different contexts.  Assume, for example, two defendants of equal guilt.  One has a good lawyer and does his job defending.  The other defendant piggybacks, basically filing "me too" pleadings.  It wouldn't seem right in that context to penalize the defendant with the lawyer who took the laboring oar.  Nothing in this decision would require that to happen.  Still, if I found myself defending one of multiple civil rights defendants, I think I'd have some discussions on this issue among my fellow defense counsel and get this ironed out from the beginning.

And on the plaintiff's side, if you know it's a fee case, this is just another reminder you've got to keep your time in excrutiating detail and avoid the death by a thousand cuts.         

Skee-doo skidoo, or the current law on due process

Yesterday the SJC reversed a District Court ruling that prohibition of personalized watercraft on great ponds violated substantive due process:   

http://www.courts.state.me.us/court_info/opinions/2008%20documents/08me82ha.pdf

The specifics of the defendant's argument were based on the claim of fundamental rights because of the public's interest in such bodies of water.  The rejection of that argument was not surprising.  The case does, however, lead me to muse upon the issue of where we are today with respect to substantive due process.

I have often thought about writing an article entitled Are Stupid Laws Illegal?  (Not that the regulation involved in this particular case was.)  The answer is, of course, no, they aren't -- at least in the economic context, since Lochner and progeny.  There is an interesting article at 55 Am. U. L. Rev. 457 (2005) that comprehensively reviews of how economic due process claims have fared since 1940, state by state.  In the recent past, some scholars have suggested that, with a more conservative, "pro-business" Supreme Court, the pendulum might be swinging back.  Also, Justice Kennedy's reliance on due process in his concurrence in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998), demonstrated that the concept of economic due process isn't as dead as everyone thought.  Still, there's a long way to go before a claim that a particular law makes no sense will, in itself, have any chance of prevailing, particularly in the economic arena.

Still, I think recent U.S. Supreme Court decisions are interesting in the direction they appear to be heading. 

In rejecting the defendant's due process claim, the Maine SJC dropped a footnote indicating that an equal protection argument had been raised but not pursued, so the Court was not going to address it.  When the arbitrariness of a law suggests that a legislature is doing something besides simply not acting intelligently, such as discriminating, then the articulated reasons why the Court retreated from its stricter interpretation of substantive due process don't really apply.  Practical political issues aside, the Supreme Court backed off in Lochner because it understood that its role is not to act as some sort of Uber-executive or legislative branch reviewer of when a law is unwise.  Whether a law makes sense, however, is a very different thing conceptually than whether it discriminates, with review of the latter constituting a very legitimate aspect of a court's role.

From a practical perspective, however, lots of laws discriminate against someone.  As the Supreme Court has noted, "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one person or another, with resulting disadvantage to various groups or persons."  Romer v. Evans, 517 U.S. 620, 631 (1996). To avoid the floodgates ("reconcile the principle with the reality," id.), the Court has developed its multi-tiered scrutiny approach - if the regulation doesn't burden a fundamental right or suspect class, then rational basis scrutiny applies.

The SJC upheld the prohibition against personalized watercraft under the due process clause based on that rational basis scrutiny, and legislation almost always survives under that standard.  In Romer, however, the Court struck down a state constitutional provision excluding homosexuals, lesbians or bisexuals from antidiscrimination protections, applying the rational basis test.  The Court did so because it stated that the rational basis test, while deferential, still requires the articulation of an independent and legitimate legislative end, separate from the purpose of discrimination against a group that, while not falling within the "suspect" class, is "disfavored," 517 U.S. at 632, or "politicially unpopular."  Id. at 634.  The Court then rejected the rationales offered by the state in that case for the constitutional provision as "so far removed" from the breadth of the provision that it could not even survive.  Id. at 635.   

This interface between dues process and equal protection continued in Lawrence v. Texas, 539 U.S. 558 (2003), the case reversing Bowers v. Hardwick, 478 U.S. 186 (1986), and, therefore, striking down a state statute that criminalized certain sexual conduct between individuals of the same sex.  Justice Kennedy wrote the majority decision in both Romer and Lawrence (he's a busy guy).  There, while noting that reliance on equal protection would have been "tenable," the Court preferred to rely on due process because it was broader.  Id. at 576 ("If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.  When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.")

Justice O'Connor, concurring, focused on equal protection.  (In Eastern Enterprises, their roles were flipped - Justice O'Connor wrote the plurality opinion based on the takings clause, while Justice Kennedy concurred, based on due process).  After noting that laws such as economic and tax legislation are scrutinized under rational basis review and thus normally pass constitutional muster, citing, among other decisions, Romer, she noted that when a law exhibits such a desire to harm a politically unpopular group, the Court has applied "a more searching form of rational basis review" to strike down such laws under the equal protection clause.  Id. at 581.  In Lawrence, the state asserted an interest in "promotion of morality."  Id. at 582.  But "moral disapproval," Justice O'Connor wrote, has never been held as "a sufficient rationale under the Equal Protection Clause because legal classifications must not be 'drawn for the purpose of disadvantaging the group burdened by the law.'"  Id. at 584 (citing Romer).

So what does all of this mean?  That the degree of scrutiny applied, even if you haven't got a "fundamental right" or a "suspect class," will vary based on whether the Court perceives discrimination.  As Justice Kennedy noted, the rational basis test was basically designed to avoid floodgates.  If there is anything that doesn't require deep probing into factually contestable material that makes it fairly evident that the purpose of the law is discrimination, then you should at least have a shot at a constitutional claim.

This reasoning is paralleled in commerce clause jurisprudence, which I would write some more about if this posting hadn't already become far too long.

The fundamentals of this type of reasoning is sound:  courts should stop discrimination; they shouldn't be super-legislatures.  As a practical matter, they have to put some curbs into their discrimination test to avoid being inundated.  The trick is articulating -- or at least applying -- the test in a predictable and non-subjective way.  Otherwise the test can become as arbitary as the law under challenge. 

The SJC's decision here was easy because there was no hint of regulating for the purpose of discriminating.  The law had a rational enough basis to conclude there was no hidden agenda. 

The degree of nuttiness of a law can, but does not always, suggest that something else is going on besides dimwitted legislating.  But even if the legislature's reasoning is idiotic, if that's all it is, then antidiscrimination concerns don't arise.  But if the nuttiness of a law raises concerns that there is a hidden agenda -- or maybe not so hidden --, then these recent Supreme Court decisions, I think, properly reflect that a court should probe beyond the "anything goes" rational basis test, to give the test real teeth ("a searching inquiry").  Logically, this thumb on the scale of scrutiny should apply whether or not the discrimination happens to be against a suspect class or relates to economic issues.  Discrimination simply for the purpose of discrimination is bad, period, and the courts should stop it.  Equal justice means just that.

    

History of the Maine Courts

When is the Court the Law Court, and when is it the Supreme Judicial Court? Why is it the Supreme Judicial Court and not the Supreme Court -- isn't "Supreme Judicial" redundant? For the answers to these and other questions no doubt pressing on everyone's mind daily, at long last, as promised, here is the history of the Maine Court System! (up to 2004). Download history_of_maine_courts_w1041366.PPS (Please note this is a large file and make take a few minutes to launch).

This has sound and animation, so if you hear nothing, something has gone awry. This was a presentation made by Pierce Atwood's Chieftains (Chief Justices McKusick and Wathen) to the firm attorneys a few years back. Unfortunately, we did not capture their running commentaries along with these sound effects, but I hope you get the gist.

If the current Chief would like to add an update, we would, of course, welcome all input. The business court, for example, was just a twinkle in the Court's eye at the time of this presentation, but is now it is a reality. Some of the faces have changed in the photos, as time marches on. I hope, however, that this presents an informative summary from inception in 1820 for at least the next few centuries.

As always, comments and responses are welcome. Just click on my email link.