Maine Appeals

Fashion and the law

So the juxtaposition of a few events have me contemplating garb and work.  First, business casual season commences at PA when we return from Memorial Day.  Second, there was an amusing article in Saturday's New York Times about a colloquy among a panel of Seventh Circuit judges about the wardrobe they had seen in the court room.  And finally, today's NY Times style section's photo array displays how "men, once limited to an unyielding style of dress" have now expanded their sartorial horizons.

It is certainly true that standards have changed.  Even before casual season begins, trying to put a tie on some young associates is like putting a leash on a cat (rowr!).  Compare this to the pre-WWII days portrayed in a All Creatures Great and Small, with the local vet wearing a tie when he's sticking his arm up a cow's rear.    

Usually a discussion about what to wear invites snorting condemnation as being hopelessly OTD (Older than Dirt).  Personally, I couldn't care less if you wear your jammies to the office - what matters is what your work looks like.  That said, however, what you wear does bother some other people, which is why you have to pay attention.

That's what the Seventh Circuit article was about.  While there was some mild allusion to ticky-tacky ties in court (with smilely faces), the bulk of the griping was about women wearing skirts too short and necklines too plunging.  The complaining has to be carefully phrased (for fear of sounding not only OTD but chauvinistic), but the gist is that this sort of dress is distracting.

And therein lies the point.  When you do an oral argument, it's hard to believe, but it's not all about you.  In fact, if you could be invisible, that would be great.  The goal is to dig out the questions that the court has and to answer them.  And anything that distracts the judges from that exercise - musing, for example, why you didn't feel the need to wear underwear that day - is not a good thing.  Worse still, what you wear can be deemed, whether intended or not, a signal of disrespect to the court.

So, in the life is too short category, since there are so many things stacked against you in an appeal, why add surmounting speculation about your clothes sense and the message you are trying to send?  Many women understand this.  Every time I go argue at the First Circuit, all the women lawyers surrounding me (and me) look like clones in our basic black suit (skirt at the knee).  Yes, it's boring.  But it's simple.  You have other things to concentrate on.

Again, people just don't understand how, rightly or wrongly, the people forced to stare at you in court can't help their minds wandering off to your fashion choices if you give them the opportunity.  Story #1:  my aunt was on a jury once.  She said they obsessed on the fact that one of the lawyer's shirt cuffs was frayed.  What message was that sending?  And what did the lawyer want them to be thinking about while they were wondering why he couldn't find a decent shirt that morning?

Story #2:  back in Chicago, many years ago, the DC Strike Force came in to try a case against alleged mobsters.  One of the defense lawyers used the comic defense -- it's hard to convict someone when you're laughing at the prosecution.  So throughout the trial, he'd say things like"FBI, you know what that stands for - Find and Blame Italians." One of the strike force prosecutors was independently wealthy, and in a multi-week trial wore a different dazzling outfit every day.  We willl call her Madam X.  So at the beginning of closing argument, in making his introductions, this defense lawyer said, turning to each group or individual, "Ladies and gentlemen of the jury," turning, "your honor," and, turning, ran through the many others participating, using the format "Mr./Ms. [Name] of the [insert organization."  At the end, he turned to the Strike Force prosecutor and finished with, "and Madame X of Nieman & Marcus."

His client was acquitted.  The standing order at the U.S. Attorney's office became that you wore a total of no more than 4-5 suits for the length of a trial (not that many could afford otherwise).

You may or may not be what you wear.  But the people who see you don't know that.  Heaven knows, I can be pretty offbeat in the clothes department.  But not in court.  It's the boring black suit for me.         

SJC motion practice

Here's something I never noticed before - there's no page limit for a motion in the Maine SJC (see Me. R. App. P. 10).    This is true even for motions to reconsider (see Me. R. App. P. 14.)  This could lead to the rather odd situation in which a motion to reconsider is longer than a brief.   While actually filing a motion to reconsider longer than 50 pages would fall into the "don't try this at home" category (filing any motion to reconsider, of whatever length, is almost always a dubious proposition), this seems to me a pretty quirky situation.

I assume that the rule is as it is because this issue hasn't come up, meaning people just don't file long motions.  But the First Circuit imposes a 20-page limit for a motion and any opposition and 10 pages for replies (the SJC is silent re replies).  Isn't verbosity just as potentially a problem in the state appellate court as its federal counterpart?  Maybe Maine lawyers are just more terse.

Also on the quirky front, Me. R. App. P. 9(f) says that briefs must be produced in "at least 12 point font not smaller than 12 point Bookman," while Me. R. App. P. 10 (d) regarding motions just says 12 font, no reference to Bookman or otherwise.  Which type of font you use makes a difference only in that the squishy Times New Roman type fonts can squeeze more words on a page than Bookman (see my blog entry last September).  So if there's no page limit, there's a certain logic in letting you use whatever font you want.  Still, it seems a little odd to allow certain typefaces for motions, not briefs. 

3 day rule gone (state, not fed)

Yesterday the SJC issued a change in Me. R. Civ.P. 1 eliminating the sentence that says the civil rules govern the procedure in the SJC when sitting as the Law Court.  

http://www.courts.state.me.us/court_info/rules/rules.html

The Advisory Note explains that before, there was confusion on the relationship between the Maine Rules of Appellate Procedure and Civil Procedure, and, specifically, M.R.Civ.P. 6(c).  Rule 6(c) gives you three extra response days if you are served by mail.  Me. R. App. P. 15 incorporates Rule 6(a) (on how to compute time (e.g. start the day after the act, exclude intermediate weekends if less than 7 days), but does not incorporate Rule 6(c).

So, in short, it's now clear that you do not get 3 extra days to file your appellee brief or reply brief (or a response to a motion, or to provide a counterdesignation of the Appendix etc.) before the SJC.  Justice Alexander had always said that Rule 6(c) didn't apply in his Maine Appellate Practice (p. 130); now it's officially without ambiguity.

Given the lack of e-filing, this could generate a problem if the other party puts its document on the slow boat to China when a response is due quickly - e.g. a counterdesignation is due 7 days (after "delivery," not service, see Me. R. Civ. P. 8(d)(1), so what does that mean?); reply briefs are due 14 days after the appellee brief.  I just had an AG send me something via U.S. priority mail from Augusta to Portland, and it took 5 days.

Usually I send the other side a pdf of my filing and ask them to do the same, which they usually do.      

Don't get this confused with the rule in the First Circuit - there, you still get the extra three days, even if they email the document to you.  http://www.ca1.uscourts.gov/ (F.R.A.P. 26(c)).

Vague docks

The SJC has posted the summaries for its upcoming arguments, http://www.courts.state.me.us/maine_courts/supreme/oral_arguments.shtml.

If it wasn't  way up in Bangor, I'd go to the Uliano argument.  This involves the neverending saga of DEP review of applications to build docks in Maine; this latest round might tell us important things about the test for vagueness and excess delegation in Maine.

The saga begins with a case we worked on, Kroeger v. DEP, 2005 ME 50, 870 A.2d 566.  Kroeger had oceanfront property on Mount Desert Island.  He wanted to build a big dock to park his big boat.  Neighbors, including our client, objected.  You need a NRPA permit to build a dock.  See 38 MRS 480-C.  Kroeger didn't get his in part because the DEP found that he didn't meet the "won't interfere with existing scenic uses" criterion.  He appealed.   The SJC, majority opinion by Justice Calkins, affirmed, with a dissent from Justices Dana and Alexander.

Shortly thereafter the SJC decided Uliano (now I suppose to be deemed Uliano I).  Uliano v. DEP, 2005 ME 88, 876 A.2d 16.  We aren't involved in this one.  Tell me if this sounds familiar.  Plaintiff has waterfront property (this time in Bar Harbor.)  He wants to build a big dock to park his big boat.  Neighbors object.  The DEP approved; the BEP reversed, again based on the scenic values criterion.  The SJC vacated the reversal, remanding .  This time Justice Levy wrote the majority opinion, with no dissent. 

Apparently on remand the BEP denied the application again, again on the scenic factor, and so here we are again. with Uliano II. 

What's the difference between the Kroeger and Uliano?  Why was the finding in Kroeger upheld, but rejected in Uliano I, and what does that bode for Uliano II? 

It is much too nice and sunny a day for me to dwell on details.  One interesting point is, in Kroeger, the applicant didn't preserve his vagueness argument, and in Uliano I the SJC didn't reach a vagueness/excessive delegation claim.  I see that Uliano is raising a vagueness claim now, according to the summary, so the SJC might have to reach this issue this time around.

Obviously, as these cases show, if you have a squishy criterion like aesthetics, there's a potential for a vagueness claim or, more appropriately in this Maine agency context, a claim that the statute excessively delegates to the executive branch board.  When beauty is in the eye of the beholder, you can get too subjective to meet the express Separation of Powers provisions in Maine's Constitution.  The squishier a criterion, the more unpredictable and subjective the agency decision can be, leading to the potential for favoritism, politics and the esssence of arbitrariness.

On the other hand, you probably can come up with a definition of aesthetics that would past constitutional muster.  I think that the DEP came up with some rules after Kroeger and Uliano I to bring some clarity to this -- although I haven't burdened myself by actually checking and seeing what the rules actually say.

No, all I want to do is raise some questions.  What happens if you have a too-squishy statutory criterion but the agency limits it by rule?  That should bring predictability and seems to address constitutional concerns -- except that it's the agency, not the Legislature bringing the definition to the rule, so don't you still have a delegation problem?  (Unless the Legislature approves the rule).  Also, how do vagueness principles comport with a delegation analysis?  For example, people mix up facial and as-applied vagueness claims all the time.  Really only as-applied matters in a civil, non-First Amendment context - but what about the delegation clause?  And how do you analyze an as-applied vagueness claim in an agency context?  Say the property owner wants to build the biggest, ugliest dock ever in the history of creation.  Hence, the application should go down in flames under an as-applied analysis.  But if the legal principle is to ensure agency consistency, then isn't the squishiness of the rule enough to strike the rule or statute down as a whole, and doesn't/shouldn't the applicant have the standing to raise that generic issue, and isn't the proper relief not to apply the factor at all?  But is that fair?  Is it right that Mr. Butt Ugly dock doesn't have to meet the now invalid criterion at all, when a valid criterion could be developed?  These rules are all limits on the use of property, so one could say yes (and presumably the other, less squishy and so valid criteria would take care of more anti-environmental harms).  But that's cold comfort to the neighbor of the world's most obnoxious looking dock, painted screaming neon, glow-at-night yellow.

If the Court gets to the vagueness question, it may also shed some light, implicit or explicit, on the 80B-80C dichotomy.  As a practical matter, you can find multiple decisions striking down ordinance language for vagueness under Rule 80B; but a vagueness finding in a Rule 80C statutory context is rare.  The only logical legal explanation ever suggested in the decisions for this difference is that one reads language in context, and vague statutory language can be salvaged by reading it in the context of other statutes, and the whole statutory framework.  Another explanation - that the Court gives more leeway to the professional staffers in Augusta than local volunteers - wouldn't make sense as a legal matter, and would also seem dependent upon individual circumstances and be suspect for that reason, too.

Finally, even if the SJC once again avoids the constitutional questions, it still has to decide whether the individual agency decision was arbitrary and capricious - a concept closely wrapped up, obviously, with the predictability goal of the constitutional requirement.  

Everyone would love to have bright lines in legal tests, and no one is particularly happy with a "I know it when I see it" standard.  The courts certainly try to avoid them, because the squishier the test, the more it invites litigation - the applicant and objectors might as well roll the dice all the way up to the SJC.  

So I will be interested to see if the SJC brings coherance to this area, and to the general issue of making a criterion like aesthetics meet anti-arbitrary, constitutional standards.  

Elves and Women on the Bench

So now that the Keebler Elf of the Supreme Court, David Souter, is exiting, and rumor has it that the President will nominate a woman, the timing of the MSBA's Women's Law Section Spring Program Wednesday on "Judicial Leaders:  The Future of Women on the Bench" was particularly propitious.  

The speaker was Judge Nancy Gertner (D. Mass), who has amusing -- and telling -- anecdotes about life on the bench for her and her colleague Patti Saris.  But the bulk of her remarks were broader, and focused on a New York Times article from a few years back (which I remember reading) about the next-generation of women lawyers from those who pioneered entry into the market.  She was not pleased that the gist of thinking from this group was that one could move "post" feminism, because now there was a choice for women, either to stay home or work, and that this was the ultimate goal of the women's movement.  Many obstacles remain, Judge Gertner noted, in getting women to the higher echelons of the legal profession, and as she was working night and day for equality, she thought  it was for more than giving women a family-work option.  

She made interesting points, including that it's too early to say what impact the economic downturn is going to have on progress.  She was not sanguine, although she noted that the efficiency that women  develop from all their family-work multi-tasking could be a boon if we break our dependency on the billable hour.  (Personally, I welcome alternative billing, and I hope that it does become more prominent.)

Many of the women judges from Maine were there, including Chief Justice Saufley, Justice Gorman, Justice Murphy, Justice Wheeler, Judge Stanfill, Judge Kravchuk on the federal side, and others whom I just didn't bump into.  A special shout-out here to the Chief, who always comes to these events along with her 8000 other tasks.  I hope that at least once a week she gets to stay home in her jammies watching old House episodes or whatever she likes to do to rest her brain.

And if we are nominating potential Supreme Court Justices, how about the Chief Judge of the First Circuit, Sandra Lynch?  She would be a New England replacement, she's had a mix of private practice and time on the bench and by any account, she's one of the best judges there is today, period.  Unfortunately I haven't heard her name bandied about by Nina Totenberg or anyone else in the media; but she'd be a great choice.