A reader has alerted me to a dandy notice of appeal issue now pending before the Law Court involving the apparent clash of two civil rules – catnip to appellate jockeys!
The case is Perry v. Dean, Docket No. BCD-17-412. Attached is a copy of an order reinstating the appeal that presents the issue. (Order Reinstating Appeal)
To fill in the gaps, the appellant filed the notice of appeal with the Business and Consumer Docket (BCD) by e-mail pursuant to M.R. Civ. P. 139 on the final day of the appeal period, but the paper copy with the appeal fee check did not arrive at the court until the following day. Justice Gorman dismissed the appeal as untimely, but on motion by the Appellant reinstated the appeal, as reflected in the attached order, with instructions that the parties shall brief whether the appeal is timely given the provision of M.R. Civ. P. 5(f) that a filing shall not be accepted unless and until accompanied by all “legally required element[s]” including any fee. As Justice Gorman put it: “The rules are not entirely clear on whether mailing a required fee means that the fee ‘accompanies’ the filing on the date of mailing and electronic filing.”
How should this come out?
- Rule 5(f) provides: “Filings that are received but which are … not accompanied at the time of filing by a legally required element, including but not limited to, a filing fee, appeal fee … shall be returned by the clerk as incomplete. The clerk will not docket the attempted filing but will retain a copy of the attempted filing and the notice of return for six months. The offeror may refile the documents when all elements are complete. The filing will be docketed when the complete filing is received.”
- Maine Rule of Appellate Procedure 2(c)(1) provides: “The required filing fee for appeals in civil cases shall be paid to the clerk of the trial court at the time of the filing of the notice of appeal.”
Sounds pretty clear – no $, no filing, the clock keeps ticking. Hence, logically, Justice Gorman’s initial dismissal of the appeal. But what about Maine Rule of Civil Procedure 139 for BCD filings? Remember, BCD filings are electronic. The filing is timely if it occurs before 11 pm EST on the filing deadline and “a signed paper original of the pleading or document [is] placed in the regular mail to the BCD on the same day that the electronic filing is made.”
Does that mean a notice of appeal has to be filed so the check is physically in the hand with the BCD on the last day of the 21-days, like other Superior Courts, or does it mean that the notice is deemed filed if the check is put in the mail with the hard copy of the notice to the BCD on the same day the electronic filing is made?
While there are other filings that have fees attached to them (e.g. pro hac vice motions), the notice of appeal is the critical one, because if you miss that deadline, you’re usually toast.
What do they do in the federal courts, land of electronic filing? You pay by credit card. Either upon the initial filing it will say pony up the dough and you put the card #, or you file the document and promptly thereafter you get an electronic prompt (the same day) saying ok, now put in that card number. Presumably, as electronic filing becomes more widespread, the state rules will deal with this issue in a similar manner (or do something generic). I believe that the BCD has accepted credit cards for some things, so perhaps the appellant here could have tried that, but I have no firm personal knowledge on that front.
To be precise, Rule 139(b) provides that electronic filing “is required” in all BCD cases “unless otherwise ordered or authorized by the court.” Then Rule 139(a) defines electronic filing as the electronic transmittal of a pleading or document to the BCD and “a signed paper original of the pleading or document.” So one the one hand, it sounds like you are only supposed to file electronically – which is physically impossible with a check – and the physical filing is a copy of what you filed electronically, which again, can’t be a check. The words just don’t fit for the filing fee.
Until the Law Court settles this issue and/or the rules are adjusted, if you have a filing in the BCD that requires a filing fee, and there’s a deadline, make sure the court has the check in hand by that deadline.