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.

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.

Litigation limbo

Practice area:

My last blog entry got me thinking about the general question of justice delayed due to judicial action or inaction.

First, I’d like to send a shout out to the Law Court for its concern about delay in Gilbert, discussed in the previous blog, and its overall promptness in practice. Generally speaking, and compared to a lot of other courts, the Maine SJC issues decisions pretty promptly after argument. The time from filing an appeal to argument is also not huge when compared to other appellate courts, and if you need to expedite things, it’s been my experience that the Law Court can and will do it. So our appellate court is generally pretty prompt in addressing what you put before it.

Conversely, if you were wondering whether a court has ever found that a delay in issuing a decision in a civil case could amount to a due process violation or the constitutional right to access to courts,

Probate and the speed of justice

Practice area:

The Law Court recently issued two decisions of note regarding the bailiwick of Maine’s only elected judges, the Probate Court.

1.    Bleak (Tiny) House?

First, Estate of John W. Gilbert, 2017 ME 175.

This case involved the appointment of a referee by the Probate Court (Longley, J.).  The wife of a decedent and one of the decedent’s children by a previous relationship were at loggerheads.  The Probate Court appointed the wife as personal representative and declared that the decedent died intestate.  It also, among other things, appointed a referee to propose a plan of distribution.  The referee prepared a report, to which the wife objected because, among other things, the referee had held no hearing, in violation of 14 M.RS. § 1153.  The Probate Court didn’t act on the objections or report, but issued a decision requiring the wife to sell the property of the estate consistent with the referee’s suggestion. 

The ADA is not the MHRA

Practice area:

Congratulations to our Katy Rand for her victory in Carnicella v. Mercy Hospital, 2017 ME 161.   This was a dispute as to whether the defendant employer discriminated against an employee under the Maine Human Rights Act, 5 M.R.S. ss. 4551-4631.

The important part of this decision for precedential purposes is at the end, where the Court rules that, unlike the ADA, the MHRA does not require employers to provide employees who are unable to work with leave as a reasonable accommodation.   The Court also reiterated the conclusion it reached five years ago in Kezer v. Central Maine Medical Center, 2012 ME 54, that employers have no obligation under the MHRA to propose, identify or consult with the employee regarding reasonable accommodations.  Examining the language of the state statute, the Court found no counterpart to the federal act imposing such a burden.

A loss of civility

Practice area:

I don’t talk about appeals I lose, and I do lose some. There’s a new book out with a famous quote from ex-FBI director James Comey as to what prosecutors with perfect records are called – it’s not pretty, because he was making the point that to do your job properly you don’t obsess about your win-loss record and think about how it’s all about you, as opposed to the client.   

Moreover, not only would whining about a decision that didn’t go my way sound pretty cheesy, there would be no point – what is right is what the Law Court says is right.  No one appointed me Queen of the Law, and by definition, the Court – the members of which were appointed – is always right.     

That said, I don’t file an appeal unless I think I have reasonable grounds to do it.  I have never filed an appeal I thought was frivolous. 

Order in the Court!

Practice area:

A few entries ago, regarding the new appellate rules, in discussing the changes relating to the appendix, we noted that with the new rules, the Maine SJC  warned folks to make sure that their appendices followed the Rule 8.  (New rules)  We’ve also blogged before on the Court’s frustration with appendices not put in the right order, containing duplication, etc.  (Do you want your appendix ripped out? A caveat; The Eight Percent Solution; Report from the Appellate Seminar)  Now the Court has dismissed an appeal on the basis that the appendix did not put the documents in the right order.  Hall v. Camden Hills Farm By the Sea, LLC, 2017 ME 150.

The appellant filed its brief and appendix, and the appellee moved to dismiss, saying the brief had defects and the appendix was not in the right order and also included documents

Island means Island

Practice area:

The First Circuit issued its decision in Penobscot Nation v. Mills last Friday, affirming the District Court in declaring that the Tribe’s Reservation consisted only of the islands in the Main Stem of the River, and not any of the bed of or waters in the River.  The Court vacated the District Court’s second ruling, going to where the individual Tribe members could sustenance fish, on the basis that the issue wasn’t ripe, because the State had never denied any member from exercising that right.  These two positions – (1) the word “islands” defining the Reservation in the Settlement Acts means islands, not water or River; and (2) the fishing issue was not ripe – were the positions taken by the State defending itself in this action.  Pierce Atwood represented a coalition of municipalities and other River users supporting the State’s position, which could have found their territorial boundaries changed and their water discharges regulated by the Tribe had the decision gone the other