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In 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.

The Law Court’s Answer Is Yes, The Maine Constitution Does Still Matter

Earlier this year, I asked a question on this blog:  does the Maine Constitution, now in its 200th year, still matter?  Shortly after, I offered a few reasons why it should still matter, including the Maine Constitution’s unique history, the nature of the state-federal relationship, and the doctrine of constitutional avoidance.  In the early 1980s, these considerations led the Law Court to adopt the “primacy approach” to constitutional interpretation, which, simply stated, means that courts give the state constitution independent force and meaning rather than simply interpret it in lockstep with the federal constitution.  In the following decades, the Law Court has not always consistently applied this approach.  In a notable pair of recent opinions, however, the Law Court expressly reaffirmed it, giving a clear answer to the question I raised: yes, the Maine Constitution does still matter.

Though it had lain largely dormant for many years, the primacy approach returned to the forefront in June with a notable concurrence by

So You Should Cross-Appeal To Preserve an Alternative Argument – But Should You Have To?

I recently blogged about the need to file a cross-appeal of a favorable judgment in order to preserve an argument that provides alternate grounds for affirmance at the Law Court.  As I noted, the Court has declined to reach alternative arguments for affirmance where the prevailing party did not cross-appeal.

The Law Court recently did so again, in Jones v. Secretary of State.  In that case, the Superior Court had found in favor of petitioners challenging a determination by the Secretary of State that there were insufficient signatures to place a people’s veto onto the November ballot.  While the Superior Court held in favor of the petitioners on the single count asserted, it did not accept all of the arguments raised by the petitioner.  The Secretary of State appealed, and the petitioners did not cross-appeal from the judgment in their favor.  Before the Law Court, the petitioners asserted that one of the arguments raised below provided alternative grounds for

When Do You Have to Seek a Stay in an 80C Appeal?

The Law Court yesterday issued an interesting decision in the ongoing ranked choice voting litigation that will have a broad application to appeals of final agency actions under M.R. Civ. P. 80C.  The decision clarifies when an automatic stay of a Superior Court judgment enters in a Rule 80C action.  The answer, somewhat counterintuitively, is that a judgment reversing an agency action is automatically stayed even though a judgment affirming an agency action is not.

In Jones v. Secretary of State, petitioners appealed the determination of the Secretary of State that there were insufficient signatures to place a people’s veto of a law implementing ranked choice voting for presidential primaries and elections onto the November ballot.  Petitioners won in the Superior Court, with the court issuing an order reversing the Secretary of State’s determination.  Given pressing deadlines for preparing the ballot, the question then became whether the decision was automatically stayed under Rule 62(e) – leaving the

Arguing from Afar: The New Reality of Zoom

There is a new reality for appellate practitioners that is here to stay (for a while): oral arguments before the Law Court via Zoom. There are of course downsides to this new reality; I’m a firm believer that in-person communication is superior to video communication for many of the same reasons that video communication is superior to telephonic communication. Quite simply, the more “remote” the communication is, the greater the danger of miscommunication and the more you lose in nonverbal communication. But the Law Court has made this new reality work quite well, as I experienced in a recent remote oral argument.

Here are a few thoughts based on that oral argument:

    • Know what to expect. The Law Court clerk’s office does a great job in making sure that participants are ready to appear remotely. As part of that process, litigants should make sure to do their due diligence. Become familiar with Zoom (something we have all had

When in Doubt, Cross-Appeal!

The Law Court recently addressed an issue of great importance to appellate practitioners: does a party need to cross-appeal a favorable judgment in order to preserve an argument providing alternate grounds for affirmance, when the lower court rejected that argument? The answer, per the Law Court’s decision, is “yes.” As the Law Court’s decision makes clear, and as my predecessor on this blog has noted, a cross-appeal is the only way to ensure that you will be able to raise the argument on appeal.

The decision, Reed v. Secretary of State, which is also very interesting substantively, involved a challenge to the Secretary of State’s determination that proponents of a citizen initiative had gathered enough signatures to place the initiative on the ballot. The petitioner’s challenge required the Superior Court to interpret statutes, 21-A M.R.S. § 903-E and 4 M.R.S. § 954-A, regulating the activities of notaries. Intervenors in the action argued in the Superior Court that

Challenging Interlocutory Decisions on Appeal – What Not to Do

The Law Court recently issued a short decision, Wilmington Savings Fund Society, FSB v. Abildgaard, which provides a reminder of the importance of taking the appropriate steps at trial to ensure that interlocutory orders can be challenged on appeal.

On its facts, Abildgaard is fairly straightforward. Wilmington Savings Fund sought to foreclose on Abildgaard’s mortgage. To prevail, Wilmington was required to prove (among other things) that it had sent a proper notice of default and right to cure. The notice, however, was excluded at trial on the basis that it did not comply with statutory requirements. At that point, Wilmington rested its case without presenting evidence regarding a number of other elements of its foreclosure claim. In Wilmington’s view, it was unnecessary to proffer any other evidence because, without a notice, Wilmington could not prevail. After the Superior Court entered judgment against Wilmington, Wilmington appealed and challenged the exclusion of the notice.

It was the wrong path

Musings on the Maine Constitution’s Bicentennial, Coronavirus Edition

The coronavirus shut-down has been anything but a slow-down for this attorney-blogger, but it hasn’t entirely prevented me from continuing to muse about the Maine Constitution during its now-cancelled bicentennial celebration. So I thought I would give the Constitution a little more of the attention it is due, despite the coronavirus. (A welcome respite to think about something else, no?)

When I last blogged about the Maine Constitution, just before its 200th birthday, I asked whether it still matters. The Law Court seems to think the answer is “yes”: under its primacy doctrine, the Law Court has said the state constitution should be given force and meaning independent of the U.S. Constitution. The Law Court has also offered a few reasons for this primacy doctrine, and they are worth pondering.

The Law Court offered one reason in State v. Larrivee, where it observed that the Maine Constitution is the “primary protector of the fundamental liberties of Maine

COVID-19 and Appellate Practice: A Maine Update

I recently wrote about the orders affecting appellate practice during the COVID-19 pandemic, noting the importance of staying up to date with current developments.  While those developments continue at a relentless pace, there was one I thought it particularly helpful to highlight here.  The Maine Supreme Court recently issued a consolidated Pandemic Management Order.  That order addresses the 49-day extension to appellate deadlines, and makes it clear that the deadline for filing notices of appeal are no longer extended.  It also specifically addresses the deadlines applicable to appeals that ripened between March 17 (the date of the Court’s prior order) and March 30 (the date of the consolidated Pandemic Management Order). For appeals that ripened during that timeframe, the appeal period began to run as of the date of the consolidated Pandemic Management order.   This is an important clarification for appellate practitioners.

 

COVID-19 and Appellate Practice

Holed up here in my home office like many of you, I thought it would be a helpful time to take stock of the current state of affairs in the courts of appeal during this pandemic. As with most of life, COVID-19 has disrupted normal operations, leaving all of us in a state of uncertainty. But here is where things currently stand:

In the Supreme Court, the March oral argument session has been cancelled – a highly unusual step, but one that happened previously with the Spanish flu in 1918. The Supreme Court has also issued a standing order extending some deadlines, including the deadline for filing a petition for cert.

The First Circuit, meanwhile, has posted a notice stating that the April 6-9 sitting has been cancelled. No blanket order has yet issued extending deadlines, however. That may change. [UPDATE: The First Circuit has extended deadlines for many filings due

The Maine Constitution Turns 200! Does It Still Matter?

On March 15, 2020, Maine turns 200 years old. For any Mainer, especially history buffs, the bicentennial is an occasion worth celebrating. For any legal beagle, the bicentennial is worth celebrating for an additional reason: Maine’s Constitution is also celebrating its 200th birthday.

The Maine Constitution was adopted at convention on October 29, 1819, approved by the people on December 6, 1819, and became effective on the same date Maine became a state. The Maine Constitution has proven to be one of the nation’s most durable state charters. By my research, only three operative state constitutions are older: those of Massachusetts, New Hampshire, and Vermont. But does the Maine Constitution still matter?

A recent Law Court decision highlights this question. In State of Maine v. Weddle, the Law Court was presented with an interesting search-and-seizure question relating to a Maine statute authorizing law enforcement officers to test the blood of all drivers involved in a fatal, or likely fatal,