Amendments to the Maine Rules of Appellate Procedure


The Maine SJC has tweaked a few rules, effective July 1:

There is no major substantive change.

1.  Rule 5(d) re when transcripts are unavailable.  There is some very minor, non-substantive language  to clarify the existing rule; the parties must file their statement and objection/amendments with the Court as well as serve the other side; and the date for filing the statement is 21 days after entry of judgment or 14 days after the filing of the notice of appeal, whichever is first.  The Advisory Note reminds us that the rule only applies when a transcript can't be made, i.e. there was no recording made or the recording fails –not when the parties don't want to pay for one.  Under the latter circumstance, Rule 5(f) still applies.

2.  Rule 8(b) re the Appendix.  The amendment lets the parties agree to file the appendix a little later without leave of the Court, up to the date the appellee's brief is filed or due to be filed.  I've blogged on the unsatisfactory nature of the rules about the appendix before - the problem is that no one is certain what they want in the appendix until after the briefs are written, but you can't wait that late to prepare the appendix because you need to cite the appendix in the briefs themselves.  I don't see this rule changing actual practice much.  You still have to designate what you want in the appendix early on, and the appellee still needs the page numbers for its brief.

If the Court ever allows for electronic filing, then this issue can go away, because you don't need an appendix at all.  I had a Sixth Circuit appeal recently and it was quite refreshing, because the appendix is eliminated there – you cite to the record, and that's it.  The First Circuit still wants paper copies and an appendix, but perhaps after time they will go the way of their neighbors south.  the e-route does mean that judges and clerks must read everything on line or somebody has to pay printing costs. 

3.  Rule 10 on motions. The distinction between procedural and substantive motions is eliminated, basically because of the confusion of which was which.  I don't think it's going to change the Court's practice much.  Before, procedural motions needed fewer copies, presumably because only the Chief or her designee acted on them, while more copies were needed for substantive ones, because they presumably were reviewed by the whole bench.  As of July 1, you only file the original and one copy for all motions, like procedural motions before, and if the Court wants more copies, it asks for them.  I suppose this means that you will know when the whole Court is reviewing the motion instead of just one Justice, since I assume no one in the court system is going to be making their own copies given lack of budget.  Again, if the Court ever goes electronic, issues like this go away. 

Additionally,don't forget to staple your motion together on the left side. 

4.  New Rule 12B on public access.  This doesn't change much about current practice; it just makes clear that (a) the state of access to the record stays the same as it was at the trial level; and (b) everything in the SJC file, the oral argument and the decision is public absent listed exceptions, mostly involving children.  If you want something confidential that doesn't fall within these exceptions, you must move for a suspension of the rules under Rule 14(c).  The bench memos and communications among the Justices I presume do not fall within the definition of "the file maintained by the Clerk of the Law Court for each appeal," so don't expect to see those.

5.  Rule 16(2) on terminology. This adds that a reference to "court" or "trial court" means any administrative agency from which an appeal lies directly to the Law Court, as well as the lower courts and single Justices.  Given that there is a separate rule for the two types of direct appeals from agencies I was aware of (from the PUC and the Workers Compensation Board), I was thinking this addition was kind of superfluous, so I did a quick check to see whether there were in fact any other direct appeals.  I found one:  21-A MRS s. 738, in ballot referendum disputes, which go from the Secretary of State to the SJC.  There's also a funky little rule about direct appeals from "convening authorities" in court-martials in 37-B M.R.S. s. 433, but don't ask me what that's about.  If there are any other direct appeals from agencies, let me know.

6.  Rule 19(c) on discretionary criminal appeal memoranda.  This rule is tweaked slightly to change the time for the filing of the memo to let the appellant review the transcript before the memo is due.  It also requires one more copy of the memo be filed (for a new total of 8), so the clerk gets one as well as each Justice.