Appellate motion practice – who decides what?

Practice area:

So here’s a difference between the motion practice in the Maine SJC and the First Circuit that I didn’t notice until now.

The process in the First Circuit is spelled out in FRAP, Local Rule 27 and Internal Operating Procedure V:

  • If it is a procedural order, then a clerk can rule on some kinds of motions without waiting for a response, like motions for enlargement of time, to consolidate and to withdraw.  You know when you get one of these rulings because it’s on a form saying it is entered under 1st Cir. R. 27.0(d).

  • As to other motions, a single judge can act alone on any motion “but may not dismiss or otherwise determine an appeal or other proceeding.”  FRAP 27(c).

  • There are specific provisions for an ability to seek reconsideration of a motion ruled on by a clerk.  Unless the clerk grants the motion to reconsider, that motion goes to a single judge or panel.  Local Rule 27.0(d). 

In the Law Court:

  • The clerk can grant a motion to enlarge for one extra week, or to consolidate appeals if the parties agree, or to dismiss the appeal if the appellant has failed to file the required brief within the time required and has not responded within 10 days to a notice from the Clerk that the brief wasn’t timely filed.  (MRAP 12A(b).)

  • As to other motions, under old Rule 10, it used to be that procedural motions were addressed by the Chief or a single Justice, and substantive motions the whole court.  After Rule 10 eliminated that distinction, however, under the current version (see link above), all motions may go to the Chief or a single Justice, or to the whole court, whatever the Chief/single Justice wants to do.  Maybe it’s just random, but most of the motion rulings I’ve seen have been from Justice Gorman (with maybe a few others from the Chief).  If that single Justice wants to dismiss an appeal, s/he can.

  • The single Justice need not wait for any response to a motion, and the decision won’t be published.       

Rule 10 applies to all motions except motions for reconsideration, governed by Rule 14 (see link above).  Rule 14 says that a motion for reconsideration “of any decision of the Law Court” is subject to various requirements (including a big fee).  Such motions are not granted except “at the instance of a justice who concurred in the decision and with the concurrence of a majority of the justices who participated in the original decision[.]”  MRAP (b)(3). In short, if someone files a motion to dismiss an appeal in the First Circuit, a panel decides, not just a single judge, but a single justice can rule on the motion in the Law Court if s/he wants.  So, if the single Justice dismisses an appeal in the SJC, can you get a review from the whole Court under Rule 14?  Rule 14’s language appears geared only to reconsiderations of decisions on the merits by the whole court. Good question Cathy!

Take a gander at Estate of MacComb, 2015 ME 126.  As a general matter, the content is an interesting read.  Basically, the appellant filed briefs that were apparently wholly deficient, and so the matter was dismissed for want of prosecution.  The ruling on the merits seems unassailable.

What interests me is the process.  

The Appellant (represented by counsel) filed a brief.  An appellee filed a motion saying this brief doesn’t pass muster.  A ruling on that motion issued saying the brief is no good, you get two weeks to try again.  A second brief was filed.  Appellee filed a second motion saying the brief is still no good.  A decision issued dismissing the appeal.  After that dismissal, the Appellant moved for reconsideration. In the ruling on the motion for reconsideration, posted on line (see link above; unlike the earlier procedural motions, because rulings on motions aren’t ordinarily posted), the Court, per curiam, said

“There is no statutory provision or procedural rule that permits reconsideration of the Court’s rulings on motions.  Because the motion decision in this case resulted in a dismissal of the appeal, however, the ruling on the motion was considered by the full Court pursuant to M.R. App. P. 10(a), and the dismissal was reviewed by the full Court pursuant to M.R. App. P. 14(b).” 

I don’t quite understand this footnote.  I don’t understand how the initial rulings on the two motions to dismiss were considered by the full Court.  The first paragraph of the decision states “We (Gorman, J.) rejected two briefs filed by [the appellant] and dismissed the appeal for want of prosecution.”  My understanding is that the Court doesn’t list the author of a ruling from the whole court, so this was a ruling from the single Justice.  It at least appears, however, that this footnote is saying that because dismissal was contemplated, the full Court “considered” the dismissal ruling and then “reviewed” that ruling on the motion to reconsider, even though there is no authority allowing reconsideration of a motion – Rule 14 doesn’t apply. 

What does this mean?  Unlike the First Circuit, the SJC doesn’t have to have the whole court review a motion to dismiss, but as a matter of practice does it often/sometimes/in this instance?  Under what circumstances can anyone file a motion to reconsider a motion in the future? 

I think that ultimately, justice gets done in the SJC as well as the First Circuit.  Certainly appeals are not dismissed lightly in either court.  The question in my mind is whether it’s preferable to have a flat rule that says the whole group reviews motions to dismiss.  The problem, of course, is that some motions to dismiss are more substantive than others, and the SJC tossed old Rule 10 because of the difficulty of determining what a substantive v. a procedural motion is.

In the end, I think you just have to use some common sense.  If you think you were unjustly treated in a ruling on an order by a single Justice, in most instances you should just live with it.  If it’s a dismissal of the entire action, and you think you have a really good basis to say something went awry, and you can’t tell whether the whole court saw the single justice ruling, then I guess you let the motion to reconsider fly.  If you do it, let me know what happens, because ordinarily rulings on motions are not published. 

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