appellate round up


So I've been busy, busy busy; here are some events etc. since my last post: 

  • The MSBA winter bar meeting – we had an session on civil appeals, moderated by Hillary Massey, with Justice Levy, Karen Wolf, Bob Furbish, Matt Pollack and moi on the panel.  One takeaway is if you want to get off the regular rules, remember Rule 14 of the Maine Rules of Appellate Procedure on suspension of the rules.  Ask, and maybe you shall receive.


  • I have blogged before on the lack of an equivalent to FRAP 28(j) on the procedure for citing post-briefing authority (this is one of those issues that could be ripe for tidying in amendments, along with e.g., giving cross-appellants an automatic right to an appeal brief).  I have learned that the informal practice in the Law Court is to allow a letter post-complete briefing, but if you want to cite something outside your brief earlier than that, file a motion.  That makes sense to me if you are the appellant and you want to cite something after you've filed your appeal brief but before your reply is due.  Just put it in the reply.  If, however, you are the appellee and you spot something after you've filed your one brief, it seems to me that the process after briefing has closed should apply to you, too.  In any event, as with many things, it's always safer just to make a motion.  Whatever the informal practice is, there's no enacted rule on it, so moving for leave is always the safer route.  (And see the first point above).


  • We represented GLAD, with Mary Bonauto, as amicus in a First Circuit decision that just came down upholding the Maine disclosure rules for ballot question campaigns.  National Organization for Marriage v. McKee, Docket No. 11-1196 [].  We previously filed an amici brief for GLAD with Common Cause of Rhode Island in a previous NOM challenge to a Rhode Island disclosure statute, and NOM unsuccessfully challenged Maine disclosure rules for candidate elections (its certiorari petition is pending).  Congratulations to the hard working folks in Maine and RI attorney general offices; we're glad to have contributed to the effort to bring transparency to the electoral process.  The decisions, both by Judge Hornby below and by Judge Lipez on appeal were very thorough and I think will be strong citable precedent on these issues in general going forward.


  • There's an interesting article in the January 3 edition of the Mass Lawyers Weekly on the statistics reflecting how often the First Circuit is reversed by the Supreme Court.  If you use the usual measure – how many decisions actually from the First Decision were reversed – CTA1 has the lowest flip rate of all the circuits for the period 2005-10 - 46.2% – by a wide margin (CTA10 was 57.1% and CTA3 62.5% – remember, because the Supreme Court has discretionary review, if they grant cert, the odds are against the winner below generally).  Because the First Circuit is relatively small, however, there are only 16 decisions in this pool, so really, what can you glean from this statistic?  So the authors (John Summers and Michael Newman) looked at all the decisions in which the First Circuit decision was not necessarily the one on which cert was granted, but its view was the same as the court's whose decision did go before the Supreme Court.  From that perspective, there are 69 relevant decisions.  Of those, the Supreme Court rejected the CTA1's view 58% of the time – putting the First Circuit on the other side of the flip spectrum, in the bottom third (with the Federal Circuit 63.3%, 6th Cir 66.3% and, of course, the Ninth Circuit, 68.9%) with a higher reversal rate.  The value of this sort of statistical analysis is debatable.  For example, maybe if it had been the CTA1 decision, with a whiz bang analysis by the Court, instead of a decision from another court aligned with it, the Supreme Court would have affirmed, not reversed – yes, one assumes the Court looks at all the decisions by appellate courts on the issue before them, but probably not with the same scrutiny.  In any event, an interesting perspective.