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The big decisions from the Supreme Court are coming fast, and in the takings jurisprudence world, the one issued on Friday was a biggie, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) – Knick v. Township of Scott, PA, No. 17-647 (U.S. S.C., June 21, 2019). We’ve blogged on this pending case before, Takings law – exhausted or just exhausting?, Sept. 28, 2018 and The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?, Mar. 12, 2019 . While the pundits after the argument – and re-argument – of this case were thinking the Court wouldn’t go so far as to strike down Williamson in toto, they did, 5:4, with CJ Roberts writing for the majority.

In the past, as we have commented upon many times, since 1985, when Williamson

Maine’s new privacy law regarding broadband internet service providers, An Act To Protect the Privacy of Online Customer Information (LD 946, to be codified at 35-A M.R.S. c. 94), billed as the strictest in the nation, has gotten a lot of press. E.g., Gov. Mills signs nation’s strictest internet privacy protection bill, www.pressherald.com, June 6, 2019, Maine’s New Internet Privacy Law: What You Need to Know, www.natlawreview.com, June 14, 2019. Here’s our firm’s alert on the bill. Maine’s New Internet Privacy Law: What You Need to Know. As our alert and some news articles have noted, however, there’s no enforcement provision in the bill. So, setting aside whatever constitutional issues this new law might raise, what does the lack of an enforcement provision mean?

Let us ponder, understanding our general blogging caveat that we have engaged in about an hour of research, which is enough for me to

The Law Court recently decided a Rule 80B case and so, of course we must discuss. Cape Shore House Owners Association v. Town of Cape Elizabeth,  https://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2019/19me086.pdf.

The facts are simple, and I streamline them further to focus only on what matters for the purpose of my musings:

• X sought a  permit;
• the ZBA granted it;
• the abutters filed a Rule 80B challenging the decision; and
• in addition to a straight 80B, the abutters appended a second count, seeking a declaratory judgment that the Ordinance that allowed the permit was preempted under state law.

The Law Court affirmed dismissal of the declaratory judgment count as redundant and didn’t address the merits of the preemption argument (which hadn’t been raised before the ZBA).

Was the second count truly redundant?

At first blush, this

Well, we’ve been humongously busy, but c’est la vie. One stop we made was to the conference of the American Academy of Appellate Lawyers in Philadelphia. Donald Macomber was also there from the AG’s office, and there were lots of solid presentations (and what a great town – my first visit). 

One interesting thing I learned was there is this nifty study from the ABA with an excellent chapter on what formatting should be now that judges are reading off of tablets – The Leap From E-Filing to E-Briefing

We’ve talked about a lot of some of the points they make before, so I won’t repeat myself. But one nugget I didn’t know was that we should be using not single or double spacing, but 1 ½ – that’s best for reading on a screen (with 12 pt font, too, not 14). And, a court – gasp – actually listened and adopted this spacing –

Well, that last posted blog entry was so exhausting, here’s something short and snappy:

The First Circuit has posted the program for the criminal appellate practice seminar we previously blogged about (Mark your calendar – May 15, 2019):  Federal Criminal Appellate Practice Seminar Program

For we civil practitioners, the agenda looks pretty criminal-centric, but the opening from the clerk is always useful, and I wouldn’t miss Judge Barron on best practices at 11:45 am.

Remember, this is free CLE.

The Massachusetts Appeals Court recently issued a regulatory takings decision with relevance to us in Maine given our State’s unique relationship to the Commonwealth. Smyth v. Conservation Commission of Falmouth, 94 Mass. App. Ct. 790. Kudos to Pierce Atwood’s Michelle O’Brien and Nicholas Brown for prevailing in this appeal.

Among other things, in Smyth, the Massachusetts Appeals Court held that there is no right to a jury in a regulatory takings case. This matters to us in Maine because the rule in Massachusetts is there is a right to a jury if that right existed in 1780 (see p. 6). If a new cause of action was created thereafter, there is no right to a jury unless that new cause of action is analogous to a common law claim entitled to trial by jury in 1780. See Smyth, pp. 6-7.

In Maine, you have a right to a jury unless there