Any good appellate lawyer, and any good appellate judge, is always learning. One great avenue for professional growth is the Council of Appellate Lawyers, which is the ABA’s unique appellate bench-bar organization. CAL’s mission is to foster a dialogue among federal and state appellate lawyers and judges. (Full disclosure: I am privileged to be the Maine representative for CAL.) CAL is spreading the news regarding what promises to be a fantastic appellate seminar – the annual Appellate Judges Education Institute, which is hosted by the Appellate Judges Conference, an arm of the ABA’s Judicial Division. The AJEI seminar will be held November 11-14, 2021, at the Hyatt Regency in Austin, Texas. This Appellate Summit offers four days of advanced-level appellate educational programming, and it is well attended: the most recent Summit sold out and the ABA had to cut off registrations early. Early-bird registration for the 2021 Summit is now open. It is a worthwhile investment for appellate practitioners.
Administrative Appeals: The Remedy When the Fact Finder Doesn’t Make Factual Findings
What is the remedy in an administrative appeal when the fact-finder doesn’t do its job by making findings of fact to explain its decision? As the Law Court recently reaffirmed in Fair Elections Portland, Inc. v. City of Portland, the proper remedy is generally a remand for further proceedings.
Fair Elections Portland involved a Rule 80B challenge relating to a citizen-initiated change to a municipal charter. Under Maine law, charter “amendments” and charter “revisions” are treated differently. The former must be submitted directly to the voters, while the latter can only be submitted to voters upon recommendation of a charter commission. If a charter revision is proposed and is accompanied by statutorily-mandated language, it must be put to the voters as a proposal to form a charter commission. In Fair Elections Portland, voters sought to modify Portland’s charter, and characterized it as an amendment; however, the statutory form language regarding a charter commission was not included.
It isn’t every day that the Law Court addresses claims of civil conspiracy or aiding and abetting breaches of fiduciary duty, but that is exactly what the court did in Meridian Medical Systems, LLC v. Epix Therapeutics, Inc. – with a bit of literary allusion thrown in.
In Meridian, the Court clearly stated for the first time that
civil liability can attach for aiding and abetting another’s tortious conduct.
Meridian involved a business relationship gone bad. Ken Carr, in his capacity as assignee of the claims of Meridian, sued corporate defendants which had a relationship with Meridian as a result of a licensing agreement. The complaint asserted that the value of Meridian’s technology was not maximized due to the conduct of Ken Carr’s co-managers at Meridian, which allegedly was encouraged by the defendants. The complaint included counts for “conspiracy” and “aiding and abetting breaches of fiduciary duty.”
Reviewing the
In a recent blog post, I explored the application of the final judgment rule to appeals from preliminary injunction orders in state court. As I noted, the Law Court has recently applied the “death knell” exception to that rule to hear an interlocutory appeal regarding a preliminary injunction. In two other recent cases, the Law Court has taken up and considered the “judicial economy” exception to the final judgment rule. These cases help delineate the scope of that exception.
The first case is Cutting v. Down East Orthopedic Associates, P.A. In that case, a plaintiff brought separate cases in federal court asserting a discrimination claim and a medical malpractice claim against a physician. The district court granted summary judgment against the plaintiff in the discrimination case, and dismissed the second case for lack of subject matter jurisdiction. The plaintiff then filed a malpractice claim in state court, which the defendant moved to dismiss on claim preclusion grounds. The Superior
Appellate advocacy is about persuasion – and the most important avenue for persuading appellate judges is a brief that is clear, concise, and readable. So what does an appellate attorney do when confronted by the need to quote a passage that contains ellipses, citations, or alterations in brackets? One less-than-desirable option is to include all of that extraneous material and a long citation string, making for a hard-to-read quote that is central to your case. But there is another option – and it was just endorsed by Justice Thomas last month.
A little bit of background: As discussed over at the Appellate Advocacy Blog, Jack Metzler began a conversation about this issue by suggesting that unnecessary quotation clutter could be omitted if the citation for the quote is followed by the parenthetical “(cleaned up).” The proposal has its supporters, including no less than Bryan Garner, but also its critics. The approach would improve readability, but might become a crutch that encourages appellate lawyers
Appealing from a Preliminary Injunction Order in Maine? Maybe You Can, Maybe You Can’t.
As recently noted on this blog, parties can appeal a preliminary injunction order in federal court under 28 U.S.C. § 1292 – but, typically, the same right of appeal is not available under Maine law. As stated in Sanborn v. Sanborn, “an order granting or denying a motion for a preliminary injunction is not a final judgment and generally is not an action from which we will entertain an appeal.”
As the Law Court reaffirmed just a few weeks ago, in Cutting v. Down East Orthopedic Associates, P.A.,
[t]he final judgment rule is a judicially-created doctrine that promotes judicial economy and curtails interruption, delay, duplication and harassment.
Because it is a judicially-created rule, the final judgment rule has various exceptions which might permit the Law Court to address an appeal from a preliminary injunction order. Indeed, the Law Court has, on occasion, reached the merits of
Chief Justice Roberts recently issued his year-end report on the federal judiciary, appropriately focusing on the effects of the COVID-19 pandemic. The Chief Justice noted that 2020 ended with the judiciary in much the same situation as when the American court system began – in the midst of a public health crisis. In 1790, it was the influenza. In 2020, of course, it was the coronavirus. Throughout the history of our judicial system, whether by horseback or by Zoom, the work of appellate courts has proceeded despite health challenges.
What caught my attention in the report was a statistic showing that new filings in regional courts of appeal fell by less than one percent in 2020, from 48,486 to 48,190. New civil appeals decreased five percent, reflecting a decrease in new civil filings in district courts. That made me delve deeper into judicial statistics, to look at what is going on in the First Circuit and in Maine.
The same downward trend
Interlocutory appeals, including those relating to injunctive relief, often present traps for the unwary. In state court in Maine, parties typically cannot appeal an order granting or denying a motion for preliminary injunction. The Law Court has so held in numerous cases, including Sanborn v. Sanborn. In federal court, by contrast, it is possible to appeal an order granting or denying a motion for preliminary injunction under 28 U.S.C. § 1292. But is it possible to appeal an order denying a motion for a temporary restraining order in federal court? This was the issue recently tackled by the First Circuit in Calvary Chapel v. Mills. The answer, in short, is “usually, no.”
Calvary Chapel is but one of the many cases that have spun out of the COVID-19 pandemic. In it, a church challenged an early executive order issued by Governor Mills limiting “non-essential” activities and gatherings. The plaintiff
Late last week, the Law Court issued an important election law decision in Alliance for Retired Americans v. Secretary of State. In its opinion, the Court held that Maine’s deadline for receiving absentee ballots (8:00 p.m. on election day) as well as the statutory provisions governing the validation of absentee ballots are not unconstitutional as applied during the COVID-19 pandemic. The Court’s decision in Alliance for Retired Americans is notable on a few levels, including: (1) for reaching the merits of an appeal from an order on a preliminary injunction, (2) for espousing judicial restraint in modifying statutory deadlines, particularly close to an election, and (3) for re-emphasizing the Court’s “important responsibility” to interpret the Maine Constitution, independent of the U.S. Constitution.
First, it is notable that the decision was rendered on an appeal from an order denying a request for a preliminary injunction. Unlike in federal court, orders granting or denying preliminary injunctions are not typically appealable in
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