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jdunlap

Joshua Dunlap

This author Joshua Dunlap has created 29 entries.

  • April 25, 2022

Due Process, Preliminary Injunctions, and Final Judgments

Law Court, Maine
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The Court recently clarified an important issue of civil procedure – the precise point at which a court may consolidate a preliminary injunction hearing with a hearing on the merits.

Rule 65 of the Maine Rules of Civil Procedure provides that a court may consolidate a preliminary injunction hearing with a trial on the merits “[b]efore or after the commencement of the hearing of an application for a preliminary injunction.”  In McKeeman v. Duchaine, the Law Court held that, if a court is to consolidate the hearing and trial, it must do so before the preliminary injunction hearing concludes.

In McKeeman, tenants filed a complaint alleging that their landlord had violated various Maine statutes.  After a preliminary injunction hearing, the court granted the tenants’ motion in part, but denied a request to order the landlord to pay for temporary lodging.  Later, after the landlord failed to timely answer the complaint, the court denied the tenants’ motion

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  • March 16, 2022

The Rebirth of State Constitutionalism Continues

Law Court, Maine, Maine Constitution
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One of the most interesting trends in the Law Court’s jurisprudence (at least in the mind of this blogger) is the continued renaissance of the Court’s primacy doctrine – an issue addressed before on this blog.  As explained in two prior blog posts (here and here), the primacy doctrine, generally speaking, directs state courts to resolve state constitutional issues prior to and independently of any federal constitutional issues.

The doctrine gained traction in the 1980s, but was largely neglected until two decisions in 2020; Justice Connors invoked it in her concurrence in State v Chan, and the Court applied it in State v. Fleming.  This revival does not appear to simply be a flash in the pan.

In a recent opinion authored by Justice Connors in State v. Reeves, the Court again applied the primacy approach to “first examine the defendant’s

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  • February 01, 2022

Can You Enforce an Online Contract In Maine? It Depends.

First Circuit, Law Court
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The Law Court recently weighed in on a matter of critical importance – the enforceability of online consumer contracts.  Confronting the issue in a case involving ride-sharing giant Uber’s efforts to enforce an arbitration provision, the Law Court held in Sarchi v. Uber Technologies that online contracts are enforceable only if the consumer (1) has reasonable notice of the online contract terms, and (2) has manifested consent to those terms.   

Sarchi is one of many cases that have tested the bounds of what companies must do to secure consumers’ consent to the terms of a contract through software applications – but it is the first decision of its kind from the Law Court.  The Uber rider app at issue in Sarchi allowed consumers to register for an account without having to view the contract terms or expressly acknowledge agreement to those terms.  The Law Court held that, given these circumstances, the consumer could not be bound

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  • January 18, 2022

Revisiting Appellate Trends from 2021

COVID-19, First Circuit, Law Court, Maine
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Around this time last year, I took a look at statistics showing that the filing of new civil appeals had declined in federal courts and in Maine.  As I observed then, the 2020 statistics had not yet fully captured the impact of the pandemic on appeals and civil appeal statistics would bear monitoring.  I decided to check back a year later, and it appears that the trend of declining appeals accelerated in 2021.

As Chief Justice Roberts’ 2021 year-end report discloses, new filings in federal courts of appeals fell from 48,190 in 2020 to 44,546, a decline of 9%; the decrease in civil appeals matched this decline.  This trend can also be seen in the First Circuit statistics; there, total appeals for the 12-month period ending June 30, 2021 fell over 15% as compared to the prior 12-month period ending June 30, 2020.  Even more starkly, total civil appeals for the 12-month period ending June 30, 2021 fell to

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  • November 17, 2021

Tricky Issues of Appellate Procedure: Timeliness and Cross-Appeals Edition

Cross-Appeals, Law Court, Maine
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Yesterday the Law Court, in an opinion written by Justice Connors, Concord General Mutual Ins. Co. v. Estate of Collette J. Boure, touched on two important appellate issues – one of which has been addressed often on this blog.  The issues involve timeliness of an appeal and the need for cross-appeals.

The case involved claims for insurance coverage in a motor vehicle accident.  One insurance company, Concord General Mutual Insurance Co., filed a declaratory judgment action against the decedent’s estate.  The Estate counterclaimed and brought a separate action against another insurer, 21st Century Centennial Insurance Co. After consolidating the cases, the Superior Court granted summary judgment in the insurers’ favor.  Judgment entered in favor of Concord on March 4, 2020, and in favor of 21st Century on February 24, 2021.  The Estate then appealed on March 10, 2021, identifying both judgments, and Concord filed a cross-appeal to argue for affirmance based on alternative grounds.

First,

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  • October 19, 2021

It’s Time to Clarify When Cross-Appeals Are Necessary

Cross-Appeals, Law Court, Maine
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Much has been said on this blog about when one should cross-appeal, given the Law Court’s jurisprudence on the topic.  I most recently addressed the issue here.  As I noted then, there is some tension between the text of the Maine Rules of Appellate Procedure, which provides that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue,” M.R. App. P. 2C(a)(1), and the Court’s most recent rulings (in Jones v. Secretary of State and Reed v. Secretary of State) regarding the necessity of cross-appealing to preserve an alternative argument for affirmance.  Because of the importance of this issue, my colleague Nolan Reichl and I recently published an article in the Maine Bar Journal (at page 10) addressing the topic.

As we wrote there,

Recent decisions by the Law Court have raised questions concerning

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  • September 28, 2021

A New Experiment In Oral Arguments

First Circuit, Law Court, Oral Argument, US Supreme Court
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For Supreme Court watchers and appellate practitioners, last week brought an interesting development – the Court is changing how it conducts oral argument.  Arguments will now feature both unstructured questioning by all justices and then uninterrupted questioning by individual justices. It will be fascinating to watch how this new approach affects oral arguments in the Supreme Court, and whether it will trickle down to other federal and state appellate courts.

As highlighted at SCOTUSblog (here) and the Appellate Advocacy Blog (here and here), the new format first gives counsel two minutes of uninterrupted time, and then allows for free-for-all questioning by the justices for the remainder of counsel’s 30 minutes of argument.  That is familiar practice; in a new twist, however, each justice in order of seniority then has the opportunity – after the 30 minutes of time has expired – to question counsel individually.  No strict time limit applies to this new segment

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  • August 18, 2021

Ballot Question Challenges – To Expedite or Not to Expedite? That Is the Question.

Elections, Law Court, Maine
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The Law Court recently issued a decision in Caiazzo v. Secretary of State that was interesting on several levels.  (Full disclosure: this blogger represented the petitioner in the appeal).  One procedural aspect of the decision is particularly interesting, as it will affect the timing of future challenges to the Secretary of State’s determination regarding the wording of ballot questions for direct initiatives.

Caiazzo involved a voter’s challenge to the Secretary’s decision regarding the ballot question for a direct initiative.  The Superior Court handled the challenge on an expedited basis, under 21-A M.R.S. § 905.

Section 905 provides that voters (specifically, “any voter named in the [initiative] application . . ., or any person who has validly signed the petitions, if these petitions are determined to be invalid, or any other voter, if these petitions are determined to be valid”) may challenge the Secretary’s decision whether to validate petition signatures for a direct initiative.  Section 905 also provides a

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  • July 26, 2021

The Appellate Judges Education Institute

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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.

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  • July 12, 2021

Administrative Appeals: The Remedy When the Fact Finder Doesn’t Make Factual Findings

Law Court, Maine
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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. 

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