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jdunlap

Joshua Dunlap

This author Joshua Dunlap has created 39 entries.

  • May 17, 2023

Due Process, Retroactive Laws, and Vested Rights in Development Projects

Law Court, Maine, Maine Constitution
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Last week marked the close of a major legal dispute under Maine law regarding the applicability of retroactive laws to development projects already under construction.  The issue in the case was one of fundamental fairness: if a person obtains a valid permit under existing law and then in good faith expends significant sums building a project based on that permit, can the permit later be taken away based on newly enacted requirements? The case, NECEC Transmission LLC v. Bureau of Parks and Lands, provided a definitive answer—under the Maine Constitution, due process prevents such an outcome.

Full disclosure:  this author, together with colleagues at Pierce Atwood including John Aromando, Sara Murphy, and Jared des Rosiers, obtained this first-of-its-kind ruling on vested rights.

The retroactive law at issue was a citizen initiative adopted in 2021 that purported to bar completion of the New England Clean Energy Connect (or “NECEC”) project, a

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  • March 21, 2023

You Should Be Respectful (But You Don’t Have to Be)

Massachusetts
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In an interesting parallel to the developments in the Maine Law Court that indicate a revival of state constitutional interpretation, the Massachusetts Supreme Judicial Court issued a noteworthy opinion examining the protections granted to free speech under the Commonwealth’s constitution.

The case, Barron v. Kolenda, involved a town ordinance requiring all comments in public meetings to be “respectful and courteous, free of rude, personal or slanderous remarks.”  The lawsuit arose after a town meeting degenerated to a level that the town’s board of selectmen deemed to be less than respectful.  After a town resident alleged that the board had violated open meeting laws, the board recessed the meeting.  A shouting match ensued, with the resident referring to a board member as “a Hitler” and the board member describing the resident as “disgusting.”  The resident was compelled to leave the board meeting.

The town resident challenged the town ordinance under Massachusetts’ constitution.  Article 19 of the Massachusetts Constitution

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  • February 22, 2023

Respect the Process: Late Appeals and Wrongful Use of Civil Proceedings

Law Court, Maine
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Last week the Law Court handed down two decisions relating to judicial process, addressing the time limits for notices of appeal and the situations in which relief can be sought for wrongful use of civil proceedings.

In the first case, Witham v. Board of Trustees of the Maine Criminal Justice Academy, a petitioner challenging an agency action failed to timely appeal from a Superior Court decision affirming the agency’s action.  Instead of filing a notice of appeal within 21 days of the court’s judgment, the petitioner did not appeal until 160 days after entry of judgment.  The problem arose because the petitioner never received notice of the Superior Court’s decision; the clerk’s office apparently mailed the judgment, but the postal service did not deliver it.  The problem is, Maine Rule of Appellate Procedure 2B provides that the appeal period may only be extended by more than 21 days (but no more than 140 days) if the clerk failed to send the

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  • January 09, 2023

Is It Appropriate to Defer to Agency Interpretations under the Maine Constitution?

Maine, Maine Constitution
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The issue of whether courts should defer to an executive agency’s interpretation of a statute is a familiar one.  Going back all the way to Marbury v. Madison, we know that courts decide the meaning of a statute.  Courts therefore routinely decide how to interpret ambiguous statutes.  But what happens when a statute is ambiguous and an agency tasked with enforcing that statute has interpreted the statute in a particular way? Should a court defer to that interpretation?

Under Law Court precedent, the answer to this question has been, as a general rule, yes.  In Guilford Transportation Industries v. Public Utilities Commission and elsewhere, the Law Court has said that a court will defer to an agency’s interpretation of a statute it enforces if (1) the statute is ambiguous, and (2) the agency’s interpretation is reasonable.  In doing so, the Law Court relied upon the U.S. Supreme Court’s decision in Chevron v. NRDC,

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  • November 17, 2022

District of Maine Judicial Conference

First Circuit
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I had the opportunity to attend the District of Maine Judicial Conference earlier this week, and it did not disappoint.  It was the first one held in four years given the pandemic, and it was great to hear from practitioners and judges in person.  My partner Nolan Reichl, along with Valerie Wicks, moderated a great panel on Rule 26(f) issues.  Of particular note for this blog, however, attendees also had the opportunity to hear from the Chief Judge of the First Circuit, Judge Barron.

Judge Barron provided an enlightening “State of the Circuit” update at the Conference.  Judge Barron noted the transitions on the First Circuit bench, with the appointments in the last year of Judge Montecalvo for the open seat from Rhode Island and Judge Gelpí from Puerto Rico.  More changes are yet to come, with a vacancy for Judge Howard’s seat from New Hampshire, and a pending nominee (Julie Rikelman) for Judge Lynch’s seat from Massachusetts.  This is certainly a remarkable

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  • October 13, 2022

The First Circuit Reframes Preemption

First Circuit
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Yesterday the First Circuit handed down a notable decision in Maine Forest Products Council v. Cormier, a case in which my firm represented the plaintiffs-appellees.  In MFPC, plaintiffs challenged a state law barring non-resident workers from hauling logs within Maine under the federal H-2A visa program.   The First Circuit concluded that plaintiffs demonstrated a substantial likelihood of succeeding on their claim that the state law is preempted by federal immigration law.  The preemption analysis in MFPC presents a notable clarification of the First Circuit’s approach to obstacle preemption.

The state law, Public Law 280, prohibits the employment of non-resident workers from transporting forest products within Maine.  By contrast, federal law permits non-resident workers to obtain admission to the United States to transport forest products under the H-2A program as long as employers demonstrate that there are not sufficient U.S. workers to perform the labor and that the employment of the nonresident would not adversely affect wages

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  • August 23, 2022

The Dormant Commerce Clause and Discrimination in Illegal Interstate Markets

First Circuit
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Last week the First Circuit reached an interesting conclusion: the U.S. Constitution prohibits states from adopting protectionist legislation affecting illegal interstate markets.  The case, Northeast Patients Group v. United Cannabis Patients and Caregivers of Maine, involved a state law requiring officers and directors of medical marijuana dispensaries operating in Maine to be Maine residents.  The plaintiff sued, seeking to sell their business to a Delaware corporation despite the Maine law.  The plaintiff invoked the U.S. Constitution’s so-called Dormant Commerce Clause, which prohibits states from placing substantial burdens on interstate commerce via protectionist legislation.

The fundamental issue in the case was whether the Dormant Commerce Clause applies in the context of illegal markets.  The defendants conceded that protectionist legislation, such as the residency requirement in Maine’s medical marijuana law, is virtually always unconstitutional.  They argued, however, that the residency requirement was not invalid because federal law makes the interstate marijuana market illegal.  If the interstate market itself is illegal, there is at

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  • July 18, 2022

A Summer Smorgasbord – Rule Changes, Constitutional Law, and Settlement Agreements

Appellate Briefs, Cross-Appeals, Law Court, Maine, Maine Constitution, Rules
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It’s the middle of a beautiful Maine summer, a good time for a few quick hits on some interesting developments . . .

First, as I previewed last month, new amendments to the Rules of Appellate Procedure became effective July 13.  The new rules streamline certain procedures (such as allowing electronic signatures), make a few tweaks (particularly to the content and formatting for briefs), and provide helpful clarity (regarding cross-appeals).  The latter point is worth highlighting here.  As the Advisory Committee note observes, Rule 2C now makes clear that

no cross-appeal is necessary if the appellee does not seek to change any aspect of the judgment.  A cross-appeal is necessary only if a party seeks a change to the judgment.

With this change and the Court’s aside in Concord General regarding cross-appeals, perhaps some clarity is beginning to enter this area of the law.

Second,

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  • June 14, 2022

Proposed Amendments to the Maine Rules of Appellate Procedure

Appellate Briefs, Cross-Appeals, Law Court, Maine, Rules
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The Advisory Committee on the Maine Rules of Appellate Procedure, of which I am a member, has been working with the SJC on potential changes to the rules.  The Court has made the proposals publicly available, and has invited public comment.  The deadline for any comments is July 1.

A quick summary of key changes may be helpful (though you should note this list isn’t exhaustive):

  1. Rule 1C: Electronic Signatures. The proposed rules include a new Rule 1C, which permits lawyers to sign documents electronically.  This will be familiar to practitioners, as it is patterned on and would make permanent the SJC’s pandemic orders permitting electronic signatures.
  2. Rule 2A(b): Appearances of Counsel. The amendments would clarify that, when an appeal is docketed in the Law Court, only members of the Maine bar are deemed to represent parties on appeal.  Any out-of-state attorneys must file a
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  • June 02, 2022

Covid-19, Emergency Pandemic Orders, and Force Majeure

COVID-19, Law Court, Maine
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The Law Court recently weighed in on a trending legal issue – the extent to which Covid-19 restrictions trigger “force majeure” contract clauses.  In 55 Oak Street LLC v. RDR Enterprises, Inc., the Law Court considered the applicability of a force majeure clause in the context of emergency pandemic orders.

In what is a very familiar story that has played out across the country, Defendant RDR Enterprises, which operated a restaurant in a space owned by Plaintiff 55 Oak Street, was forced to close for a period of time as a result of emergency pandemic orders.  Subsequently, under revised pandemic orders, RDR was allowed to reopen at a limited capacity of approximately 35 guests; it did not do so because of its concerns about the economic feasibility of such operations.  After RDR failed to pay its rent, Oak Street filed a forcible entry and detainer action to evict RDR.

The central question in the case, on appeal, was whether

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