COVID-19

Appellate Trends During the COVID-19 Pandemic

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

Immediate Appeals of Temporary Restraining Orders? Not So Fast.

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

Elections, COVID-19, and the Maine Constitution, Oh My!

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

Musings on the Maine Constitution’s Bicentennial, Coronavirus Edition

The coronavirus shut-down has been anything but a slow-down for this attorney-blogger, but it hasn’t entirely prevented me from continuing to muse about the Maine Constitution during its now-cancelled bicentennial celebration. So I thought I would give the Constitution a little more of the attention it is due, despite the coronavirus. (A welcome respite to think about something else, no?)

When I last blogged about the Maine Constitution, just before its 200th birthday, I asked whether it still matters. The Law Court seems to think the answer is “yes”: under its primacy doctrine, the Law Court has said the state constitution should be given force and meaning independent of the U.S. Constitution. The Law Court has also offered a few reasons for this primacy doctrine, and they are worth pondering.

The Law Court offered one reason in State v. Larrivee, where it observed that the Maine Constitution is the “primary protector of the fundamental liberties of Maine

COVID-19 and Appellate Practice: A Maine Update

I recently wrote about the orders affecting appellate practice during the COVID-19 pandemic, noting the importance of staying up to date with current developments.  While those developments continue at a relentless pace, there was one I thought it particularly helpful to highlight here.  The Maine Supreme Court recently issued a consolidated Pandemic Management Order.  That order addresses the 49-day extension to appellate deadlines, and makes it clear that the deadline for filing notices of appeal are no longer extended.  It also specifically addresses the deadlines applicable to appeals that ripened between March 17 (the date of the Court’s prior order) and March 30 (the date of the consolidated Pandemic Management Order). For appeals that ripened during that timeframe, the appeal period began to run as of the date of the consolidated Pandemic Management order.   This is an important clarification for appellate practitioners.

 

COVID-19 and Appellate Practice

Holed up here in my home office like many of you, I thought it would be a helpful time to take stock of the current state of affairs in the courts of appeal during this pandemic. As with most of life, COVID-19 has disrupted normal operations, leaving all of us in a state of uncertainty. But here is where things currently stand:

In the Supreme Court, the March oral argument session has been cancelled – a highly unusual step, but one that happened previously with the Spanish flu in 1918. The Supreme Court has also issued a standing order extending some deadlines, including the deadline for filing a petition for cert.

The First Circuit, meanwhile, has posted a notice stating that the April 6-9 sitting has been cancelled. No blanket order has yet issued extending deadlines, however. That may change. [UPDATE: The First Circuit has extended deadlines for many filings due