Law Court

  • January 12, 2021

Immediate Appeals of Temporary Restraining Orders? Not So Fast.

COVID-19, First Circuit, Law Court, Maine
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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

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  • November 02, 2020

Law Court Adopts Integrated Business Records Exception to Hearsay Rule

Law Court, Maine
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Late last week, the Law Court unequivocally adopted the integrated business records exception to the hearsay rule under Rule 803(6) of the Maine Rules of Evidence in The Bank of New York Mellon v. Shone. It held:

“[A] record that one business has received from another is admissible under Rule 803(6) without testimony about the practices of the business that created the record, provided, first, that the proponent of the evidence establishes that the receiving business has integrated the record into its own records, has verified or otherwise established the accuracy of the contents of the record, and has relied on the record in the conduct of its operations, and second, that the opponent of admission has not shown that the record is nonetheless not sufficiently trustworthy to be admitted.”

Shone finally resolves the conflict between two competing interpretations of Rule 803(6) that had arisen over the last 35 years, returning the business records exception to the

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  • October 27, 2020

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

COVID-19, Elections, Law Court, Maine, Maine Constitution
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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

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  • October 20, 2020

The Law Court’s Answer Is Yes, The Maine Constitution Does Still Matter

Law Court, Maine, Maine Constitution
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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

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So You Should Cross-Appeal To Preserve an Alternative Argument – But Should You Have To?

Cross-Appeals, Law Court, Maine

I recently blogged about the need to file a cross-appeal of a favorable judgment in order to preserve an argument that provides alternate grounds for affirmance at the Law Court.  As I noted, the Court has declined to reach alternative arguments for affirmance where the prevailing party did not cross-appeal.

The Law Court recently did so again, in Jones v. Secretary of State.  In that case, the Superior Court had found in favor of petitioners challenging a determination by the Secretary of State that there were insufficient signatures to place a people’s veto onto the November ballot.  While the Superior Court held in favor of the petitioners on the single count asserted, it did not accept all of the arguments raised by the petitioner.  The Secretary of State appealed, and the petitioners did not cross-appeal from the judgment in their favor.  Before the Law Court, the petitioners asserted that one of the arguments raised below provided alternative grounds for

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  • September 09, 2020

When Do You Have to Seek a Stay in an 80C Appeal?

Law Court, Maine
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The Law Court yesterday issued an interesting decision in the ongoing ranked choice voting litigation that will have a broad application to appeals of final agency actions under M.R. Civ. P. 80C.  The decision clarifies when an automatic stay of a Superior Court judgment enters in a Rule 80C action.  The answer, somewhat counterintuitively, is that a judgment reversing an agency action is automatically stayed even though a judgment affirming an agency action is not.

In Jones v. Secretary of State, petitioners appealed the determination of the Secretary of State that there were insufficient signatures to place a people’s veto of a law implementing ranked choice voting for presidential primaries and elections onto the November ballot.  Petitioners won in the Superior Court, with the court issuing an order reversing the Secretary of State’s determination.  Given pressing deadlines for preparing the ballot, the question then became whether the decision was automatically stayed under Rule 62(e) – leaving the

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  • August 05, 2020

Arguing from Afar: The New Reality of Zoom

Law Court, Maine, Oral Argument
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There is a new reality for appellate practitioners that is here to stay (for a while): oral arguments before the Law Court via Zoom. There are of course downsides to this new reality; I’m a firm believer that in-person communication is superior to video communication for many of the same reasons that video communication is superior to telephonic communication. Quite simply, the more “remote” the communication is, the greater the danger of miscommunication and the more you lose in nonverbal communication. But the Law Court has made this new reality work quite well, as I experienced in a recent remote oral argument.

Here are a few thoughts based on that oral argument:

    • Know what to expect. The Law Court clerk’s office does a great job in making sure that participants are ready to appear remotely. As part of that process, litigants should make sure to do their due diligence. Become familiar with Zoom (something we have all had
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  • June 22, 2020

When in Doubt, Cross-Appeal!

Cross-Appeals, Law Court, Maine
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The Law Court recently addressed an issue of great importance to appellate practitioners: does a party need to cross-appeal a favorable judgment in order to preserve an argument providing alternate grounds for affirmance, when the lower court rejected that argument? The answer, per the Law Court’s decision, is “yes.” As the Law Court’s decision makes clear, and as my predecessor on this blog has noted, a cross-appeal is the only way to ensure that you will be able to raise the argument on appeal.

The decision, Reed v. Secretary of State, which is also very interesting substantively, involved a challenge to the Secretary of State’s determination that proponents of a citizen initiative had gathered enough signatures to place the initiative on the ballot. The petitioner’s challenge required the Superior Court to interpret statutes, 21-A M.R.S. § 903-E and 4 M.R.S. § 954-A, regulating the activities of notaries. Intervenors in the action argued in the Superior Court that

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  • May 27, 2020

Challenging Interlocutory Decisions on Appeal – What Not to Do

Law Court, Maine
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The Law Court recently issued a short decision, Wilmington Savings Fund Society, FSB v. Abildgaard, which provides a reminder of the importance of taking the appropriate steps at trial to ensure that interlocutory orders can be challenged on appeal.

On its facts, Abildgaard is fairly straightforward. Wilmington Savings Fund sought to foreclose on Abildgaard’s mortgage. To prevail, Wilmington was required to prove (among other things) that it had sent a proper notice of default and right to cure. The notice, however, was excluded at trial on the basis that it did not comply with statutory requirements. At that point, Wilmington rested its case without presenting evidence regarding a number of other elements of its foreclosure claim. In Wilmington’s view, it was unnecessary to proffer any other evidence because, without a notice, Wilmington could not prevail. After the Superior Court entered judgment against Wilmington, Wilmington appealed and challenged the exclusion of the notice.

It was the wrong path

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  • May 04, 2020

Musings on the Maine Constitution’s Bicentennial, Coronavirus Edition

COVID-19, Law Court, Maine Constitution
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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

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