Law Court

  • June 26, 2023

Keeping Form Subservient to Substance in Rule 80B (and 80C) Actions

Law Court, Maine
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What is the proper remedy when a party challenges a municipal action under Rule 80B, but the court later determines that this was the wrong procedural vehicle to challenge the municipal action?  In Hurricane Island Foundation v. Town of Vinalhaven, the Law Court took a pragmatic approach by treating the proceeding as a declaratory judgment action rather than dismissing the action.

In Hurricane Island Foundation, a nonprofit sought to challenge a town tax assessor’s decision denying the nonprofit a tax abatement.  The nonprofit brought its challenge under Rule 80B.  The Town, however, argued that this was the wrong procedural vehicle because review of an assessor’s decision must be obtained through abatement or declaratory judgment.  The Law Court ultimately agreed, concluding that Rule 80B does not provide for review of a tax assessor’s decision.  This raised an important issue—should the lawsuit be dismissed for lack of jurisdiction?

The Law Court applied a very practical solution. 

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  • June 13, 2023

Standing, Cross-Appeals, and Rule 80B

Cross-Appeals, Law Court, Maine
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Maine law regarding cross-appeals has long been murky, and as a result that subject has often been the subject of commentary both at this blog (here and here, for instance) and elsewhere.  The Law Court brought additional clarity in this area of the law in its recent decision in Tominsky v. Town of Ogunquit.  In the Court’s own words, Tominsky “resolve[d] thorny questions” regarding standing requirements, Maine Rule of Civil Procedure 80B, and Maine Rule of Appellate Procedure 2C.

The facts of the case are fairly straightforward.  After the Town of Ogunquit issued building permits, a neighbor challenged the permits before the Town’s Board of Appeals.  The problem was that the neighbor’s challenge was not timely.  Nevertheless, the Board granted a “good cause” exception to the 30-day time limit and considered the merits – only to ultimately deny the appeal.  The neighbor appealed under Rule 80B, and the developer felt compelled to bring

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  • 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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  • 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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  • 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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  • 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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