Good Eve-ning, lights out

At long last, the First Circuit has issued its en banc decision in Eves v. LePage. Cutting to the chase, the Court affirmed Judge Singal’s dismissal of the action on qualified immunity grounds.

Six judges heard the case: CJ Howard, and Judges Torruella, Stahl, Lynch, Thompson and Barron (Judge Kayatta recused). There were two opinions, one written by Judge Lynch, joined by CJ Howard and Judge Stahl, and a concurrence written by Judge Thompson, joined by Judges Torruella and Barron. The Judge Lynch opinion is the ruling, because it is the narrowest opinion, holding that Governor LePage was immune because a reasonable governor in his situation could have believed that Eves’ position as the new President of Good Will-Hinckley was to be a policymaking position for which political affiliation was relevant.

The concurrence agreed, but wrote an opinion discussing why absent that policymaking issue, they would have found no immunity.

All of that discussion from Judge Thompson in the

Take that, precedent!

The big decisions from the Supreme Court are coming fast, and in the takings jurisprudence world, the one issued on Friday was a biggie, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)Knick v. Township of Scott, PA, No. 17-647 (U.S. S.C., June 21, 2019). We’ve blogged on this pending case before, Takings law – exhausted or just exhausting?, Sept. 28, 2018 and The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?, Mar. 12, 2019 . While the pundits after the argument – and re-argument – of this case were thinking the Court wouldn’t go so far as to strike down Williamson in toto, they did, 5:4, with CJ Roberts writing for the majority.

In the past, as we have commented upon many times, since 1985, when Williamson

Maine’s new ISP privacy law and the enforcement conundrum

Maine’s new privacy law regarding broadband internet service providers, An Act To Protect the Privacy of Online Customer Information (LD 946, to be codified at 35-A M.R.S. c. 94), billed as the strictest in the nation, has gotten a lot of press. E.g., Gov. Mills signs nation’s strictest internet privacy protection bill, www.pressherald.com, June 6, 2019, Maine’s New Internet Privacy Law: What You Need to Know, www.natlawreview.com, June 14, 2019. Here’s our firm’s alert on the bill. Maine’s New Internet Privacy Law: What You Need to Know. As our alert and some news articles have noted, however, there’s no enforcement provision in the bill. So, setting aside whatever constitutional issues this new law might raise, what does the lack of an enforcement provision mean?

Let us ponder, understanding our general blogging caveat that we have engaged in about an hour of research, which is enough for me to

When are declarations independent?

The Law Court recently decided a Rule 80B case and so, of course we must discuss. Cape Shore House Owners Association v. Town of Cape Elizabeth,  https://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2019/19me086.pdf.


The facts are simple, and I streamline them further to focus only on what matters for the purpose of my musings:

  • X sought a  permit;
  • the ZBA granted it;
  • the abutters filed a Rule 80B challenging the decision; and
  • in addition to a straight 80B, the abutters appended a second count, seeking a declaratory judgment that the Ordinance that allowed the permit was preempted under state law.


The Law Court affirmed dismissal of the declaratory judgment count as redundant and didn’t address the merits of the preemption argument (which hadn’t been raised before the ZBA).


Was the second count truly redundant?


At first blush, this

1 ½ – Show me!

Well, we’ve been humongously busy, but c’est la vie. One stop we made was to the conference of the American Academy of Appellate Lawyers in Philadelphia. Donald Macomber was also there from the AG’s office, and there were lots of solid presentations (and what a great town – my first visit). 

One interesting thing I learned was there is this nifty study from the ABA with an excellent chapter on what formatting should be now that judges are reading off of tablets – The Leap From E-Filing to E-Briefing

We’ve talked about a lot of some of the points they make before, so I won’t repeat myself. But one nugget I didn’t know was that we should be using not single or double spacing, but 1 ½ – that’s best for reading on a screen (with 12 pt font, too, not 14). And, a court – gasp – actually listened and adopted this spacing –

A quickie blog re appellate seminar

Well, that last posted blog entry was so exhausting, here’s something short and snappy:

The First Circuit has posted the program for the criminal appellate practice seminar we previously blogged about (Mark your calendar – May 15, 2019):  Federal Criminal Appellate Practice Seminar Program

For we civil practitioners, the agenda looks pretty criminal-centric, but the opening from the clerk is always useful, and I wouldn’t miss Judge Barron on best practices at 11:45 am.

Remember, this is free CLE.

The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?

The Massachusetts Appeals Court recently issued a regulatory takings decision with relevance to us in Maine given our State’s unique relationship to the Commonwealth. Smyth v. Conservation Commission of Falmouth, 94 Mass. App. Ct. 790. Kudos to Pierce Atwood’s Michelle O’Brien and Nicholas Brown for prevailing in this appeal.

Among other things, in Smyth, the Massachusetts Appeals Court held that there is no right to a jury in a regulatory takings case. This matters to us in Maine because the rule in Massachusetts is there is a right to a jury if that right existed in 1780 (see p. 6). If a new cause of action was created thereafter, there is no right to a jury unless that new cause of action is analogous to a common law claim entitled to trial by jury in 1780. See Smyth, pp. 6-7.

In Maine, you have a right to a jury unless there

Promesa, Promesa

On December 4, 2018 we blogged about the oral argument in this appeal involving the constitutionality of federal legislation enacted to address Puerto Rico’s restructuring. (CLASH OF THE TITANS) The question was whether the people appointed to the oversight board had to be appointed by the President with the advice and consent of the Senate. The district court said no, but the First Circuit has now spoken and ruled otherwise. In an opinion written by Judge Torruella, joined by Judges Thompson and Kayatta, the Court of Appeals said the appointments, not adhering to this process, had been constitutionally muffed. The panel declined, however, to unravel the many decisions issued to date by the board not-so-appointed, applying the “de facto officer” doctrine.  Aurelius Investment, LLC v. Commonwealth of Puerto Rico, Nos. 18-1671, 18-1746, 18-1787 (1st Cir., Feb. 15, 2019).

The decision runs through the maze of law relating to the Appointments Clause and Territorial Clause, and given

Sex again

Now that I have your attention, let’s discuss a recent First Circuit decision interpreting when there’s a hostile work environment and who’s liable for it under the Maine Human Rights Act.  Roy v. Correct Care Solutions, No. 18-1313 (1st Cir. 2019).  Judge Lynch, writing for co-panelists Judges Stahl and Barron, issued a thorough decision vacating summary judgment in favor of the employer issued by District Court Judge Levy.

The facts are set out in detail describing the claims of the plaintiff, a nurse, employed by a company at the Maine Department of Corrections prison, alleging discrimination, sexual harassment and retaliation. Title VII claims accompanied her suit under sections 4633 and 4572 of the MHRA. The Court of Appeals affirmed dismissal of civil rights claims against the warden and deputy warden but vacated judgment in favor of the other defendants.

Some salient legal takeaways include:

  1. The holding that section 4633 of the MHRA applies to individual persons

On the Basis of Sex

Perhaps moved by my recent viewing of the movie bio of Ruth Bader Ginsberg, On the Basis of Sex, in pondering how much we’ve progressed in gender equality in our own vocation since the days of her early battles as portrayed in that film, here’s a dispiriting article from Bloomberg law about how the chances of arguing in front of the Supreme Court if you are a woman appear worse than winning the lottery – woman have made up a whopping 17 of 112 appearances so far this year.  Also not boding well for the future, of those 17, only six came from private law firms; the rest were from the government (versus 45 of the men from firms):  Women Argue Only a Fraction of Supreme Court Cases (Bloomberg Law.com Jan. 30, 2019)

Why is this so?

The article says that one factor is that oldsters hog the podium, and that self-perpetuating group is largely male. But