Uncategorized

Here in the land of appellate law, there’s nothing more we like than diving into an area of dusty, obscure legal procedure.  The land of ancient writs is one of those areas, and last week the First Circuit issued one of the more obscure of those ancient writs – an “advisory mandamus.”  In re Grand Jury Subpoena, No. 18-1464 (1st Cir. Nov. 21, 2018).

A federal grand jury subpoenaed records from the Rhode Island Department of Education and Training.  The Department moved to quash to the extent it sought to compel the production of documents containing confidential communications between its staff and legal counsel.  The district court (Smith, C.J.) denied the motion and ordered the Department to hand over the communications, holding that, as a categorical matter, the attorney-client privilege doesn’t shield communications between government lawyers and their clients from a federal grand jury.  The court declined to certify the issue for appeal under 28 U.S.C. § 1292(b),

With yet another mass shooting this week, it’s timely to discuss a recent (Nov. 2) decision from the First Circuit, Gould v. Morgan. This involved a constitutional challenge to the Massachusetts firearms licensing statute, as implemented in Boston and Brookline. The district court upheld the statute and implementation, as did the panel, Judges Thompson, Selya and Kayatta, with the unanimous opinion written by Judge Selya.

Summing up in the introduction, Judge Selya wrote:

we hold that the challenged regime bears a substantial relationship to important governmental interests in promoting public safety and crime prevention without offending the plaintiffs’ Second Amendment rights. Accordingly, we affirm the district court’s entry of summary judgment for the defendants. In the last analysis, the plaintiffs simply do not have the right “to carry arms for any sort of confrontation” or “for whatever purpose” they may choose. Id. at 595, 626 (emphasis omitted).

The appeal was chock-a-block with amici and

I (a reader suggested that I stop using the royal we) attended the federal judicial conference at the Samoset last week.  The topic du jour was social media, so that was the new.  The conference closed with observations from two district court judges, Judges Hornby and Singal, who have been on the bench for many years, and recounted stories and all the changes they have seen, which was the old.

On the latter front, the changes they noted, aside from the upside of new technology, seemed mostly heading in a negative direction.  With fewer trials, especially jury trials, and more security, court houses, they noted, have become silent and cut off from the public.  In the past, these were important public gathering places; for example, there used to be retired folks who would come to watch trials every day.  With motion days gone, trials few and far between, and security worries, except for life’s rich pageant that is the Maine State District Court

We have previously blogged – many times- on the question when one must file a cross-appeal to assert alternative grounds to support a judgment: Cross-Appeals again; Alternate grounds support a judgment? Cross-Appeal!; New rules; When in doubt, cross it out; Follow up.

The Law Court recently issued a decision that we hope definitively answers this question as never: Ageoreow v. Weisberg, 2018 ME 140.

There, the Court stated:  “….Mercy filed a cross-appeal to preserve the argument that its motion to dismiss should have been granted based on section 2511 immunity.4 See M.R. App. P. 2B(c), 2C(a).”  Footnote 4 reads:

“We acknowledge Mercy’s desire to be cautious, particularly in light of some of our suggestions describing when a cross-appeal is required. See, e.g., MaineToday

The Supreme Court has granted certiorari this term to re-consider the ripeness requirement for a claim for just compensation, first articulated in in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985).  Knick v. Town of Scott, Pennsylvania, No. 17-647.  Interestingly, the Court decided to go right to the jugular, deciding whether the ripeness rule should be abrogated entirely, instead of nibbling at the edges to decide whether the rule applied to physical/facial takings.

Like much of takings law, the ripeness rule is a mess.  As with most takings jurisprudence, the analysis starts innocently enough, then breaks down as it’s applied.  The logic behind the ripeness rule is that you can’t claim a violation of federal takings law through a civil rights claim seeking just compensation for a taking until you seek compensation from the state, which is allegedly taking the property. The claim isn’t ripe until you’ve asked

Autumn is in the air, which means the Law Court’s fancy turns to riding the circuit, visiting high schools in its annual October Tour O’Maine to hear argument. This year’s crop of appeals appears fairly pedestrian, except for one scheduled to be heard on October 25, at the Wells High School: State of Maine v. Burbank. The briefs are posted here:

http://www.courts.maine.gov/maine_courts/supreme/oral_arguments_schedule.shtml

A suspiciously high number of OUI appeals have always appeared on the October high school argument list, presumably and admirably to bring home to impressionable teenagers the dangers of drinking and driving. This OUI appeal revolves around a defense I’ve never heard of before: “Auto-immune brewery” or “Gut fermentation” syndrome.

According to the briefing, the defendant blew a whopping .31 on the Intoxilyzer. The defense wanted to submit expert testimony that it was possible that, unbeknownst to the defendant, his own gut was spontaneously producing alcohol.

According to one of the proffered experts,

If you take off your jacket on your front porch while a police officer is in your driveway following up on a suspected motor vehicle violation, does that mean the police can search that jacket if you’re wearing a sleeveless blouse underneath and the temperature is 34 degrees? Four SJC Justices upheld the search; three dissented. State v. Paganini, 2018 ME 129.

The defendant was driving away from the Androscoggin County Courthouse when a police officer familiar with her “extensive” criminal history saw her and thought that her driver’s license had been suspended. He waited for two hours by her residence.  (Is the crime rate so low in Lewiston that police have the time to engage in such lengthy pursuit of traffic offenses?  The dissent noted that the two-hour stakeout was “purportedly” to investigate the traffic violation.) When the defendant finally arrived, the officer put on his blue lights and followed her into her driveway. She got out of her

Two seemingly unrelated recent decisions, one in the First Circuit and the other by the Law Court, consider the potential inadequacies of our current criminal justice system to address current social issues:  (1)  U.S. v. Sirois, No. 17-1797  and (2) State of Maine v. J.R., 2018 ME.

Sirois

In Sirois, after release from federal custody following a drug trafficking conviction, the defendant failed three drug tests and pleaded guilty to felony drug possession in state court.  The district court then found the conduct violated his conditions of supervised release and revoked that release, sending him to prison for two years.  On appeal, the defendant argued that because his drug addiction is a disease, sentencing him to imprisonment for manifesting a condition of his disease was cruel and unusual punishment under the Eighth Amendment.

Because this argument was raised for the first time on appeal, Judge Kayatta, writing

It may be the summer doldrums in terms of issuing decision, but an interesting petition for cert was filed last week that may have a decent chance of being granted.  ConAgra Grocery Products Co. and NL Industries, Inc. v. People of California.

It certainly has firepower behind it, with Paul Clement as Counsel of Record, along with a host of others from Kirkland & Ellis and Reed Smith.   It also involves substantial $$ – hundreds of millions of dollars.  And it relates to an issue that I worked on years ago with a then-partner at PA named William Kayatta, now of the First Circuit:  to what extent can companies who long ago manufactured lead pigment or paint or their successors be held liable now in public nuisance for lead paint on buildings today?  The folks at Jones Day also filed a petition for cert in the same case.  Sherwin-Williams Company v. People of California.

Playing catch up in our perusal of recent First Circuit and Law Court decisions, a First Circuit decision involving a defamation claim caught our eye. Sindi v. El-Moslimany, No. 16-2347.  The panel were Judges Barron, Selya and Stahl. Judge Selya wrote the majority decision for himself and Judge Stahl, with Judge Barron dissenting in part. Eugene Volokh, a professor at UCLA, filed an amicus brief on behalf of himself.

The facts, in a nutshell, were that Defendant #1 and her husband hosted a Thanksgiving dinner at their home in 2010, with the plaintiff, a prominent Saudi scientist and entrepreneur then a visiting scholar at Harvard University. Several months later, Defendant #1 came to believe that her husband and the plaintiff were engaged in a “meretricious” relationship. #1 and her mother then launched a series of web posts accusing the Plaintiff of various untrue things.   Plaintiff sued for defamation, intentional infliction of emotional distress, tortious interference with contract, and tortious interference