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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

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

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

That’s the date that the First Circuit will be holding its next federal criminal appellate practice seminar in Maine.  (Announcement)  It’s open to all, free and you get CLE.

If you are a civil practitioner, and because of that you are thinking there is nothing useful to be had from this seminar, you are wrong.   See What’s doing at CTA1; Appellate news.  And did I mention that it’s free?

The description on the First Circuit website indicates that Judge Barron will speak about best practices in brief writing and oral argument, which sounds pretty relevant to all appeals.  As my download from the previous seminar indicates (see links above), when Judge Kayatta spoke, there were lots of interesting tidbits to be gleaned.  Nothing requires you to stay through the parts only relevant to criminal practice (although keep that in mind when tallying up your CLE hours).  Stay tuned as they fill in the specific

Sometimes around the holiday season, parents must use special skills to explain why Santa won’t be giving them that $500,000 drone or the Tesla they want.   Are similar skills needed to say no to a judge in an oral argument when they say something with which you disagree?  Here’s a discussion about that topic.  How to Tell a Supreme Court Justice She’s Wrong, ALM Media, Dec. 4, 2018.

The article was prompted by Supreme Court argument in which Arnold & Porter’s Lisa Blatt told Justice Kagan she was “fundamentally wrong in several respects.”   Justice Kagan asked “fundamentally wrong?” with the reply from Blatt, “Well, it’s factually wrong.”

My own take is that a “with due respect” preface is silly – there’s undue respect?  “Respectfully” or “with all respect” seems a better way to go.  But what’s wrong with “No, your honor, that’s not quite right because EXPLANATION” or “No, your honor, that assumption/conclusion [never the judge, just the conclusion] is incorrect

On December 3, the First Circuit (Judges Torruella, Thompson and Kayatta) heard another appeal emanating from the much-litigated federal Promesa legislation enacted in 2016 addressing Puerto Rico’s restructuring (i.e., essentially bankruptcy).  A LOT of money is involved – Puerto Rico’s public debt exceeds $70 billion.  So each side brought out big guns.  You may have heard of two lawyers arguing in this matter:  Ted Olson and Donald Verrilli.  Here’s the argument.  Aurelius Investments, LLC v. Commonwealth of Puerto Rico, Case No. 18-1671

The issue presented in this appeal is a particularly important (and interesting) one, because it could affect every decision made under PROMESA (and beyond).  Under that statute, Congress appointed six members to an oversight board for Puerto Rico; Obama added the 7th.    The Board was given the authority to put Puerto Rico into restructuring, which it did.  Olson’s client holds hundreds of millions of dollars of Puerto Rican debt.  His client’s position is that the Board members are

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