Judicial conference 2018 – old and new, and in praise of Judge Hornby

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

Is the cross-appeal question finally answered definitively?

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

Takings law – exhausted or just exhausting?

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

Brew your own beer – right in your tummy!

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:


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,

Hardy Mainers?

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

Crime and Punishment

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.


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

Is the Hotel California covered in lead paint?

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.

The First Amendment is different.

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

Alexander V

Well, we had a little hiatus while we were sucked into a whirlpool of briefing and other activity, but things have calmed down now, and as a nice present waiting for me was Justice Alexander’s Fifth edition of Maine Appellate Practice.  This edition talks about the new rules, and so if you’ve been skipping an edition or two, I’d invest in this one.  All the proceeds go to Cleaves, a worthy cause, so they make nice Christmas presents, too!

No ping pong and no dope

We may be entering the summer vacation period (although the Law Court I am told is having a July argument session), but I’ve been busy as a beaver. But with time now to breathe, here are a couple of recent decisions of note interpreting Maine law, one from the First Circuit and the other from the Law Court:

Ping pong-less review

Kudos to Pierce Atwood’s Jim Erwin in the affirmance of summary judgment for an employer in a whistleblower retaliation case. Theriault v. Genesis Healthcare LLC, No. 17-1717. See 26 M.R.S. § 833.

On appeal, the plaintiff argued that Judge Singal had granted summary judgment in error because she took the position that under Maine law, the court should look only at the plaintiff’s evidence when reviewing a summary judgment motion. The defendant said no, the Court looks at all the evidence. We all know the McDonnell Douglas burden