Mark your calendar – May 15, 2019

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

Just say no and Spiderman

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

Puttin’ on the Writs

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),

Guns in the street

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

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