End of year round up

We are off for the holidays, and so end the year with a quick review of recent decisions from the Law Court and First Circuit.  Thanks to all for reading and for the feedback received in 2017.  A surprising number of folks seem interested in reading about Maine law – we had 400 readers on a recent blog entry.  Remember, a subscription makes a lovely present (it’s free! Just press a button!)  I look forward to the another year of reporting what’s doing in the Maine appellate world. 

The feds

In a recent blog we noted two recent First Circuit decisions, one affirming rejection of an appeal because of a blown deadline, and another reversing denial of a motion to vacate a dismissal of a suit for not showing up at a motion hearing.  (Here are a couple recent rulings from the First Circuit that piqued our interest) The difference in the results, the later decision said,

PUC Rules and Appellate Jurisdiction

Looking at the summaries of oral arguments heard last week, one struck my eye, so I listened in. The merits of the dispute go to the legality of the Maine PUC’s net metering rule, an issue we won’t discuss. It’s a jurisdictional issue the Commission raised, with impact beyond this particular case, which I’d like to examine here.

The PUC said that when you challenge a PUC rule as opposed to a quasi-adjudicatory determination, you can’t file a direct appeal to the Law Court under 35-A MRS § 1320. Instead, you have to file a declaratory judgment action in Superior Court under the Administrative Procedure Act, 5 M.R.S. § 8058Conservation Law Foundation v. PUC, PUC-17-185(schedule) (oral argument).

Is the PUC right? Obviously, the Court will provide the final word. If someone voted me Queen Decider, I’d say the Superior Court only has concurrent jurisdiction as to

The Law Court and human error

There were a slew of decisions issued by the Law Court last Thursday.  Let’s take a peek and discuss a few.

A smelly oops

State of Maine v. Dubois Livestock, Inc., 2017 ME 223.  The holding is that when someone has a license issued by the DEP permit, at least under 38 M.R.S. s. 347-C or s. 1304(4-A), the DEP can enter into the non-curtilage part of your property without consent or a warrant, as long as it does so “at a reasonable time” and for the purpose of determining compliance with the license or the laws that the DEP administers.

As to the merits, the “open fields” doctrine has long protected only the area inside a curtilage. Oliver v. U.S., 466 U.S. 170 (1984).  As to whether the Constitution extends quite as far as the statutes and some of the

Here are a couple recent rulings from the First Circuit that piqued our interest.


 You can’t be compelled to arbitrate a claim if you never signed an agreement to arbitrate, or even knew it existed.  That’s the bottom line of a November 21 decision, Ouadani v. TF Final Mile LLC, No. 17-1583.

Seem fairly logical to you?  Me too.  And to the Court (Judges Lynch and Selya, with our own Maine District Court Judge Levy sitting by designation).  Judge Lynch, writing for the unanimous panel, dispatched the various estoppel, third party benefit etc. theories proposed by the appellant, represented by Ogletree, Deakins.  Then, at the end of the opinion, Judge Lynch wrote:

“Dynamex [the appellant] is ordered to show cause by written response within fifteen days as to why the court should not assess double costs for “needlessly consuming the time of the court and opposing counsel.”  D’Angelo v. N.H. Supreme Court, 740 F.3d 802, 808 (1st Cir. 2014) (citing In re Simply Media, Inc.,

The RCV decision: a rebuttal to a Maine Bar Journal article

This quarter’s Maine Bar Journal has an article by an attorney, Jeff Goldman, of counsel at Morgan, Lewis in Boston.  It’s called The Law Court’s Troubling Opinion of the Justices, and criticizes the Maine Supreme Judicial Court’s unanimous advisory opinion on the Ranked Choice Voting (“RCV”) statute.  Contrary to the title and vocabulary of the article, when the Court issues an advisory opinion, it does so as individual SJC members, not sitting as the “Law Court,” as the signatures at the end of the opinion make clear.  I’ll be using that nomenclature here.

The SJC’s opinion criticized by Mr. Goldman is at http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me100.pdf.  The Court’s web site page with links to the audio of the oral argument and the many briefs, including the one filed by us on behalf of the Maine House Republican Caucus and Maine Heritage Policy Center, explaining why, as the Justices all concluded, the RCV is unconstitutional, is located at  http://www.courts.maine.gov/maine_courts/supreme/senate_question_2017/index.html.  I blogged

What exactly do you want us to say?

I don’t comment on the substance of matters pending before the Law Court that involve me, but we were involved in an oral argument recently that reminded us of a useful tool in preparing for briefing and argument that is generally applicable, whatever the substantive issue in the appeal might be.

The argument that reminded me of this tool took place in Ross v. Acadian Seaplants.  The substantive issue in the case is whether the public, subject to regulation, can harvest seaweed in the intertidal zone without the permission of the littoral property holders.  We represent the amicus Department of Marine Resources, and had a few minutes of the argument, with Ben Leoni and Gordon Smith representing the parties.  The argument is at the link below.


The useful tool relates to a question that Chief Justice Saufley asked counsel for one of the parties:  “In a sentence, what is the holding you would like

Link rot no more

A few entries ago, summarizing the First Circuit Judicial Conference, we noted how a Harvard librarian explained how attempts were being made to address “link rot” – when opinions cite to a website, and later, that cite disappears (and if not gone, you don’t know if the site has been changed since the opinion was issued/the Court examined it).  The U.S. Supreme Court has a shocking number of decisions with such cites.  See http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html  [We’ll see how long these hyperlinks survive].  On October 24, 2017, the First Circuit decided to make public the linked items cited in its opinions.  http://www.ca1.uscourts.gov/sites/ca1/files/Preserving%20Internet%20Citations%20in%20Opinions.pdf.

The Court noted that since 2011, its library has been capturing any web page cited in a First Circuit opinion, converting it into a pdf and archiving it in a website repository.  As of Nov. 1, 2017, that repository has now been made public.  Additionally, after that date, the pdf is going to appear after the opinion on PACER.  So you

It’s Hamer time

The Supreme Court issued a decision last week made for appellate wonks, in which the American Academy of Appellate Lawyers (where I am a board member) not only filed an amicus brief supporting the position where the unanimous Court landed (AAAL Brief), but got a shout out in a footnote – Hamer v. Neighborhood Housing Services of ChicagoOpinion  (check out footnote 8).

The short takeaway is:  when Congress sets a deadline by statute, it’s jurisdictional, but when the time limit comes from a court rule, it’s not jurisdictional.  Hence, FRAP 4(a)(5)(C), limiting the extension of time to file a notice of appeal, isn’t jurisdictional.

28 U.S.C. s. 2107 says a notice of appeal must be filed with the court of appeals within 30 days after the entry of the judgment, order or decree, but that the district court may extend the time for appeal on a showing of excusable neglect or good cause, as long

Calling all appellate wonks – notices of appeal and electronic filing in state court

A reader has alerted me to a dandy notice of appeal issue now pending before the Law Court involving the apparent clash of two civil rules – catnip to appellate jockeys!

The case is Perry v. Dean, Docket No. BCD-17-412.  Attached is a copy of an order reinstating the appeal that presents the issue.  (Order Reinstating Appeal)

To fill in the gaps, the appellant filed the notice of appeal with the Business and Consumer Docket (BCD) by e-mail pursuant to M.R. Civ. P. 139 on the final day of the appeal period, but the paper copy with the appeal fee check did not arrive at the court until the following day.  Justice Gorman dismissed the appeal as untimely, but on motion by the Appellant reinstated the appeal, as reflected in the attached order, with instructions that the parties shall brief whether the appeal is timely given the provision of M.R. Civ. P. 5(f) that a filing shall

No sham, agreed; but as to why …..

One area of law I find of interest, given its First Amendment grounding, is the Noerr-Pennington doctrine – the protection of the right to petition from antitrust liability.  There’s a new First Circuit decision discussing the sham exception to that doctrine, under which an antitrust suit is allowed to go forward based on the defendant’s petitioning activities.  Puerto Rico Telephone Co., Inc. v. San Juan Cable LLC, No. 16-2132 (1st. Cir. 2017).  While, as the caption reflects, the case involved Puerto Rican parties, the trial court decision was issued by Maine’s own Judge Woodcock, sitting by designation.  His decision that the exception did not apply was affirmed in an opinion written by another Mainer, Judge Kayatta (on a panel with Judges Torruella and Barron).

The facts are simple – “not eager to face competition,” the defendant filed a gazillion petitions in Puerto Rican and federal courts and other tribunals to fend off an