Order in the Court!

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A few entries ago, regarding the new appellate rules, in discussing the changes relating to the appendix, we noted that with the new rules, the Maine SJC  warned folks to make sure that their appendices followed the Rule 8.  (New rules)  We’ve also blogged before on the Court’s frustration with appendices not put in the right order, containing duplication, etc.  (Do you want your appendix ripped out? A caveat; The Eight Percent Solution; Report from the Appellate Seminar)  Now the Court has dismissed an appeal on the basis that the appendix did not put the documents in the right order.  Hall v. Camden Hills Farm By the Sea, LLC, 2017 ME 150.

The appellant filed its brief and appendix, and the appellee moved to dismiss, saying the brief had defects and the appendix was not in the right order and also included documents

Island means Island

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The First Circuit issued its decision in Penobscot Nation v. Mills last Friday, affirming the District Court in declaring that the Tribe’s Reservation consisted only of the islands in the Main Stem of the River, and not any of the bed of or waters in the River.  The Court vacated the District Court’s second ruling, going to where the individual Tribe members could sustenance fish, on the basis that the issue wasn’t ripe, because the State had never denied any member from exercising that right.  These two positions – (1) the word “islands” defining the Reservation in the Settlement Acts means islands, not water or River; and (2) the fishing issue was not ripe – were the positions taken by the State defending itself in this action.  Pierce Atwood represented a coalition of municipalities and other River users supporting the State’s position, which could have found their territorial boundaries changed and their water discharges regulated by the Tribe had the decision gone the other

New rules

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I have returned from a lovely Viking cruise around the Baltic Sea (gravlax galore!) and while I was gone, the Court issued the new appellate rules.  We’ve blogged on them before (Hot off the press – the proposed changes to the Maine Rules of Appellate Procedure) – here are some highlights of the changes.

First, the rules are a comprehensive replacement; out with the old, in with the new.

Second, they are not effective until September 1, 2017.

Third, the Court issued an order that includes a good summary of what’s changed, both in the beginning and after each rule..  http://www.courts.maine.gov/rules_adminorders/rules/amendments/2017_mr_7_appellate.pdf.  In a nutshell:

  • The statement of potential issues on appeal filed with the notice in a civil appeal is eliminated.  This makes sense because it really served no purpose, since the appellant wasn’t held to that list.  That said, remember that PUC appeals still require a statement that

SLAPP happy?

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The Maine and Massachusetts SJCs have both recently issued multiple SLAPP suit decisions, so let’s compare, contrast and ponder. This is a very long blog entry, so I’ll summarize what’s coming:

  • Both SJCs have long wrestled with this area of the law;
  • One reason why is because the SLAPP statutes are being applied in ways that the legislatures probably did not originally portend;
  • The Maine SJC’s most recent approach raises procedural and constitutional questions; and
  • The Massachusetts SJC’s approach could provide a constructive path forward.

SLAPP stands for “Strategic Lawsuit Against Public Participation.” In the 1990’s, the belief grew that more powerful developers were chilling the speech of less wealthy citizens by filing lawsuits against the latter when they opposed their projects. See Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10 (“The typical mischief that the anti-SLAPP legislation intended to remedy was lawsuits directed at individual citizens


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As many know, the Maine SJC yesterday issued its unanimous advisory opinion concluding that ranked choice voting is unconstitutional under the Maine Constitution.  Opinion of Justices, 2017 ME 100.  It’s been the subject of various press stories, e.g.:  Maine Supreme Judicial Court rules ranked-choice voting unconstitutional, bangordailynews.com; Maine’s highest court rules ranked-choice voting is unconstitutional, presshearld.com; Ranked-choice voting violates Maine constitution, washingtonpost.comNo-majority elections in old Maine, washingtonpost.com; Ranked-Choice Voting System Violates Maine’s Constitution, Court Says, nytimes.com.  So let’s share some observations more off the beaten track.

First, note that we represented the House Republican Caucus and the Maine Heritage Policy Center in filing an amicus brief, and our able Joshua Dunlap participated in the argument.  Like the Maine AG, and ultimately the Court, we explained how RCV is unconstitutional. 

A comma and a question mark

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A First Circuit decision interpreting Maine’s overtime law, 26 M.S.A. § 664, issued last week, has been much in the news, given the prominence in the opinion of grammatical rules, in particular, regarding commas. O’Connor v. Oakhurst Dairy, No. 16-1901. See e.g., Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute, N.Y. Times, March 16, 2017. Once again, we have a slightly different take.

To set the stage: The plaintiffs were delivery drivers, represented by David Webbert and Johnson, Webbert and Young.  The employer was represented by David Schenberg, the co-chair of the Appellate practice group at Ogletree, Deakins.  The panel consisted of Judge Barron, who wrote the decision, joined by Judges Lipez and Lynch.

The relevant statutory text was an exemption to the overtime law that says it does not apply to:

The canning, processing, preserving, freezing, drying, marketing, storing,

Did they have to kill the cat?

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Time for a tour around the Law Court to see what our SJC has been up to recently, opinion-wise.

Two decisions came out yesterday of note:

1. Scamman v. Shaw’s Supermarkets, 2017 ME 41

This was on a certified question from the District Court of Maine pursuant to 4 M.R.S. § 57, asking whether Maine’s anti-age discrimination statute, 5 M.R.S. § 4572(1)(A), applies a “reasonable factor other than age” test in disparate impact cases, or “business necessity” test.

It’s easier for an employer to meet the “reasonable factor” test, which is used in the federal counterpart ADEA.  Basically, if all the old folks are earning more, and the company is in a money crunch, then the company can get rid of the oldsters more easily under that test.  In contrast, the federal statute uses the “business necessity” test for Title VII, harder for the company to prove.  Johnson, Webbert & Young argued for the employee,

The Master issues his report.

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As many as aware, PA’s Ralph Lancaster, with the trusty aid of Joshua Dunlap, recently completed a special master process for the Supreme Court in a dispute between Florida and Georgia.  The docket sheet and links, including to the final report, is found here. http://www.pierceatwood.com/floridavgeorgia142original

In a nutshell, Florida said Georgia was taking too much water from a river basin located across Georgia, Alabama and Florida.  The report notes that Florida has suffered harm from decreased flows in the river, but recommends that the Court deny Florida’s request for relief because the Army Corps of Engineering isn’t a party to the original jurisdiction proceeding, so the Court can’t order any change in Corps’ operations.  Without the ability to bind the Corp, the Court can’t give Florida the relief it wants.

Here’s a link to a recent summary article on the recommendation.



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From time to time we have discussed some judge’s growing inclination to roam around the internet to investigate factual issues on their own. Judge Posner, in particular, thinks it’s fine to act as his own investigator in deciding matters on appeal.

The following are links to some recent articles on this movement to keep you up to date.


https://www.kentlaw.iit.edu/Documents/Academic Programs/7CR/v11-1/martin.pdf


The first article in particular, from the Northwestern Law Review (Go Wildcats!) undertakes a scholarly consideration of taking judicial notice in the internet age.

The bottom line: this is going to happen, so should the rule of evidence be adjusted to recognize it, and if so, how?

The best amici brief ever.

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The link below is to an amici brief in pending case before the Supreme Court in which the Patent and Trademark Office rejected trademarking the name of the rock band under a provision of the Lanham Act prohibiting registration of marks that contain “disparaging” language.  The brief is by the Cato Institute, joined by various others including the satirist, P.J. O’Rourke. 

Warning:  the brief is littered with potty mouth words, which is one it its points.  It is also hilarious, while communicating its serious legal point. 

Just like the credits and post-credits can be the most amusing parts of a movie, do not skip the Appendix description of the amici.