A History of Jews in America

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Long ago, I had to decide between getting a doctorate in history at Princeton or going to law school at Northwestern. I did not want to risk living in penury and picked the latter. On August 2, the First Circuit issued a decision involving the interface between these two worlds, history and law – or, more precisely, a difference of opinion between the trial and appellate court as to the relevance of historical background, at least when the parties are religious organizations.

The First Circuit decision is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, No. 16-1756. The decision was authored by frequent First Circuit visitor, ex-Supreme Court Justice Souter, joined by Judge Lynch and Judge Boldock of the Tenth Circuit.

The District Court decision (Judge McConnell, D.R.I), containing a much fuller historical discussion (back to the Spanish Inquisition), is found here. Congregation Jeshuat Israel v. Congregation Shearith Israel, Docket No. 12-CV-822 (D.

Litigation limbo

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My last blog entry got me thinking about the general question of justice delayed due to judicial action or inaction.

First, I’d like to send a shout out to the Law Court for its concern about delay in Gilbert, discussed in the previous blog, and its overall promptness in practice. Generally speaking, and compared to a lot of other courts, the Maine SJC issues decisions pretty promptly after argument. The time from filing an appeal to argument is also not huge when compared to other appellate courts, and if you need to expedite things, it’s been my experience that the Law Court can and will do it. So our appellate court is generally pretty prompt in addressing what you put before it.

Conversely, if you were wondering whether a court has ever found that a delay in issuing a decision in a civil case could amount to a due process violation or the constitutional right to access to courts,

Probate and the speed of justice

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The Law Court recently issued two decisions of note regarding the bailiwick of Maine’s only elected judges, the Probate Court.

1.    Bleak (Tiny) House?

First, Estate of John W. Gilbert, 2017 ME 175.

This case involved the appointment of a referee by the Probate Court (Longley, J.).  The wife of a decedent and one of the decedent’s children by a previous relationship were at loggerheads.  The Probate Court appointed the wife as personal representative and declared that the decedent died intestate.  It also, among other things, appointed a referee to propose a plan of distribution.  The referee prepared a report, to which the wife objected because, among other things, the referee had held no hearing, in violation of 14 M.RS. § 1153.  The Probate Court didn’t act on the objections or report, but issued a decision requiring the wife to sell the property of the estate consistent with the referee’s suggestion. 

The ADA is not the MHRA

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Congratulations to our Katy Rand for her victory in Carnicella v. Mercy Hospital, 2017 ME 161.   This was a dispute as to whether the defendant employer discriminated against an employee under the Maine Human Rights Act, 5 M.R.S. ss. 4551-4631.

The important part of this decision for precedential purposes is at the end, where the Court rules that, unlike the ADA, the MHRA does not require employers to provide employees who are unable to work with leave as a reasonable accommodation.   The Court also reiterated the conclusion it reached five years ago in Kezer v. Central Maine Medical Center, 2012 ME 54, that employers have no obligation under the MHRA to propose, identify or consult with the employee regarding reasonable accommodations.  Examining the language of the state statute, the Court found no counterpart to the federal act imposing such a burden.

A loss of civility

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I don’t talk about appeals I lose, and I do lose some. There’s a new book out with a famous quote from ex-FBI director James Comey as to what prosecutors with perfect records are called – it’s not pretty, because he was making the point that to do your job properly you don’t obsess about your win-loss record and think about how it’s all about you, as opposed to the client.   

Moreover, not only would whining about a decision that didn’t go my way sound pretty cheesy, there would be no point – what is right is what the Law Court says is right.  No one appointed me Queen of the Law, and by definition, the Court – the members of which were appointed – is always right.     

That said, I don’t file an appeal unless I think I have reasonable grounds to do it.  I have never filed an appeal I thought was frivolous. 

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.