Hot off the press – the proposed changes to the Maine Rules of Appellate Procedure

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As we’ve mentioned, the Advisory Committee has worked with Justice Alexander on potential changes to the rules.  The results are now out and ready for public comment –  Notice; Proposed Amendments.

The deadline is short – February 16 – so please move quickly.

The notice asks in particular about three of the (relatively) bigger substantive changes.  There is nothing drastic here.  The second one noted is an Appendix change to only including the mandatory materials, with addenda to the briefs to attach the optional parts.  This approach takes care of the awkward timing issues we have now with identifying what goes into the Appendix before the briefs are done.

There is also now a proposed equivalent to a federal Rule 28(j) letter for noting authority after briefing – sort of.  The proposed state counterpart only allows for filing such letters before argument, and requires a motion to cite authority after that.  If you think

A rare sentencing victory

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We don’t often delve into the criminal law decisions, particularly sentencing, but I wanted to shout out to ex-Pierce Atwood-iste Tina Schneider, who landed a victory in U.S. v. Cotto-Negrón, No. 14-1670.

Basically, the trial judge, (Judge Fusté) gave a two level enhancement when he didn’t give the same enhancement to the other defendants in the exact same situation.  The Court skirted the broader issue whether or when that’s allowed as a general matter, by ruling that here it was not here because the ground the trial judge articulated for the deviation was not supported in the record.  (The two level enhancement was for inflicting bodily injury on the victim.  The other defendants didn’t get the enhancement, and the record was the same as to each defendants’ conduct.  The trial judge made statements indicating that he thought that the record was not the same as to each defendant.)

So first, congratulations Tina.

So here we have

Still here

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We took a sabbatical for a bit while I shoveled work off my desk, but with 2017 here already, let’s get back in the saddle by making some general observations about 2016.


Law Court caseload statistics have been posted for 2012 through 2016.  On the civil front, overall, total filings show 477 in 2012, 420 in 2013, 431 in 2014, 443 in 2015 and 478 in 2016.  So a dip, and then back to the 2012 level.  The distribution of types of appeals, however, has changed, with fewer general civil appeals, far fewer worker’s comp appeals, and more family and child protective appeals.  The child protection appeals in particular soared from 38 in 2012 to 89 in 2016.  One of my favorites, 80Bs and 80Cs, have kept steady numbers – 25-29 over the five year period.  Probate has almost doubled, from 15 in 2012 to 27 in 2016.  People are apparently crankier about their speeding tickets, too – 1 traffic infraction

San Antonio Download, Pt. 3

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Time for our report on the remainder of the AAAL conference. In the last sessions, we heard from a panel of the current and two preceding Chief Justices of Texas, a panel on how the Texas court engages in rulemaking, and, finally, a panel of two veteran 5th Circuit judges.

The panel of Chiefs

Chief Justices Phillips, Jefferson and Hecht spoke. We should all be happy we do not elect our judges (except probate), given the politicking that can goes on. The Texas Supreme Court also has an interesting history given the Texaco v. Pennzoil suit and a 60 Minutes “Justice for Sale” episode that makes for interesting listening (among other things, 6 incumbent Justices resigned thereafter). Thankfully, there are not a lot of lessons to apply here in Maine. Basically, CJ Phillips was a leader in tidying after the deluge, followed by CJ Jefferson (the first African-American CJ in Texas), followed by CJ Hecht.

They all remarked

San Antonio Download, Pt. 2 – appellate ethics & recent appointee observations

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Continuing my summary of the last AAAL meeting, as appellate nerds know, Texas is the one appellate jurisdiction that has a separate and additional set of ethical rules applicable to appellate bar practice.  The folks who instigated this development gave an interesting talk on how this happened.

First, here’s a link to those Texas’ appellate rules of ethics, promulgated by the Texas Supreme Court and Texas Court of Criminal Appeals (the latter being the highest Court in Texas for criminal appeals) in 1999.  (Standards for Appellate Conduct, The Supreme Court of Texas)

As you peruse, you’ll note there is nothing radical or unsurprising.  To sum up:  “Play nice.”  The rule about manipulating margins is now obsolete, because those courts, like most now, use a word count.

Note that these rules apply to the appellate judges, too, not just the bar.

Basically, the reason the rules came about was because some of

San Antonio download, Pt. 1 – Justice, Texas style.

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The latest meeting of the American Academy of Appellate Lawyers took place last week in San Antonio (yee haw!), and yours truly is here to provide a summary of relevant learning.

The first session was a panel on Texas Access to Justice programs.  The panel included the Dean of a new Texas law school (there are 10!  Texas is big!) concentrating on affordability and open access; two ex-members of the Supreme Court of Texas who founded the Texas Access to Justice Commission, and Justice Jane Bland of the First Court of Appeals in Houston.

After noting AAAL’s key role in access to justice issues (AAAL’s founder, Arthur Englund, founded IOLTA, when on the Florida Supreme Court), the panel noted that Texas has two commissions, one focusing on no income, and the other on low income issues.  There is a biennial budget of $90 million, up from $10 million in 2001.

They recommended that every state undertake a current need study – this

Only the original, please – whatever that might be

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We all knew that whether you have the original Mona Lisa or a copy matters.  Now we know this matters with mortgage releases, too – even if the original may not exist.  Sabina v. JPMorgan Chase Bank, N.A., 2016 ME 141.

In Sabina, the Law Court, in a 4-2 split decision, ruled that under the mortgage discharge statute, 33 M.R.S. § 551, a mortgagee who timely records a release of its mortgage and informs the mortgagor of its recording violates § 551 when the mortgagee sends to the mortgagor a copy of the recorded release, rather than the original recorded document.  Send the copy and not the original, and the mortgagee (defined to include any servicer who receives final payment on a mortgage) faces exemplary damages of $500 per violation as well as court costs and reasonable attorney’s fees in any action to enforce the statute.

Maine law requires a mortgagee to do

The down side of judging

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If you’ve ever fantasized about moving to the other side of the bench, a recent First Circuit decision coming out of Maine highlights what to me would be one of the worst parts of putting on the robe – having to look at child porn.  U.S. v. Ross.

I once had to look at (relatively) very tepid child porn to adjudicate with the other Board members on Board of Bar Examiner proceeding.  That stuff sticks with you and if that’s a part of the judging job that comes up a lot, count me out.   .

In Ross, the defendant was convicted of possession of child pornography under 18 USC s. 2252A(a)(5)(B).  He argued on appeal that the district court (Judge Woodcock) erred by not viewing the material before ruling that it was admissible.  Because the defendant stipulated that the material was child pornography (his defense was he didn’t download it), he

Bad lawyer

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It takes an awful lot for the Law Court to impose fees, and even then, it is typically only a minimal spanking (e.g. treble regular costs). So you can bet that when the Court awarded $10,000 in attorney’s fees on appeal, the conduct of the attorney at issue there was pretty … special.  Lincoln v. Burbank, 2016 ME 138.

Justice Alexander spells out all the bad behavior in the 31-page decision, and there is a lot of it, so I’m not going to repeat it here.  I did think the mention of binding the brief with “twine” was a particularly nice touch.  (More serious infractions included trying to represent people who didn’t want the lawyer to represent them, making factual assertions not in the record, filing out of time, etc., etc., etc.)

Searching for useful nuggets among the muck, there is one point of note, I think.  There were two sets of appellees,

Public prescriptive easements AGAIN?

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The Law Court has addressed the issue of public prescriptive easements again in Cedar Beach/Cedar Island Supporters, Inc., et al. v. Gables Real Estate LLC, 2016 ME 114.  As with its earlier decision in the Goose Rocks case (Almeder v. Town of Kennebunkport, 2014 ME 139, P18) – upon which we have blogged multiple times (Goose Rock mystery, Goose Rocks again, Back in the saddle, More about agency deference; looming arguments; and youtube, Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone!) the decision in Cedar Beach shows a sensitivity to ensuring that owners of land used by the public are not easily deemed to have lost their right to stop that access through longstanding public use.

Here, members of the public