Much has been said on this blog about when one should cross-appeal, given the Law Court’s jurisprudence on the topic. I most recently addressed the issue here. As I noted then, there is some tension between the text of the Maine Rules of Appellate Procedure, which provides that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue,” M.R. App. P. 2C(a)(1), and the Court’s most recent rulings (in Jones v. Secretary of State and Reed v. Secretary of State) regarding the necessity of cross-appealing to preserve an alternative argument for affirmance. Because of the importance of this issue, my colleague Nolan Reichl and I recently published an article in the Maine Bar Journal (at page 10) addressing the topic.
As we wrote there,
Recent decisions by the Law Court have raised questions concerning whether a litigant must file a notice of cross-appeal merely to argue a judgment should be affirmed based on grounds alternative to those adopted by the trial court. Maine Rule of Appellate Procedure 2C, Law Court precedent, and analogous federal practice all confirm that an appellee urging affirmance of a judgment on alternative grounds need not file a notice of cross-appeal so long as that litigant does not seek a substantive alteration in the terms of the judgment.
We also note that,
as the law now stands, it is less than clear what the cross-appeal rule is. Rule 2C and [the Law Court’s decision in Argereow v. Weisberg] say one thing, while Reed and Jones say another.
Accordingly, we argue that the cross-appeal rule applied in Reed and Jones “should be overruled expressly” and that the “Law Court should take the next available opportunity to clarify its cross-appeal jurisprudence and reaffirm the plain terms of Rule 2C.”
Agree or disagree, we hope that the article furthers discussion on this important topic.