March/April 2026 Law Court Roundup: Dentists and Vodka and Weed, Oh My!
Welcome to our second roundup of recent notable Law Court decisions (our previous roundup for January and February of 2026 is available here). Lots of interesting stuff here on legal topics as far-ranging as qualified and sovereign immunity, the First Amendment, liquor regulations, and, one of our favorites, the final judgment rule. Many of the factual issues at the heart of these cases are noteworthy as well—the Law Court has addressed everything from marijuana growers to scary dental procedures to booming vodka sales. Keep reading to learn more:
– Shark Tank Strategies, LLC et al. v. Town of Scarborough, 2026 ME 22: In this appeal, the Law Court addressed the question of whether the Appellants’ applications to the Town of Scarborough for licenses to operate medical cannabis cultivation facilities were “pending” for purposes of 1 M.R.S. § 302 at the time the Town amended its zoning ordinance to add a setback requirement the Appellants could not meet. Section 302—which has often beguiled courts and attorneys—states that “[a]ctions and proceedings pending at the time of the passage, amendment or repeal of an Act or ordinance are not affected thereby.” The statute goes on to state in relevant part that “[f]or the purposes of this section and regardless of any other action taken by the reviewing authority, an application for a license or permit required by law at the time of its filing shall be considered to be a pending proceeding when the reviewing authority has conducted at least one substantive review of the application and not before. For the purposes of this section, a substantive review of an application for a license or permit required by law at the time of application shall consist of a review of that application to determine whether it complies with the review criteria and other applicable requirements of law.
The Appellants argued that the Town’s substantive review of their applications occurred before the date the setback requirement took effect, such that their applications were “pending” at the time of enactment. The Law Court disagreed, explaining that the applications must have been pending on the date the setback requirement was voted on and passed by the Town council to fall within the protections of Section 302. The Law Court further concluded that, even if the date the setback requirement took effect was relevant, the applications were not “pending” at that time because all that had occurred was a non-substantive reading of the applications and the voicing of an (incorrect) assertion by staff that the applications were complete, which did not constitute a “substantive review” of the applications. Accordingly, the Law Court affirmed the Town’s denial of the applications.
– In re Child of Cassie S., 2026 ME 26: This case presents a long and dark factual history regarding a mother’s medical abuse of her child. After the district court found that the mother placed her child in jeopardy by subjecting the child to a litany of unnecessary and highly-invasive medical procedures, the mother raised a host of issues on appeal, most of which the Law Court found unconvincing, and which are not worth further discussion on this blog. Of interest, however, is the Law Court’s ruling on the order of the trial court prohibiting the parties from “speaking to the media, posting on any social media platform, or speaking about any issues involved in this litigation,” which came after the mother routinely attempted to bring members of the press to closed hearings. The Law Court agreed with the mother that the district court’s order was a prior restraint on speech that violated the First Amendment because it was not narrowly tailored enough to merely ensure confidentiality throughout the proceedings and to protect the child’s well-being. The Law Court concluded the mother had the right to advocate for reform of the child protection system or to speak to the press about her experience with the case, which such activities the order purported to restrict. The Law Court did, however, note that the court could constitutionally restrain the mother from disclosing information that would tend to identify the child. The Law Court thus vacated the order restraining the mother’s speech and remanded to the trial court for modification of the order.
– Doe v. Board of Dental Practice et al., 2026 ME 27: This case involved the appeal of a dentist from a judgment entered by the Superior Court concluding that the Board of Dental Practice and eleven individual Board members were entitled to qualified immunity from the dentist’s claims against them brought pursuant to 42 U.S.C. § 1983. Following numerous patient complaints about the dentist—including, terrifyingly, complaints that the dentist “extracted the wrong teeth” and “continued to perform painful dental procedures when a patient asked him to stop”—the Board temporarily suspended the dentist from practice for 30 days. While the Board ultimately allowed the temporary suspension to lapse without taking any further action, the dentist nevertheless filed a Rule 80C petition for judicial review of the temporary suspension, as well as a claim under Section 1983 alleging the Board violated his right to procedural due process. The Superior Court dismissed the Section 1983 claim on the basis of qualified immunity.
The Law Court agreed with the Superior Court. The test to determine whether a public official is entitled to qualified immunity asks (1) whether the plaintiff alleges facts that make out a violation of a constitutional or federal statutory right, and (2) whether the right at issue was “clearly established” at the time of the alleged violation. The Law Court agreed that there was no violation of the dentist’s rights because (1) the Board members’ actions were authorized by a Maine statute explicitly authorizing temporary suspensions when the health or physical safety of a person is in jeopardy, and (2) federal and Maine case law confirm the constitutionality of similar statutory provisions. The Law Court further agreed that the Board was entitled to qualified immunity because the dentist could not show the violation of a “clearly established” right, given that he provided no case law holding that a temporary suspension of a professional license without a hearing was unconstitutional.
– State Tax Assessor v. Fifth Generation, Inc., 2026 ME 30: This case involved an appeal of a summary judgment order vacating a decision of the Board of Tax Appeals and reinstating the State Tax Assessor’s assessment of withholding, interest and penalties. The Appellant, Fifth Generation, is a liquor manufacturer known predominantly for producing Tito’s Vodka. Fifth Generation is an S Corp., i.e. a “pass-through entity” for tax purposes. While, between 2011 and 2014, the number of cases of Tito’s supplied to Maine increased from 5.5 cases to 6,582 cases, Fifth Generation never filed a Maine pass-through-entity withholding return or a Maine income tax return (note: blog author and martini afficionado Julia MacDonald is at least partially responsible for the increased Tito’s sales in Maine).
The Law Court concluded that Fifth Generation was not entitled to a tax exemption, because (1) it had a nexus with Maine, (2) it was not entitled to an exemption under federal law, and (3) Maine was entitled to require by regulation that liquor manufacturers forfeit their tax immunity to do business in Maine.
With respect to Fifth Generation’s “nexus” with Maine, the Law Court looked to Maine’s liquor regulations, which require liquor manufacturers to retain title to their goods while they are stored in a “bailment warehouse” until they are removed for shipment, at which point title is transferred to the Bureau of Alcoholic and Lottery Operations. Because a pass-through-entity has a “nexus” with Maine if it “does business in Maine” or “owns property in Maine . . . including property that is held by another person,” see 18-125 C.M.R. ch. 808, § .03—and because Fifth Generation, as required by the liquor regulations, owned property (i.e, cases of vodka) in Maine and sold that property out of the bailment warehouse—the Law Court concluded Fifth Generation had a nexus with Maine.
The Court next examined whether Fifth Generation was entitled to an exception by federal law, which provides that ““[n]o State . . . shall have power to impose . . . a net income tax on the income derived within such State by any person from interstate commerce if the only business activities . . . are . . . (1) the solicitation of orders . . . for sales of tangible personal property . . . and (2) the solicitation of orders . . . in the name of or for the benefit of a prospective customer. 15 U.S.C. § 381(a). The United States Supreme Court has concluded that an entity may still benefit from this federal exemption if it conducts in-state activities that are “ancillary to requests for purchases”—i.e. that “facilitate the requesting of sales”—but may not benefit if it conducts in-state activities that facilitate the sales themselves. See Wisconsin Department of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 223-33 (1992). While Fifth Generation argued that Maine’s compelled bailment arrangement and compelled delay in transfer of title were “ancillary” to requests for purchase, the Law Court disagreed, noting that Fifth Generation engaged in these activities not to facilitate requests for sale, but rather to facilitate its actual sale of vodka.
Finally, the Law Court concluded that, pursuant to the United States Supreme Court’s decision in Heublein, Inc. v. South Carolina Tax Commission, Maine is entitled to regulate the sale of alcohol in a manner that might cause an out-of-state company to forfeit its tax immunity, because Maine has a legitimate state interest in regulating the sale and distribution of alcohol in the state. 409 U.S. 275, 282-83 (1972). The Law Court also found unavailing Fifth Generation’s arguments that Maine’s liquor regulations violate the Commerce Clause and that the Superior Court abused its discretion by declining to waive or abate the penalties assessed against by the Assessor.
– Amarylis Fisher v. Town of Hampden et al., 2026 ME 33: The Law Court again addressed the final judgment rule. After the plaintiff-appellee was hit by a bus in Bangor, she filed suit against several municipalities, arguing they were liable for the negligence of the bus driver because they were participants in a joint venture that operated the bus route. The municipalities moved for summary judgment, which the trial court denied, determining that the municipalities failed to meet their burden to show that the undisputed material facts negated the existence of a joint venture. The municipalities appealed.
The Law Court noted that, while appeals from the denial of summary judgment are interlocutory and generally barred by the final judgment rule, appeals from the “denial of a dispositive motion asserting immunity from suit are immediately reviewable.” However, there is an exception to this exception: when “immunity issues have underlying fact questions that must be decided before the trial court can determine the applicability of immunities as a matter of law,” the denial of a dispositive motion denying immunity is not exempt from the final judgment rule. Accordingly, because the summary judgment record in Fisher left unanswered the question of whether the municipalities played a role in the joint venture operating the bus (which, if they did in fact play such a role, would negate their immunity from suit), the Law Court dismissed the appeal as interlocutory.
– Finally, on April 3, 2026, the Supreme Judicial Court took the “unusual step” of filing a comment with the Department of Justice expressing its concerns regarding a proposed rule entitled “Review of State Bar Complaints and Allegations Against Department of Justice Attorneys.” While the Maine Constitution gives the Supreme Judicial Court the inherent authority to discipline attorneys—and while the United States Supreme Court has recognized that states have important interests in maintaining the professional conduct of their attorneys—the proposed rule would require state bar disciplinary authorities to suspend investigations of bar complaints and allegations against Department of Justice attorneys until the DOJ completes its own internal reviews. The Supreme Judicial Court stated its “grave[] concern[]” that “the Proposed Rule does not respect principles of federalism or separation of powers, and risks undermining the public’s confidence in the courts.”
