Mem. Decs


I have been musing upon this topic. 

Here are the pertinent Maine rules:

  • Me. R. App.P. 12 (c) provides:  “A memorandum of decision decides a case, but does not establish precedent and will not be published on the Judicial Branch website or in the Maine Reports.”

  • State of MaineSupreme Judicial Court Docket No. SJC-216 ORDER (dated Aug. 20, 1996):

The order of this Court, dated January 27, 1966, as amended by the order of December 1, 1982, is further amended to read as follows:…

6. Memorandum Decisions and Summary Orders shall not be published in the Atlantic Reporter and shall not be cited as precedent for any matter addressed therein.

The August 2004 Advisory Notes to Rule 12(c) provide that “A memorandum of decision may be used to decide cases in which the law governing resolution of the case is clear and no legal principle is being newly established or modified.”  Justice Alexander writes in Maine Appellate Practice, §12(c) that “[a]n additional basis for a memorandum decision can be found in the First Circuit’s observation that when a trial court accurately evaluates a cases, applies the proper legal rules, and articulates a persuasive rationale, ‘“’an appellate court should refrain from writing at length to no other end than to hear its own words resonate.”  (citing U.S. v. Leland, 2006 U.S. App. Lexis 24085 (1st Cir. 2006), citing Lawton v. State Mut. Life Assoc. Co., 101 F.3d 218, 220 (1st Cir. 1996).

I have been on the Appellee side of a Mem. Dec one or two times and felt fine.  While it would be nice to have a victory enshrined in the published reports and be able to cite it in other briefs, a win is a win.  The situation seemed to involve cases in which the legal principles were clear, but the appellant was arguing how those principles should have been applied to the particular facts, or the issue was otherwise fact-sensitive (e.g the appellant was making a sufficiency of the evidence claim).   

I have been on the Appellant side of a Mem. Dec – or a functional equivalent – once, and it haunts me still.  It was a Mem. Dec because it was a 3-3 vote (one of the Justices was out of town).  When the vote is even, the decision below stands, so I lost.  This was one of the only times I filed a motion to reconsider, asking to have the missing Justice weigh in because I was sure that he’d be on my side.  But it was not to be.

I had Justice Alexander’s equivalent of a Mem. Dec in the federal courts once, in my first appeal to the First Circuit – a short decision saying affirmed for the reasons given by the district court.  That one didn’t bother me as much because the appeal was very uphill; the oral argument was great fun; and the decision below was rather detailed, so if the Court of Appeals wanted to save a few trees not repeating what the district court had said, I couldn’t blame it.

Here are my two cents based on the above rules and experience:

1.  It would be helpful if the SJC posted the Mem. Decs on its web site, like the First Circuit does with its unpublished opinions.  What’s the harm?  Maybe it will discourage doomed appeals – if someone wants to peruse and sees that a case like theirs was Mem. Dec-ed, they would know not to try it themselves.  On the other hand, they don’t have to peruse or find the decision — it remains "unpublished" in that it has no precedential value and you won’t find it in a reporter.

2.  If there is any doubt that a legal principle hasn’t been made crystal clear by a previously published decision (and the line been what a new legal principle is and applying that principle to different sets of facts can be pretty blurry), it would be helpful if the Court didn’t Mem.Dec, but published.  One easy test to determine whether a legal principle has been made clear previously might be if every sentence with any legal weight in the new decision is followed by a case cite, i.e., the court can easily identify where the principle was squarely made clear before. 

Unlike the SJC, the First Circuit puts its decisions not for publication on its website.  The First Circuit’s local rule on when it publishes (Local Rule 36.0) provides basically that a panel may choose not to publish when it’s not establishing new law, not applying an established rule to novel facts or the decision won’t otherwise guide future litigants.

At least in the federal arena, there’s been a lot of discussion about published versus unpublished decisions, and what’s precedent and what isn’t given the new world of the internet in which being in a West reporter doesn’t define the world of find-able decisions.  See F.R.A.P 32.1 (a court cannot prohibit the citation of an unpublished opinion issued after Jan. 1, 2007); Local Rule 32.10 (unpublished decisions from the First Circuit from whatever date can be cited and will be considered for their “persuasive value” but not be deemed binding precedent); and Local Rule 36.0(c) (while Rule 32.1 says you can cite our unpublished decisions keep in mind that the panel which issued the decision thinks it has no precedential value)).