In this blog, we seek to discuss issues relating to appeals and appellate law in Maine, including the activities and decisions of the Maine Supreme Judicial Court and First Circuit Court of Appeals relevant to Maine, and other participants in the Maine appellate community.

Talk fast?

Yes, it’s been a while – the combination of summer doldrums on the decision-issuing front and busy-ness and vacation frolicking on the part of yours truly. But the appellate courts are all back in session now with the kick off on the first Monday in October by the Supreme Court. So let’s get back to it.

The Supremes have a new rule this year (which, because they are the big poohbahs, they can, of course, ignore if they want). The Justices are now supposed to give parties uninterrupted time in oral argument before descending upon them like a chatty pack of wolves (chatty except for Justice Thomas, of course) . Although the allotted time for a Supreme Court argument is twice as long as a Law Court argument, the Supreme Court only protects an opening of two minutes, compared to the Law Court’s three minute rule. (Well, there are two more judges on the U.S. Supreme Court, and maybe we talk slower than

Sometimes you feel like a nut

In a split decision, the First Circuit reversed a dismissal of a putative class action in a Massachusetts consumer protection case. Dumond v. Reily Foods Co., No. 18-2055 (1st Cir. Aug. 8, 2019)

The defendant New England Coffee Company sells a “Hazelnut Crème” coffee. The plaintiff sued because the coffee contains no nut – it’s all coffee, no nut, only nut flavored. The district court dismissed the complaint without leave to amend on the basis that the complaint wasn’t sufficiently specific. After rejecting that ground for dismissal and also rejecting a preemption argument, the majority noted that the defendants argued as an alternative ground to support the dismissal that the factual allegations complaint failed to state a plausible claim, and that’s the part of the decision that interests us.

Whether the label was deceptive, Judge Kayatta, writing for himself and Judge Torruella, opined was a question of fact. While the label said it was

Shall we cultivate our garden?

We are in the summer doldrums in terms of issuance of decisions, but an interesting Order came down dated yesterday and appearing today on the First Circuit’s website – Thompson v. JP Morgan Chase, NA, No. 18-1559 (1st Circ., July 29, 2019).

The Order certifies a question to the Massachusetts SJC on an issue of state mortgage law. The matter was initially heard before Judges Thompson, Boudin and Kayatta (query why they are listed in that order in the Order when Judge Boudin is a senior judge). In that decision, the panel ruled in favor of the plaintiffs and said the bank could not foreclose, based on a purportedly inaccurate foreclosure notice. The bank filed a petition for rehearing and rehearing en banc “claiming for the first time” (oops!) that a state banking regulation required it to use the precise language in the notice. The Order characterizes this position as “debatable” and that normally it would let the decision stand,

Good Eve-ning, lights out

At long last, the First Circuit has issued its en banc decision in Eves v. LePage. Cutting to the chase, the Court affirmed Judge Singal’s dismissal of the action on qualified immunity grounds.

Six judges heard the case: CJ Howard, and Judges Torruella, Stahl, Lynch, Thompson and Barron (Judge Kayatta recused). There were two opinions, one written by Judge Lynch, joined by CJ Howard and Judge Stahl, and a concurrence written by Judge Thompson, joined by Judges Torruella and Barron. The Judge Lynch opinion is the ruling, because it is the narrowest opinion, holding that Governor LePage was immune because a reasonable governor in his situation could have believed that Eves’ position as the new President of Good Will-Hinckley was to be a policymaking position for which political affiliation was relevant.

The concurrence agreed, but wrote an opinion discussing why absent that policymaking issue, they would have found no immunity.

All of that discussion from Judge Thompson in the

Take that, precedent!

The big decisions from the Supreme Court are coming fast, and in the takings jurisprudence world, the one issued on Friday was a biggie, overruling Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)Knick v. Township of Scott, PA, No. 17-647 (U.S. S.C., June 21, 2019). We’ve blogged on this pending case before, Takings law – exhausted or just exhausting?, Sept. 28, 2018 and The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?, Mar. 12, 2019 . While the pundits after the argument – and re-argument – of this case were thinking the Court wouldn’t go so far as to strike down Williamson in toto, they did, 5:4, with CJ Roberts writing for the majority.

In the past, as we have commented upon many times, since 1985, when Williamson

Maine’s new ISP privacy law and the enforcement conundrum

Maine’s new privacy law regarding broadband internet service providers, An Act To Protect the Privacy of Online Customer Information (LD 946, to be codified at 35-A M.R.S. c. 94), billed as the strictest in the nation, has gotten a lot of press. E.g., Gov. Mills signs nation’s strictest internet privacy protection bill, www.pressherald.com, June 6, 2019, Maine’s New Internet Privacy Law: What You Need to Know, www.natlawreview.com, June 14, 2019. Here’s our firm’s alert on the bill. Maine’s New Internet Privacy Law: What You Need to Know. As our alert and some news articles have noted, however, there’s no enforcement provision in the bill. So, setting aside whatever constitutional issues this new law might raise, what does the lack of an enforcement provision mean?

Let us ponder, understanding our general blogging caveat that we have engaged in about an hour of research, which is enough for me to

When are declarations independent?

The Law Court recently decided a Rule 80B case and so, of course we must discuss. Cape Shore House Owners Association v. Town of Cape Elizabeth,  https://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2019/19me086.pdf.


The facts are simple, and I streamline them further to focus only on what matters for the purpose of my musings:

  • X sought a  permit;
  • the ZBA granted it;
  • the abutters filed a Rule 80B challenging the decision; and
  • in addition to a straight 80B, the abutters appended a second count, seeking a declaratory judgment that the Ordinance that allowed the permit was preempted under state law.


The Law Court affirmed dismissal of the declaratory judgment count as redundant and didn’t address the merits of the preemption argument (which hadn’t been raised before the ZBA).


Was the second count truly redundant?


At first blush, this

1 ½ – Show me!

Well, we’ve been humongously busy, but c’est la vie. One stop we made was to the conference of the American Academy of Appellate Lawyers in Philadelphia. Donald Macomber was also there from the AG’s office, and there were lots of solid presentations (and what a great town – my first visit). 

One interesting thing I learned was there is this nifty study from the ABA with an excellent chapter on what formatting should be now that judges are reading off of tablets – The Leap From E-Filing to E-Briefing

We’ve talked about a lot of some of the points they make before, so I won’t repeat myself. But one nugget I didn’t know was that we should be using not single or double spacing, but 1 ½ – that’s best for reading on a screen (with 12 pt font, too, not 14). And, a court – gasp – actually listened and adopted this spacing –

A quickie blog re appellate seminar

Well, that last posted blog entry was so exhausting, here’s something short and snappy:

The First Circuit has posted the program for the criminal appellate practice seminar we previously blogged about (Mark your calendar – May 15, 2019):  Federal Criminal Appellate Practice Seminar Program

For we civil practitioners, the agenda looks pretty criminal-centric, but the opening from the clerk is always useful, and I wouldn’t miss Judge Barron on best practices at 11:45 am.

Remember, this is free CLE.

The Knicks again, and the jury is out in Massachusetts and in in Maine – or is it?

The Massachusetts Appeals Court recently issued a regulatory takings decision with relevance to us in Maine given our State’s unique relationship to the Commonwealth. Smyth v. Conservation Commission of Falmouth, 94 Mass. App. Ct. 790. Kudos to Pierce Atwood’s Michelle O’Brien and Nicholas Brown for prevailing in this appeal.

Among other things, in Smyth, the Massachusetts Appeals Court held that there is no right to a jury in a regulatory takings case. This matters to us in Maine because the rule in Massachusetts is there is a right to a jury if that right existed in 1780 (see p. 6). If a new cause of action was created thereafter, there is no right to a jury unless that new cause of action is analogous to a common law claim entitled to trial by jury in 1780. See Smyth, pp. 6-7.

In Maine, you have a right to a jury unless there