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.

Beware the Appeal Deadline: Pending Motions and Entry of Final Judgment

The Law Court’s decision in Fournier v. Flats Industrial, Inc., issued last week, provides a stark reminder of the importance of attention to the deadlines for filing an appeal of a final judgment.  The Law Court treats the deadline as jurisdictional, and requires “strict compliance”—even when, as in Fournier, the trial court may not have yet resolved all pending motions before entry of final judgment.

In Fournier, after the Superior Court granted a motion to dismiss two of three counts in the plaintiffs’ complaint, the plaintiffs filed a stipulation voluntarily dismissing the final count together with a motion for a protective order to preserve the confidentiality of certain documents.  The Superior Court granted the motion for protective order four days after the stipulation and motion were filed.  Nineteen days later—importantly, more than 21 days after filing the stipulation of dismissal—the plaintiffs filed a notice of appeal relating to the two counts previously dismissed by the

Appellate Preservation and Summary Judgment

The necessity of preserving issues for appeal can be a trap for the unwary, leaving litigants without recourse if they fail to take proper steps to preserve a particular argument.  Near the end of its recent term, the Supreme Court made this requirement slightly less fraught.  In Dupree v. Younger, the Court clarified that a party who wishes to preserve for appeal a purely legal issue resolved at summary judgment need not raise the issue anew in a post-trial motion.

A quick background primer.  In 2011, the Supreme Court held in Ortiz v. Jordan that an order denying summary judgment on sufficiency-of-the-evidence grounds is not appealable after trial.  Most interlocutory decisions are not immediately appealable, and simply merge into the final judgment for appeal after entry of final judgment.  Some interlocutory orders, however, are “unreviewable after final judgment because they are overcome by later developments in the litigation.”  In Ortiz, the Court explained that

Keeping Form Subservient to Substance in Rule 80B (and 80C) Actions

What is the proper remedy when a party challenges a municipal action under Rule 80B, but the court later determines that this was the wrong procedural vehicle to challenge the municipal action?  In Hurricane Island Foundation v. Town of Vinalhaven, the Law Court took a pragmatic approach by treating the proceeding as a declaratory judgment action rather than dismissing the action.

In Hurricane Island Foundation, a nonprofit sought to challenge a town tax assessor’s decision denying the nonprofit a tax abatement.  The nonprofit brought its challenge under Rule 80B.  The Town, however, argued that this was the wrong procedural vehicle because review of an assessor’s decision must be obtained through abatement or declaratory judgment.  The Law Court ultimately agreed, concluding that Rule 80B does not provide for review of a tax assessor’s decision.  This raised an important issue—should the lawsuit be dismissed for lack of jurisdiction?

The Law Court applied a very practical solution. 

Standing, Cross-Appeals, and Rule 80B

Maine law regarding cross-appeals has long been murky, and as a result that subject has often been the subject of commentary both at this blog (here and here, for instance) and elsewhere.  The Law Court brought additional clarity in this area of the law in its recent decision in Tominsky v. Town of Ogunquit.  In the Court’s own words, Tominsky “resolve[d] thorny questions” regarding standing requirements, Maine Rule of Civil Procedure 80B, and Maine Rule of Appellate Procedure 2C.

The facts of the case are fairly straightforward.  After the Town of Ogunquit issued building permits, a neighbor challenged the permits before the Town’s Board of Appeals.  The problem was that the neighbor’s challenge was not timely.  Nevertheless, the Board granted a “good cause” exception to the 30-day time limit and considered the merits – only to ultimately deny the appeal.  The neighbor appealed under Rule 80B, and the developer felt compelled to bring

Due Process, Retroactive Laws, and Vested Rights in Development Projects

Last week marked the close of a major legal dispute under Maine law regarding the applicability of retroactive laws to development projects already under construction.  The issue in the case was one of fundamental fairness: if a person obtains a valid permit under existing law and then in good faith expends significant sums building a project based on that permit, can the permit later be taken away based on newly enacted requirements? The case, NECEC Transmission LLC v. Bureau of Parks and Lands, provided a definitive answer—under the Maine Constitution, due process prevents such an outcome.

Full disclosure:  this author, together with colleagues at Pierce Atwood including John Aromando, Sara Murphy, and Jared des Rosiers, obtained this first-of-its-kind ruling on vested rights.

The retroactive law at issue was a citizen initiative adopted in 2021 that purported to bar completion of the New England Clean Energy Connect (or “NECEC”) project, a

You Should Be Respectful (But You Don’t Have to Be)

In an interesting parallel to the developments in the Maine Law Court that indicate a revival of state constitutional interpretation, the Massachusetts Supreme Judicial Court issued a noteworthy opinion examining the protections granted to free speech under the Commonwealth’s constitution.

The case, Barron v. Kolenda, involved a town ordinance requiring all comments in public meetings to be “respectful and courteous, free of rude, personal or slanderous remarks.”  The lawsuit arose after a town meeting degenerated to a level that the town’s board of selectmen deemed to be less than respectful.  After a town resident alleged that the board had violated open meeting laws, the board recessed the meeting.  A shouting match ensued, with the resident referring to a board member as “a Hitler” and the board member describing the resident as “disgusting.”  The resident was compelled to leave the board meeting.

The town resident challenged the town ordinance under Massachusetts’ constitution.  Article 19 of the Massachusetts Constitution

Respect the Process: Late Appeals and Wrongful Use of Civil Proceedings

Last week the Law Court handed down two decisions relating to judicial process, addressing the time limits for notices of appeal and the situations in which relief can be sought for wrongful use of civil proceedings.

In the first case, Witham v. Board of Trustees of the Maine Criminal Justice Academy, a petitioner challenging an agency action failed to timely appeal from a Superior Court decision affirming the agency’s action.  Instead of filing a notice of appeal within 21 days of the court’s judgment, the petitioner did not appeal until 160 days after entry of judgment.  The problem arose because the petitioner never received notice of the Superior Court’s decision; the clerk’s office apparently mailed the judgment, but the postal service did not deliver it.  The problem is, Maine Rule of Appellate Procedure 2B provides that the appeal period may only be extended by more than 21 days (but no more than 140 days) if the clerk failed to send the

Is It Appropriate to Defer to Agency Interpretations under the Maine Constitution?

The issue of whether courts should defer to an executive agency’s interpretation of a statute is a familiar one.  Going back all the way to Marbury v. Madison, we know that courts decide the meaning of a statute.  Courts therefore routinely decide how to interpret ambiguous statutes.  But what happens when a statute is ambiguous and an agency tasked with enforcing that statute has interpreted the statute in a particular way? Should a court defer to that interpretation?

Under Law Court precedent, the answer to this question has been, as a general rule, yes.  In Guilford Transportation Industries v. Public Utilities Commission and elsewhere, the Law Court has said that a court will defer to an agency’s interpretation of a statute it enforces if (1) the statute is ambiguous, and (2) the agency’s interpretation is reasonable.  In doing so, the Law Court relied upon the U.S. Supreme Court’s decision in Chevron v. NRDC,

District of Maine Judicial Conference

I had the opportunity to attend the District of Maine Judicial Conference earlier this week, and it did not disappoint.  It was the first one held in four years given the pandemic, and it was great to hear from practitioners and judges in person.  My partner Nolan Reichl, along with Valerie Wicks, moderated a great panel on Rule 26(f) issues.  Of particular note for this blog, however, attendees also had the opportunity to hear from the Chief Judge of the First Circuit, Judge Barron.

Judge Barron provided an enlightening “State of the Circuit” update at the Conference.  Judge Barron noted the transitions on the First Circuit bench, with the appointments in the last year of Judge Montecalvo for the open seat from Rhode Island and Judge Gelpí from Puerto Rico.  More changes are yet to come, with a vacancy for Judge Howard’s seat from New Hampshire, and a pending nominee (Julie Rikelman) for Judge Lynch’s seat from Massachusetts.  This is certainly a remarkable

The First Circuit Reframes Preemption

Yesterday the First Circuit handed down a notable decision in Maine Forest Products Council v. Cormier, a case in which my firm represented the plaintiffs-appellees.  In MFPC, plaintiffs challenged a state law barring non-resident workers from hauling logs within Maine under the federal H-2A visa program.   The First Circuit concluded that plaintiffs demonstrated a substantial likelihood of succeeding on their claim that the state law is preempted by federal immigration law.  The preemption analysis in MFPC presents a notable clarification of the First Circuit’s approach to obstacle preemption.

The state law, Public Law 280, prohibits the employment of non-resident workers from transporting forest products within Maine.  By contrast, federal law permits non-resident workers to obtain admission to the United States to transport forest products under the H-2A program as long as employers demonstrate that there are not sufficient U.S. workers to perform the labor and that the employment of the nonresident would not adversely affect wages