With the launch of 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.

Brew your own beer – right in your tummy!

Autumn is in the air, which means the Law Court’s fancy turns to riding the circuit, visiting high schools in its annual October Tour O’Maine to hear argument. This year’s crop of appeals appears fairly pedestrian, except for one scheduled to be heard on October 25, at the Wells High School: State of Maine v. Burbank. The briefs are posted here:


A suspiciously high number of OUI appeals have always appeared on the October high school argument list, presumably and admirably to bring home to impressionable teenagers the dangers of drinking and driving. This OUI appeal revolves around a defense I’ve never heard of before: “Auto-immune brewery” or “Gut fermentation” syndrome.

According to the briefing, the defendant blew a whopping .31 on the Intoxilyzer. The defense wanted to submit expert testimony that it was possible that, unbeknownst to the defendant, his own gut was spontaneously producing alcohol.

According to one of the proffered experts,

Hardy Mainers?

If you take off your jacket on your front porch while a police officer is in your driveway following up on a suspected motor vehicle violation, does that mean the police can search that jacket if you’re wearing a sleeveless blouse underneath and the temperature is 34 degrees? Four SJC Justices upheld the search; three dissented. State v. Paganini, 2018 ME 129.

The defendant was driving away from the Androscoggin County Courthouse when a police officer familiar with her “extensive” criminal history saw her and thought that her driver’s license had been suspended. He waited for two hours by her residence.  (Is the crime rate so low in Lewiston that police have the time to engage in such lengthy pursuit of traffic offenses?  The dissent noted that the two-hour stakeout was “purportedly” to investigate the traffic violation.) When the defendant finally arrived, the officer put on his blue lights and followed her into her driveway. She got out of her

Crime and Punishment

Two seemingly unrelated recent decisions, one in the First Circuit and the other by the Law Court, consider the potential inadequacies of our current criminal justice system to address current social issues:  (1)  U.S. v. Sirois, No. 17-1797  and (2) State of Maine v. J.R., 2018 ME.


In Sirois, after release from federal custody following a drug trafficking conviction, the defendant failed three drug tests and pleaded guilty to felony drug possession in state court.  The district court then found the conduct violated his conditions of supervised release and revoked that release, sending him to prison for two years.  On appeal, the defendant argued that because his drug addiction is a disease, sentencing him to imprisonment for manifesting a condition of his disease was cruel and unusual punishment under the Eighth Amendment.

Because this argument was raised for the first time on appeal, Judge Kayatta, writing

Is the Hotel California covered in lead paint?

It may be the summer doldrums in terms of issuing decision, but an interesting petition for cert was filed last week that may have a decent chance of being granted.  ConAgra Grocery Products Co. and NL Industries, Inc. v. People of California.

It certainly has firepower behind it, with Paul Clement as Counsel of Record, along with a host of others from Kirkland & Ellis and Reed Smith.   It also involves substantial $$ – hundreds of millions of dollars.  And it relates to an issue that I worked on years ago with a then-partner at PA named William Kayatta, now of the First Circuit:  to what extent can companies who long ago manufactured lead pigment or paint or their successors be held liable now in public nuisance for lead paint on buildings today?  The folks at Jones Day also filed a petition for cert in the same case.  Sherwin-Williams Company v. People of California.

The First Amendment is different.

Playing catch up in our perusal of recent First Circuit and Law Court decisions, a First Circuit decision involving a defamation claim caught our eye. Sindi v. El-Moslimany, No. 16-2347.  The panel were Judges Barron, Selya and Stahl. Judge Selya wrote the majority decision for himself and Judge Stahl, with Judge Barron dissenting in part. Eugene Volokh, a professor at UCLA, filed an amicus brief on behalf of himself.

The facts, in a nutshell, were that Defendant #1 and her husband hosted a Thanksgiving dinner at their home in 2010, with the plaintiff, a prominent Saudi scientist and entrepreneur then a visiting scholar at Harvard University. Several months later, Defendant #1 came to believe that her husband and the plaintiff were engaged in a “meretricious” relationship. #1 and her mother then launched a series of web posts accusing the Plaintiff of various untrue things.   Plaintiff sued for defamation, intentional infliction of emotional distress, tortious interference with contract, and tortious interference

Alexander V

Well, we had a little hiatus while we were sucked into a whirlpool of briefing and other activity, but things have calmed down now, and as a nice present waiting for me was Justice Alexander’s Fifth edition of Maine Appellate Practice.  This edition talks about the new rules, and so if you’ve been skipping an edition or two, I’d invest in this one.  All the proceeds go to Cleaves, a worthy cause, so they make nice Christmas presents, too!

No ping pong and no dope

We may be entering the summer vacation period (although the Law Court I am told is having a July argument session), but I’ve been busy as a beaver. But with time now to breathe, here are a couple of recent decisions of note interpreting Maine law, one from the First Circuit and the other from the Law Court:

Ping pong-less review

Kudos to Pierce Atwood’s Jim Erwin in the affirmance of summary judgment for an employer in a whistleblower retaliation case. Theriault v. Genesis Healthcare LLC, No. 17-1717. See 26 M.R.S. § 833.

On appeal, the plaintiff argued that Judge Singal had granted summary judgment in error because she took the position that under Maine law, the court should look only at the plaintiff’s evidence when reviewing a summary judgment motion. The defendant said no, the Court looks at all the evidence. We all know the McDonnell Douglas burden


The Maine SJC held its every-few-years conference on appellate practice in Maine on May 2. Of course we were there, so here’s the run down.

A big chunk of time was spent on e-filing –when it’s coming, where, how it will work. Privacy is the key issue. Given that state courts are the forum for addressing many sensitive issues relating to the human condition, and with many parties representing themselves pro se, the essentially self-policing approach of the federal system isn’t going to fly. The Maine approach is still a work in progress, so there’s plenty of time to get your two cents in if you’d like. There’s a hearing June 7 in Augusta if you want to say your piece.

Other brief items of note:

  • Justice Alexander’s latest edition of his appellate treatise is now at the printer, so keep an eye out to get your copy.
  • Make sure you bind your briefs correctly. This isn’t the first

Be my friend

We have blogged in the past regarding amici briefs, see e.g. The best amici brief ever.  In the recent DACA argument before the Supreme Court, two such briefs are of particular note.

First, the National Law Journal reports how in the oral argument, Justice Breyer gave a shout out to an appellate practitioner by referencing “families in the Lisa Blatt brief.”  In the world of Supreme Court practice, this is an honor equal to a nobleman receiving the privilege of handing Louis XIV his sock when he got dressed, so whoo hoo for her.  (As we have blogged on before, commentators have studied the insular world of the Supreme Court, which only wants a handful of lawyers to appear before them, their ex-clerks, preferably with a stint in the Solicitor General’s office, who went to the right schools (i.e. Harvard or Yale), and know the secret handshake.  See At America’s court of last resort, a handful of lawyers