Appellate & Amici

Last week the First Circuit re-heard the civil rights claim by Maine Gubernatorial candidate and ex-Speaker of the House Mark Eves against current Governor LePage.  As we blogged recently, the District Court dismissed the claim; the First Circuit panel affirmed; and the full Court granted a motion for rehearing en banc in an order that included lots of specific questions for the parties to re-brief.

One would think that the argument on rehearing would be a rootin’ tootin’ bundle of excitement.  The First Circuit only averages about one en banc hearing a year, and this one has some interesting features to it, with our colorful Governor making some choice comments about Eves, leading to this litigation.

But one would be wrong.  It was a yawner.  The link to the argument is here, although it will go away soon –  Eves v. LePage, Case No. 16-1492 Oral Argument.

First, as we mentioned previously, for reasons unknown, Judge

Recent decisions from the Supreme Court and Maine Law Court remind appellate jockeys of some important points when determining when a judgment is final and appealable.

Certification

Let’s start with Maine, and a decision about Rule 54 certification:  Kittery Point Partners, LLC v. Bayview Loan Servicing, LLC, 2018 ME 35.  This case involved one suit against three defendants.  Two of the three defendants moved for summary judgment.  The Superior Court (Douglas, J.) granted their motion, and in doing so said that the judgment was final as to the claims between the plaintiff and these two parties, and there was no just reason for delay in entering final judgment as to them.  The plaintiff appealed.

Not so fast, said the SJC.  A judgment isn’t final until all the claims against all the parties are decided.  A trial court can certify appeal of a partial final judgment under Me. R. Civ. P. 54(b)(1) The

In homage to Stephen Hawking, let us discuss a recent regulatory takings case.  While physical takings law is logical, and thus the legal equivalent to Newtonian physics, regulatory takings can make quantum physics look like a rational piece of cake.

Recently, we blogged on a Business and Consumer Court ruling regarding the need to give the Attorney General notice of declaratory judgment actions seeking a ruling that an ordinance is unconstitutional. (Your serve )  Now I have reviewed the ruling in that case on the merits, and it seems to me that the cause of action wasn’t a dj action at all, and so the notice requirement shouldn’t’ve applied in the first place. (MacQuinn, Inc. vs. Town of Lamoine, No. BCD-CV-2017-05, Decision (Feb. 13, 2018)).

As you can see, the plaintiff in MacQuinn claimed an as-applied regulatory taking without just compensation.  The plaintiff is not claiming that there couldn’t be a taking

A recent decision in the Business and Consumer Docket reminds us of a quirk in Maine law.  In Harold MacQuinn, Inc. v. LaMoine, the Court stayed proceedings in a declaratory judgment action challenging the constitutionality of an ordinance, on the ground that the plaintiff had not served the Attorney General with a copy of the complaint. (Order Staying Proceedings to Allow Attorney General an Opportunity to Respond)

As Justice Mulhern noted, this requirement is included in the Declaratory Judgment Act, 14 M.R.S. s. 5963.  It must be done or the complaint should be dismissed, as the Law Court noted in Ferraiolo Constr. Co. v. Town of Woolwich, 1998 ME 179.  Yet, as the decision in Ferraiolo and the other citations in MacQuinn suggest, this requirement is honored more in the breach.

Here is my question for the day:  does it make sense to have

Yesterday, CJ Saufley gave her State of the Judiciary report to the Legislature:  A Report to the Joint Convention of the Second Regular Session 128th Maine Legislature.  In it she discussed, among other things, courthouse infrastructure, digitization of records and a Drug Court to deal with the opioid crisis. But let’s talk about the most important part of her speech – when she exhorted every woman over 40 to get an annual mammogram.

Noting her own experience (they caught it early, so she got to avoid the wonderful world of chemo), she said.

“I want to encourage every woman over 40 to get your annual mammogram done. If you haven’t already done so, schedule it today.

The insurance for Maine State employees completely covers the cost, and for those who do not have that coverage, there are many programs that will help or substantially defray those costs.

Mud season doldrums may be upon us, but there’s always appellate news to report.

Mark your calendar for May 2

The Maine SJC is having another of its popular seminars on May 2, 2018, this time called “New Directions in Appellate Practice.”  There was a big crowd at the last one, and this seminar is not to be missed if you do any appeals work, or even if you don’t, and want to hob nob with the SJC (and fulfill your ethics CLE requirement).  Here’s the program brochure, which includes at the end a list of questions and issues for appellate practice.  (brochure)

The big topics of the day are:  (1) the changes made in the restyled Rules of Appellate Procedure; and (2) the future changes in practice and rules prompted by the evolution to e-filing.  One important subset of these topics is the Appendix – there were some significant changes in the restyled rules.  You don’t want

I am often asked by recent law school graduates, or those still in law school, what they should be doing to pursue a career in appellate law.  I recently came upon this December 2017 article that discusses this issue:  Kowarski, I. (Dec. 1, 2017) Pick the Right Law School for an Appellate Career, USNews.com

The article, I think is very good so far as it goes.  As everyone knows, more and more specialization is happening in the world, including law, so you need to start earlier and earlier to develop your career in any field.  That truth applies to being an appellate lawyer.  My alma mater, Northwestern, is the first law school to offer a federal appellate clinic, a Supreme Court clinic, and an appellate concentration, so that you are trained with an appellate focus from the get go:  Northwestern Allellate Law Curricular Offerings

Lots of factors go

This recent decision from the First Circuit reminds us of the series of insurance company commercials where the actors discuss unusual situations and whether they were covered, noting that the insurer “has seen a thing or two.”  Mu v. Omni Hotels Management Corp.

In Mu, the panel (CJ Howard, Torruella and J. Barron, opnion by J. Torruella) reversed summary judgment for a hotel as to whether it could be liable when a member of the public who lived in an adjoining residence was beaten by a group of twenty or so ruffians, who had been smoking pot in a hotel room, gotten kicked out by hotel security, was seen by a hotel employee getting a case of beer, beat up someone else, and then stormed into the hotel lobby and beat the plaintiff.  Rhode Island law applied.  Under that law, the Court said, there is a five-factor test, with the most important being foreseeability.  These facts, said the Court of Appeals,

When you are a lesbian and co-workers call you the spectrum of nasty slurs for women generally and gay women, spit on you, shove you, and have the blood and brains of a suicide-attempt victim flung at you, among other things, is this discrimination because you are a woman, or because you are a gay women?  If you aren’t a lawyer, you might think this is splitting hairs.  Last Thursday, the First Circuit inched closer toward making it a less important distinction legally in this Circuit, in a case awarding $700,000 to the plaintiff.  Franchina v. City of Providence, No. 16-2401 (1st Cir. 2018).

If you want the details of how the plaintiff was harassed, I leave you to read Judge Thompson’s decision.  Suffice it to say, it was outrageous and disgusting – another in the sad litany of sexual harassment examples we are seeing with depressing frequency these days.

It’s currently an open question at the Supreme

In November 2016, the First Circuit issued a decision rejecting a civil rights claim filed by gubernatorial candidate Mark Eves against Governor LePage. Eves v. LePage, No. 16-1492 (1st Cir., 2016). Eves filed a motion for rehearing en banc. Now, over a year later, the Court granted that motion. What does it mean?

The short answer is, who knows? The only people who know what goes on behind closed judicial doors are the folks in the robes, and they ain’t talking. But that’s not going to stop us from speculating is it? So here’s some wild guessing, without ever tackling the actual merits of the appeal.

First, let’s do the math. En banc review is hardly ever granted in the First Circuit – unlike, say, the Land of Many Judges, a/k/a the Ninth Circuit – if only because of numbers. As the smallest circuit, CTA1 has six active judges. A majority of active, non-recused judges need to vote to rehear a