Appellate & Amici

In 1992, in Quill Corp. v. South Dakota, 504 U.S. 298, the Supreme Court ruled that a catalog retailer needs a physical presence in a state to require it to collect sales taxes. With the explosion of online sales, movement has been afoot to revisit this ruling.  When the all-important Oz of the Supreme Court, Justice Kennedy, said in 2015 the time has come, see Direct Mktg. Ass’n v. Brohl, 135 S.Ct. 1124 (concurring), the die was cast.  The States got their act together, hired Tom Goldstein, a whoop-de-doo Supreme Court practitioner, marshalled a vast array of amici, and the Supreme Court has now heard their call, granting certiorari in December in South Dakota v. Wayfair, Inc.   Who’s on the other side, representing the retailers?  Brann & Isaacson, of Lewiston, Maine.

This means another visit to the Big Show for B&I, who was there before – in Brohl. 

So let’s start the New Year right with a shout out to another blogger, my nephew, Connor Finch.  A recent graduate of the University of Virginia Law School and on his way to a job in DC, he’s spent time in between with the ACLU of Virginia.  He recently blogged about a case just argued in the Supreme Court touching on an issue we addressed when discussing about a recent Law Court decision – warrantless searches in the curtilage.

Here’s that recent blog on the Law Court decision to refresh your recollection: The Law Court and human error

Here’s Connor’s blog on the pending Supreme Court case:  Get a Warrant: Private Driveways Should Be Protected from Warrantless Searches

Here’s a link to Scotusblog’s page for the pending Supreme Court case, Collins v. Virginia. http://www.scotusblog.com/case-files/cases/collins-v-virginia/

The fact predicate and issue in Collins are like a law school exam on the

We are off for the holidays, and so end the year with a quick review of recent decisions from the Law Court and First Circuit.  Thanks to all for reading and for the feedback received in 2017.  A surprising number of folks seem interested in reading about Maine law – we had 400 readers on a recent blog entry.  Remember, a subscription makes a lovely present (it’s free! Just press a button!)  I look forward to the another year of reporting what’s doing in the Maine appellate world. 

The feds

In a recent blog we noted two recent First Circuit decisions, one affirming rejection of an appeal because of a blown deadline, and another reversing denial of a motion to vacate a dismissal of a suit for not showing up at a motion hearing.  (Here are a couple recent rulings from the First Circuit that piqued our interest) The difference in the results, the later decision said,

Looking at the summaries of oral arguments heard last week, one struck my eye, so I listened in. The merits of the dispute go to the legality of the Maine PUC’s net metering rule, an issue we won’t discuss. It’s a jurisdictional issue the Commission raised, with impact beyond this particular case, which I’d like to examine here.

The PUC said that when you challenge a PUC rule as opposed to a quasi-adjudicatory determination, you can’t file a direct appeal to the Law Court under 35-A MRS § 1320. Instead, you have to file a declaratory judgment action in Superior Court under the Administrative Procedure Act, 5 M.R.S. § 8058.  Conservation Law Foundation v. PUC, PUC-17-185(schedule) (oral argument).

Is the PUC right? Obviously, the Court will provide the final word. If someone voted me Queen Decider, I’d say the Superior Court only has concurrent jurisdiction as to

There were a slew of decisions issued by the Law Court last Thursday.  Let’s take a peek and discuss a few.

A smelly oops

State of Maine v. Dubois Livestock, Inc., 2017 ME 223.  The holding is that when someone has a license issued by the DEP permit, at least under 38 M.R.S. s. 347-C or s. 1304(4-A), the DEP can enter into the non-curtilage part of your property without consent or a warrant, as long as it does so “at a reasonable time” and for the purpose of determining compliance with the license or the laws that the DEP administers.

As to the merits, the “open fields” doctrine has long protected only the area inside a curtilage. Oliver v. U.S., 466 U.S. 170 (1984).  As to whether the Constitution extends quite as far as the statutes and some of the

Spanked

 You can’t be compelled to arbitrate a claim if you never signed an agreement to arbitrate, or even knew it existed.  That’s the bottom line of a November 21 decision, Ouadani v. TF Final Mile LLC, No. 17-1583.

Seem fairly logical to you?  Me too.  And to the Court (Judges Lynch and Selya, with our own Maine District Court Judge Levy sitting by designation).  Judge Lynch, writing for the unanimous panel, dispatched the various estoppel, third party benefit etc. theories proposed by the appellant, represented by Ogletree, Deakins.  Then, at the end of the opinion, Judge Lynch wrote:

“Dynamex [the appellant] is ordered to show cause by written response within fifteen days as to why the court should not assess double costs for “needlessly consuming the time of the court and opposing counsel.”  D’Angelo v. N.H. Supreme Court, 740 F.3d 802, 808 (1st Cir. 2014) (citing In re Simply Media, Inc.,

This quarter’s Maine Bar Journal has an article by an attorney, Jeff Goldman, of counsel at Morgan, Lewis in Boston.  It’s called The Law Court’s Troubling Opinion of the Justices, and criticizes the Maine Supreme Judicial Court’s unanimous advisory opinion on the Ranked Choice Voting (“RCV”) statute.  Contrary to the title and vocabulary of the article, when the Court issues an advisory opinion, it does so as individual SJC members, not sitting as the “Law Court,” as the signatures at the end of the opinion make clear.  I’ll be using that nomenclature here.

The SJC’s opinion criticized by Mr. Goldman is at http://www.courts.maine.gov/opinions_orders/supreme/lawcourt/2017/17me100.pdf.  The Court’s web site page with links to the audio of the oral argument and the many briefs, including the one filed by us on behalf of the Maine House Republican Caucus and Maine Heritage Policy Center, explaining why, as the Justices all concluded, the RCV is unconstitutional, is located at  http://www.courts.maine.gov/maine_courts/supreme/senate_question_2017/index.html.  I blogged

I don’t comment on the substance of matters pending before the Law Court that involve me, but we were involved in an oral argument recently that reminded us of a useful tool in preparing for briefing and argument that is generally applicable, whatever the substantive issue in the appeal might be.

The argument that reminded me of this tool took place in Ross v. Acadian Seaplants.  The substantive issue in the case is whether the public, subject to regulation, can harvest seaweed in the intertidal zone without the permission of the littoral property holders.  We represent the amicus Department of Marine Resources, and had a few minutes of the argument, with Ben Leoni and Gordon Smith representing the parties.  The argument is at the link below.

http://player.netromedia.com/?ID=d95e0789-438b-4882-b845-8f8b6434f873&path=/seaweed.m4a&radio=true

The useful tool relates to a question that Chief Justice Saufley asked counsel for one of the parties:  “In a sentence, what is the holding you would like

A few entries ago, summarizing the First Circuit Judicial Conference, we noted how a Harvard librarian explained how attempts were being made to address “link rot” – when opinions cite to a website, and later, that cite disappears (and if not gone, you don’t know if the site has been changed since the opinion was issued/the Court examined it).  The U.S. Supreme Court has a shocking number of decisions with such cites.  See http://www.nytimes.com/2013/09/24/us/politics/in-supreme-court-opinions-clicks-that-lead-nowhere.html  [We’ll see how long these hyperlinks survive].  On October 24, 2017, the First Circuit decided to make public the linked items cited in its opinions.  http://www.ca1.uscourts.gov/sites/ca1/files/Preserving%20Internet%20Citations%20in%20Opinions.pdf.

The Court noted that since 2011, its library has been capturing any web page cited in a First Circuit opinion, converting it into a pdf and archiving it in a website repository.  As of Nov. 1, 2017, that repository has now been made public.  Additionally, after that date, the pdf is going to appear after the opinion on PACER.  So you

The Supreme Court issued a decision last week made for appellate wonks, in which the American Academy of Appellate Lawyers (where I am a board member) not only filed an amicus brief supporting the position where the unanimous Court landed (AAAL Brief), but got a shout out in a footnote – Hamer v. Neighborhood Housing Services of Chicago, Opinion  (check out footnote 8).

The short takeaway is:  when Congress sets a deadline by statute, it’s jurisdictional, but when the time limit comes from a court rule, it’s not jurisdictional.  Hence, FRAP 4(a)(5)(C), limiting the extension of time to file a notice of appeal, isn’t jurisdictional.

28 U.S.C. s. 2107 says a notice of appeal must be filed with the court of appeals within 30 days after the entry of the judgment, order or decree, but that the district court may extend the time for appeal on a showing of excusable neglect or good cause, as long