Appellate & Amici

Eves v. Le Page: The mysterious world of CTA1 en banc review

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

Quill redux for Maine counsel

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. 

The Supreme Court, Jay Leno, Ferris Bueller, and my nephew

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.

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

End of year round up

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,

PUC Rules and Appellate Jurisdiction

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. § 8058Conservation 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

The Law Court and human error

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

Here are a couple recent rulings from the First Circuit that piqued our interest.


 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.,

The RCV decision: a rebuttal to a Maine Bar Journal article

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  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  I blogged

What exactly do you want us to say?

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.

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

Link rot no more

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  [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.

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