The SJC has proposed changes to the Maine Rules of Appellate Procedure:
Comments are due to the Court by June 19 (send to firstname.lastname@example.org).
There are a number of significant changes: (1) brief due dates will be specific, instead of calculated by the date the appellant brief is filed; (2) we are crawling slowly toward e-filing with discretionary filing of additional copies via e-mail; (3) like the First Circuit, they are saving trees by double-siding the Appendix; and (4) the statement of issues will now need to include a statement of the standard of appellate review to be applied to that issue. It will be interesting to see how that last requirement plays out.
Most courts require the first section of the argument to talk about the standard of review, not the statement of the issue section. I assume the SJC is trying to encourage brevity; but sometimes what the standard of review is really isn't definable in a few words, or there are different standards for different aspects of one issue. In sum, requiring the standard of review to be identified for each claim on appeal is common; doing it this way isn't, and might mean there' needs to be at least a little piece of argument under each issue in the statement of issues section. And do they want a cite there, supporting the declaration of the standard? Or is it enough just to say "Did the Court commit clear error when …"? If the court does want cites, would it be better to put this in the argument section? hmmm.
The change that strikes me as potentially generating the most issues, however is the requirement that a copy of the municipal ordinance be included in the Appendix in 80B appeals.
First, I read this as keeping the 300-page limit to the Appendix (although the language is ambiguous), including mandatory items. Most appellate courts that impase page limits for appendices do so for the non-mandatory items only. What are the parties supposed to do if just the mandatory items exceed 300 pages? Ordinances can also be huge – there goes the 300 pages right there. One answer – file a motion - just creates more work for the lawyers and the court.
Second, what exactly does this ordinance inclusion requirement mean? Logically, an ordinance is a legal authority – the 80C equivalent to the ordinance is a statute or regulation. Hence, it's not really evidence. So it would make sense that instead of putting the ordinance in the appendix, signifiying that it is evidence, instead, the Court simply required a Supplement of Legal Authority in 80B appeals that includes the ordinance (which would get around the page limit problem).
By life is never this easy. There is a statute (30-A M.R.S. s. 3006) that provides:
The submission to any court or administrative tribunal of a municipal ordinance, bylaw, order or resolve of the legislative body or municipal officers of a municipality, when the ordinance, bylaw, order or resolve has been certified over the signature of the municipal clerk, is prima facie proof of the validity of that ordinance, bylaw, order or resolve.
Old case law decided under that statute says that the court cannot take judicial notice of an ordinance. Hence, ordinances do appear to have to be "evidence" and, therefore a part of the Appendix.
Now, if you know all this odd background with respect to ordinances, you simply make sure you dump a complete copy of the ordinance in administrative record. Then it's evidence, and everyone's happy (except for this page limit problem). But what happens to people who aren't aware of this ordinance as evidence rule? Can they just get a certified copy of the ordinance at the time of the appeal and stick it in the Appendix? That doesn't sound right – if they are just creating this thing now, it can't be evidence for the purposes of an appeal, can it? And what happens, when, as is often the case, there are changes to the ordinance between the time you sought your application and the time of appeal, so the current ordinance isn't the applicable version? Can you even get a certified version of that old ordinance?
It's a conundrum. In this modern world, when you can usually just click on the town's web site to see an ordinance, Section 3006 and the old law about not taking judicial notice of ordinances seems … quaint. On the other hand, even if everyone agreed that we can now just cite the ordinance or, if the Court really wants a hard copy of the whole thing, that we can print it out without getting it certified and stick it in the appendix or a supplement, or wherever the Court prefers, that wouldn't solve the problem of the changing ordinance – when the one on the web site isn't the one that was in place at the time of the appealed decision. Most of the time, moreover, the changes in the ordinance after a decision have nothing to do with the issue on appeal, so that which version you give the court as a practical matter doesn't matter. But sometimes it will, and then what do you do?
As I noted, the easiest thing to do is get put a copy of the whole ordinance in the record at the time the administrative decision is being made (and now deal with the page limit issue, I guess, by motion). If that hasn't been done at the administrative level, maybe you can fix it by stipulation or a motion to admit additional evidence at the Superior Court level — which seems like a lot of effort to address a simple issue.
Most of the time people don't even bring this issue up -the appellant didn't put the ordinance in the record below (certified or uncertified – I would think that if it's in the record, it really doesn't matter if it's certified under Section 3006), but they get a new copy on appeal and stick it in (uncertified) and no one beefs. That, I suppose, is one alternative – but it's pretty risky if the other side does raise the issue and/or the ordinance language has changed. And making inclusion of the ordinance mandatory will now highlight the issue.