Tanks for 2013


Let's wrap up the year by discussing the last decision from the Maine SJC of the year:  Thanks But No Tanks, 2013 ME 114


The decision discusses two topics of interest to appellate folks:  (1) when will the SJC vacate the judgment below when the case becomes moot on appeal; and (2) when does a party prevail short of winning the appeal?

In this matter, the DEP granted a permit, the Superior Court affirmed, the petitioners appealed, and, while the appeal was pending in the SJC, the appellee moved to dismiss as moot because the town wouldn't grant a permit it needed to do the project, so it wasn't going to go forward with the project, and upon the appellee's request, the DEP withdrew the permit. 

The SJC determined in May that the appeal could be dismissed as moot (i.e. the DEP had the power to withdraw the permit while the appeal was pending), and asked that these two issues be briefed. 

On the first issue, the Court  said that it agreed with the U.S. Supreme Court's view on when appeals dismissed as moot get vacated – not in the ordinary course, but only if special equitable reasons support vacatur.  See U.S. v. Munsingwear, Inc., 340 U.S. 36, 40 (1950).  Just not getting to appeal isn't special, so the Superior Court's decision here wasn't vacated.  In so ruling, the SJC noted that res judicata principles absent vacatur wouldn't prevent the plaintiffs from raising the same issues again.

On the second issue, the appellants said that they were the impetus for the town saying no tanks, so they should be deemed the prevailing party and get their costs under 14 M.R.S. s. 1501 and M. R. App. P. 13(a).  Noting that it uses a functional approach to determine which party prevailed, the SJC said that this bare assertion, and the appellee's only record statement that it wasn't going forward because the town wasn't going to give it a permit, was too tenuous to support appellants' claim that they prevailed.  The Court also said that it wasn't going to examine the catalyst theory in considering this issue:

"We also decline to address the catalyst theory, which provides that a party may be considered 'prevailing” when it “achieved the desired result because [it] brought about a voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600 (2001), superseded by statute on other grounds, OPEN Government Act of 2007, Pub. L. No. 110–175, § 4, 121 Stat. 2524, 2525 (codified at 5 U.S.C.A. § 552(a)(4)(E)(ii) (West, Westlaw through P.L. 113-52)); see also Doe I v. Williams, 2013 ME 24, ¶¶ 82-83, 61 A.3d 718 (declining to address the catalyst theory where a party’s victory stemmed from changes in legislation, rather than as a result of the litigation)."

We'll be right back here with more in 2014.