They’re back


So yesterday I said that the proposed amendments to the Maine Rules of Appellate Procedure were taking a little hiatus.  Well that hiatus is over.  The amendments have been adopted, effective August 1, 2009, in slightly different form in some aspects than originally presented (see my June 10 entry):

1.  Due dates – The proposed move from a schedule dependent upon when the predecessor brief is filed to set dates was adopted.  The Appellant has 8 weeks after the date the record is filed to file its brief, and the Appellee has 15 weeks after the record filing date, with 14 days after the date the Appellee's brief is due to be filed for the reply.  With the longer time for the Appellee brief, and having the reply brief due based on the Appellee brief, hopefully this will take care of the potential stacking issues I mentioned in my June entry.  Also, the rule now adds that enlargements of time aren't going to be granted except in emergency situations, which will also help avoid everyone down the line having to seek enlargements if one is granted at the beginning (the rule does give the clerk the ability to grant one week extensions, which may give some wriggle room).

2.  Appendix – Most of the changes proposed in the previous iteration remain (yes, we are back to killing fewer trees, double-sided copying).  Mandatory items go first, in the order provided.  The issue I mentioned in my June entry regarding ordinances has been addressed; now not the whole Ordinance has to go in, just the relevant portions (iand now you need to put in the relevant parts of state rules and Private and Special Laws).  The relevant portions of the Ordinance include the part that describing the authority of the agency making the decision to act – so the Court can determine whether the agency was exercising (or should have exercied) appellate or de novo review.  So under the amended and final version, you don't have to put the whole giant ordinance in when only a bitsy part of it is relevant, taking up all your 300 pages; indeed, the Advisory Notes now say affirmatively:  "Entire volumes of municipal ordinances should not be included."   

3.  Standard of review - The final version of the rules dropped the idea that the standard must be recited in the issues presented, instead providing that the standards of review must be put in a summary of the argument.  This makes sense to me - it's easier to draft an explanation of the standard of review with cites as a part of an arguement than trying to morph that into the issue itself – although the previously proposed approach has reinforced for me the need to be precise in the phrasing of those issues, to make sure that I am incorporating correct language about the standard of review in my language.

In sum, the concerns I raised in my entry have been addressed, and the amended rules provide some precision and guidance that I think will prove helpful going forward. 

We need, as always, to keep in mind the differences between the federal rule and the SJC rule – they are not the same.  The largest conceptual difference is that the whole record goes up to the SJC, while that is not the case any more in the First Circuit.  Hence, there is a page limit for the SJC appendix, and more reason to think that less is more in that forum.