Various arcane appellate issues


Yes, Cathy has been derelict lately in blogging, but it's summer in Maine and … well, isn't that enough?

But here I am, and before we take a look at any recent substantive decisions of note from the SJC or First Circuit, let's devote an entry to a few appellate issues.

SJC amended rules. 

First, the SJC has amended some rules, effective September 1.  []  There are no big changes. In Rule 7, the Court is inching towards e-filing.  Instead of discretionary cds, we now file discretionary copies through email.  Language primarily in Rule 2 has also been changed a little regarding the need for filing your appeal check along with your notice of appeal.  Previously, the Superior Court wasn't supposed to take the appeal without the check (or waiver form).  Now the language impresses that point more – so much more, that it raises the question to me whether the timely filing of the check or fee has become jurisdictional.  This is not something you want to test.  SO DO NOT FORGET YOUR CHECK!


There's an article in Summer 2012 Maine Bar Journal on typography that basically says anything goes in Maine, but makes recommendations about what to use.  This anything goes rule may apply in the Superior Court, but at the appellate level, pay attention to Rule 9(f) – nothing "smaller" than 12 point Bookman is allowed.  The 2001 advisory notes says yes to Bookman, Courier, Geneva, George or "other similar type states," and Arrus, Script, or Times "should be avoided."  What does this mean?  As the article recommends, and as Rule 9 may require – NO TIMES NEW ROMAN. The State uses Bookman 12 point and so I do, too.  If you use Times New Roman and go up to 50 pages, it may in fact be too long, and someone might protest.   


Finally, there's a recent First Circuit decision that says some relevant things about the notice of appeal – McKenna v. Wells Fargo Bank, Na., No. 11-1650 [].  (It says some relevant things about removal, diversity jurisdiction amount in controversy requirements and the rules for foreclosing mortgages under Massachusetts law, too, but we will stay on point).

The defendant filed and was granted a motion to dismiss under Rule 12(b)(6).  The plaintiff filed a timely motion to alter, amend or vacate the judgment under Rule 59(e).  That motion was denied May 11, 2011.  The plaintiff filed her notice of appeal on June 6, 2011.  In that notice, the plaintiff-appellant stated that she appealed from the denial of her reconsideration order.  She didn't mention the underlying judgment or original dismissal order.  Oops?

As Judge Boudin, writing for the panel (Judge Torruella and our Sixth Man, Justice Souter), "The problem here has regularly bedeviled circuit courts and has not been consistently resolved."  Filing the notice on time and identifying the order appealed from is jurisdictional.  "Thus, if Suzette McKenna had filed no reconsideration motion but waited 31 days before appealing from the original dismissal of her case, the appeal would be barred, and Suzette McKenna would be left only with a malpractice suit against her lawyer."  The filing of the motion to reconsider suspended that 30-day time limit, and she filed a timely notice after that.  But the notice was "one limited to the order on reconsideration, raising a prickly recurring problem."  If the appellant only identifies the denial of the motion to reconsider, how far down the road can the appellate court go in looking at the grounds originally urged against the underlying dismissal? 

It's a big black hole, says Judge Boudin ("[t]he law on this issue is less clear than the cases claim it to be.'')  In this case, the issue didn't have to be resolved.  But you stand warned.

So what's the takeaway?  In your notice of appeal, always list the JUDGMENT.  You can add specific orders to your list, but make sure that you've got the judgment in the notice. (Note the differences in the SJC and First Circuit rules about appealing the reconsideration order, too, but let's keep it simple for now.)