When appellate rules and statutes clash – or do they? MRAP 2 and 22 MRS 4006

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The Maine SJC has asked for amici briefs in a pending appeal: http://www.courts.maine.gov/maine_courts/supreme/amicus_invites/me.html

The issue relates to the interplay between 22 MRS § 4006 and M.R. App. P 2(b)(3).  The briefs are due by October 7. 

Basically, Rule 2(b)(3) halts the time to file an appeal when you file a post-judgment motion, suspending the appeal and re-starting the 21 day appeal period after the motion is denied.  The question is whether that re-set rule applies for appeals governed by section 4006, which provides:

A party aggrieved by an order of a court entered pursuant to section 4035, 4054 or 4071 may appeal directly to the Supreme Judicial Court sitting as the Law Court and such appeals are governed by the Maine Rules of Civil Procedure, chapter 9.

Appeals from any order under section 4035, 4054 or 4071 must be expedited. Any attorney appointed to represent a party in a District Court proceeding under this chapter shall continue to represent that client in any appeal unless otherwise ordered by the court.

Orders entered under this chapter under sections other than section 4035, 4054 or 4071 are interlocutory and are not appealable.

In the matter before the SJC, after the District Court terminated his parental rights, the father filed a “motion for new trial and to set aside default” pursuant to M.R. Civ. P. 59 and 60(b).  The court denied the motion.  The father filed his notice of appeal 17 days after the entry of the order denying the motion, which was 41 days after the entry of the order terminating his parental rights.  The Court invites briefs on the following issues:

  1. Whether 22 M.R.S. § 4006 precludes the termination of the appeal period pursuant to M.R. App. P. 2(b)(3) when a party files a post-judgment motion enumerated in the rule, thereby requiring a party to file any notice of appeal within 21 days after the entry of the original judgment regardless of any post-judgment motions;
  2. Whether 22 M.R.S. § 4006 precludes appellate review of an order entered on a post‑judgment motion enumerated in M.R. App. P. 3(b), despite the provisions of M.R. App. P. 2(b)(4); and
  3. Whether 22 M.R.S. § 4006 precludes appellate review from an order on a motion pursuant to M.R. Civ. P. 60(b) for relief from a judgment that is appealable pursuant to section 4006.

In response, as a threshold matter, let me say:

  • Kudos to the Law Court for issuing the invite; but
  • Not to look a gift horse in the mouth, the more heads up time before the brief is due, the better – this notice was issued Sept. 9 – a month is not a lot of time to gather troops and draft.

It seems to me, off the top of my head – this is a blog not a brief – one basic question is whether there is something about these types of orders that supports the conclusion that the Legislature didn’t want the general Rule 2 concept of halting appeals for post-judgment motions to apply.

The answer may very well be yes – the statute says these appeals must be “expedited.”  It’s my very limited understanding that often one party to a termination proceeding does nothing until a termination order comes out, at which point they try to reverse it, and the District Court, because liberty interests are involved, may allow a total re-do, or at least things come to a screeching halt while the post-judgment motion is carefully reviewed.  Hence, nothing gets expedited, which is contrary to Section 4006’s express provision, and one would think, generally speaking, not in the best interests of the child, either.       

On the other hand, I have no idea whether there is any relevant legislative history on section 4006.  Obviously, at a minimum, the statute could do with a little sprucing up, since chapter IX of the Maine Rules of Civil Procedure was replaced by the Maine Rules of Appellate Procedure in 2001.

Statutes generally trump rules.  On the other hand (there appear to be a lot of hands involved here), I can’t see why, if the SJC didn’t like the equities of a result that halted these types of cases needing expedition due to post-judgment motions, the SJC wouldn’t have the power simply to add an exception to Rule 2 for these types of cases going forward.  (See for example, Rule 2(b)(2)(B) providing for a short appeal time for extradition petitions).  I don’t see anything in section 4006 that would conflict with such an exception in the rule – obviously section 4006 doesn’t freeze the appellate process for current appeals just because it references chapter IX.  When construing a statute, the key is discerning legislative intent.  If the SJC can change rules whenever they want, then logically, one shouldn’t read into section 4006 any legislative intent to incorporate the content of any specific rule, including the rule halting appeals pending post-judgment motion decisions, should one? 

Or, you could read section 4006 – as the questions listed for the amici briefing may be suggesting – as simply not providing for post-judgment practice for these types of orders.  There must be an expedited review, according to the statutory language, and nothing in old chapter IX or the Maine Rules of Appellate Procedure replacing chapter IX says anything about having to have any post-judgment review.  Post-judgment motions are addressed in chapter VII of the civil rules, not old chapter IX or the appellate rules.  On the other hand (there’s that octopus again), nothing in section 4006 explicitly says there shall be no post-judgment motion practice with these orders, either.     

See why the SJC would like some input?        

I suppose if I were queen, and unencumbered by research, I might split the baby here.  The statute is silent on post-judgment motions; allows the Court to apply whatever rules it wants, and seeks expedition.  Since the rules at this point don’t say you can’t do a post-judgment motion for these types of appeals, let this appeal go forward.  But at the same time, amend the rule, so going forward, there are no more such motions, which would expedite in keeping with the statute. 

Usually, when the court issues a decision, it has to apply its new rule in that decision.  Under Cathy’s creative approach, however, the decision itself would be issued under the old rule, and the Court would apply the new rule – enacted as a rule, not a part of the adjudication – going forward.

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