Maine Appeals

DOMA Done?

As you probably have already read, the First Circuit came out with their decison on the Defense of Marriage Act yesterday, upholding the district court's ruling finding Section 3 of DOMA unconstitutional.  A link to the decision is here.  [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-2204P.01A]  A link to the amicus brief we filed supporting the plaintiffs' claims of unconstituitonality is here.  [Download 2011-11-03 Brief of Amici Curiae Historians]  Because the ruling relates only to section 3, it does not address that portion of DOMA indicating that states need not recognize other states' same-sex marriages.  Hence, this decision only covers the need of the federal government to respect states' defintions of marriage; it does not say that a state must allow same-sex marriages.    

Kudos to Maura Healey of the Massachusetts AG's office and Mary Bonauto of GLAD who argued the case,  with Paul Clement on the other side (paid for - in the millions - with your tax dollars, as I have blogged on before.  I'm sure we will all be paying more into the kitty for him to argue, again contrary to the DOJ's position, at the Supreme Court.)

Judge Boudin wrote this decision (with CJ Lynch and Judge Torruella rounding out the panel), and yes, I know it's my side, so I'm going to like it, but it's really a tremendous piece of work.  The way he navigated through all the issues is really, in a word that's been used about him before, brilliant.  The discussion about the impact of federalism on the analysis is particularly interesting.

Our brief, filed on behalf of many family law professors throughout the nation, gave an historical overview as to how marriage has been treated in the U.S. since the country's founding, and I learned a lot in the process (thanks to PA-ites Cliff Ruprecht and Katy Rand and ex-PA-ite Frank Bishop for doing a lot of the heavy lifting with, of course, the professors, lead by Nancy Cott.)

The longstanding understanding that the states define marriage, not the federal government, is shown, among other ways, by the fact that, historically, every time someone wanted to create a federal definition (which was often), they understood they needed to amend the Constitution to do it (until DOMA).  Another interesting point I learned was the stark divergence among the states always as to how they defined marriage.  The current controversey about whether people of the same sex can get married is really just one disagreement in a long line of differing views about what marriage is and who can be married. 

And finally, because this blog, is after all, all about me, how appropriate for the First Circuit to decide this case this week.  June 6 I celebrate my 25th wedding anniversary.  Let's hope that not just I, but everyone who wants one, has many wedding anniversaries to come.

ordinances, rules and the appendix

Just to show that you should always read the rules again every time you file a pleading, I discovered something new in Maine Rule of Appellate Procedure 8, regarding the appendix. 

In working on a couple of Rule 80C appeals, draft appendices were presented to me with state rules in them.  "Take them out!" I said imperiously, "yes, I know ordinances go in, but not state materials.  That would be silly - a state rule is like a statute; it's the law, not record material."

"Ah, but Cathy," the associate said nervously, "it's right here in the rule."  And he was right.  [http://www.courts.state.me.us/rules_adminorders/rules/MRAppPONLY1-12.pdf (p. 13)]  Whoops.

This still doesn't make sense to me.  The appendix is a record of the materials presented below.  You don't put the law in the appendix.  That's why you don't put in statutes.  

Then why do we put in ordinances, you may ask.  Well first, unlike a statute or a state rule, the Court can't get to it easily if it's not on an official town database.  Also, ordinances change all the time, so by the time an appeal gets to the SJC, the ordinance it should be looking at isn't necessarily the current one on line.  That's a practical reason.  Second, as a legal matter, I believe, it's because of 30-A M.R.S. s. 3006, which says:     

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.

The SJC then said in a decision that it would not interpret an ordinance which was not properly before it, since the existence of municipal ordinances are not subject to judicial notice but must be proved. Summit Realty, Inc. v. Gipe (1974) Me., 315 A.2d 428.

Not to be too piciune about this (ok, let's), if you follow this line of reasoning in Section 3006 and Summit Realty, you should put a certified copy of the ordinance in the administrative record you are making before the board, as evidence.  Or at least put in an uncertified copy.  Or at least make sure the ordinance you put in the appendix is certified.  But technically speaking, if the Legislature has said that you need a certified copy, and the SJC has ruled that you have to prove the existence of the ordinance, then I don't see how you can just slap a copy of an ordinance (certified or not) into the appendix as part of the record first at the appellate level.  You can't throw in any other evidence at that point absent going through a lot of hoops.  Why is an ordinance different?  And does Rule 8 mean that the decision in Summit Realty is effectively superseded? 

Again moving away from technicalities to practicalities, given that a certified copy of an ordinance does prove its contents, it seems to elevate form over substance to say you can't rely on a certified copy of an ordinance on appeal if you haven't placed it into into the administrative record as evidence at that level.  I presume that the language of Section 3006 doesn't prevent the SJC from letting people file 80B appeals without having gone through this drill at the board level (or a lot of 80Bs would have to be dismissed or you'd have to file a lot of silly motions to take additional evidence to get them before the court).  Still, I always recommend that people put the ordinance into the record when they are at the board level.  It not only avoids this question, but it makes it easy to see what version of the ordinance existed at the relevant time, i.e., when the board was deciding the issue.

Of course that's not necessarily the relevant time for all aspects of an 80C appeal.  The municipality could change its rules about how to appeal after the board decision is made, at the time the parties are appealing.  You can't get that new version into the administrative record.  How else are you going to get that in front of the SJC except by giving them a copy?  Wouldn't it be foolish to require machinations to get that "evidence" into the record when, whatever Section 3006 and Summit Realty says, it's not really evidence in the ordinacy sense?  

Yes, of course.  So all in all, particularly since I think many people could be out of luck if the court stuck by the rule that the ordinance had to be proved by the evidence in the record, addressing the need to have the relevant ordinances in front of the SJC through a rule of appellate procedure saying just provide them to the Court as a part of the appeal makes sense.  But technically they aren't a part of the record and it would be helpful if the Court could identify whether they have to be certified.  (And I'm not even going to talk about the first level of judicial review, the Superior Court.  If the ordinance is "evidence" and it's not in the administrative record, then how can the Superior Court review it?)      

In any event, getting back to the point of this blog (I think this was the point), that doesn't explain why you need to put a state rule in the appendix.  No one says they have to be proven, either through a statute like Section 3006 or case law.  

"Oh what's the big deal, Miss Whiney Pants," you might say, "doesn't this requirement just make it easier for the SJC to review the appeal?"  And rules, just like ordinances, can change from the time of a decision to the time the appeal is reviewed, right, so why make some poor SJC clerk figure that out?

Well, sure.  This is why it would make sense for the SJC to indicate that the rules extant at the relevant times should be supplied to the court in some fashion.  But why in the appendix?  And why if there have been no changes in the rules?  Why not treat them like statutes?  

Again you are thinking oh whiney pants, whiney pants, but here's why it might matter.  Usually the relevant rule is itsy, and can take up a page or two, so who cares.  But sometimes in some  environmental cases, when you are arguing about the whole framework of the regulatory scheme, you could have a bundle of relevant rules (e.g. NRPA).  Are you supposed to dump all of them into the appendix?  Aren't we supposed to make the appendix as concise as possible?  If the Court can as easily wander through the regulatory framework on the state's website or a hard copy of the CMR as it can through a statutory framework, then why require the rules to be included in the appendix?

Oh the grand mysteries of life.  In the meantime, remember:  (1) get a certified copy of the ordinance into the administrative record if you get the opportunity before the administrative process is done; (2) check for changes in the ordinance as to how to appeal thereafter during the appellate process, and if there are any, get a certified copy before the court; and (3) make sure you put a copy of the relevant state rules into the appendix of an 80C appeal.  Also, make sure, if you can, that the folks before the state administrative proceeding put into the file a copy of the rules at the time they are before the administrative body, so that when you on appeal have to figure out what rules applied when, you've got a copy. 

 

   

 

 

  

 

parentage

Last Thursday, the Law Court decided an important family law case in which we filed an amicus brief on behalf of various family law practitioners.  Robert Nolan et al. v. Kristen LaBree, 2012 ME 61

http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me61no.pdf

To see our amicus brief, here's the link.  [Download Amici Brief of Concerned Maine Attorneys]  (This is another appeal in which the SJC invited amici briefs and received several, so I hope this encourages the SJC to continue the practice of asking for such briefs.)

In this decison, I believe the SJC (opinion by Justice Gorman) got it exactly right, in both what it did and did not do.

First, the facts - a husband and wife used a gestational carrier, using the husband's sperm and the wife's egg.  The carrier gave birth and was initially listed as the mother on the child's birth certificate.  Because the carrier was married, her husband also by law was deemed the presumptive father.  So everyone trotted into district court to fix the birth certificate and make clear that the intended and genetic parents are the legal parents of the child.  There's no dispute among them that this should be so. 

The district court, however, interpreted the relevant statute, 19-A M.R.S. § 1553, to let it decide only paternity, not maternity.  Based on the evidence, the district court concluded that the intended, genetic father is in fact the father; declared the intended mother a de facto parent; and for some reason that I didn't quite follow, didn't eliminate the carrier's husband as a parent.

This means the child ended up with four legal parents - the intended, genetic parents, the carrier and her husband.  

So everyone keeps trotting, up to the Law Court, to fix this mess.  The SJC held, consistent with jurisdictions elsewhere (see our amicus brief) that Maine's statute, which references "parentage," gives the district court jurisdiction to declare both paternity and maternity.  The Court also held:  "In the context of an undisputed case like this one, when individuals—here, the genetic parents—seek a judgment declaring their legal parentage, and the other parties—the gestational carrier and her husband—have specifically asserted that they do not wish to be recognized as the child’s parents, the court is authorized to determine that the individuals are the parents of the child and thereby that the gestational carrier and her husband are not the parents of the child. There is no need for additional proceedings."

In sum, under the facts presented, the SJC fixed the problem and held that the intended, genetic parents are the legal parents of the child, and the carrier and her husband are not.

This decision makes eminent sense.  There was no disagreement here; and the parents were both intended and genetic.  The Court interpreted the law to produce a logical and fair result.  

Equally importantly, the SJC didn't go any further.  This was not a contested case.  The SJC did its best to obtain a full picture by asking for amici briefs, and all those briefs unsurprisingly supported this outcome.  In the absence of an adversarial presentation, the SJC was rightfully careful not to go further than it needed in order to bring rationality to the system and resolve the specific matter before it.  If you attended or heard the oral argument (and if you are a family law practitioner, it would have behooved you to do so), the Court asked many insightful questions about the broader issues, e.g. what kind of proof should ordinarily be presented?  what happens if there's a contest?  This is an area of the law that is going to need development, and the Court was sensitive to this fact.

I learn from every experience I have before a court, and my general takeaway here is consistent with a topic on which I've been blogging repeatedly recently - the importance to appellate courts to anticipate  the consequences of their decisions.   To write a good brief, especially in a novel case like this with no adversary, you really need to try to get into the head of the decision-maker and think like a judge.  What will they be concerned about in making a decision like this?  Always try to answer that question.

Here, it was important from the litigants' and amici's perspective, I think, to obtain holdings that the district court had jurisdiction, and that the genetic, intended parents are the legal parents.  This was not only needed for the parties before the court, but to give some clear direction to the district courts in future, similar situations.

But even when not arguing anything beyond that -- because the court doesn't need to go any further --it's still a good idea to provide context, to give the court perspective, and confidence that it's not going off the rails on the first step of its journey down a road of newly developing law. 

So, for example, in our amici brief, we tried to give the SJC an overview of what courts were doing elsewhere on this general topic.  It would also make sense to anticipate the court's concerns about where their decision will land in the broader context of decisions about the legal implications of using gestational carriers and surrogacy.

So now in drafting briefs and thinking about appeals, in addition to focusing on the specifics of my case, I'm also trying to take the additional step of consciously thinking about where the decision I want will fit in that general area of the law.  How does it comport with precedent and fit into the proper development of the law in that area?             

Here, the SJC took an important first step in placing the development of the gestational carrier/surrogacy law on a path with solid footing.  

 

Effective Appellate Advocacy part II

Onward to the oral argument.  The panel members were Judge Ambro (CTA3), Judge Kavanaugh (CTADC) and Judge Gribbon Motz (CTA4), with Patricia Millett the practitioner participant .  Millet, from Akin Gump, was recently written up in the National Law Journal for being the women with the most arguments in front of the Supreme Court.

Again I will skip the usual suspect points and focus on tips I found useful: 

• There was a lot of discussion about what to bring up to the podium.  Some said, very astutely, that it is impossible to read anything up there (not that you want to read anything to the court - unless you want to put them to sleep; but given what's going on, you can't stand there and read something to yourself, either).  Instead, take up one sheet of paper with your few big points in a few words IN REALLY BIG FONT, as a prompter.
• Oral argument, Judge Ambro said, is defensive - your goal is to ferret out what the panel doesn't buy in your briefs and change their minds. Judge Kavanaugh noted that, just like you can't avoid your weak points in the brief, you can't in the oral argument - and you have to be able to respond in a snappier way to questions on those weak areas without the time to finesse.  So spend a lot of time preparing snappy responses to the potential bad questions.
• Judge Ambro noted that there are a lot of reasons for oral argument from the judges' perspective - to make sure they understand the facts, to test a new theory, even to chide counsel, so keep that in mind. 
• Going back to the context point noted in the previous entry, one speaker noted that knowing your theory cold and where it fits into the legal framework is critical to understanding what you can concede and what you cannot.
• Never, never tell the Court, when they ask some wacky hypothetical, "That's not this case."  News flash - they know that.  Answer it, and answer their yes/no questions with yes or no, but be ready to argue in the alternative, "yes, our position does extend even to that wacky hypothetical, but alternatively you don't have to go there because X." 
• If the panel has eviscerated the other side before your eyes, when you stand up, do not jump on the bandwagon.  This could be seen as a challenge for them to eviscerate you, too.   
• Don't pander by citing a decision by a judge's opinion to that judge.  Do try to get them involved - so, for example, Judge Motz said, if it's a record based argument, have the appendix with you and say, "let's turn to page X" - involve them.  (And yes, it's not a bad idea to acknowledge when the court has a good idea) 
• The need for a theme and news bite articulations applies to the argument, too.  Millet, who noted that she averages 8-10 days prep (isn't it a lovely,pricey world in the Supreme Court sandbox), said that she prepares around five lines that she will try to include in her argument if she gets the opportunity to do so.  With a very hot bench like the Supremes, she tries to open an answer by saying something like, "there are three responses to that question" because sometimes when she's immediately interrupted, another judge will later take pity on her and prompt her to return to her three points.

In sum, attendance at this seminar was not a bad use of a morning.  And it took place in the court room of the Federal Circuit, so I got to visit that court for the first time, which is right across the park from the White House and has a lovely court yard.  And there were doughnuts.  What more can you ask for?

  

Effective appellate advocacy part I

As I mentioned in my last posting, Friday I attended a half-day conference on effective appellate advocacy in D.C., with about 100 other appellate types - a mix of agency folks (e.g. a large contingent from FERC's solicitor's office), to the young ex-clerks going into the appellate groups in private firms (more and more, especially in DC, appellate practice is deemed a speciality, like any other, that you concentrate on from the beginning).

The first session was moderated by an NYU professor, with a panel of judges consisting of Judge Ambro (CTA3), Judge Kavanaugh (CTADC) and Judge Dyk (FedCTA).  Two practitioners, Robert Long of Covington, and a friend from AAAL, Luther Munford of Phelps Dunbar) also participated.

I'm not going to repeat the usual, because we've gone through that before.  Here are a few of my new takeaways or further confirmations, beyond the tried and true.

One general theme was context, in various well, contexts.  The first was research.  This is one of my pet peeves, too, so I will elaborate.  The judges said that research was getting worse and worse, because no one puts anything into context any more.  This is largely due to the way we do research now, electronically.  Nowadays, you plug in a question and get an answer.  There's no indication of how that issue and answer fit into the larger legal framework.  (And it's getting worse; if you use something Westlaw Next, you aren't even the masters of your search any more - you are a captive of Hal, the legal logarithm). 

Use and cite a treatise, they said, to get an overview (most law reviews have become too theoretical to be useful - indeed, they noted, the better ones for their purposes can be the less well known.)  It is very clear that on the federal appellate bench, the judges are acutely sensitive to the context of their decisions, too - how does this decision fit into the larger pantheon.  They reminded us that they are generalists, so we need to explain this to them.

Another context point is how you draft the brief.  I am always saying frame, frame, frame, and they confirmed this.  They like intros.  They were disturbingly candid about the importance of the summary of the argument and the first two pages of the reply, because this may be all the judge (re-)reads.  You need a theme and sound bites that they can keep in their heads.  So, yes, on the one hand, you need to put things in context from the larger pantheon of the law, and teach them the background law they need in this area, but you need to construct your briefs in a way that does this while focusing them on your theme, from beginning to end - even the conclusion, they said; do not just say "for the reasons given above, please [insert relief requested]" - this is another place to put your one sentence sound bite.

In this same vein, everything needs to be easy to follow - so, for example, make sure you have a good table of context for your appendix.   

Another point that I've mentioned before, but will repeat because the judges said it too, is not to yell - no boldface, underlines or shrill and accusatory tones. 

In framing issues, they said look at how the Solicitor General does it in briefs to the Supreme Court, they are very nicely done.  In winnowing the issues on appeal, Luther said identify those issues that if the panel doesn't agree with you on issue  #1, they really won't go for your position on issue #2.  Under such circumstances, do you really need to include issue #2?

In the statement of fact, they said, and I've found this to be true sometimes, it can be helpful to discuss the statutory framework at the beginning of that statement, so they know what they are looking for.  And make sure that the whole statute is somewhere they can see easily - in the text of the brief itself or the addendum. 

They like graphics, diagrams, photos, whatever, burned right into the brief text itself. 

As Judge Dyk said, the oral argument is fun, but it's the briefs that matter.

Next time:  a different panel's thoughts on that fun part - the oral argument. 

  

     

  

Exodus

    In honor of Passover, I shall blog on a recent First Circuit decision, Bader v. Wrenn, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1634P.01A

    Seth Bader is in jail for life without parole for murdering his wife.  He was transferred from jail in Concord, New Hampshire to Berlin.  Here is how Judge Boudin sets out the facts: 

     "Before he was transferred to NCF-Berlin in December 2010, Bader--an Orthodox Jew--was confined for 12 years at NHSP-Concord and regularly participated in Jewish religious activities. He attended Sabbath services in the prison roughly twice a month, which included prayers, blessings, and the lighting of candles meant to be performed in a group setting. The regular group participating the Sabbath celebration included at least three inmates as well as an outside volunteer. New Hampshire prison regulations require group worship services to be led by the prison chaplain or an approved outside volunteer.

 

 

 

 

 

 

 

 

 

 

     "At NHSP-Concord, Bader also regularly participated in the group celebration of Jewish holidays, including Passover, Purim, Yom Kippur, Rosh Hashanah and Chanukah. A local rabbi would attend many of these holiday celebrations each year to help ensure that they were properly celebrated and to assist with the rituals. Aside from these regular group celebrations, Bader also followed dietary restrictions and met individually with a rabbi who visited the prison on a regular basis. The rabbi helped Bader pray with the proper accouterments, and also provided counsel and assistance regarding personal and family matters.

     "On November 26, 2010, Major John Fouts, who serves as the director of security at NHSP-Concord, directed a search of the workplace facilities at the prison where Bader was assigned. At Bader's workstation, officers found classical music CDs and a floppy disk that Major Fouts believed to be for personal use. Bader was "written up" for a disciplinary violation--later dismissed when it was determined that all of the alleged contraband was given to Bader by staff or was in his possession with their approval.

     "Nevertheless, with the agreement of the warden, Bader was transferred to NCF-Berlin about a week after the incident. Major Fouts testified that Bader was not transferred because of this  charge alone, but because Fouts' investigation uncovered "indications that [Bader] had undue influence in other areas of the prison." Fouts said he was concerned, for example, that Bader was accessing material from other parts of the workplace in an inappropriate way, was using the prison's educational facilities beyond what was required and was developing relationships with staff that Bader might exploit later."

    In Berlin (irony?), Bader has no access to a Jewish community:

     "At NCF-Berlin, Bader asked the prison chaplain about Jewish services and was told that none were currently offered, as none had been requested. The chaplain then made efforts, largely fruitless, to locate outside volunteers to lead such services. Prior to Bader's lawsuit, which he began several months after his transfer to NCF-Berlin, he had not met with a rabbi or any other volunteer; he had not celebrated any Sabbath services; and with no rabbinical visits, his ability to pray with the Tefillin was curtailed."

    The legal question presented is whether this transfer violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et. seq.  The panel (Judge Boudin, and JudgesTourruella and Lipez) said no, because the problem came from outside, not the prison itself.  Judge Boudin also alluded to floodgate problems that could result from a broad reading of the law:    

    "There are several million prisoners in the United States; many would likely prefer some other prison in the jurisdiction and many could plausibly claim that transfers would be more conducive to the practice of their religion. The prospect of litigation as to the comparative benefits and burdens of different prisons is immense."

 Of course, just because something may be legal, doesn't make it right.  Judge Boudin closed his opinion by stating: 

 

 

    "That Bader's transfer was legal under RLUIPA does not an that it is wise or charitable to keep Bader indefinitely in Berlin, New Hampshire. Time has now passed since the incident occurred that concerned Major Fouts; and Bader's sincerity about his plight has not been disputed by the state. New Hampshire would do well to consider whether Bader can now be safely transferred back to the Concord prison and assigned to other tasks."

    Over this holiday weekend, perhaps we should all ponder the quality of mercy.

 

 

 

 

 

 

 

 

 

    

 

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Blockbuster day at the CTA

The First Circuit decided to schedule three arguments in the hottest appeals pending before it on the same day, tomorrow.  http://www.ca1.uscourts.gov/?content=april4.html  Each will be heard in the en banc room, attendance first come first serve, with audio set up in spillover rooms. The arguments will be posted on line immediately after they are heard, at the link above.  

1.  U.S. v. Pleau, 11-1775.  

This is an en banc review of a decision granting a writ of prohibition to the federal government wresting custody of the defendant from Rhode Island.  [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1775P.01A].  While the legal issues relate to perhaps semi-dry matters relating to the meaning of the Interstate Agreement on Detainers and powers under writs of prohibition, what this case is really about is the death penalty in New England, when the state doesn't want it and the feds do.

Pleau robbed and killed a convenience store employee.  He pled guilty in Rhode Island state court and got life, the maximum state penalty.  The federal authorities want custody to prosecute him under federal law, potentially seeking the death penalty, and asked Rhode Island to hand him over under the IAD.  Gov. Chafee said no because of the death penalty.  So the feds went to federal court seeking custody using the writ.  I was in court on another matter for the oral argument before the First Circuit panel and it was interesting enough.  I've never seen an en banc argument in the First Circuit, and  the case relates to state v. federal powers, so even if this were the only case teed up for tomorrow it would be worth attending.

But there's more.

2.  Commonwealth of Mass. v. US DHHS & Gill v. Office of Personnel Managment, 10-2204, 10-2207 and 10-2214. 

This is the appeal of a decision striking down the federal Defense of Marriage Act.  We represent a group of family law historians filing an amicus brief on the side of Massachusetts and Gill.  [http://www.glad.org/doma/documents/].  You may recall that the Department of Justice began in this case by defending DOMA, then determined that it could not, given equal protection problems.  So an initial $1.5 million of your tax money has been allocated by Congress to hire Paul Clement (gee, what was he doing last week?) to defend DOMA in the DOJ's stead.  Along with Clement and the DOJ, Maura Healey at the Mass AG's office and Mary Bonauto at GLAD will be arguing.  The panel is CJ Lynch and Judges Torruella and Boudin.

And finally

3.  Request from the United Kingdom and Moloney v. Holder, 11-2511 and 12-1159. 

This is the IRA tape case.  Boston College interviewed various Irish folks about the Troubles, saying they'd keep them confidential; the UK wants copies of the tapes.  The lower court ordered the tapes produced and dismissed efforts by the BC oral project people to stop it.  This matter will be heard by the same panel as Gill, above.

Stay tuned; we'll talk about all these soon.  But in the meantime, click on the RSS feed tomorrow afternoon and hear the arguments for yourself.  Or go see it live - but get there early; the court will be packed.

A MacFOAA request with no vested rights

The Maine SJC issued a decision last week relating to the commercial copying of public documents that includes a cornucopia of legal analysis - MacImage of Maine, LLC v. Androscoggin County et al., 2012 ME 44 http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml

A company filed a FOAA request on all Maine counties to pony up in bulk and specified digital format, copies of every document in their registry of deeds, including their indexes.  The counties all responded in various ways, charging different amounts, some providing indexes, some not.  The fundamental issue was how much could the counties charge for the copying.  Under Maine's Freedom of Access Act (FOAA), the answer is not much.   Other states have enacted statutes to address this specific issue of commercial copying.  So has Maine as to registry documents, but only mid-stream of this suit and with subsequent amendment, leading to retroactivity issues, as discussed below.

So:

Q #1 - does FOAA apply?  Answer: no. 

Even before this request, there was a statute, 33 MRSA 751 (2009), that provided that county commissioners could charge "a reasonable fee" for copies.  In 2010, this was amended to identify specific factors the counties could consider in setting fees, and in 2011 the Legislature set specific fee amounts (with certain transition provisions).  The Court found that the more specific registry fee statute applied, not FOAA.

In reaching this conclusion, the Court used the terms "general" and "specific," without citing the rule of statutory construction supporting the conclusion that specific language takes precedence over general language.  The Court also cited the 2010 amendment and FOAA's reference to applying "except as otherwise provided by statute."  The Court also said that this conclusion was consistent with FOAA's purpose - no one was stifling public access.

Q #2:  which version of the registry fee statute applies?  2009's "reasonable fee"?  2010's, which listed factors and didn't expressly provide it was to apply retroactively? Or the 2011 version, enacted after trial and the Superior Court's judgment, but which provided that the new version was to apply retroactively to September 1, 2009, i.e., before this request was made.  A: 2011. 

First, the 2011 statute was explicit regarding retroactivity, which is what the SJC has consistently said since the Fisherman's Wharf decision is what 1 M.R.S. s. 302 requires to reflect legislative intent of retroactivity.

Second, this intended retroactivity does not conflict with any constitutional right.

The Court's analysis on the second point is interesting.  In a footnote (n. 10), the Court cites as examples of instances in which the constitution could prevent retroactivity as the contract clause preventing retroactive impairment of contracts, or ex post facto laws.  In the text, the Court discusses whether retroactivity here violates Maine's separation of powers clauses, equal protection, due process, the takings cause or the special legislation clause.  (I said cornucopia, didn't I?)

The no on the separation of powers front is because a legislative act that affects cases pending in the system doesn't always violate this clause.  Public interests were at stake here, the Court said, and because the 2011 legislation is "policy-based," it was a reasonable law for "the benefit and defense of the people of this State," which the Legislature can enact under Art. IV, part II, s. 1 of the Maine Constitution. 

The takeaway from this part of the decision, I think, is that just because a law is enacted because a specific lawsuit has prompted the Legislature to act, it doesn't follow that there is a separation of powers problem when it acts, even if its action is specifically designed to have an impact on that suit.  This has long been the SJC's view as to due process (see below). 

Moving onto the due process front, the SJC said that all that is needed is a rational basis, and the 2011 law was a rational exercise of the state's police power.  In discussing why the law is rational, the SJC noted that it is a law of general applicability addressing a problem presented in an area of "evolving technology and varied fiscal considerations."  This analysis is logical insofar as it goes.  I think it would have been nice had the SJC also spoken a little bit on the issue of vested rights.

What can make a retroactive law, even if rational, violate the substantive due process clause as applied (versus facially) is if it interferes with vested rights.  This law doesn't as a general matter (facially) impair any vested right.  There is no vested right in any law in the abstract - no Legislature is bound by a previous one.  So the real substantive due process question here is the "as applied" one -- whether the company requesting the documents had done something in reliance on the language in the 2009 law that would vest rights in going forward under the law as written then.  For example, if you are halfway done building an X on your property and thereafter the law changes to prohibit building X, the substantive due process clause could prevent that new law from applying to you. 

I can't see from the facts presented in the decision how there could have been a vested right interfered with here.  In previous decisions, the SJC has ruled that taking steps like making an application to build X doesn't vest any rights, no matter how pricey that application is - you need shovels in the ground.  (There's also a bad faith component to the vested rights doctrine, but let's not get into that now, except to say that a legislative reaction to a specific project does not in itself, alone, constitute bad faith under the case law - e.g. WDI v. Town of Porter; see Kittery Retail Ventures LLC v. Town of Kittery.)

In short, there is no  vested rights problem that I can see here, so whether the SJC talks about the due process analysis in those terms or not, the result is the same.

Onto equal protection.  This is easy, since there was no suspect class and setting a consistent fee is rational.  Everyone similarly situated is charged this fee.  (There's a line of jurisprudence about classes of one that could conceivably tick up the deferential standard of review meter, but not in this context.)

The takings argument is equally a non-starter.  If there's no vested right, there's no property interest here either.  No one has a property interest in any law per se, and the 2011 law doesn't do anything to the requesting company's own existing property.

The special legislation clause also poses no difficulty given the general applicabilty of the law.              

In sum, as a general matter, the Legislature can enact a retroactive law without offending any constitutional right, as long as it's not impairing a vested right, whether a contract, tangible or intangible property or otherwise, and the law on its face is generally applicable.  That the law may put the kebosh on the application of a specific person or entity doesn't matter, absent unlawful discrimination.  Someone can come along with a new idea and start pursuing it, and the Legislature is within its rights to say hold the phone, we can't have that, and do something to stop it.  The fact that  a specific request alerted the Legislature to the general issue doesn't change this analysis.

Issue #3 -what about the fact that the 2011 retroactive statute came even after the Superior Court decision?   Answer:  No problemo.  See U.S. v. Schooner Peggy and Miller v. French.  These cases stand for the proposition that when a law changes after the trial, while the matter remains in the system, the court applies the new law (absent any constitutional problem with retroactivity).  If new factfinding is needed, the SJC said, it will remand for another go around at the trial level applying the new law; if not, then the SJC itself will simply apply to new law to the existing facts as found.

There were a few other legal points discussed, and I've simplified some of the issues, but it seems to me that this is enough for today (phew). 

The bottom line takeaway is as I've noted above - as long as the Legislature uses the magic express retroactive language, there's generally no problem in changing a law and applying it retroactively, even if that change was prompted by a specific, pending request from an individual under the old law.  Unless and until the rights under the old law vest, and unless the Legislature is trying to single out someone instead of address the generic issue brought up by the pending application, it can usually act. 

Laurie Gibson - Ave atque vale

A good friend, Laurie Gibson, just passed away.  http://www.sunjournal.com/news/obituaries/2012/03/18/laurie-ann-gibson/1169914#.T2XiSFXimDI.mailto

Her service, or more accurately, a celebration of her life, will be Saturday at 2 pm at her alma mater, Bowdoin.  I'm not going to repeat here what the speakers will be saying, or try to describe her myriad traits and actions that made her such an amazing person.  Instead, since this is an appellate blog, let me focus on her contribution to the Maine bench and bar, from an appellate perspective.

After clerking for Justice Clifford, Laurie came to focus her practice on legal research and writing.  You may never have seen her name on a brief, or have seen her argue in court, but she was responsible for a lot of good briefs and arguments, mostly on the plaintiff side.  I think the only oral argument she actually did herself before the Maine SJC  was in the Husson College matter, http://www.courts.state.me.us/opinions_orders/supreme/advisory.html, where she was representing the Board of Bar Examiners, on which she served for many years.  She was also the Reporter for the Maine civil rules of procedure. 

In short, Laurie did a lot of great and necessary work, on the Bar Examiners, as the civil rules reporter, researching, divining arguments, and in general contributing greatly to the quality of our law and how we practice in Maine.  You won't see her name on any plaques.  She wasn't in it for the glory.  We talk sometimes in a general way about unsung heroes.  Laurie was the poster child for this position.  She did these things because she loved the law, and because someone had to do it - keep the Board of Bar Examiners from making mistakes, accurately reporti the rules committee efforts, and help the attorneys she worked with avoid missteps.  She was tenacious about doing the right thing and making sure the job got done. 

I lost a great friend, but so did everyone in the Maine bar, even if they never knew her personally.        

 

    

 

Her

Rule 80B round up ... and a little bit of 80C

The Maine SJC issued two recent opinions in 80B cases addressing issues of general import, so of course we are going to chat about them here.  Town of Minot v. Starbird, 2012 ME 25 [http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me25st.pdf] and McGettigan v. Town of Freeport, 2012 ME 28 [http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me28mc.pdf].

Starbird allowed an interlocutory appeal on the basis of judicial economy.  Lately, the SJC has been rather adamant about not allowing a Rule 80B or 80C to proceed directly to it if the Superior Court has granted a remand, so Starbird is a welcome recognition that sometimes there really should be exceptions to the rule.  Here, the Court applied the judicial economy exception because the Superior Court had remanded for review of an issue that had clearly been waived.  Hence, the whole remand excercise would have been an exercise in futility.  Justice Mead cautioned that interlocutory appeals would still be the exception, not the norm, but "when a cursory review of the record reveals an obvious flaw in the court's decision to remand a matter for further proceedings, we will not hestitate to reach the merits of an appeal if the remaining issues fall within an exception to the final judgment rule."

Again, this is good news.  The tricky question is, of course, when does this "cursory review" judicial economy exception apply?  

In the 80C context, the SJC came out today with decision in the Plumcreek case, Forest Ecology Network v. LURC, 2012 ME 36.  I'm only going to discuss the portion of that ruling discussing the interlocutory appeal issue presented in that matter.  there, the Superior Court remanded for further process to be heard.  LURC filed an interlocutory appeal.  Again, the SJC heard the appeal under the judicial economy exception, again saying allowing this was rare.  This time the "judicial interference" type of claim was invoked - this is an argument that the ordered remand intrudes upon the executive powers of the agency.  One interesting twist in the application of this argument here was the Court's suggestion that it applies only in 80Cs, not 80B's (P21), because there's no separation of power issue with 80Bs as with 80Cs.  Hmmm.  If the court tells the agency of a muncipality to do something that it cannot do, either under state law or an ordinance, then it seems to me there may be a judicial interference argument lurking in there.  If a statute forbids the local agency from doing it, then maybe there's an argument that the judiciary is interfering with the legislative branch.  If the judiciary is ordering a local body to do something that the ordinance forbids it to do, then maybe it's a not separation of powers problem per se, but a violation of the Home Rule powers as reflected in the Constitution etc.  However characterized, this kind of argument could only be used if the court were remanding for the local body to do something ultra vires, not just to re-assess the facts or engage in the usual activity ordered on remand.  So 80B or 80C, the application of this exception is still an exception, not the norm.        

At this point, perhaps the only clearly consistent must in these situations to address the interlocutory issue head on.  Don't just drop a footnote saying of course the judicial economy or interference with administrative authority applies - acknowledge the appeal is interlocutory and give some flesh to the bones of your argument why the exception applies.

As I've mentioned before, having to go through a futile administrative proceeding on remand is often a justice delayed is justice denied situation, given the impact these additional delays and costs can have on project applications.  So this decision is good news, and anything that could be done to establish the predictability of a narrow but fair route to immediate review would be great.

On my probably impractical wish list would be a  process in which the question whether the appeal would be heard could be decided separately and early on in an appeal, to avoid delay and costs if the Court ultimately is not going to apply an exception.  The problem with this two-step approach, of course, is its inefficiency for the court, having to look at a matter two times.  Still, if the test is a cursory review, then this burden shouldn't be too great.

One procedural problem with such a two-step approach is that the party filing the appeal is positing that it can be heard, so they can't file a motion to dismiss.  There's really no mechanism I'm aware of for the appellant to trigger a preliminary review.  When I had an appeal that I thought was premature in the First Circuit, but if I was wrong, I would lose my chance to appeal altogether, so I had to appeal, the only way I could figure out getting a preliminary review of the issue was begging the staff attorney to issue an order to show cause as why the appeal shouldn't be dismissed.  It worked, but it's not exactly an efficient process.  The previous SJC clerk used to send out orders to show cause once in a while on the most basically obvious appeals with jurisdictional problems.  I don't know if any are issued these days.  Of course the appellee can always file a motion to dismiss, but you can't count on that, and in any event the odds of having the motion determination not consolidated with the briefing on the merits has at least in the past been very low.

Still, focusing on these decisions themsevles, this recognition that sometimes it makes sense to allow an interlocutory appeal under 80B or 80C is, again, good news. 

Moving on to McGettigan, another opinion by Justice Mead, at the Superior Court level, the Court found that the appellants had standing, but that their substantive claim was moot.  The SJC dispatched the mootness claim because that claim was really an argument on the merits.  It then ruled on the merits against the appellants, saying that it therefore didn't have to reach the standing issue.

Assuming standing is jurisdictional, then it looks like this decision stands for the proposition that the SJC need not deal with jurisdictional issues, or at least standing,  before getting to the merits -- if it can avoid a thorny issue about something like standing by disposing of the appeal on the merits, then it has the power, and it will deem it sensible, to do so.  Under this reasoning, I suppose it could have declined to rule on the mootness question also, cutting to the chase on the merits, but it chose to address that particular jurisdictional question.