Maine Appeals

footnote to footnotes

A faithful reader has explained to me that the problem of footnotes not appearing in ipad versions of briefs (see earlier blogs) occurs only when the court rules require something other than the a pdf, like a word document, to be filed.  Both the Maine SJC and the First Circuit require pdfs, so footnotes should appear on their ipad versions of briefs,  This assumes that the version the court is given is the pdf version submitted by the parties to the court.  I don't know what happens in those courts where they start throwing in hyperlinks before sending the brief off to the judges or clerks.

I don't think this makes using footnotes much more of a good thing.  But at least with a pdf, the footnotes haven't been covered by Harry Potter's invisibility cloak.   

Next - onto the federal judicial conference at the Samoset.  As always, your intreprid correspondent on the scene shall report any useful appellate nuggets gleaned.   

The future of appellate practice

The next session at the AAAL conference was on the state of the appellate courts and appellate practice, with a panel of two judges from the Florida district courts of appeals and a judge from the 11th Circuit.

Reading briefs on computers.  All three of the judges read briefs on computers.  Judge Makar on the First District Court said his court is on the verge of hyperlinking everything in briefs, including links to the Westlaw case for cites.  In the Florida Supreme Court, the judges could see the briefs on their ipads, but not the footnotes, and practitioners didn't learn of this for months.  All the judges said they liked visuals in the briefs themselves - snapshots of the plan at issue, etc.

What do these developments teach us?  (1) don't use footnotes if you can help it or for anything important; (2) use lots of visuals; and (3) understand that the reader will be jumping back and forth from your text, meaning you've got to use headers, short paragraphs and other techniques to keep the point you are making in the head of the reader as he or she grazes.  There was a study of Italian judges that showed multitasking back and forth was very inefficient, but it's not going to stop, so you must deal.  Important things should be put on top of the page, and the eye scans a page in an F shape.  One judge commented that while he knew it was inefficient to keep going back and forth from reading a brief to reading emails that popped up, if he didn't, another judge would inevitably call him asking why he hadn't responded to an email sent 30 minutes before.

New arguments on appeal.  One panelist commended an article from January 2014 by Angela Winfield expolring the disnction between what is allowed and not, with lots of cites.  One judge referred to the principle of raising and accepting accepting alternate grounds for a result the rule of the "tipsy coachman" - as long as you get there, it doesn't matter how.

Judicial writing style.  Judge Makar likes to use a more folksy, readable style; he doesn't want to be dull.  Other members of his court, however, think he can get too colloquial.  The Florida Supreme Court supports a much more generic style.  Judge Rosenbaum of the 11th Circuit and Judge May echoed a desire not to be dull, and to put something up front that grabs people, but agreed that other judges can be offput by style efforts, and that judges must be very careful not to condescend to the parties.  

Independent research.  On this topic, upon which I've blogged repeatedly, Judge Makar says he does it; Judge May said no; and Judge Rosenbaum said if there is something new, he tries to give the parties an ability to address it at oral argument.  On using Wikipedia, all the judges said no, since, among other things, it's a wiki, but Judge Makar said he may be more free and easy with concurrences and dissents, using cites for facts that aren't necessarily judically noticable but "virtually incontestable."  As an example, he cited Wikipedia in an opinion to identify the number of languages spoken in the United States, saying he had no qualms about that sort of citing.  Another speaker noted that 50% of the cites to links in Supreme Court cases have now disappeared. 

En banc decision-making.  The judges, interestingly and consistent with a Judge Lipez article on the topic, said that en banc hearings are adverse to collegiality and fraught with emotion, with feelings getting hurt.  I don't know why this should be, when disagreement on other panels aren't so fraught, except perhaps that with the previous view out in the world, the disagreement becomes more personal?  A speaker said he was on an en banc case and there was a tie, so he was the tie breaker, and he was bombarded with emails from the other judges.  Judge May said that en banc discussions could be frustrating because some judges come very prepared, while others "come to be educated."    

Oral arguments.  On the shrinking allowance of oral arguments, one concern raised was that the judges may not confer with each other with matters submitted on the briefs.  It's my understanding that the same process is used in Maine, whether on the briefs or after argument, with everyone sitting down physically together.  If so, this is a good thing, because some of the judges speaking said that that they had found that valuable input was in fact lost when everyone is all over a state and communicating virtually instead of in the same room. 

More to come!   

 

  

 

  

amici

I am back from more peripatetic wanderings and at long last it is time for my download from the latest AAAL conference.

The first session was on amici briefs, discussed by a panel incuding an 11th Circuit judge, AAAL member Prof. Alan Morrison of GWU who files many amici briefs, and a Gibson & Dunn attorney who files them also.

There really are two worlds for amici briefs - the US Sct and everyone else.  In the US Sct world, 95% of all cases have briefs, with an annual total of @800 submitted (that's a lot of trees).  At the CTA level, this plummets as of 2007 to about 5% of CTA cases, and varies among state courts, from 5% to over 50% of the case load.  As one example, the NY Court of Appeals welcomes them and receives them in 30% of its case load.  The Federal Circuit invites them, sometimes asking specific organizations by name.  The Connecticut court will invite bar organizations to file them in tort cases, from both the plaintiff and defense sides.

In that 2007 survey, they asked judges when the briefs were helpful - the answers were when the parties hadn't made the argument (or, more precisely, hadn't adequately fleshed out the argument, because in many places the amici can't make "new" arguments); when the perception is that a party is not adequately represented; and then, in 30% of the cases, to obtain new factual information that can express, for example, potential implications of the decision.  96.6% like briefs from the government, 71.7% from special interest groups; and at the botton, 56.6% from professors.

On this point of new factual information, there is the somewhat, at least at first blush, the counterintuitive situation of having the parties' having to rely on a developed fact record, but amici blithely pronoucing any fact they want as gospel.   The general consensus was that allowing amici to be free and easy with their assertions was ok generally, as long as the reviewing court accepted those assertions for what they were - just assertions and not record fact.  (One person noted that when an amicus basically attempted to file an expert report to shore up one side's position, they filed a Daubert motion).  There is no point in saying amici can't do this, because first, the subject usually involves public policy, which sometimes doesn't come up in developing the trial record, and second, there isn't much difference between the assertions in an amici brief about potential ramifications of a decision and a party answering the court's question in oral argument asking the same thing.

The 11th Circuit judge indicated that his court hardly ever received them, and he would like more of them.  Unlike the Supreme Court, he said, the quality of representation at the CTA level varies widely.  He suspected that the lack of amici filings came from a lack of knowledge that an issue was pending before the court.  I've blogged on this before - the inability, particularly in a place like Maine, to know when an issue is pending before the Law Court until it's too late.  In the absence of an appellate court providing a published heads up in time to do something, there's no way to find out except luck.  Hence, we should all encourage the Maine SJC to identify matters before it in which amici briefs might be useful early on in the process, like the Mass SJC does.  The Maine SJC has started to ask for amici sometimes; this development is a very good thing. 

In the Q&A period, the panel was asked whether it made sense to have amici briefs in support of motions for rehearing.  The 11th Circuit judge said that formerly such briefs were barred in his court, but the rule had been changed because it didn't make sense.  Again, however, the problem is notice and timing. 

The panel consensus for which type of case was most useful to have an amicus brief was the same for the US Sct and lower courts - those in which the amicus presents a perspective different from the parties, explaining the implications of the issue before the court on non-parties.  Conversely, amici briefs are least helpful when they simply re-hash the parties' arguments (unless the litigants have done a poor job).  Prof. Morrison noted that some amici briefs are filed just to show the flag, not for their content, and that no one actually reads such briefs, either clerks or judges, past the first page or so.  He cited as a particularly useful amicus brief one filed by a broad array of businesses supporting striking down DOMA, which explained, from a practical perspective, how difficult it is to live with a patchwork of differing federal and state laws in this area.  Professor Morrison said that one effective amici brief before the Supreme Court at the level of seeking grant of cert was filed by 75 administrative law professors, who all agreed that a D.C. decision had been incorrectly decided under the APA.  Since getting 75 professors to agree on anything is earth shattering, this point resonated. 

With respect to timing, AAAL members decried a practice in some jurisdictions allowing amici briefs to come in late with no chance to respond.  It is almost as bad, some opined, when one can respond, but in a separate brief at additional cost.  Hence the perferred schedule was submission of the amicus brief shortly after the principal brief of the party whom the amicus supports, as provided in the Federal Rules of Appellate Procedure, with Prof. Morrison suggesting a two week span instead of the one week as now provided under those rules would allow for more targeted and shorter amici briefs.

With respect to the somewhat counterintuitive situation of having to rely on a developed fact record as a party, but amici then coming in and pronoucing any fact they want as gospel, the general consensus was that allowing amici to be free and easy with their assertions was ok generally, as long as the reviewing court accepted those assertions for what they are - just assertions and not record fact.  (One person noted that when an amici basically attempted to file an expert report to shore up one side's position,they filed a Daubert motion).  There is no point in saying amici can't do this, because first, the subject usually involves public policy, which often doesn't come up in developing the trial record, and second, there wasn't much difference between the assertions in an amici brief about potential ramifications of a decision and a party answering the court's question in oral argument asking the same thing.

With respect to amici participation in oral argument, the judge said he saw it happen in one case with very special facts, but it does not happen often. 

FInally, to make you feel good about the state we live in, one speaker noted that sometimes amicus briefs are filed in states where judges are elected to let the judges know that they are being watched -- the group filing the brief is telling the judges that how they vote in the case and on that issue will be remembered come election time. 

 

    

 

 

  

 

  

 

 

 

legendary

We are going to get to my download of the AAAL conference (starting with an interesting discussion of the use of amici briefs), but first, a shout out to Louise Thomas, honored as a "legend" by the Maine Trial Lawyers Association last Thursday.  Attendees included CJ Saufley, and speakers included Jim Bowie, Margaret Minister, Cliff Ruprecht, and Louise's son (a lawyer at Goodwin, Proctor), Eric Romeo.  A lovely evening, and Louise certainly deserved it.

If nothing else, Louise deserved a huge award for, many years back, holding my hand through my one and only trial.  While it became clear to me early on that I was not meant for trial work, the powers that be at PA thought that I nevertheless needed to first chair a trial before writing off that type of work definitively.  So patient Louise, teacher to countless lawyers throughout her career, was called in to drag me through the process, kicking and screaming. 

It was a little insurance case, and the question was whether the driver in the accident had the consent of the insured.   There was no jury, and Justice Broderick ruled in our favor, so I am batting 1000 as a trial lawyer (nevertheless, I do not expect MTLA to come knocking to honor me as a legend any time soon).  At one point, we pulled out a chart and I was able to show on cross that the driver's testimony was wholly inconsistent with the record, at which point the driver's jaw actually dropped and he was speechless.  "Gee," I said to Louise, "this is just like Perry Mason, isn't it?"

She just shook her head.  I tend to think that the fact that the driver had two four-letter words tatooed on his knuckles also helped.       

The experience didn't make me want to be a trial lawyer, and thereafter PA let me focus happily on the appellate and motion side of the litigation world.  But I will always be thankful to Louise for making the experience as painless as possible.

More seriously, Louise is a shining example to anyone in the legal profession, both for the quality of her work and her giving back to that profession, helping impaired lawyers and engaging in many, many pro bono and CLE projects.  To me, the most important lesson to be learned from her, useful for any lawyer of any stripe (and indeed, non-lawyers, too) is that Louise NEVER GIVES UP.  You may think that there is no insurance coverage for an event; somehow Louise will find it.  You may think that some aspect of your career or life is hopeless; it is not.  You can be tenacious without being obnoxious; you can and should reinvent yourself every day.

Thank you, LKT.

BIG FONT & fewer words

So I am back from my appellate conference and was going to blog on all the interesting things I learned (which I will anon), but this morning I received a tiny little notice from Cleaves in my email about recent changes in rules.  I clicked on the appellate rule change, read it, and what I found was a tad bit disconcerting.  This rule change goes into effect Nov. 1:

http://www.cleaves.org/2014Me.Rules10.pdf

There was no request of any input from the bar before this issued.

As you can see, the new rule changes the font for briefs from 12 point to 14 point.  This in itself is not a bad thing.  Only some people were following the previous rule of only certain types of 12 point font, apparently not understanding which fonts were allowed and which weren't.  The Court also wasn't enforcing that rule.  So the result was that some people had less space than other people, because some followed the rule and some didn't, and that wasn't fair.  This rule is clear - 14 point in any font. 

So far so good, yes?  But while the font change is fine, unlike the federal rule, the Maine SJC retains a page limit, and the same one it had before, instead of a word count.  What this means is, as a practical matter, as of Nov. 1, you have far less space, around 10-25%, as I calculate.

The killer is going to be reply briefs.  I played with my fonts for a bit, and 20-page reply brief (the page limit) in times new roman 12 point (which was not the rule, but what many people submitted) converted to 27 pages in 14 font.  20 pages in 12 point times new roman font ended up around 15-16 pages in 14 point font.  If you followed the rules before, a 12 point bookman will convert to about 10% less in times new roman 14 point. 

I recently blogged on a proposed federal rule change, which would also shorten briefs, but based on the desire to return to the equivalent of the old page limits.  I suggested that it was not a good idea.  The federal court is vetting that proposal to the bar, and from my conference I have learned that apparently many other appellate practitioners agree with me that the change is not good.  But at least there will be a full notice and discussion of the pros and cons before anything happens.

Here, the SJC's rule makes the briefs even shorter than that proposed by the federal court.  Nor does the rule seek to retain the same length as before, the purported goal of the federal change.  Rather, this rule requires, sub silentio, briefs to be much shorter. 

Aside from a general view that reducing allowed brief length is not a good thing (particularly when oral argument has been cut, with some appeals not getting any argument and everyone else's time reduced from 20 minutes to 15), I also see some practical difficulties with this new rule, such as:

- because this was not publicly vetted, few people know about it.  They will get a surprise.  What happens when they file an oversized brief?  I don't think the SJC will do what the Seventh Circuit has said it might - stop reading when it reaches the proper length.  But if the Court sends it back, will it say you have X days to file a chopped one?  If it does, this just gives that party more time to keep working on its brief, giving that party an advantage for violating a rule.  It also throws off the date the opposing brief is due.  And if the date for the opponent's brief is not changed, then the opponent is further disadvantaged -- it gets less time than normal to respond -- all because its opponent violated the rule.  So the obedient side is penalized, and the already lengthy briefing time may be extended.

- it's hard to do a 20-page reply in a complicated case with lots of issues.  Doing a 15-16 page reply is even harder (and as I mentioned before, shortening replies I don't really think helps the court.)  So the rule change could increase the number of motions to enlarge the size of briefs.  You get very little time to put together a reply - 14 days.  But you can't really say you need more space until you see the appellee brief.  So these motions will have to be last minute, meaning that the Court has to rule immediately (more work for them, no ability for the other side to respond), or the parties won't know if the motion will be granted by the time the reply is due.  So the moving party has to pray the motion is granted, or that the court, if it denies the motion, at least gives it some extra time.  Or if it isn't willing to risk that, it must abandon the motion on the due date and file a truncated brief although the motion might have been granted.

- the font is changed for main text, but, unlike in the federal court, not for footnotes.  So people seeing that they have a length problem may just stuff arguments into footnotes.  This is not only generally a bad thing (and could spawn motions to strike etc.), but, as I learned at my conference, more and more judges and clerks are reading briefs on ipads, and guess what?  You can't read a footnote on an ipad.

Courts in general are going to a word count, not page limit.  This makes eminent sense.  It's easy enough to count words.  Why can't SJC?  Keep 14 font, but get rid of page limits and use the word count for the existing 50 and 20 pages in 12 point font.

Also, make the font the same size for footnotes and body to avoid getting cute (but please, not 14 font for everything without a decent word count number, or we will get even less space). 

And if the SJC really likes a page limit versus a word count, then at least change the page limit for replies to 25 pages from 20. 

But no one asked me. 

 

Le francais et la loi

So I read in the paper this morning that USM was going to stop offering French as a major.  I was a French major (at Northwestern), so I got to thinking about what, if anything, helped in having that major in becoming a lawyer, and, more specifically, in appellate practice. 

Two points struck me.

First, it doesn't have to be French, and you don't have to major in it, but I think it helps to know at least one other language to understand how to write in English.  It was only through Latin that I saw how grammar worked.  Learning other languages makes you understand how language is not the thing itself, but rather a tool used to express something about the thing.  Understanding this distinction helps you become more precise, and appellate practice is all about writing clearly.  

Second, because I was a French major, I trotted off to France for a year in college, which opened my eyes about how legal principles we take for granted are not universal, even in a place like France.  Everyone was told to carry their identify cards at all times, for example, because the police could stop you at any time for no reason and ask for it.  You learn also to appreciate the common law, versus the Code approach, and our Constitution as a living document, versus tossing a constitution out and starting over every few years.

Given this overseas experience, I was subsequently amenable to working on various USAID projects developing legal institutions in various countries, including many in Eastern Europe.  When you meet people who have been shot at trying to get some rights and the rule of law, it gives you some perspective.   This is a very healthy thing, I think, for lawyers - we raise our hands and swear as attorneys to uphold the Constitution.  Knowing a little about what goes on elsewhere makes you understand why we do that.

I was in Romania working on drafting a law once with a MInistry of Justice official who spoke no English, so we worked in French.  She looked out her window at a parade of protesters going down the main drag - they were protesting the law we were drafting.  She sighed and said, "Ah, ma vie est comme une piece d'Ionesco."  Because I majored in French, I was able to nod and agree, "sans aucun doute." 

 

 

 

Genius must wait/benevolence, wildlife, tax and the public

First, following up on my blog a few days ago (Genius!), the Supremes have decided not to take any of the cases striking down state mini-DOMAs.  This was contrary to what the pundits were thinking would happen, but all the decisions from the Courts of Appeals have all gone the same way - striking the laws down.  Perhaps they are waiting for a conflict.  So we, in turn, will have to wait to see how that turns out, and who will argue the case down the road.  Again, we're rooting for GLAD's MacArthur genius, Mary Bonauto.  Follow this link, then click on "GLAD" to see some nice things Mary said about Pierce Atwood's  work over the years.  http://www.pierceatwood.com/pro-bono

Back to a perusal of (fairly) recent decisions of the Maine SJC.  Today we discuss Francis Small Heritage Trust v. Town of Limington, 2014 ME 102.  The fundamental question is when can an environmental preservation organization claim a charitable exemption and pay no tax, versus having its land valued at the tree growth level.  So the statutes in play are 36 M.R.S. § 652(1)(A), (C) (2013) and 36 M.R.S. §§ 1101-1121 (2013).

The Trust owns some parcels of land.  The Town said you must pay tax, noting that the Trust was engaged in forestry on some of them, and cited two decisions that seem to say wildlife refuges don't get the charitable deduction.  Holbrook Island Sanctuary v. Inhabitants of the Town of Brooksville, 161 Me. 476, 477, 484, 214 A.2d 660 (Me. 1965) and Silverman v. Town of Alton, 451 A.2d 103, 106 (Me. 1982).  (I am simplifying everything, but I'm trying to keep these entries snappy).

Basically, the SJC, noting these older cited decisions had been criticized elsewhere but not saying they were overruled, held that yes, you can get the deduction for wildlife preservation, at least in some instances, and found the deduction available in this instance, where, among other things, the Trust said the forestry activities were to show how sustainable efforts work, and the earnings were being plowed back into its mission, which was “to conserve natural resources and" -- pay attention here -- "to provide free public access to those natural resources.”  Notably, the Trust’s properties are “used and operated as conserved wildlife habitat,” "open to the public 365 days a year. Local schools use the properties for field trips and environmental education. The Trust’s land is also open for hunting, fishing, hiking, cross-country skiing, and snowmobiling."

I pondered a bit why the SJC didn't just say these old decisions were squirrelly (or, more accurately, impermissibly anti-squirrely) and dead meat (or tofu).  The language the Court uses to distinguish them is pretty weak tea:

"We conclude that both Holbrook and Silverman are distinguishable.  Our holding in Holbrook was based on the absence of any benefit to the public of a game preserve operated in a manner that heavily restricted public access and was contrary to public policy. See Holbrook, 161 Me. at 480-81, 484-88, 214 A.2d 660.  As we discuss further below, neither rationale applies here.  Silverman is also inapposite, as it did not apply the exemption for benevolent and charitable organizations, but rather the exemption for scientific institutions. 451 A.2d at 105-06."

My wholly speculative guess is they didn't toss the earlier precedent in toto because they don't want to wholly discard the notion that if you are rolling in $$$ and keep a little private zoo for your own amusement, that's not going to cut it.  The SJC said:

"We concluded that the organization at issue [in Holbrook] was not 'charitable,' because it was 'nothing in substance more than a game preserve,' the purpose of which was 'plainly to benefit wild animals'; provided 'no benefit to the community or to the public'; and was contrary to public policy favoring state-regulated game management areas."

It seems to me that this "public policy" of state parks distinction is  a head-scratcher, and speaking as a board member of the Animal Welfare Society, that language about benefiting wild animals that the earlier decision bandied about as not being charitable makes my eyebrows furrow (wouldn't that imply that a wild horse sanctuary, for example, is not a charitable endeavor?  Does it make a difference if the kitty being saved at the shelter is domestic or feral?)

So it would have been nice if the SJC had been a little clearer as to what exactly gets the exemption and what doesn't in this area.  Again, my guess is it didn't want to toss the old decisions out entirely because of the access issue, and because the Court, for good reasons, avoids wholesale tossing in general.  Also, I don't think the SJC wanted anyone to think property owners could just post their land, say "no hunting" and get a deduction because they are protecting critters.  As the Goose Rocks case indicates, the Court wants to encourage, not discourage public access to land, and certainly neither in the older decisons nor in this one does the Court want to give any anti-hunting misimpression. 

So the general contours of the law in this area remain blurred and await further development.  But in any event, it seems like a step toward the mainstream to hold here that there are some circumstances in which the charitable exemption is available for furthering the purposes of wilderness and wildlife refuge and preservation.

My takeaway from this decision is that you may have a shot at the exemption at least if you provide lots of public access on your property and can identify the things that you are doing that are people-focused.  The SJC expressly noted that the Trust did things like "sponsoring a Limington Boy Scout Troop, participating in a project with Maine Medical Center to research the risk of exposure to Lyme-disease transmitting deer ticks, and conducting a workshop on invasive plants."

Can't we be friends?

So let's look at what the Maine SJC has been up to, opinion-wise.  A fairly recent decision of note relates to judicial recusals - Samsara Memorial Trust v. Kelly, Remmel & Zimmerman, 2014 ME 107.

The bottom line is that the Court rejected an argument, raised for the first time at the appellate level, that Superior Court Justice Cole should have recused himself from a case involving a dispute between a law firm and ex-client because Justice Cole was friends with a former Superior Court Justice who was now an attorney at the firm (ex-Justice Crowley.)   

The two takeaways on this issue from the decison are pretty no-brainers:  (1) if you want to move to recuse trial counsel, do it early and certainly not at the appellate level; and (2) don't move for recusal based on something like friendship.  As the Court (Mead, J.) says repeatedly in the decision, Maine has a very small bar.  Everyone knows everyone else.  A social relationship is not enough. 

On the first point, the Court noted that the argument that the ex-client didn't know about the purported relationship earlier was "suspicious," because, first, the ex-client didn't say exactly when they did learn about it, and second, in arguing that the Law Court should take judicial notice of the relationship (since there was nothing in the record), the ex-client said that this friendship was "well known."  In any event, even if you do legitimately find out about some relationship that would warrant recusal after things are done at the trial level, procedurally, you still don't raise it in an appeal.  Rather, you have to file a Rule 55(c) or 60(b) motion in front of the Superior Court.  The SJC also found that the assertion of a Cole-Crowley friendship was not a proper subject for judicial notice, and was unimpressed by the ex-client's citation of a newpaper article that made passing mention of such a friendship.  Nor was the Court particularly pleased by the argument that the ex-client's attorney (John Branson) made at oral argument that he "had polled local attorneys regarding their opinions of the relationship between Justice Cole and Crowley," noting that in making this argument, the lawyer "inappropriately attempted to introduce facts at the appellate level" and "the proffered statements of the polled attorneys constitute subjective and unverified opinions that are inappropriate sources for judicial notice."

Because the argument came so late, the Court reviewed it based on obvious error.  Given that there was nothing in the record, I'm not exactly sure how they could assess the claim on the merits at all, but perhaps it was seeking to make a point.  In any event, the Court said the legal and judicial communities in Maine are small.  In a footnote, the Court noted that the ex-client's counsel "expressed surprise that judges will often have lunch together."  In response, Justice Mead said, "[t]o be clear," there are only 60 active state court judges, and they are "encouraged to mainain collegial relationships."  There are only 3800 active in-state lawyers, and we're supposed to get along, too.  And judges and lawyers are supposed to get along with each other, at events like "lunches, dinners, golf tournaments, and hockey games." 

It is "unavoidable, and indeed desirable, that judges who serve on the bench together will necessarily develop close professional relationships.  We do not expect that such cordial relationships will end if a judge leaves the bench and returns to the practice of law."  The Court cited a decision from Washingston state stating, "[u]nless a judge in a small community was a hermit or a newcomer to the region (neither of which is a good foundation for the position) before assuming the bench, the judge will necessarily have had relationships -- business or personal -- with most of the attorneys in the community.  That is not necessarily a bad thing."

Well, all I can say is this is good news.  Justice Crowley lives down the street from me and I've seen him from time to time, incuding when he was on the bench, as I walk my dogs.  We have waved cordially to each other.  I'm glad to know that neither of us was violating an ethical rule when we did so.

Genius!

If you are a regular reader of this blog, or peruse our website, you know that Pierce Atwood has had a partnership with the Gay & Lesbian Advocates & Defenders (GLAD) for many years, working with them on a variety of equality efforts.  In doing so, we've often teamed with Mary Bonauto, GLAD's Civil Rights Project Director. 

A few weeks ago she was named a MacArthur genius, and never has anyone deserved it more.  She's only the second Mainer to be so named - a big congratulations! (http://www.macfound.org/fellows/909/)

Last Monday, Pierce Atwood and GLAD filed suit in Rhode Island U.S. District Court against the Social Security Administration for wrongfully denying survivor benefits for Deborah Tevyaw after the death of her wife, Patricia Baker.  Here's a copy of the complaint and attached exhibits.  

Monday was also the day that the U.S. Supreme Court pondered whether/which petition for cert to grant in the various actions across the U.S. challenging states that deny marriage equality.  We're hoping they take Kitchen v. Herbert, coming from the Tenth Circuit, No. 13-4178, challenging Utah's same-sex marriage ban, because that's the one that Mary is working on.  If ever anyone deserved to argue this issue before the Supreme Court, it's Mary.  She's been working for LGBT rights for decades; spearheaded the first marriage case in Massachusetts; and (here's Cathy opinionating) the only reason the Supreme Court couldn't take her First Circuit case challenging DOMA and had to take the others last time around is because then-Solicitor General, now Supreme Court Justice Kagan had worked on that matter and would have had to recuse herself, threatening a 4-4 split.  No such problem this time around, so hopefully the Supreme Court will call on the lawyer whom Barney Frank has stated is the Thurgood Marshall of LGBT rights to do the honors. 

 

   

Hear ye, hear ye

It's time for the Maine SJC to ride the circuit, in the annual October Tour o'Maine - when the Court hears arguments in high schools around the state.  The calendar, with a summary of the cases and links to the briefs, is attached here (Law Court Calendar).  They are in Lincoln Oct. 8, Yarmouth October 9 and Presque Isle Oct. 28 (gee, I guess it still takes a while to get up there.)

From just the short blurbs on the SJC cite, none of these set my heart palpitating, although I'm sure they are important to the parties and their counsel, and it's always worthwhile to tune in and hear arguments as a general matter. 

The October argument I am putting on my calendar to listen to is federal, before the First Circuit - Mayhew v. Burwell (1st Cir. Calendar).  It's on October 7, around 10:30 by my calculations.  That's the case about whether the State can take 19-year olds off benefits, and the Governor and DHS disagree with the AG.  So there will be an independent counsel arguing for the appellant state agency (former PA-ite Cliff Ruprecht), with Chris Taub of the AG's office arguing against the agency's position (splitting time with the federal agency's lawyer).  Both Cliff and Chris are excellent at oral argument, and it's a crackerjack panel - CJ Lynch, Judge Selya and newbie Judge Barron, whom I have yet to encounter but has pretty zippy creds.