Maine State Bar Association Celebrating 125 Years MAINE BAR JOURNAL the QUARTERLY PUBLICATION of the MAINE STATE BAR ASSOCIATION

Maine State Bar Association Celebrating 125 Years MAINE BAR JOURNAL THE QUARTERLY PUBLICATION OF THE MAINE STATE BAR ASSOCIATION

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Commentary

PRESIDENT’S PAGE | Albert G. Ayre 4 FROM THE EXECUTIVE DIRECTOR | Angela P. Weston 6

Features We’re All Going to Die (And Other Happy Thoughts of an Estate Planner Turning 50) | Eddy R. Smith 13 Remember, It’s Not Your Money! | Mark Bassingthwaighte 18 The State of the Judiciary: Managing in a Time of Change| Chief Justice Leigh I. Saufley 21 PAGE 13 The Importance of Law Day and the 14th Amendment| Linda A. Klein 28 Departments JEST IS FOR ALL | Arnie Glick 8 PERSPECTIVES | Jonathan Mermin 30 NEW LAWYERS SECTION REPORT | Stan Tupper 36 RES IPSA LOQUITUR | Nancy A. Wanderer 37 SUPREME QUOTES | Evan J. Roth 40 CALENDAR 43 ADVERTISER’S INDEX 47 PAGE 40 CLASSIFIED ADVERTISING 47

ON THE COVER: CITATION NOTE: According to Uniform Maine Citations (2010 ed.), [a]rticles in the Maine Bar Journal should be cited as follows: Image: iStock Paul McDonald & Daniel J. Murphy, Recovery of Lost Profits Damages: All is not Lost, 24 Me. Bar J. 152 (2009).” 1891-2016 Celebrating 125 Years THE PRESIDENT’S PAGE:

2017: A Time to Spotlight the MSBA’s Relevance and Effectiveness for Maine Lawyers and Maine People

It is with a healthy dose of humility and a renewed dedication that I undertake the somewhat daunting task of serving as your president for 2017. As many of you have let me know, those preceding me in this position have left some mighty large shoes to fill. I am grateful to them, and to you. At our retreat last spring we adopted a new strategic plan. In developing that plan, there was an overwhelming consensus that our immediate and ongoing goal should be one of reemphasizing your Association’s relevance and effectiveness in providing services. In keeping with our mission statement, this means not only service to you in your practice, but also support of “the public interest in a fair and effective system of justice.” My goal this year is to not only spotlight our relevance and effectiveness as a professional association, but also to increase that relevance and effectiveness by reaching out more to you and to the public. Our new website is just one example of this effort. The website includes features designed to enhance your ability to communicate with each other, through forums and blogs, and a more robust calendar of events of interest to all Maine attorneys. In addition, I intend to travel more this year–hopefully to personally visit each District–a continuation of “the traveling road shows” we have organized in the past. As part of our broadening efforts, your Board is currently discussing a draft policy for when the Association may take positions on public issues. This might include taking a position on public policy statements, initiatives or actions at the state or federal level that are antithetical to the Constitution, the rule of law, the validity of judicial institutions, the fair administration of justice, or the mission statement of the Association. In this edition of the Journal, for example, we have published an article by one of our regular columnists, Jon Mermin. The article, “Three Ways of Looking at a President,” generated quite a bit of discussion among members of the Journal’s Editorial Advisory Committee and the Board of Governors. Whether or not I, or anyone else, agree with Jon is not the issue. Jon has previously written numerous fine articles for the Journal. However, the MSBA is a trade association working for all of its members. The Journal is part of that effort, but I do not want it to become a platform for personal agendas or political views, no matter how sincere or deserving of comment and debate. We currently have in place an Editorial Advisory Committee, which reviews articles submitted for publication in the Journal. Generally, the Committee is given a copy of the article and an opportunity to vote on whether the article should be published. That review process does not always generate a unanimous “thumbs up” for publication. As we broaden our outreach, what we publish may become more closely scrutinized. That MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 5

doesn’t mean we can’t have spirited discussions, but a Let- ters to the Editor section may be a better place for such My goal this year is to not only comment, as opposed to the body of the Journal. Indeed, spotlight our relevance and effectiveness if you have a strong opinion about this, I encourage you to write a letter to the editor. While space may not permit as an association, but also to increase that publication of every letter in its entirety, it is my hope that you will share your opinions in a concise and civil format. relevance and effectiveness by reaching We do look forward to hearing from you, and I specifically welcome your comments on the above issues as well out more to you and to the public. as any other issue(s) you may have concerning your Associ- ation. Please don’t hesitate to reach out to me or your local Governor. Thank you, and now let’s all get to work.

1891-2016 Celebrating 125 Years

Albert G. Ayre Fees start at a cup of coff ee. • Mediation and Arbitration • Case and Practice Consulting • Mentoring • Transition Services • In-house CLEs Meet with Bill, have a cup of coff ee and fi nd out what he can do for you.

(207) 808-2164 • [email protected] Bill Robitzek www.mainelawyerservices.com FROM THE EXECUTIVE DIRECTOR: Get To Know Your MSBA Staff! By Angela P. Weston

In my recent columns, I have explained the Deputy Executive Director Heather Seavey has been with the many benefits you receive as a member of the MSBA for just about 3.5 years. Heather was hired in 2013 as the membership services director, but became my deputy in 2015. Maine State Bar Association, and I have also She is responsible for the daily operations of the office as well as asked that you consider getting more involved the direction of member services of the Association. Although with the MSBA and making a difference in the Heather is one of our newer employees, you can bet that she will help you in any way she can no matter your question. Contact Association. So, perhaps I’ve piqued your inter- Heather and she will make sure you receive the proper assistance est in taking advantage of some of these great and answers. Email: [email protected] benefits, or maybe you want to get involved by Administration & Finance Director Lisa Pare becoming a Section Chair or writing for the is our rock. Lisa has been working at the Bar Association for 42 years! I know… MBJ, but you just don’t know how to get start- that is unheard of these days! Lisa began her time at the MSBA as ed. Since the MSBA staff has changed a great a part-time employee while she was still in high school when Ed deal in the last three years, you may be unsure Bonney was the executive director. She is responsible for account- ing, payroll, human resource benefits, and membership dues, and who to contact. We have wonderful folks here she serves as the primary staff liaison to the Investment Commit- at the MSBA who are loyal and dedicated to tee. Lisa provides our institutional knowledge and we look to her the MSBA mission. I’d like to introduce you to for sound advice and guidance. Email: [email protected] your MSBA staff—these individuals are ready Receptionist & Administrative Assistant Jennaca Melo is to serve you! most likely the person you will speak with first if you call or visit our office. She has been working at the MSBA since 2014. Jenna is responsible for answering and directing incoming calls, as well as coordinating our conference room space for member use. In addition to sending out new member correspondence and membership welcome kits, Jenna also helps with database entry and CLE registrations. Email: [email protected] MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 7

Continuing Legal Education Director Linda Morin-Pasco Communications Coordinator Valerie Schriver has been in the is another longtime, loyal employee of the MSBA. Linda has MSBA Communications Department for 2 years now. However, been with the MSBA for almost 24 years! She has held various you may know her from her many years of service in the CLE positions, but has been the CLE Director for as long as I can Department beginning in 2000. Val is responsible for the produc- remember. Linda is responsible for the development, implemen- tion, design and layout of publications, programs and brochures tation and management of all CLE programs, and serves as the produced by the MSBA, including CLE and LRS publications. primary staff liaison to the CLE Committee. Linda usually has a She is also responsible for CLE events on our website and all CLE dedicated staff member, the CLE coordinator, to help her with program materials. She is an extremely talented individual who is these monumental tasks, but Mindy Coates, another long-time great with technology and databases, as well. employee, recently left us to pursue a new opportunity. We are in Email: [email protected] the middle of the hiring process for this position right now, and hopefully will have someone new to introduce to you within the Communications & Database Specialist Michele Roy is our next month! newest team member. Michele joined us in 2016 as we were Email: [email protected] implementing our new website and database. She has extensive experience with databases, and has been a great addition to the Lawyer Referral Director Rachel MacArthur started at the MSBA. Much of the MSBA’s behind-the-scenes work relies on the MSBA in 2006 as the LRS intake specialist. She served in that po- huge amounts of data we store in our database, and Michele helps sition for 8 years until she became the LRS director in 2014. The us manage and use that data so we can serve you—our mem- Lawyer Referral Service no longer has an intake specialist…Ra- bers—effectively. If you have questions about how to update your chel does it all! She is responsible for the operations of the Lawyer member profile on the website, are unable to log in to your online Referral Service, and does the intake in order to make productive account, or want to learn more about utilizing our website, please referrals of member attorneys to the public. Rachel also serves as don’t hesitate to contact Michele. Email: [email protected] the primary staff liaison to the LRS Committee. Email: [email protected] I have been blessed to serve as your Executive Director for the last 4 years. It has been a time of great change, with opportunities Communications Director Kathryn Holub just celebrated her to expand our member services and benefits, provide relevant, 6-year anniversary with the MSBA in February. She is respon- high-quality programming, as well as update our database and sible for the development, implementation and management website. Please feel free to call on any member of the staff for of all marketing and communications for the MSBA, including assistance. And of course, you can always contact me by phone at the CLE and LRS departments. Kathryn oversees the Maine Bar (207) 622-7523 or by email ([email protected]) with any Journal, The Supplement, other MSBA publications, our website, ideas or concerns. Thank you! media relations, brochures, and electronic communications. She also serves as the primary staff liaison to the MBJ Editorial Advi- ANGELA P. WESTON is the sory Committee. She is one busy lady, but please don’t hesitate to Maine State Bar Association’s contact her if you want to get published in the MBJ or you have executive director. some news for The Supplement! Email: [email protected] Employee Rights Law Unlawful Termination • Discrimination • Workers’ Compensation Unpaid Wages/Overtime • Whistleblower Claims • Harassment Medical Leave Disputes Disability Accommodations FREE CONSULTATION Peter Thompson, Esq. Chad Hansen, Esq. Lisa Butler, Esq. Adrienne Hansen, Esq. Barbara Lelli 874-0905 www.MaineEmployeeRights.com 92 Exchange Street Portland, Maine 04101 23 Water Street Bangor, Maine 04401 Statewide Practice Proud Member Beneﬁt Provider

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We’re All Going to Die (And Other Happy Thoughts of an Estate Planner Turning 50)

By Eddy R. Smith

All of this has made me acutely aware of my mortality. You First you forget names; then you forget need to be aware of yours, too, because we’re in the same faces; then you forget to zip up your fly; mortal boat. We’re all terminal; it’s simply a question of how long each patient has (which only occasionally can be and then you forget to unzip your fly. estimated with any certainty). – Attributed to Branch Rickey Facing the Reality of Decline and Death I have observed personally (family and friends) and professionally (planning and administering estates) several options for how to react to the prospect of your own death. Death is the destiny of everyone; Some spend a fortune trying to cheat death through anti- the living should take this to heart. aging treatments and futile medical attempts to delay reaching room temperature. Many try to ignore death, and our culture –Ecclesiastes 7:2 has formulated ways of thinking and talking, and entire industries, out of our desire not to be confronted with death. Some are overwhelmed with anxiety or depression when facing inevitable physical and mental decline. No one here gets out alive. –The Doors While each of these approaches has its own logic and appeal, I am striving for a different tack as I head into my 50s.1 Since An Uncomfortable Truth death is inevitable, I want to be like those I have watched deal I think the paradigm shift started the time I realized that with that fact head-on, in both how they live and how they my teenage son let up during play wrestling because he was die. Trying to do so raises many questions for me. concerned he might hurt me. Since then, exercise has become less about competition and trying to look good, and more What makes a good life? How can I get to the end of life with about managing blood pressure and hoping to be able to play few regrets, few coulda’s, woulda’s and shoulda’s? What is with my future grandchildren. This year I treated myself to lasting and deserving of my time and talents and what is only invisible trifocals, which will be of no use during my first a vapor in the grand scheme of things? How can I positively colonoscopy. When someone says something is true for “men impact the lives of others? What important things have I failed of a certain age,” the age increasingly is mine. to say to key people in my life? What can I do to serve those who are dying and their families? During my 40s, I delivered my father’s eulogy, watched a good friend my age waste away from cancer, was the primary What makes a good death? What can I learn from how others caretaker for my mother during her final months on earth, and handle the loss of a loved one or their own decline? What can helped a friend and her sister administer their mother’s estate, I learn from the ways doctors approach their own deaths?2 immediately followed by helping the friend administer the What are my children learning from watching how I deal with sister’s estate. Last week, I watched my mother-in-law take her deaths of parents and my creeping age? What do I think about last breath. CPR, breathing machines, tube feeding, and treatment of 14 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017

new conditions in the context of a terminal illness, advanced EDDY R. SMITH practices trust and estate law with Holbrook dementia, a permanent coma, or being completely unable Peterson Smith PLLC in Knoxville, Tenn. He is a Fellow of the to care for myself? What about moving to assisted living or American College of Trust and Estate Counsel. Eddy can be skilled nursing facilities versus dying at home?3 Do I want to reached at [email protected]. This article originally be an organ or tissue donor? Do I have thoughts about my appeared in the April 2016 edition of the Tennessee Bar Jour- funeral or obituary? Embalming or cremation? How does my nal. Reprinted with permission. spiritual perspective inform decisions on these issues? Have I communicated my wishes to anyone? 1 According to the Social Security Administration, the average male on In the legal and financial realms, there are important questions his 50th birthday has a life expectancy of another 32.3 years. See https:// related to aging and death. Have I purchased disability www.ssa.gov/OACT/population/longevity.html. Better flip me, because I insurance and life insurance if my family depends upon my am 60% cooked. 2 ability to produce income? Should I purchase long-term care See Ken Murray, “How Doctors Choose to Die,” The Guardian, February 8, 2012, available at http://www.theguardian.com/ insurance to try to avoid outliving my financial resources? society/2012/feb/08/how-doctors-choose-die. Other resources Do I have a well-thought-out estate plan that includes a will, recommended to me (I have a lot of reading to do): Atul Gawande, 4 financial power of attorney, and advance directive? Have I Being Mortal: Medicine and What Matters in the End, Henry Holt & left accessible (i.e., not on a computer with a password that Company (2014); Paul Kalanithi, When Breath Becomes Air, Random only I know) information and instructions to allow the right House (2016); Elisabeth Kübler-Ross, On Death and Dying: What the persons to manage my personal and financial affairs before and Dying Have to Teach Doctors, Nurses, Clergy and Their Own Families, after my death? Have I implemented a succession plan for my Scribner (1969); Bronnie Ware, The Top Five Regrets of the Dying: A Life business or professional practice? Transformed by the Dearly Departing, Hay House (2012); Yoel Hoffmann, Japanese Death Poems: Written by Zen Monks and Haiku Poets on the Verge Good lawyers are skilled at educating and motivating their of Death, Tuttle (1986). 3 clients and identifying and addressing problems. Are we I have watched, and have been one of, many children who struggle to discussing with our clients their need to address these issues serve their parents well when the parent’s needs cannot be met by family, but the parent has decreed that they want to die at home and never in their lives? As officers of the court and advocates for our want to be in a facility. That can become untenable, causing frustration, clients, are we on the lookout for signs of verbal, physical and feelings of guilt, an inappropriate physical and emotional burden on financial elder abuse? Do you know what to do if you become the child, and inadequate care for the parent. In my experience, most 5 concerned someone is taking advantage of a senior? children want what is best for their parents, and prefer to see their potential inheritance spent on the best available, appropriate care. Do Is It Appropriate to Focus on These “Soft” Issues? your kids a favor: educate yourself about available levels of care, visit There is little technical or legal in this article. Perhaps I’ve facilities near your home or your kids’ homes, and then tell your kids wasted your time with nothing more than the midlife crisis/ that, even though you prefer to remain at home as long as it makes sense, spiritual wanderings/existential ramblings of a guy looking the following facilities look good to you. This almost always works better when talked about openly and honestly in advance, rather than when past his prime. parents are in immediate need and not thinking clearly because of decline or fear. However, my hope is that we are moved to face our mortality 4 See Maine Health Care Advance Directive Form, available at with honesty and determination, to value each day more http://www.maine.gov/dhhs/oads/aps-guardianship/documents/ than the last, to contemplate how we want our lives defined advdirectivesform.pdf. and remembered, to seek ways to contribute personally and 5 See Legal Services for the Elderly’s Elder Rights Handbook, available at professionally to the lives of others, and to begin conversations http://www.mainelse.org/handbook. See also Tennessee Bar Association’s and planning centered on end-of-life issues. As lawyers, we can The Legal Handbook for Tennessee Seniors, available at http://www.tba. serve our clients by helping them face these realities in their org/sites/default/files/TBA-The_Legal_Handbook_for_TN_Seniors- estate and business planning and other legal matters. As we February_24-2014.pdf. When faced with a potential abuse situation, seek to do all the above, consider the words of Michael Weiner, personal and professional ethics and the law might require contacting former head of the Major League Baseball Players Association, adult protective services or law enforcement. while dying of brain cancer: “What I look for each day is beauty, meaning and joy, and if I can find beauty, meaning and joy, that’s a good day.” ME Discovery Ad_IncomeTaxationEstatesTrusts 9/30/14 3:29 PM Page 1

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Joh Sawyer,nson, &E sNelson,q., M aPA,rc us, AugustaNonparty Witnesses Keith E. Glidden, Esq., Verrill Portland Estate Transactions Chapter 19 Trial Advocacy Paul CMcDonald,legg & M Esq.,istr Bernstein,etta, PA, Shur,Port Sawyer,land & Nelson, PA, Dana LLP, Boston, MA and Foreclosures n 9: Requests for Production of Documents an d nDaniel19: HG.a Kagan,ndlin gEsq., Di sBermancover &y SimmonsDisput ePA,s LewistonBrian D. Willing, Portland in Maine DanielT hJ.i nMurphy,gs an Esq.,d En Bernstein,try Upo Shur,n L aSawyer,nd B &ra Nelson,dley C PA,. M orChapterin, 20 TrialEsq Preparation., Drummond Woodsum, Portland PortlandEsq., Bourque & Clegg LLC, Sanford nMartha20: D C.if Gaythwaite,ferences Esq.,Betw Verrilleen Dana Fed LLP,era Portlandl and Maine Chapter 9 Administrativen 10: Elec tAppealsronic Etov iSuperiordence Court Benjamin E. Ford, EsqChapter., 21 JuryDis Trialscovery Practice Eric J. Wycoff, Esq., Pierce A Practical Guide to NancySa Macirowski,ra E. Hirs Esq.,Officehon, Esq .of, Vtheer Mainerill Da Attorneyna LLP ,General, Portla nd TerrenceAtwoo D.d LGarmey,LP, Por Esq.,tlan dTerry Garmey & Associates, Portland Estate Planning Augusta Gary Goldberg, Esq., Terry Garmey & Associates, Portland n 11: Depositions as a Discovery Tool Daniel L . nKatherine21: Dis A.co Kerkam,very i nEsq., Ar Portlandbitration and Alternative in Maine Chapter 10 PosttrialRos Motionsenthal, inE sCivilq., MCasesarcus, Clegg & Mistretta, PA, Dispute Resolution Paul J. Greene, Esq., Global Chapter 22 Jury Instructions and the Charge Conference Hon. PThomasortlan dD. Warren, Sports Advocates LLC, Portland Maine Superior Court, Portland Hon. Joyce A. Wheeler, Maine Superior Court, Portland Different can be good. The ABA Retirement Funds Program is different from other providers. It was established to meet the unique needs of the legal community.

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Contact an ABA Retirement Funds Program Regional Representative today. The ABA Retirement Funds Program is available through the Maine State Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2016) carefully before investing. 866.812.1510 This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: [email protected]. www.abaretirement.com Securities offered through Voya Financial Partners, LLC (Member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya and [email protected] the ABA Retirement Funds are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1029-19104-1117 - 2015 COPYRIGHT Maria Fox,& Esq.

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Remember, It’s Not Your Money!

By Mark Bassingthwaighte

Theft of client property remains a serious concern for the legal domestic checks, and those funds being collected funds (meaning profession, but trust account problems aren’t just about rogue the check has cleared), which can take several days and poten- lawyers. The real problem is that far too often an attorney was less tially quite a bit longer. Checks can fail to clear for a variety of than diligent about maintaining proper and appropriate financial reasons including a missing, insufficient, or incorrect endorse- practices in the office, and things simply got out of hand. Lack of ment; insufficient funds; a drafting error; a bank error; or because intent, shoddy record-keeping practices, and restitution are not it was a forged check. If you disburse the proceeds of a check and effective defenses to a complaint of misappropriation or conver- that check eventually bounces, you have commingled client funds sion of client funds. With this in mind, here are a few tips that, because another client’s funds have been used to cover the check if taken to heart, can help keep you on the straight-and-narrow that bounced. This would be true even if the firm covers the path when it comes to being responsible for other people’s money. shortfall with its own money and no one appears to be harmed. First, and most importantly, there are no circumstances under Making matters worse, what if the firm doesn’t have sufficient which it would be acceptable to borrow funds from your client funds available to cover the bounced check? This does happen. trust account, temporarily or otherwise. (Yes, this does need to be In a zero-tolerance jurisdiction, your license to practice could be said.) Trying to make payroll, covering a quarterly tax payment, suspended for just such an occurrence. A hold-time of five to sev- paying your bar dues, borrowing from one client to cover a check en business days will protect you in most situations. Wait longer paid to another, or needing to take care of a necessary personal if the check is drawn on a foreign bank account or something expense don’t pass muster. Similarly, an attorney may not keep just doesn’t feel right. A number of lawyers have been successfully an unearned advance fee, hold onto non-disputed client funds as scammed out of large amounts of money by authorizing deposit- leverage over disputed earnings, or apply a client’s current funds ed funds to be transferred after five to seven days only to find the to that client’s outstanding bill from a previous matter. initial check bounced two weeks after being deposited. Second, make certain that you keep undeposited checks and Fourth, never commingle funds in the trust account. For cash in a locked drawer or cabinet, even if you intend to deposit example, non-disputed client funds and earned attorney funds are the money later in the day. I have walked into numerous firms for not to be left sitting together in the trust account for an extended a risk visit and found no one in the reception area. It would take period of time, nor should the trust account ever be used as the only a minute to walk behind the receptionist’s desk, open the employee Christmas savings account. That said, and only if this top right desk drawer, remove the bank deposit envelope that too would be permissible in your jurisdiction, you might consider many still place there, and leave the office completely unnoticed. keeping a small amount of firm funds in the trust account to cov- In addition, and upon receipt, restrictively endorse and create a er any account fees or charges. This is one way to prevent client log of all checks that have come in and keep the log in a separate funds from being used to pay a firm expense. A recommended place from where the checks are held. If any checks are ever sto- amount would be $50 and should never exceed $200. len, lost, or destroyed, this will enable you to know whose checks Fifth, consider handling trust account withdrawals as follows. are gone, thus giving you the opportunity to inform the affected Once you earn a fee, send the client a bill reflecting the deduction clients or other payers. Also, since those checks were restrictively from the amount remaining in trust. The bill should state that if endorsed, they should be much easier to have replaced. there is a question on the bill, the client should contact the firm Third, never disburse the proceeds of any check prior to within 10 days, otherwise the firm will make the indicated with- that check clearing. Here’s why: There is a difference between drawal at the end of that time. You are going to wait for 20 days funds being available, which typically occurs within 24 hours on from the day the bill was sent, 10 days for the bill to be delivered, MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 19 and 10 days to see if the bill is disputed, before actually withdraw- The trust account’s bank statement must be reviewed each ing the earned fee. Too many attorneys withdraw earned monies month, and you should review the reconciliation report and bank at the same time that a bill is sent, and this can create a cash flow statement together at least quarterly. Generally speaking, you problem should a client ever dispute their bill. The reason for should maintain all trust account records for at least five years this is that disputed funds must be placed back in trust until the after termination of the representation, although the exact time dispute is resolved. If you make a significant withdrawal at the frame may differ among jurisdictions. same time the bill is sent, perhaps to pay personal and professional bills, and then you are unable to come up with those funds if Disclaimer: the bill is disputed, you’ve got a serious problem. ALPS presents this publication or document as general information Sixth, trust account records must include a general ledger only. While ALPS strives to provide accurate information, ALPS as well as separate subaccount ledger that can track all account expressly disclaims any guarantee or assurance that this publication activity by individual client. The individual client ledger must or document is complete or accurate. Therefore, in providing this detail every receipt and disbursement, the date of the transac- publication or document, ALPS expressly disclaims any warranty of tion, a notation on the nature of the transaction, the individual any kind, whether express or implied, including, but not limited to, account balance in trust, and the client’s name and address. Each the implied warranties of merchantability, fitness for a particular month you must reconcile the bank statement in two ways. First, purpose, or non-infringement. reconcile the bank statement with the general ledger and then rec- Further, by making this publication or document available, ALPS oncile the bank statement with the individual sub-account ledger. is not rendering legal or other professional advice or services and this These separate reconciliations should balance with each other to publication or document should not be relied upon as a substitute for the penny. If they don’t, figure out why and correct the problem such legal or other professional advice or services. ALPS warns that then and there. It is going to be much easier to determine where this publication or document should not be used or relied upon as a a misstep occurred at the time it occurred than it is years later basis for any decision or action that may affect your professional prac- during an audit. tice, business or personal affairs. Instead, ALPS highly recommends Finally, support staff never should open the trust account that you consult an attorney or other professional before making any bank statement. This envelope should be given to the attorney decisions regarding the subject matter of this publication or docu- responsible for monitoring trust account activity. Under the rules ment. ALPS Corporation and its subsidiaries, affiliates and related of professional conduct, you have a duty to monitor the activity entities shall not be responsible for any loss or damage sustained by in your client trust account. Your license is on the line with this any person who uses or relies upon the publication or document pre- account, so stay on top of it. To do so, look at the bank statement sented herein. and make certain that there is a corresponding check for every debit noted there, review the signature on every cleared check for authenticity, and make certain that every debit in the account is ALPS Risk Manager MARK BASSINGTHWAIGHTE, appropriate and understood. Once this is completed, the bank ESQ., has conducted over 1,000 law firm risk management statement may go to the staff person responsible for account assessment visits, presented numerous continuing legal ed- reconciliation. When the reconciliation is complete, have the ucation seminars throughout the United States, and written reconciliation report returned to you so that you may do a review extensively on risk management and technology. Check out of the numbers and check this report against the original bank Mark’s recent seminars to assist you with your solo practice statement. Then, sign and date the report and bank statement in by visiting our on-demand CLE library at alps.inreachce.com. order to document attorney oversight of client funds. Mark can be contacted at [email protected]. 20 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017

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The State of the Judiciary: Managing in a Time of Change

By Chief Justice Leigh I. Saufley

President Thibodeau, Speaker Pro Tem Herbig, and Honorable mal communication between the separate, but equal, branches of Members of the 128th Maine Legislature, good afternoon, and government cannot be overstated. thank you so much for finding a way to fit this presentation into your very challenging schedule. It has been a hard winter, and I so So very much has been accomplished in the last decade because of much appreciate your efforts. the work that we have all done together for the people of Maine. With great traditions anchoring our work, my focus today is It is an honor, as always, to be invited to address this joint conven- CHANGE in the pursuit of improved public service. tion of the Maine Legislature. To be clear, there has been no change in the mission of the Judicial I am accompanied today by my amazing husband of 36 years, Bill Branch. Saufley, who consistently accommodates my scheduling changes with great humor. My parents, Jan and Dick Ingalls, would have To administer justice by providing a safe, accessible, efficient and im- been here, but I convinced them not to travel, so they are watching partial system of dispute resolution that serves the public interest, pro- at home in South Portland, thanks to your terrific technology. tects individual rights, and instills respect for the law.

I am also accompanied by my wonderful colleagues from the But changes in society, changes in technology, and changes in the Supreme Judicial Court and the new Chief Judge of the District public’s expectations of government require us to evolve consistent- Court who you will hear a bit more about in a minute. ly in the way we fulfill that mission.

The extraordinary people in the Maine Judicial Branch are working Today I will update you on: very hard to meet shifting public needs, and my presentation today • Changes in the leadership of the Trial Courts; will focus on those CHANGES. • Changes in the Infrastructure of the Courts; • Changes in the delivery of justice to families in Maine; But as we talk about changes, it is important to anchor our dis- • Changes in the processing of Criminal Cases, including cussions in the bedrock principles of good government. This Joint o Fines and Bail, Convention, where the Chief Justice is invited by Legislative lead- o The Addiction Crisis, and ership to present a report on the State of the Judiciary, represents a o Domestic Violence. tradition of good government that we all value highly. And finally, I will have two requests for you.

And this year is an important milestone in this great tradition. CHANGES IN TRIAL COURT MANAGEMENT The first of the changes is in the leadership of the Trial Courts. Forty years ago, in 1977, Chief Justice Armand Dufresne, Maine’s first Franco-American Chief Justice, delivered the very first State of The Chief Justice of the Superior Court and the Chief Judge of the Judiciary. So, for four decades, broken only by two years in the the District Court are positions created by statute. We have now early ’80s, Chief Justice Dufresne, Chief Justice McKusick, Chief established that they will serve three year terms, renewable once. Justice Wathen, and I have had the honor of an annual invitation to address the joint houses of the Maine Legislature. The Chiefs are responsible for the operations of the trial courts, and they must assure that the trial courts are responsive to the needs of I emphasize this history because we do not take this tradition for the public. granted. It does not happen in every State, and the benefits of for- 22 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017

These judicial leaders must have the respect of their colleagues and • Interactive court forms will assist unrepresented litigants to initi- the legal profession. They work very long hours, filling both roles ate and process their cases. of judges and managers. • The system will greatly improve access, efficiency, and transparency for all involved with the court system. Chief Justice Roland Cole is the new Superior Court Chief. He has an extraordinary history as a Maine Trial Judge, but, unfortu- Recognizing that broadband access is not yet equally available in nately, he had a family emergency, and I will introduce him to you all areas of the state, our plans include public kiosks in the court- at another time. houses, to make sure that all members of the public benefit from this improvement. Chief Judge Mary Kelly has taken over as the Chief of the District Court. As Judy Harrison of the Bangor Daily News wrote, Judge We have much work ahead of us to implement a system that, while Kelly grew up just 12 miles east of Bangor: Bangor Erris, in County transparent and accessible, must also protect personal privacy and Mayo, Ireland, that is. guard against identity theft. To address this challenge, we are about to launch the new Task Force on Transparency and Privacy that will Chief Judge Kelly came to Maine from Ireland as an exchange law include a broad array of stakeholders. professor in 1987. She found Maine to be such a wonderful place that she stayed on, becoming an American citizen in 1990. I am grateful for the bi-partisan support that is making all of this possible. Governor LePage steadfastly supported funding for the Chief Judge Kelly has worked in the Legislature’s Revisor’s Office, new technology, as did the Legislature, including Leadership in in the Attorney General’s Office handling child support and child both parties, especially the Judiciary and Appropriations Commit- protection cases, and in the District Court as a Family Law Magis- tees, and Representative Fredette, who first got the ball rolling six trate. In 2010, she was appointed to the District Court. She is well years ago as a freshman member of the Appropriations Committee. respected by her colleagues and is already beginning to make her mark in improved public service. Safer, Modern Courthouses The state’s aging courthouses are also benefitting from much-need- CHANGES IN JUDICIAL BRANCH INFRASTRUCTURE ed changes.

CMS eFiling Those of you who are veteran Legislators have heard me bemoan Next, I am very pleased to provide an update on a monumental the physical facilities of the Maine courts. But with the bipartisan change made possible by the three branches of government work- support of both the Governor and the Legislature, we continue ing together to make the courts more efficient, responsible, and to make steady improvements to Maine’s courthouses. Without accessible. sacrificing rural access to justice, we have reduced the number of separate court buildings from 47 to 36, and in the process, we have The digital world is coming to the Maine Courts. improved safety and access in many counties.

Working with Tyler Technologies, a company with a significant In 2016, after legislation was approved by the 127th Legislature, Maine presence, we expect to implement the new Case Manage- we began work toward improved facilities in York, Oxford, and ment System first in the Violations Bureau, which handles between Waldo counties. 85,000 and 100,000 traffic cases statewide each year. Penobscot and Piscataquis Counties will be the first courts where the full dig- We will improve or replace eight inadequate buildings with three ital system will be implemented in 2019. efficient, handicapped accessible, and vastly safer courthouses that will improve the delivery of justice for generations to come. I want Moving from a paper-based court system to an electronic one will to thank the Governor, President Thibodeau, and former Speaker revolutionize the way we do business. Eves for their support. • The new system will allow 24/7 access by litigants from anywhere in the world that is connected to the Internet. And I especially want to thank the four members of the 127th • Members of the public will not need special programs to access Maine Legislature who gave so much time to the legislatively cre- their cases. ated Site Selection Commission for the York County Courthouse: MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 23

Senator Ron Collins, Court, but any adoption, guardianship, or name change involving Former Senator Linda Valentino, the same child would have to be handled by the County Probate Representative Bob Foley, and Courts. Representative Ann Marie Mastraccio. Imagine having to navigate two separate court systems, separate Thank you all for your time and energy. clerks, separate judges, separate rules of procedure, often even in different buildings, all regarding issues affecting the same child, Improvements in Access to Justice the same family? It was difficult; it was more complicated than it So, with improvements to buildings and technology, access to jus- should be; and it did not serve children and families well. tice is getting better every year, except for one critical aspect: litigants too often cannot afford lawyers to help them with their Working diligently over two sessions of the 127th, the Judiciary legal problems. Committee found a way to address the challenges, and the Execu- tive Branch found a way to fund the proposal. The new law, allow- We still have a way to go to ensure that everyone in court is assisted ing families to proceed in one court—the District Court—went by capable counsel. There is a constitutional right to a lawyer in into effect in July 2016. criminal proceedings, but too many Maine people are not able to afford a lawyer for the civil proceedings that may affect their fami- Today, I am pleased to report wonderful progress in the seven lies, their livelihoods, housing, and healthcare. months since the bill went into effect. As of last Friday, 173 adoptions, 50 guardianships, and 5 name changes, all involving families But the good news is that Maine lawyers continue to give generous- and children in District Court cases that would have required sepa- ly of their time and money to assist their fellow-Mainers in need. rate case filings in the Probate Courts, were completed expeditious- • The Campaign for Justice raised over $600,000 from Maine law- ly, and exclusively, in the District Courts. yers and judges to make free legal services available to the poor. • In addition to donating money, Maine lawyers participating in These improvements would not have happened without the com- the Katahdin Program donated over 11,000 hours of free legal mitment of: work, with a market value of approximately $1.7 million. • The sponsor, Rep. Kim Monaghan, • In 2016, with the assistance of the New Lawyers Section of the • Co-sponsor Speaker Gideon, Maine State Bar Association, 22 local libraries participated in the • The Judiciary and Appropriations Committees, and Lawyers in Libraries Program, where people could find legal help • The Executive Branch. right in their own communities. • The Civil Legal Services Fund, which you—the Maine Legisla- I am also grateful to: ture—established, provided over $1.4 million to legal service pro- • Justice Ellen Gorman, viders to assist the elderly, low income parents, the disabled, and • Chief Judge Kelly, victims of domestic violence, along with many others in need. • The Probate Judges, especially Judge Carol Emery, and • A host of lawyers and District Court Judges who assisted in rapid- We absolutely must do more, but I am grateful to you and to the ly creating new rules to assure the expedited processing of the cases. many lawyers who have voluntarily stepped up to help those in • Professor Deirdre Smith, who heads the Cumberland Legal need. Aid Clinic, deserves special mention for her advocacy for this legislation. FAMILY DIVISION CHANGES 1. Home Court Those 173 adoptions represent a concrete example of how, when Turning now to the changes in the actual case processing, I want we work together, we can find solutions that make government to thank both the Legislative Branch—the 127th Legislature, and work better for Maine people. the Executive Branch for passage of L.D. 890, An Act To Ensure a Continuing Home Court For Cases Involving Children. 2. Guardian ad Litem Changes In another area of change, bringing improvements for Maine fami- Prior to passage of this bill, many cases involving the same children lies, Chief Judge Mary Kelly has this week delivered a report to the were split between the State District Courts and the County Pro- Judiciary Committee regarding changes and improvements in the bate Courts. A child protection case would proceed in the District delivery of guardian ad litem services. 24 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017

The GAL report describes several years of work in the Legislature In 2016, you approved funding to allow the trial judges to increase and then in the Judicial Branch, which resulted in many substantial the availability of jury trials and to provide overtime so that our changes, including: clerks and marshals could work the necessary additional hours to • the adoption of clearer standards of conduct for GALs; address that backlog. • improved training; • precise billing limits that must be set before any work is done; I am pleased to report that that effort was successful. • creation of the 12-member Guardian ad Litem Review Board, • In Fiscal Year 2016, the intense focus on criminal cases resulted which is a complaint process independent of the Judicial Branch; in a 61% decrease in active pending cases over one year old, and and • a 49% decrease in active pending cases over nine months old. • an evaluation process for consumers of GAL services upon com- • That is statistical jargon for this result: pletion of their cases that will provide feedback on how well the o Cases are being reached much more quickly. improved system is working for families. o New criminal charges can be resolved without delay.

We have also updated the Judicial Branch website to include more This took a great deal of focused effort on the part of everyone information about GAL services. Although my summary here to- involved. day is relatively brief, these changes were the culmination of a four- year effort to improve the delivery of GAL services, and you can I want to take this opportunity to recognize the great work that was read the complete report on line at the Judicial Branch website. done, not just by the Judges and court employees, but also by the defense lawyers and the District Attorneys, all of whom stepped up And finally, regarding family and civil cases, we have several new to make this a priority. process improvement projects in the works. I am very proud to announce that we recently received news of a grant funding award And many of the real heroes in this story are the hundreds of Maine from the State Justice Institute to help us undertake a significant citizens who respond to the call for jury duty. They often give up new effort to improve the way we process civil and business cases. a day’s or a week’s pay, leave their homes and families, struggle Grants were awarded to only three states across the country. More with parking, and then are called on to make some of the most on that in the months to come. important decisions in the court system. We all owe them a debt of gratitude for their service. We could not have been successful CHANGES IN CRIMINAL CASE PROCESSING without them.

I turn now to some of the most pressing problems in our State— Changes in Fines and Bail affecting several different aspects of our Criminal Justice system. Another area where positive changes have begun is in the collection of fines and the analysis of our current bail system. And in keeping with my theme, I am pleased to tell you that some of the changes that have been accomplished or are in the works A group of judges and staff, led by Justice William Anderson, has have been encouraging. But we are far from finding the answers to undertaken a complete review of Maine fine collection procedures. too many of the challenges. In order assure that we do not have impoverished Mainers placed in difficult situations, clarified procedures and new forms will be So let’s begin with some good news. promulgated that will assure that everyone who is convicted of a crime and ordered to pay a fine understands clearly: Reduced Criminal Case Backlogs The amount due, Last year, having completed the redesign of the criminal dockets When the fine must be paid, into a single unified process, we moved to the next step—reducing What to do if they cannot meet the deadline, and the backlog in the criminal dockets. And, with your help, the re- Who to talk to if that happens. sults have been excellent. While these clarified procedures will help, I continue to suggest You all know the saying, “Justice delayed is justice denied.” Wit- that a meaningful, well-supervised, substantive public service pro- nesses become unavailable and even die, memories fade. Crime vic- gram, particularly when combined with a restorative justice com- tims, the public, and mistakenly or wrongfully charged defendants ponent, could provide an excellent option for accountability in are not well served when cases are delayed. place of mandatory fines. MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 25

Bail Reform • We must provide robust prevention programs. Next, with regard to Bail Reform, I am here with a mea culpa. • We must have real and meaningful treatment quickly available. Last session I told you that I hoped to present a proposal this year • We must have housing for people who have lost everything. for updating our antiquated bail system. In recent years, we had • We must understand treatment in terms of months and years, not received a proposal for a new bail system that would cost the Gen- days and weeks. eral Fund an estimated additional $4 to 5 million a year. I told you that I thought it could be done for much less—that we could find You and the Governor are already hard at work addressing many a way to reduce the costs and still provide a much-needed update of these issues. You addressed the prescription medicine gateway for the system. last session, and discussions regarding treatment resources are well underway. We do not yet have a proposal that I believe is sufficiently fiscally prudent to present to you. I hope to return next session with an In the Judicial Branch, we are rethinking drug courts. Last year, improved plan. we reestablished the Bangor Adult Drug Treatment Court, and with that addition, there are now six Adult Drug Treatment Courts And now I turn to the two areas of criminal justice where change is along with a Co-Occurring Disorders Court and a Veterans Court. desperately needed, but the answers are not yet clear. Sadly, drug courts can reach only a small percentage of people Opiate Addictions plagued with drug addiction. I begin with the Opiate/Heroin epidemic. I will echo much of • There were 52 graduations in 2016—52 people who successfully what you heard from the Governor last week, but I believe it is stayed clean and sober and worth repeating. were released from active judicial supervision. • Statewide, approximately 247 people are currently in adult drug Attorney General Mills has provided us some horrifying statistics. courts. • The drug overdose deaths in 2016 were up again—378 human • In a State where 358 people died of overdoses in one year, we can- beings lost their lives to a drug overdose last year in Maine. not delude ourselves that drug courts alone will make a difference. o In a minute, I am going to talk with you about homicides in Maine, and one of the statistics you’ll hear is that there were I have therefore asked Justice Nancy Mills, whose vision and re- 258 homicides in Maine over a ten-year period. lentless hard work helped create the extremely successful Veterans o Compare that number with 378 overdose deaths in just Court here in Augusta, to step up and take over the Drug Court one year. Steering Committee. o There weremore overdose deaths in one year than there were homicides in a decade. I am grateful that Justice Mills said yes, and already her presence • Even more frightening, in 2016 there were 2,380 administrations is felt. In March, just weeks away, she has arranged for national of Narcan—up from 1,565 in 2015. experts to come to Maine to meet with all of Maine’s Drug Court • And—the saddest number of all—there were 1,024 drug affect- Judges and Teams and the Trial Court Chiefs for an intensive two- ed babies born in 2016, up from 1,013 in 2015. As the Governor day session, to bring them up to date on what actually works with described it, that is just about three babies a day who start their these pernicious addictions. lives in such a horrible way. We know that we must consider updated models for the Drug We see the effects of heroin, fentanyl, and now carfentanyl in every Courts and for the criminal and family dockets much more broad- case type. Not just criminal cases. These addictions affect families, ly. businesses, and schools. • Re-entry programs for people leaving incarceration are beginning to show real promise. People often ask me the same question they are asking you: What • Diversion programs, which can help people avoid lengthy in- can we do to stem this tide? carceration, must be consistent in providing up-to-date treatment And I only have one answer. You’ve heard it before. options, and simultaneously requiring personal accountability. • Wrap-around programs that involve families, housing, and jobs We have to do EVERYTHING. may provide another answer. • We must stop the drugs from coming into Maine. None of this is cheap, but nothing is more expensive than allowing 26 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 our State to sink further into the horror and sadness of an addic- ation of these proposals. tion crisis. In the Judicial Branch, the Trial Chiefs, working with a Team of ex- Changes in the Way We Address Domestic Violence perienced trial judges, have determined that several changes should Moving now to another difficult topic, this year, I requested two be implemented quickly. separate reviews of the ways our system of justice addresses domestic violence. Some of the most important changes are these:

The first review took a deep look at a single recent case in which At sentencing and bail hearings on serious charges, the presiding one victim died and one was badly wounded. judge will require the prosecutor to provide the following information if it exists: The second review was designed to give us a much broader analy- • Maine and national criminal history records; sis. For this review, I am grateful to the Attorney General’s Office • The victim’s statement or presentation; and for its assistance and data. Our researcher looked at every murder • The ODARA or other risk assessment score. in Maine over a ten-year period, searching for patterns and places where we could all have done a better job in protecting vulnerable In addition, now that we understand how few of the victims sought Maine people from domestic violence. timely help, there is something else we all have to do.

Here are just a few important points: We must stop assuming that the victim will always ask for help. • From 2006 through 2016, 258 people were victims of homicide in Maine. As neighbors, family members, employers, and service providers, • From the records provided, the researchers identified 126 of the we must all be alert for the signs of isolation, control, and impend- deaths as related to domestic violence. In other words, almost one- ing violence that are harbingers of real lethality. half of the homicides result from domestic violence. And we must not look away and assume that someone else will In the 126 domestic violence related homicides: take care of it. • Most of the perpetrators, 88%, were male. The victims were more evenly divided: 43% male, and 57% female. I am pleased to report that, this summer, in collaboration with About half of the 126 homicides took the lives of a spouse or inti- the Maine State Bar Association, we will gather all of Maine’s state mate partner. 20% of the victims were children. court judges and many lawyers from all different practices to come o 26 children died as a result of domestic violence in together for this broader conversation about a more comprehensive that ten-year period. approach to reducing and eliminating domestic violence. o 14 of those children were only a year old or younger. And, this is what led me to ask for the analysis, far too many of I am also pleased that the Governor has agreed to come and help us the victims never sought help from the courts. kick off the conference and share some of his very personal history. o As far as we can tell, 75 of the 126 victims, just about 60%, did not have any meaningful contact with the Maine courts AND NOW I HAVE TWO REQUESTS. before they were killed. • In the specific case review, we also learned that, in important Clerks and Marshals bail review and sentencing proceedings, no criminal records checks First, as you may have heard me mention before, Maine’s trial judg- in Maine or nationally were requested by law enforcement. This es are among the lowest paid judges in the nation. practice left judges, attorneys, and advocates with serious gaps in critical information. But even more distressing is the fact that the pay scales of marshals, • In many instances, the applicable ODARA risk analysis, which clerks, and others in the Judicial Branch have not remained com- you mandated by law to be completed in particular crimes, was petitive either with other law enforcement agencies or with what never provided to the judge. the staff can make working other public sector jobs or the private sector. We no sooner train new clerks and marshals than we lose I understand that you have legislation before you this session in- them to other employers. tended to provide more thorough information to judges, and to Yet the clerks and the marshals are the unsung heroes of the Maine close some of these gaps. I encourage your thoughtful consider- Courts. We represent several choices in You may have noticed that I did not begin today’s presentation with my usual request for more marshal positions to help us reach Lawyers 100% entry screening. That is because the compensation situation is so bad that we struggle just to fill the existing marshal positions. Professional

We must adjust the compensation of court staff. Our recently Liability Insurance completed salary study confirmed that we have fallen significantly below market averages. Ted Glessner will shortly be discussing this problem with the Appropriations Committee. This is important. We need to act quickly to make Judicial Branch wages more com- petitive in order to attract and retain good employees.

Supreme Court Visits to Maine Schools My second request has no money involved. I am inviting you to invite the Supreme Judicial Court to come to a High School in your District to preside over real appellate arguments at the school.

Since 2005, at the request of Maine Legislators, the Maine SJC has traveled to 35 High Schools across the State to help Maine students get a close-up view of how an appellate court works. Last year, the Court traveled to and heard cases in Fort Kent, South Berwick, and East Machias, thanks to invitations from Representatives John Let us tip the scales Martin and Bobbie Beavers, and Senator David Burns. in your favor when it We have not yet created the schedule for the 2017 High School events. If you are interested, please find Mary Ann Lynch in the comes to product next week. selection, experience Thank you In closing, it has been a long day for many of you, and you have and service. been very patient with me.

I want to thank every one of you in this chamber today, who will spend hundreds of hours in this statehouse at great personal and financial sacrifice, before the work of the 128th Legislature is done.

Your work does make a difference.

Thank you for everything you do for the people of the State of Maine.

Call Jeff McDonnell, CPCU or Julie Clewley, LEIGH I. SAUFLEY is Chief Justice of the Professional Liability Program Administrator Maine Supreme Judicial Court. These remarks were delivered Feb. 16, 2017. today for all your Business, Personal, and Professional Insurance The Importance of Law Day and the 14th Amendment Lawyers, let’s share our passion for constitutional democracy

By Linda A. Klein

Here are four legal puzzlers: The first section of the 14th Amendment – the part that’s most often litigated – states: “All persons born or naturalized in the • An African American student wants to attend the same United States, and subject to the jurisdiction thereof, are citizens school as white children. Can she? of the United States and of the State wherein they reside. No State • A man is charged with burglary, but he can’t afford a shall make or enforce any law which shall abridge the privileges or lawyer. Should the state give him one for free? immunities of citizens of the United States; nor shall any State de- • Two men pass a worthless check and are convicted of prive any person of life, liberty, or property, without due process misdemeanors. Can the state take away their right to vote of law; nor deny to any person within its jurisdiction the equal because of those convictions? protection of the laws.” • Can states outlaw interracial marriage? “The reason we have the 14th Amendment,” said former U.S. The answers are obvious – now. But that’s only because we have Solicitor General Ted Olson, “is to provide the courts with the the 14th Amendment to the United States Constitution and near- opportunity to override the will of the people when the will of the ly 150 years of Supreme Court rulings interpreting it. people discriminates against a segment of our society.”

Most Americans have no idea what the 14th Amendment is or This year, we’re asking lawyers to join judges and teachers across how it affects their lives. But we do. And our job as lawyers is to the country to engage students, elected officials and community defend individuals’ rights under the Constitution and to explain leaders in Law Day discussions of the amendment’s significance. that great document to the public. There are many ways to celebrate Law Day. In Idaho, students are That’s the idea behind Law Day. Every year on May 1, lawyers creating podcasts. In Boston, lawyers are visiting classrooms. In across the country engage their communities and rally behind the Texas and North Carolina, students are writing editorials, snap- rule of law. This year, the theme of Law Day is The 14th Amend- ping photos and creating posters. ment: Transforming American Democracy – one of the most-litigated but least-known of all the constitutional amendments. And in Washington, the American Bar Association will sponsor two special events. On May 1, a scholarly panel, led by Jeffrey For more than a century, the 14th Amendment has been the legal Rosen, president of the National Constitution Center, will debate basis for many major Supreme Court decisions, including those the 14th Amendment’s role in transforming American democracy. that desegregated schools (Brown v. Board of Education) and en- The next day, 150 high school students from around the country sured counsel for criminal defendants (Gideon v. Wainwright). will discuss the ideas of equal protection, due process and liberty under the 14th Amendment. I will help lead the discussion. A Legacy in the Making.

Law Day dates back to the heart of the Cold War, nearly 60 years ago. In 1957, ABA Pres- ident Charles S. Rhyne watched reports of the Soviet Union’s annual May Day celebra- tion in Moscow’s Red Square, with its massive displays of military might. He thought that what made America great was its fidelity Kathryn Olmstead at the Nordic Ski Center in Presque Isle. Photo: Paul Cyr to the rule of law, not military power.

Rhyne asked President Dwight Eisenhower Kathryn Olmstead Names Her Passion: to issue the first Law Day proclamation, declaring that “guaranteed fundamental rights Winter Sports in The County of individuals under the law is the heart and As an avid cross-country skier, Kathryn Olmstead of Caribou sinew of our Nation.” It has been a presiden- loves to venture forth onto the trails at the Nordic Heritage Ski tial tradition ever since. Center every winter. Invited by MaineCF to consider creating a fund inspired by her Today, it often seems that we are a nation passion, Olmstead worked with foundation staff to establish the divided, but there is one thing that Repub- Aroostook Winter Sports Fund. It’s not a huge fund, but it serves licans, Democrats and Independents agree an admirable purpose: to support programs that promote healthy on: The American rule of law is the envy of winter sports activities. billions around the world. Olmstead’s philanthropy is focused on the future—and the great So on May 1, let’s celebrate and spread the outdoors of Aroostook County. word. The U.S. Constitution is America’s greatest creation. It is worth defending and teaching, on May 1 and every day. Helping donors help Maine.

LINDA KLEIN is president of the American Bar Association. She is thesenior managing shareholder at Baker Donelson Bearman Caldwell & Berkowitz. She lives and works Contact: Jennifer Richard, Director, Gift Planning in Atlanta and became the first [email protected] www.mainecf.org 877-700-6800 woman president of the State Bar of Georgia in 1997. 30 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017

PERSPECTIVES By Jonathan Mermin Three Ways of Looking at a President

Some people are not as alarmed about Donald Trump being Humphrey lost to Nixon, Ford lost to Carter, or Bush lost to president as I think they should be. I’m not talking here about Gore, and winning the electoral college by a narrower margin Trump’s policies, but what seems to be his tenuous commitment than four of the previous five presidents. Or insisted that three to basic democratic norms that previous presidents have, for the to five million people had voted illegally in the 2016 election, most part, observed and respected. yet another obvious falsehood.5 Or made the bizarre (to anyone Three aspects of Trump’s behavior suggest that he may have who has ever watched CNN) assertion that acts of terrorism authoritarian tendencies that are in tension with fundamental are “not even being reported,” because “the very, very dishonest principles of our democratic order. The first is Trump’s persistent press doesn’t want to report it.”6 Trump also traffics in debunked blurring of the line between fact and argument. The second conspiracy theories (vaccines cause autism, climate change is a is his rejection of the principle that people who serve in a hoax, Obama was born in Kenya). He even made false statements representative capacity should avoid conflicts of interest. And the about whether it rained on his inaugural address and the size of third is his evident disdain for key democratic institutions like an the crowd.7 independent judiciary and a free press. To be fair, it is unclear whether Trump says these things because I could be reading too much into Trump’s blunt statements and he is dishonest or because he believes things that are not true; unvarnished governing style. Or—if we take the president at his that is a topic for the journal of a different profession. But either unconventional word—I could be onto something important that way, lawyers should take note. We do have our own reputation should be of particular interest and concern to lawyers. for . . . well, being lawyers. But while we spin and sculpt the facts within the boundaries of plausible interpretation, if our client Facts and Argument says the light was red, we don’t tell them to say it was green. The Lawyers understand that there is a categorical difference between legal system as we know it would cease to function if lawyers facts and argument. Facts are what happened; argument is what decided that instead of ascertaining the actual facts and building you make of it. Lawyers are so intent on separating out facts and arguments around them, we could just conjure up alternative argument that we divide many of our documents into “Facts” and facts more to our liking. Litigation would devolve into a contest “Argument” sections. over who could tell the most convincing story; whether or not it Politicians are less formal about it, but recognize the same was true would cease to matter. distinction. In politics as in law, you emphasize the facts that We take it for granted, but the rule of law—as a mechanism for support your argument and downplay or explain away the ones the fair resolution of disputes—depends on the separation of fact that don’t. If the facts on a particular issue are unhelpful, you and argument. So too does democracy. Each requires a measure of make the best of them and try to change the subject. What you agreement on the basic facts, and an understanding that despite should not do is simply discard facts that fail to advance your partisan differences, arguments must be tethered, at least to some argument and invent new ones. significant degree, to reality. President Trump takes a different view of facts. Instead of In law, making up facts to suit the needs of your case is a adhering to the traditional practice of engaging with the external violation of the bar rules. In politics, making up facts to suit the world as others perceive it, Trump offers what a top advisor has needs of the leader is a characteristic of authoritarian regimes. described as “alternative facts.”1 Like the time he declared that “there are 96 million [people] wanting a job and they can’t get Conflicts of Interest [one],”2 when the actual number (people the government counts Lawyers understand the importance of avoiding conflicts of as unemployed) is under 6 million. Or the time he claimed that interest. You can’t credibly represent one client if you have a “we have the highest murder rate in this country in 45 years,”3 financial incentive to advance the interests of another client, or when the murder rate is near a 45-year low. Or announced that your own interests, at their expense. It has long been assumed that he had won a “massive landslide victory,”4 despite losing the the same principle applies to the presidency. Modern presidents popular vote by a wider margin than Nixon lost to Kennedy, have put their assets into blind trusts to address concern that MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 31

PERSPECTIVES By Jonathan Mermin

decisions they make on behalf of the American people could be As the deans of the Harvard and Yale law schools have written influenced by their personal financial interests. in reaction to the “so-called judge” incident: President Trump, however, continues to own a global business The craft and professional culture of law is what makes that is poised to profit from decisions he makes as president—a politics possible; it is what keeps politics from spiraling problem made worse by his refusal to produce his tax returns, into endless violence. By questioning the legitimacy and leaving the public with no idea if the president has undisclosed authority of judges, Trump seems perilously close to conflicts on top of the ones we know about. Imagine if, during his characterizing the law as simply one more enemy to be presidency, Barack Obama had opened a chain of hotels and other smashed into submission. At risk are the legal practices and businesses in Washington and around the world in order to enrich protections that guard our freedom and our safety from the himself. It sounds unthinkable, for obvious reasons—yet that is mob violence that destroyed democracies in the 1930s.12 the situation Trump has created. Even Trump’s own nominee for the Supreme Court, Judge Neil The general public may not be clear on why Trump’s conflicts Gorsuch, described his attacks on the judiciary as “disheartening” of interest are a problem, but lawyers should be. We see the and “demoralizing.”13 As the president of the American Bar error in Trump saying “the president can’t have a conflict of Association put the point, “there are no ‘so-called judges’ in interest”8—that while it may not be illegal for the president to America.”14 That is something the president of the United States have a conflict of interest, that doesn’t mean he doesn’t have one. should understand. And we understand that it is fair to question actions taken by a It is of course possible that Trump, who is quick to respond president who is trying to make money for his private business to criticism with insults—recall “Crooked Hillary,” “Little at the same time as he is making foreign and domestic policy Marco,” and “Lyin’ Ted”—is simply engaging in his default style for the United States. Lawyers realize it is no solution to the of political combat, not making a point about the separation of conflict-of-interest problem for the president to announce that powers. (Trump is no expert on how the judicial branch fits into he is letting his children run a business he continues to own. The the constitutional scheme, having inscrutably observed during use of the position of head of state to enrich the leader is another the campaign that while Senator Ted Cruz had criticized Trump’s characteristic of authoritarian regimes. sister—a federal appellate judge—“for signing a certain bill,” Conflicts of interest are a subject squarely within the legal Supreme Court Justice Samuel Alito had also “signed that bill.”15) profession’s expertise. If others don’t see the problem, we should But the president’s words matter, and dismissing a judge who explain it. rules against him as a “so-called judge,” and preemptively blaming the next terrorist attack on the “court system,” are steps down a Democratic Institutions road that leads to a dark place. The American president has great power, but within limits. Trump has also questioned the legitimacy of the press. President Trump displays an unnerving lack of understanding of Presidents are often at odds with the media—as they should be, two of the institutional limits on his power. if journalists are doing their job. But it is not normal for the The first is the federal judiciary, which has the power to president to describe the press as “the FAKE NEWS MEDIA” 16 review presidential actions. Presidents are free to express or “the enemy of the American People!” As the New York Times their disagreement with court decisions, and often do so. But reported, the phrase “enemy of the people” was “too toxic even for Trump has gone beyond that, to the point of questioning the [Soviet leader] Nikita Khrushchev,” who denounced it in a 1956 17 institutional legitimacy of the “so-called judge” who struck speech due to its association with the Stalin regime. down his executive order on Syrian refugees and citizens of seven Perhaps Trump just doesn’t understand the importance of a free predominantly Muslim countries,”9 and then declaring that “[i]f and independent press to a democracy. Or he could be playing something happens” (a terrorist attack) “blame him [the “so-called a dangerous game of discrediting the press to undermine its judge”] and court system.”10 This is not the first time Trump has effectiveness as a check on his power. Either way, Trump’s attacks questioned, not just the correctness of an adverse court decision, on the media add to the concern of critics who see, in his method but the legitimacy of a court that ruled against him; recall his of governing, authoritarian tendencies. insistence that an Indiana-born federal judge of Mexican descent It has been written in this journal that, “[a]s overseers and should not be presiding over his civil fraud trial because “he’s a advocates of the pursuit and maintenance of freedom, exercise of Mexican,” and “we’re building a wall.”11 democracy, and application of the rule of law, our profession plays 32 MAINE BAR JOURNAL | VOLUME 1, WINTER 2017 a valuable role in ensuring that these ideals last at least another Washington Post, Feb. 8, 2017. 4 800 years.”18 President Trump may or may not intend to move “There’s no problem with the size of Donald Trump’s mandate, believe me,” Washington Post, Dec. 12, 2016. the United States in an authoritarian direction; he seems most 5 “Trump Repeats Lie About Popular Vote in Meeting With Lawmakers,” interested in simply being liked. But what matters are actions, not New York Times, Jan. 23, 2017. intentions. Like the press, lawyers should act as watchdogs and 6 “Fact check: Trump’s unsupported claim that terrorist acts ignored sound the alarm when the president of the United States violates by media,” Chicago Tribune, Feb. 6, 2017. He added (to his military democratic norms. audience) the strange and sinister insinuation: “They have their reasons, and you understand that.” JONATHAN MERMIN is Of Counsel at Preti Flaherty. 7 “Trump, in CIA visit, attacks media for coverage of his inaugural He can be reached at [email protected]. crowds,” Washington Post, Jan. 21, 2017. 8 “Trump’s claim that ‘the president can’t have a conflict of interest,’” Washington Post, Nov. 23, 2016. 9 @realDonaldTrump, February 4, 2017. 10 @realDonaldTrump, February 5, 2017. 11 “Trump calls American-born judge ‘a Mexican,’ points out ‘my African American’ at a rally,” Washington Post, June 3, 2016. Disclaimer: The opinions expressed in this column are those of the 12 Martha Minow and Robert Post, “Standing up for the ‘so-called’ law,” author and do not reflect any position, opinion, or policy of the Boston Globe, Feb. 10, 2017. Maine State Bar Association. Readers are invited to send letters to the 13 “Supreme Court nominee Gorsuch says Trump’s attacks on judiciary editor c/o Kathryn Holub at [email protected]. are ‘demoralizing,’” Washington Post, Feb. 9, 2016. 14 “Judicial independence ‘not up for negotiation,’ ABA president says in 1 “‘Alternative Facts’ and the Costs of Trump-Branded Reality,” New York speech addressing Trump tweets,” ABA Journal, Feb. 6, 2017. Times, Jan. 22, 2017. 15 “Trump talks about judges ‘signing bills,’” Daily Caller, Feb. 26, 2016. 2 “Donald Trump Says ‘96 Million’ Are Looking for Work,” The Atlantic, 16 @realDonaldTrump, February 17, 2017. Jan. 12, 2017. 17 “Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught 3 “Trump’s false claim that the murder rate is the ‘highest it’s been in History,” New York Times, Feb. 26, 2017. 45 years,’” Washington Post, Nov. 3, 2016; see also “Trump incorrectly 18 David Levesque, “President’s Page,” 30 Me. Bar. J. 4 (2015). says ‘the murder rate in our country is the highest it’s been in 47 years,’” Supporting and Advising Small and Mid-Sized Firms Your Time Might Be Now

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ToTo learn more, more, call call Angela Peter Weston DeTroy, at Esq., 1891-2016 Silent207-622-7523 Partners or email Assistance [email protected]. Coordinator, Celebrating 125 Years at 207-774-7000. NEW LAWYERS SECTION REPORT By Stan Tupper

This past October saw the early departure of Chairperson Tara the NLS at the Preble Street shelter, here in Portland. Ten or so Rich. That was a wrenching loss, as Tara was all-but-superhu- members of the New Lawyers Section arrived to prepare din- man in regard to how much she got done, and how she invigo- ner, serve dinner, and clean up after dinner. It was humbling rated the New Lawyers Section. Tara left Maine to travel west; and perspective-giving, and fun all at the same time. Also in she went all the way west, and a good bit of north, where she February, Jeffrey Russell, in association with PWMG 401(k) took a position as the Legal and Policy Director at the Ameri- Advisors, put together a social event at Liquid Riot Bottling can Civil Liberties Union of Alaska. It was a homecoming for Company. The event was free to attend, featured an open bar Tara; she grew up in Cooper Landing, Alaska. and great appetizers, and despite a howling winter storm, was In November, the New Lawyers Section put together a Pro very well attended. Bono Gala. Kaitlin Roy, Jeffrey Russell, Caroline Jova, and The annual Lawyers in Libraries event will take place May Ali Tozier did the heavy lifting, and the event was generously 1. The NLS has taken the reins of this program, and will work hosted by Preti Flaherty. Well over a hundred people attended, to pair up as many volunteer lawyers with libraries as is possi- as well as organizations like Conservation Law Foundation, ble. If you would like to be involved, contact Stan Tupper at Institute for Restorative Justice, Campaign for Justice, Maine [email protected] or visit the Lawyers in Libraries Equal Justice Partners, GLBTQ Legal Advocates & Defenders, Facebook page here: https://www.facebook.com/lawyersinli- and Disability Rights Maine. Local businesses and law firms braries or the Lawyers in Libraries website here: http://law- donated terrific prizes that were raffled off. yersinlibraries.org/. Jeff, Kaitlin, Caroline, and Ali did it again in December with a super festive holiday party at Grace in Portland. Again, STAN TUPPER earned his law degree from the University the event was very well attended, and again, Jeff and his crack of Maine School of Law in 2014 and was honored to deliver team of organizers, Ali and Caroline, put together a great so- the valedictory address to the Class of 2014. At Maine Law cial event that went beyond fun; these get-togethers are one of he participated in the Moot Court team and traveled to New the best ways to meet your friends and colleagues. Orleans for the Judge John R. Brown Moot Court competi- January was quiet, and contemplative, and cold. Members tion. He also spent a semester at City University of Hong of the New Lawyers Section worked on editing the “On Your Kong, where he developed contacts and relationships with Own” publication and geared up to offer presentations and key players in the international trade community. Before law school, Stan had years brown bag lunch events. In February, the NLS called for nom- of experience running a slip-cast ceramics production business, and he worked as a inations to elect a board of up to 12 directors and a new chairperson-elect, treasurer, and secretary. The elections were sched- general contractor for several decades. Stan has also built boats, a wooden car, and uled for March 15, at the annual meeting of the New Lawyers an experimental aircraft. He is a licensed pilot with a seaplane rating. Now he is a Section, at the University of Maine School of Law. partner at Frederick, Quinlan & Tupper, LLC on Exchange Street in Portland. He can In February, Mike Devine put together a volunteer day for be reached at [email protected].

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NEW LAWYERS SECTION REPORT By Stan Tupper RES IPSA LOQUITUR By Nancy A. Wanderer

Textual Citations v. Footnotes: The Great Debate

As political news and controversy swirl around us, I am filled the parties’ respective arguments,” he announced that “[f]uture with excitement that is clouded over with dread. Without re- noncompliant filings will be stricken without prior notice.”5 vealing my political leanings, which most people already know, I can tell you that I am experiencing some sleepless nights, Long-Running Citation Debate wondering whether our country is on a path to renewed hope Judge Bredar’s pronouncement was simply the latest chapter and prosperity or the alternative. in a long-running debate over the proper place to locate legal When I can’t sleep, I try to concentrate on something sooth- citations. For years, Bryan Garner and the late Supreme Court ing and reassuring. Last night, I silently sang the two verses of Justice Antonin Scalia have “sparred over footnotes.”6 the Wellesley College Alma Mater over and over in my mind. In 1992, Garner “recommended putting all bibliographic I felt comforted that I could remember every word after more material (volume numbers and page numbers) in footnotes,” than 50 years. When sleep continues to elude me, even after but not substantive text.7 Under this system of subordinating I have focused on comforting thoughts, I think about some- citations to footnotes, readers would never have to look down thing boring like the Rule Against Perpetuities. Sometimes, at the footnotes because they would not find anything signifi- even that is not enough to banish my anxiety about the state of cant there; the important authorities would have been named our country and the world. and discussed in the text.8 He admits, however, that sometimes Today, as I contemplate the latest news from Washington, I lawyers “‘abuse’” single-spaced footnotes “‘to get around page find myself pondering what legal writing guru Bryan Garner limits.’”9 has called the “single most controversial issue in legal writing”: Justice Scalia, however, disapproved of Garner’s approach.10 1 the “footnote/citation debate.” Thinking about whether cita- He did not think that placing case citations in footnotes tions should be placed in citation sentences within the text of a would make a brief or opinion more readable “because the memo, brief, or opinion, as tradition requires, or in footnotes, careful lawyer wants to know, while reading along, what the as Garner advocates, provides an excellent distraction from my authority is for what you say.”11 So, rather than making a text worries about weightier issues like immigration reform, in- more readable, putting citations in footnotes would force the come inequality, and United States-Russian relations. reader’s eyes to bounce back and forth repeatedly from text to footnote, 12 in an unhelpful way. He disliked Garner’s idea of Citation in the News including the names of cases and courts in the text, arguing Although media outlets have not covered this big citation con- that this practice places too much emphasis on the cases, and troversy as enthusiastically as it has covered Donald Trump’s not enough on the court’s reasoning.13 In addition, Scalia promise to build a Great Wall or Bernie Sanders’s Political emphasized that lawyers and judges are used to skipping over Revolution, Debra Cassens Weiss of the ABA Journal online citations and generally do not find them distracting.14 did publish an exciting story about a federal judge threatening The biggest reason Scalia rejected the suggestion to put all to toss the pleadings of attorneys who placed citations in foot- citations in footnotes, however, is simply that “it is novel.”15 notes, rather in the text of their pleadings.2 According to Scalia, “[j]udges are uncomfortable with change, According to Weiss, United States District Judge James Bre- and it is a sure thing that some crabby judges will dislike this dar of Maryland issued that threat to lawyers appearing before one. You should no more try to convert the court to cita- him, who had failed to follow both Bluebook and local court tion-free text at your client’s expense than you should try to rules by placing their citations in footnotes.3 The lawyers in the convert it to colorful ties or casual-Friday attire at oral argu- case had repeatedly submitted motions “smothered with foot- ment.”16 noted citations,” prompting Judge Bredar to call a halt to the Scalia made an alternative suggestion that any legal reader practice.4 Writing that “the parties’ motions employed a meth- would gratefully embrace: “avoiding, wherever possible, the od of citation of authorities that is not only incompatible with insertion of lengthy citations in the middle of a sentence. That the rules but also a hindrance to the Court’s consideration of is easy to achieve, and certain not to offend.”17 The View From the Maine Bench out which approach the court prefers and use it. To do other- As a commentator on Maine legal writing and citation, I wise, regardless of your own personal preference, would be a naturally turned to the Maine Supreme Judicial Court to see disservice to your clients. whether it has an opinion on the citation/footnote controversy. Disclaimer: The opinions expressed in this column are those of the I put the question to Associate Justice Donald G. Alexander, author and do not reflect any position, opinion, or policy of the long an authority on Maine citation, and Chief Justice Leigh I. Maine State Bar Association. Saufley, our judicial leader. Chief Justice Saufley told me that the Law Court had not yet taken an official position on this NANCY A. WANDERER is Legal Writing Professor controversy, but said she would raise the issue and let me know Emerita at the University of Maine School of Law. For de- if there is a clear direction in the Court’s future. cades, she has overseen the updating of Uniform Maine Although the Court has no official or uniform position, Jus- Citations, and her articles on proper citation, email-writing, tice Alexander did express his personal preference for citations and judicial opinion-writing have appeared in the Maine to be included in the text of a document rather than in a foot- Bar Journal, the Maine Law Review, and the National As- note that might not even be on the same page as the text or in sociation of State Judicial Educators News Quarterly. Off an endnote that could be many pages away. He prefers reading documents in electronic format where he can click on the cita- and Running: A Practical Guide to Legal Research, Analysis, and Writing, co-au- tion if it is within the text and instantly bring the authority up thored with Prof. Angela C. Arey, is being used as a textbook in first-year legal writing for review. He pointed out that not having citations within the classes. Nancy may be reached at [email protected]. text in law review articles makes them more difficult to read, especially when someone is trying to decipher footnotes using 1 Jacob Gershman, Judge Commands Lawyers to Quit Using Footnotes, “infra,” “supra,” and “id.,” which point the reader to earlier Law Blog, The Wall Street Journal, (Aug. 31, 2016, 1:48 PM ET), http:// footnotes that may be difficult to find. Having to engage in blogs.wsj.com/law/2016/08/31/judge-commands-lawyers-to-quit-us- that kind of citation treasure hunt was definitely not some- ing-footnotes/. 2 thing Justice Alexander wanted to do while reading briefs or Debra Cassens Weiss, Federal Judge Issues Footnote Warning, Threatens to Toss Pleadings Using Wrong Format, ABA judicial opinions. (Sep. 1, 2016, 8:00 AM CDT), Journal, http://www.abajournal.com/news/article/federal_judge_is- sues_footnote_warning_threatens_to_toss_pleadings-using_wro/. The Winner 3 Id. 4 Gershman, supra note 1. The citation/footnote controversy is likely to rage on. Just as 5 Id. the polls signal how voters might lean, tallies of courts adopt- 6 Id. ing Garner’s footnote suggestion may give us an indication of 7 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of what the future will bring. Persuading Judges 132 (2008). According to Garner, by 2014, a minority of courts had 8 Id. (providing the following example: “‘Three years ago in Flom v. adopted his proposal, including courts in Alaska, Delaware, Baumgartner, this Court held that . . .’”). 9 Gershman, supra note 1. Georgia, Louisiana, Michigan, Nevada, Ohio, Texas, and 10 Scalia & Garner, supra note 7, at 133. 18 Washington. Whether other courts, including the courts in 11 Id. at 134. our own state of Maine will follow his suggestion remains to 12 Id. be seen. In the meantime, I will express my own opinion on 13 Id. 14 the subject. For perhaps the only time during Justice Scalia’s Id. 15 Id. tenure on the Supreme Court, I agree with his judgment. As a 16 Id. at 135. former law clerk, lawyer, and legal writing professor, I believe 17 Id. legal readers are better served by having citations to authority 18 Bryan A. Garner, Textual Citations Make Legal Writing Onerous, for in close proximity to the propositions they support. Legal pro- Lawyers and Nonlawyers Alike, (Feb. 1, 2014, 9:00 AM CST), http:// fessionals are accustomed to reading citations in the text and www.abajournal.com/magazine/article/textual_citations_make_le- gal_writing_onerous_for_lawyers look for them there. To hide them in footnotes makes finding _and nonlawyers/. 19 Only when separate parts of a sentence require citations to different them more difficult. authorities should more than one citation be embedded in a sentence. Furthermore, like Justice Scalia, I believe that citations When that situation occurs, the citations should be set apart within the should come at the end of sentences, not at the beginning or sentence with commas. No citation should appear after the period at in the middle, unless absolutely necessary to avoid confusion.19 the end of the sentence unless that citation refers to the entire sentence, Putting them at the beginning places undue emphasis on case which is unlikely to be the case. Here is an example of a sentence that contains two citations to authority: Although several judges and lawyers names. Putting them in the middle makes a sentence difficult have adopted Garner’s suggestion, Bryan A. Garner, Legal Writing in to read. Putting them at the end, after the period at the end Plain English 249 (2001), Justice Antonin Scalia rejects it, Antonin Sca- of the sentence, is the best practice by far. Ultimately, as the lia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges lawyers in Judge Bredar’s courtroom discovered, you must find 133 (2008). We represent several choices in Lawyers Professional NALS Liability Insurance of Maine TRADEMARK B & B COPYRIGHT Legal support staff training Low-Cost Effective Ethics Rufus E. Brown, Esq. Time Management Substantive Legal Issues Latest in Technology

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250 maine bar journal | FALL 2015 SUPREME QUOTES By Evan J. Roth

Captain Renault [Claud Rains]: What in heaven’s name brought you to Casablanca? Rick [Humphrey Bogart]: My health. I came to Casablanca for the waters. Captain Renault: The waters? What waters? We’re in the desert. Rick: I was misinformed.

Rapanos v. United States, 547 U.S. 715, 727 n.2 (Scalia, J.) In 1989, John Rapanos wanted to build a shopping center on his (quoting Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1117 230-acre Michigan property, so he backfilled the wetland areas. (9th Cir. 2005) (quoting the movie Casablanca, Warner Bros. The water-saturated land was relatively distant from any signifi- 1942)). cant waterway: it drained to the so-called Hoppler Drain, which ran to the Hoppler Creek, which flowed to the navigable Kawka- lin River, which was 11 miles away.

When federal officials insisted Rapanos needed a Clean Water Act permit, he refused to apply. When federal inspectors attempted a site visit, Rapanos blocked them. When federal regulators issued “cease and desist” letters, Rapanos ignored them.

The federal government sued and asserted Clean Water Act jurisdiction on the grounds that Rapanos’s wetlands fell within the statutory definition of “waters of the United States.” The lower courts agreed and upheld Clean Water Act jurisdiction.

The Supreme Court vacated and remanded. In a plurality decision, Justice Scalia criticized the long history of lower court decisions upholding the federal government’s “sweeping asser- tions of jurisdiction over ephemeral channels and drains.” In one case – which Justice Scalia singled out as the “most implausibl[e] of all” – a court allowed federal enforcement over an arroyo in the middle of the desert where water only ran during “periods of heavy rain.” For Justice Scalia, the absurdity of finding the “waters of the United States” in a desert was reminiscent of the famous Casablanca movie lines, quoted above.

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MSBE CLE CALENDAR Please visit www.mainebar.org for the most current CLE schedule.

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