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Cameras in Maine\u27s Courts: Has the Time Come? Will it Ever?
Get PDFShould television cameras be allowed in Maine\u27s courtrooms? The answer to this question implicates policies involving the rights of parties, witnesses, the media, and the public. Nearly ten years ago, the Supreme Court ruled conclusively that there is no constitutional impediment to allowing television coverage of trials in state courts. Since then, the majority of states have promulgated rules, with greater or lesser degrees of restriction, allowing television coverage of proceedings in their courts. This trend has not abated; with the adoption of audio-visual coverage rules by the Vermont Supreme Court in 1989, Maine is now the only New England state which does not allow camera coverage of trial proceedings. New Hampshire has allowed cameras into its courts since 1978, Massachusetts since 1983. Maine television news viewers for several years have watched network and cable broadcasts of in-court coverage of trial court proceedings in other states, including the Big Dan\u27s rape trial in Massachusetts, the Richard Ramirez Night Stalker trial in California, and the Joel Steinberg child murder and William Hurt common law marriage trials in New York. In addition, several states have conducted extensive studies evaluating the effects of their allowance of courtroom television coverage on judges, parties, attorneys, witnesses, and jurors. In past statements regarding its refusal to allow news cameras into Maine\u27s trial courts, the Supreme Judicial Court has identified several specific concerns. While these concerns will be addressed in detail in this Comment, it is fair to say that among many judges and lawyers, there is a visceral reaction against the notion of cameras in the courtroom, based upon what Justice Douglas called, a deep instinctive impulse to make the court room sacrosanct—to keep it a place of dignity where the quest for truth goes on quietly and without fanfare and where utmost precautions are taken to keep all extraneous influences from making themselves felt.” But is the public better served by this prohibition on television coverage of courtroom proceedings? Maine\u27s television stations cover major civil and criminal trials—their reporters attend proceedings, and in criminal trials their reports are accompanied by video of defendants photographed in shackles entering and leaving the courthouse. In prominent trials newspaper, radio, and television reporters may fill the benches, scratching at notebooks, while sketch artists employed by television stations furiously choose and apply colored crayons to large sketchpads in plain view of the jury and witnesses. Defendants, witnesses, jurors, attorneys, and judges may all be photographed and filmed entering and leaving the courthouse
Expanding Public Access by Codifying the Public Trust Doctrine: The Massachusetts Experience
Get PDFThe Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public\u27s interest is subservient to private property interests. To others, including the Maine Supreme Judicial Court majority, Massachusetts case law walks a well-reasoned path between private property rights and public access. But the Massachusetts case law relied on in Bell tells only half the story of the legal status of public access to the coast of Massachusetts
Federal Nuclear Policy and the 1987 Maine Nuclear Referendum: Viable Initiative or Legal Cul-de-Sac?
Get PDFOn November 3, 1987, Maine voters once again rejected a proposal which would have forced closure of the Maine Yankee nuclear power plant, the state\u27s only nuclear utility. The vote was the most recent in a series of attempts to close the plant, utilizing the vehicle of popular referendum. This latest initiative was in large part a consequence of intense public outcry against the possible location of a permanent nuclear waste repository in the state. It is therefore uniquely and personally linked to current passions concerning the future of nuclear electrical generation in the nation. The previous referenda to close the plant were rejected by substantial margins, and the margin of decision this time around was once again lopsided. The vote was decisive, but three such referenda demonstrate the determination of antinuclear activists in Maine. It is entirely possible that the issue might come up again. The purpose of this Comment is threefold. First, this Comment will briefly examine the history of nuclear regulation in the United States. This history is clouded by confusion and uncertainty concerning the boundaries between federal and state control of nuclear industry. This unique but tortured saga continues with no final resolution in view. Any assessment of America\u27s nuclear future must be firmly grounded in a basic understanding of the various forces that have shaped the nuclear past. Second, this Comment will utilize prophetic hindsight to analyze the 1987 Maine Nuclear Referendum. The purpose of this analysis is to determine whether the initiative would have survived federal preemption if passed. This Comment concludes that the 1987 referendum would have had little hope of surviving a preemption challenge. Though it rests upon informed speculation, such analysis will give future referendum proponents pause before they begin their labors. Finally, this Comment proposes a model statute for future referendum approval. Though it is probable that any legislation enacted to close an operating nuclear utility would have little chance of survival, there are ways to better the odds. This Comment discusses some of those ways
Maine Recognizes the Independent Tort of Negligent Infliction of Emotional Distress: Gammon v. Osteopathic Hospital
Get PDFGerald Gammon opened his deceased father\u27s hospital bag, expecting to find his personal effects. Instead, he discovered a bloodied leg, severed below the knee and bluish in color. Recoiling in horror, he yelled, Oh my God, they have taken my father\u27s leg off.” His aunt later recalled at trial that he was as white as a ghost and she thought he was going to have a heart attack. Gerald received a call on November 7, 1982, from the Osteopathic Hospital of Maine informing him that his father, Linwood Gammon, had succumbed to cancer that morning. A funeral home employee picked up the body and two bags purportedly containing the personal effects of the deceased from the hospital morgue. One of the bags, however, actually contained a pathology specimen from another hospital patient, an unfortunate mistake which caused Gerald a great deal of emotional suffering. After this traumatic incident, Gerald began to awake at night shaking and crying from nightmares for the first time in his life. His personality changed for the worse as he became extremely withdrawn and irritable with his wife and children, to the point where his wife seriously considered divorce. Gerald was suffering from classic symptoms of traumatic neurosis : repetitive frightening dreams, reproducing directly or symbolically the traumatic incident . . . irritability, usually expressed at home, particularly regarding the children and their noise . . . [w]ithdrawal . . . most commonly expressed in loss of sexual interest, poor concentration and memory, avoidance of sexual contacts, [and] intolerance of discussing symptoms or the traumatic event. At trial, Gerald\u27s claim for negligent infliction of severe emotional distress against the hospital and funeral home resulted in a directed verdict for the defendants. The trial court allowed his claim of intentional infliction of emotional distress to go to the jury, which found that, although Gerald had suffered severe emotional distress, it was not proximately caused by the intentional or reckless conduct of the defendants. The directed verdict left Gerald Gammon without redress for a wrong done to him by the defendants\u27 negligence. Gammon appealed and the Supreme Judicial Court of Maine, sitting as the Law Court, vacated the directed verdict on the claim of negligent infliction of emotional distress, and held that the plaintiff had established a claim despite his failure to allege either physical consequences of his emotional distress or an independent underlying tort. Gammon v. Osteopathic Hospital propels Maine once again to the forefront of a growing trend in this country to recognize and protect a person\u27s right to be free from negligently inflicted emotional distress. In the past two decades, the Law Court has been willing on occasion to accord the tort independent legal status. Recently, however, the court has retreated from this position by supporting the majority view which does not permit recovery for negligent infliction of emotional distress without certain accompanying circumstances. These circumstances usually involve either an underlying tort, some physical manifestation of the emotional distress, the plaintiff\u27s fear for his own safety under the zone of danger rule, or special factual situations involving either the negligent mishandling of the corpse of a plaintiff\u27s relative or the negligent transmission of a death message. Gammon removed these artificial barriers to recovery in a carefully reasoned opinion. This Note analyzes the Law Court\u27s reasoning and holding in Gammon as it affects the status of the tort of negligent infliction of emotional distress in Maine. Through an analysis of case law in Maine and other jurisdictions, the Note concludes that, although Gammon provides some welcome relief from prior uncertainty surrounding the tort, the opinion leaves both the elements and outer bounds of the tort in an ambiguous state
When the Bank Wants Its Borrower in Bankruptcy: Benefits of Bankruptcy for Lenders and Lender Liability Defendants
Get PDFBankruptcy features such as the automatic stay and the avoidance powers have traditionally caused lenders to look with disfavor upon the commencement by a borrower of a case under the Bankruptcy Code and have caused lenders to consider only as a last resort the alternative of exercising their right to commence an involuntary bankruptcy against a borrower. Yet circumstances exist where lenders might obtain substantial benefits and advantages from dealing with a problem loan in the context of a borrower\u27s bankruptcy case, particularly in light of the increasing number of lender liability lawsuits that have been initiated during the past few years. As a result of various provisions of the Bankruptcy Code and the nature and dynamics of the bankruptcy process itself, a lender can obtain significant control over its borrower\u27s affairs; receive substantial protection for its collateral; eliminate interests of unreasonable, uncooperative, or dissident third-parties; compromise claims of the borrower and the borrower\u27s creditors; sell assets of the borrower; significantly increase its ability to collect its loans; and achieve other substantial benefits and advantages. Many of these benefits might enable a successful workout to occur whereas, outside bankruptcy, a workout would be impossible. And, in the context of a bankruptcy case, it is possible to obtain such benefits and advantages with significantly less risk that efforts to obtain control, protect its collateral, and collect the loan may result in a lender liability claim. Further, bankruptcy court provides perhaps the most favorable forum in which a lender might settle or litigate claims that the borrower or a third-party, such as a creditor of the borrower, has asserted or threatened to assert against it and perhaps the most favorable forum in which to resolve disputes between the borrower and its creditors. This Article discusses the ways that a bankruptcy by or against a borrower can benefit the lender seeking to collect, work out, or foreclose a troubled loan or resolve a lender liability claim
Maine\u27s Unintentional Murder Statute: Depraved Indifference on Trial
Get PDFPerhaps nowhere in the law is the demand for reason and justice more compelling than in the penal law, and nowhere in the penal law is the need for fairness greater than in the law defining murder. The notion of fairness in Anglo-American criminal law is embodied in the concept of mens rea. For over three hundred years, the basic tenet of penal law has been that actus non facit reum, nisi mens sit rea. A mens rea element serves to define a crime in positive terms and also provides the basis for defenses that negate the subjective culpability element. Mens rea, in other words, is a shorthand statement[] for a cluster of concepts having to do with states of mind or their absence. This cluster of concepts is present, of course, in the law of homicide. Several legal scholars have found in the history of homicide law the emergence of the mental element as a factor of prime importance, the gradual freeing from criminal responsibility of those who killed without guilty intent, and the separation of different kinds of homicide into more and less serious offenses dependent upon the psychical element. To put the point figuratively, mens rea is the backbone of the criminal law, without which the body of the law, including homicide law, collapses. As part of the 1977 recodification of Maine criminal law, the Maine Legislature enacted a depraved indifference murder statute. Although the Legislature has amended the original statute, the substance of the provision remains intact. The Maine Criminal Code provides: A person is guilty of murder if . . . [h]e engages in conduct which manifests depraved indifference to the value of human life and which in fact causes the death of another human being . . . . The Legislature defined the crime in vague terms, and the Maine Supreme Judicial Court subsequently ruled that the crime of depraved indifference murder contains no subjective culpable state of mind requirement. Where a jury determines that an actor\u27s conduct was outrageous, revolting, brutal, or shocking and created a high degree of risk of death to the deceased victim, it may conclude without more that the defendant committed murder. The statute does not require the factfinder to infer from the actor\u27s behavior that he acted with any particular subjective state of mind. This Comment reviews the common law antecedents to depraved indifference murder and notes that common law history afforded ample reason for the Law Court to conclude that a subjective culpable state of mind is part of the definition of the crime. Moreover, an analysis of Maine\u27s murder law prior to the 1970\u27s reveals that Maine precedent did not mandate the court\u27s interpretation of the depraved indifference murder statute. Placing the unintentional murder statute in historical context reveals the complexities of homicide law that account for, but do not justify, the Law Court\u27s construction of the statute
Retroactive Application of Statutes: Protection of Reliance Interests
Get PDFCourts commonly use the term retroactive in two senses. On the one hand, it refers broadly to the fact that all new laws to some extent apply to a state of affairs created by past events. The term, on the other hand, embodies a time-honored historical antipathy to laws that disrupt settled expectations. The common law upholds the principle that the citizenry should be able to make everyday decisions with reasonable certainty of the legal consequences of their actions. This principle is based on fundamental notions of fairness and justice. It is well established, however, that the legislature may enact a statute to have retroactive effect. Consistent with the common law antipathy, courts traditionally interpret statutes to apply prospectively absent clear indication of legislative intent to the contrary. The Law Court has recently utilized two different methods for interpreting statutes with retroactive implications. General legislative intent analysis involves consultation of a wide variety of statutory materials in order to ascertain legislative intent as to retroactive application. Definitional analysis, on the other hand, classifies a statute as either substantive or procedural. A statute deemed to affect substantive rights requires prospective application in the absence of clear legislative intent to the contrary. A recent opinion of the Maine Supreme Judicial Court, sitting as the Law Court, provides an occasion for assessing the adequacy of these two methods. In Bernier v. Raymark Industries, the Law Court resolved a question certified by the District Court for the District of Maine as to whether the strict products liability statute applied where the harm-causing event occurred prior to the effective date of the statute. The statute provides in part that a seller of goods or products in a defective condition unreasonably dangerous to the user is subject to liability for physical harm thereby caused despite all possible care in the preparation and sale of his products. The effective date provision of the Act further provides, This Act shall not be construed to affect any cause of action arising prior to the effective date of this Act. Plaintiffs, the estates of two deceased Bath Iron Works (BIW) employees, alleged strict products liability for wrongful death based upon the defendant asbestos manufacturer\u27s failure to provide labels on its asbestos products warning users of the health hazards posed by inhalation of asbestos dust. The defendant asserted that application of the strict liability statute to this case constituted an impermissible retroactive application of the statute because all harm-productive inhalations of asbestos dust from the defendant\u27s products occurred before the statute\u27s effective date of October 3, 1973
Implied Warranties of Seaworthiness: Applying the Knowing Neglect Standard in Time Hull Insurance Policies
Get PDFTime hull marine insurance policies provide insurance for a definite period against damage to or loss of a vessel. Even in cases in which a ship owner expressly warrants to an insurer that a vessel will be seaworthy when the policy takes effect, and unless the insurer waives all warranties, American admiralty law implies a warranty of seaworthiness as a condition of the contract. This implied warranty increases the insurer\u27s chance of recovering his premium by mitigating his risk that the vessel will be damaged or lost. Although American admiralty law strives to remain harmonious with English admiralty law, American courts have, in a rare departure from favored uniformity, deviated from the English rule for implied warranties of seaworthiness in time hull marine insurance policies. Under English law, an owner breaches the warranty only when he has actual knowledge that the vessel is unseaworthy when the ship breaks ground. Under American law, an owner warrants absolutely when the policy takes effect that his vessel is seaworthy and that he will not thereafter, through bad faith or neglect, knowingly permit the vessel to break ground in an unseaworthy condition. The problem with American law lies in understanding what constitutes a knowing neglect. Some American courts purport to require actual knowledge by the owner that the vessel is unseaworthy before denying recovery. Other courts, however, will charge a shipowner with constructive knowledge of an unseaworthy condition and deny coverage under a time hull policy on that basis. Because of the disparity in the holdings by federal courts, Maine courts remain free to fashion their own rule for implied warranties in time hull policies. Pursuant to the United States Supreme Court\u27s holding in Wilburn Boat Co. v. Fireman\u27s Fund Insurance Co., marine insurance contracts may be construed according to state law unless an established federal rule governs. This Note argues that there is no established federal rule governing implied warranties for time policies because the federal courts have not agreed on whether the knowing neglect of an owner may be established merely by constructive, rather than actual, knowledge of unseaworthy conditions. Therefore, Maine law may apply. The Maine courts, however, have not squarely decided whether knowing neglect of an unseaworthy condition arising after the policy attaches may be established merely by charging an owner removed from the actual operation of the ship with constructive knowledge. This Note contends that when confronted with the issue, Maine courts should not charge an absent owner with constructive knowledge of the unseaworthy conditions of his vessel. Rather, the courts should require a showing of the owner\u27s actual knowledge of unseaworthiness before precluding coverage under a time policy
State v. Harding: Municipal Police Authority and the Fresh Pursuit Statute
Get PDFAs early as 1551, during the reign of King Edward VI, courts held at common law that, except in cases of fresh pursuit, the power of a sheriff or justice of the peace does not extend beyond his jurisdiction. Recognizing the importance of jurisdictional boundaries as limits on a sheriff\u27s authority, the Barons of the Exchequer denounced the possibility of two several sheriffs in one same county, observing that in this realm there are divers authorities, and none may exceed his limits or bounds. Modern state statutes setting forth the powers of local police continue to limit the extra-jurisdictional authority of local law enforcement officers. Absent legal authorization to act outside his jurisdiction, a local police officer who has passed beyond his municipal boundary stands in the same position as a private citizen. In State v. Harding the Maine Supreme Judicial Court, sitting as the Law Court, expanded extra-jurisdictional municipal police authority through a broad reading of Maine\u27s fresh pursuit statute. The Harding court recognized the authority of a municipal police officer acting under the fresh pursuit law to conduct an extra-jurisdictional investigation for the purpose of obtaining probable cause needed to make an arrest. The court held that under Maine\u27s fresh pursuit statute, the officer\u27s authority to make the arrest could be measured at the moment of arrest and by the nature of the offense upon which the arrest was effected, regardless of the offense which the officer set out to investigate. The court expansively interpreted the fresh pursuit statute, failing to assess properly that statute\u27s relationship with other Maine law which strictly limits extra-jurisdictional municipal police authority. Denying Harding\u27s claim that the arrest was unlawful under the statute, the court reached a result at odds with prior Maine law and the legislative intent behind the fresh pursuit act
Prejudice and Promise in the Early Years of the Federal Judiciary
Get PDFPreserving the dignity of the human individual and protecting individual rights from the excesses of governmental power have been endemic problems for politically organized society in the western world for centuries. From antiquity and the early middle ages comes the thought that government became necessary because of he sinfulness or depravity of man. But it was not suggested that rulers should be all-powerful nor that the people who are governed should be entirely at the mercy of government. Indeed, our classic ideal of the democratic state first emerged in Greece, then briefly again in Rome, and later — but for short periods — in some portions of the modern world. History reveals various ways by which men have sought to accommodate the interests of the government and the governed, whether in the truly democratic state or in its various modern forms. Thus, in the Anglo-American world, few concepts have had more enduring force than the principle of a rule of law, first enunciated in modern legal form by Bracton in the Middle Ages. The King, he said, must not be under man but under God and under the law. Early in the 17th century, Chief Justice Coke repeated the principle in Latin to King James I of England: A king must rule [n]on sub homine sed sub Deo et lege — a declaration which is engraved in stone over the front entrance of the Harvard Law School