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Maine’s Chief Justice Asks Big Firm Associates to Take Appointed Cases.

Maine’s Chief Justice Asks Big Firm Associates to Take Appointed Cases.

Posted by Ed Folsom

August 29, 2023

On Thursday, August 24, 2023, Chief Justice Valerie Stanfill of the Maine Supreme Judicial Court (SJC) sent letters to seven large Maine Law firms asking them to encourage their attorneys to take appointed-counsel cases (story here). The letter was addressed to the managing partners of Pierce Atwood, Bernstein Shur, Preti Flaherty, Verrill, Norman Hanson & Detroy, and Drummond Woodsum, all in Portland, and Eaton Peabody in Bangor. C.J. Stanfill points out that, during the week before last, there were over 100 cases pending in Maine courts in which people were entitled to appointed counsel but the courts could not find lawyers to represent them.

The number of cases involving people entitled to appointed counsel rose 23% last year over the previous year. Meanwhile, the number of attorneys rostered by the Maine Commission on Indigent Legal Services (MCILS) to take appointed cases stood at only 212 in June. Only 165 were rostered to do trial-level work. The MCILS’s director of training and supervision recently reported that he needs 450 full-time rostered attorneys to handle the increased demand. Attorneys have not been signing-on to MCILS rosters despite a pay boost last winter that raised the hourly rate from $80.00 to $150.00.

In her letter to the law firms, C.J. Stanfill makes what she calls “a very specific request” (bold and italics in original) for firms employing associates who clerked for the SJC in the past 5 years to encourage them to sign up for child protective case appeals. She even included a list bearing the names of 26 such former clerks. As of August 24, the Law Court could not find lawyers to appoint in 9 pending child protective appeals. The letter points to the experience that the former clerks gained from reviewing pleadings, identifying issues, and writing bench memos in the 5-7 child protective appeals each of them dealt with while clerking.

Under MCILS competency standards, an attorney requesting to be rostered for child protective appeals is required to have handled 6 child protective cases to conclusion, to have received certain training, and to submit writing samples, references and an application to the MCILS. In her letter, CJ Stanfill states that she has asked the director of the MCILS to waive some of those requirements for the former clerks whose assistance she solicits. She believes that this particular group of lawyers can provide competent representation without the experience and training that the MCILS generally requires.

One particular portion of C.J. Stanfill’s letter really caught my attention. Here’s what she says about the nature of the work she asks the former clerks to sign up for:

“They are generally appeals from the termination of parental rights involving a review of factual findings for abuse of discretion. Almost all are heard on the briefs, and, frankly, most result in affirmances in a memorandum of decision.”

In the way of explanation, a “review of factual findings for abuse of discretion” is a review to determine whether the trial judge appropriately found facts, based on the evidence presented at the termination hearing, that meet the statutory requirements for the termination of parental rights. Being “heard on the briefs” means that the Court does not hold an oral argument where the lawyers argue their case and are quizzed on the issues by the panel of Justices. Instead, the Court decides the case solely on the basis of the briefs submitted by counsel and the record from the trial court. And, “result[ing] in affirmances in a memorandum of decision” (mem dec) means the court upholds the trial judge’s decision terminating parental rights in a 1-page (and maybe part of a second page), ruling that outlines in very general terms the issues that the appellate court batted down on the way to writing “Affirmed.” Mem dec decision are not published in the Atlantic Reporter like the rest of the Court’s opinions.

C.J. Stanfill’s letter is intended to persuade certain lawyers to sign up for the task. Yet every good lawyer I’ve ever known likes to win, and really doesn’t like losing. What enticement is it to ask big firm associates who bill at $500+/hr. to sign up to submit appellate briefs for a bunch of losing causes at $150.00/hr., knowing they won’t even be allowed oral argument and that the Law Court will summarily dispatch whatever issues they raise in an unpublished mem dec? But then, C.J. Stanfill’s letter is not addressed to the former clerks, themselves, but to the managing partners of their firms.

Maybe the passage quoted above was intended to assure firm management that not much is required, so there’s almost no way for their associates to screw up the job and for the firms to face blow-back. All the Court needs is lawyers who know how submit the proper paperwork, so the machinery can get on with the work of checking the box and closing the book on these cases. And who better to fill that role than a group of former clerks who not only have seen how the sausage is made but have already helped to make it?

This got me wondering. Does the Law Court ever actually overturn a trial court’s order terminating parental rights? I mean, given the de facto lay of the land, how much actually is required of appellate counsel beyond raising all the issues that are there to be raised, for the record, so the Law Court can summarily bat them down, check the box, and write “Affirmed” in a mem dec.

What I found is interesting. On the SJC’s website, the Court posts all the opinions it has issued since the beginning of 2017. It also posts a batch of recent memoranda of decisions, which, as of this past weekend, covered the period from April 26, 2023, to date. The Cleaves Law Library posts older mem decs through January of this year. So, there’s a gap in internet-accessible mem decs from the end of January to April 26 of this year. Apart from the mem decs in that small gap, I was able to review all the published opinions and mem decs from January 1, 2017 to date.

I counted 165 published opinions and 158 mem decs (C.J. Stanfill estimates 90 child protective appeals per year, but not all are from termination of parental rights orders, and she might also be counting each parent involved in a single case). Out of the 323 appeals from termination of parental rights cases in the period, only 1 granted relief to a parent. That was the 2021 case In Re the Children of Kacee S., where the Law Court found prima facie evidence that Kacee S’s attorney was ineffective. The Law Court set aside the trial court’s ruling that denied relief on the ineffective assistance claim, and sent the case back to the trial court for further proceedings. In each of the remaining 322 appeals in the past 6 2/3 years, the termination of parental rights was affirmed. “Most” result in affirmances, indeed.

Starting in 2021, nearly every one of the Law Court’s decisions in an appeal of a parental rights termination has come in the form of an unpublished mem dec – 143 mem decs in fact, versus a total of 4 published opinions through August 25, 2023.

According to the Annie E. Casey Foundation’s Kids Count Data Center, Maine currently ranks in the top quartile of states for the overall wellbeing of its children, coming in at #12. And yet, according to the same source, Maine ranks worst in the nation — #50 — in “children who are confirmed by child protective services as victims of maltreatment,” coming in at the rate of 19 children per 1,000. For comparison, New Hampshire ranks 11th best, at 5 children per 1,000; Florida #20, at 7 per 1,000; Texas #25, at 9 per 1,000; Rhode Island #34 at 13 per 1,000; and Massachusetts #46 at 17 per 1,000. It looks like Maine’s DHHS is particularly quick to “substantiate” abuse and to refer the parents to court for a jeopardy finding and all that follows.

Once a parent arrives in court in a child protective case, the court goes through the process of finding jeopardy, providing a brief period for parents to cure it, and then terminating parental rights at a speed much quicker than the national average. In fact, according to the chart embedded in an article from the West Virginia ACLU, based on 2019 data, Maine terminates parental rights at the 13th highest rate in the U.S. — 11.2 parental rights terminations per 10,000 kids. For comparison purposes, Rhode Island comes in at #19, with 10 terminations per 10,000 kids. NH is 25th at 8.5 terminations per 10,000 kids, and Massachusetts is 27th at 8.2 per 10,000 kids. According to the chart embedded in an NBC News story, the national median time from the start of a child protection action to termination of parental rights is 599 days. Maine is among the top 11 quickest states to termination, coming in well under the 599-day mark.

When it comes to initiating child protective cases and associated terminations of parental rights, Maine is at or near the top in the nation. And at 322 of 323 parental termination cases affirmed on appeal in the past nearly 6 2/3 years, we have a 99.7% affirmance rate. Yes, folks, Maine’s system of terminating parental rights is that close to perfect.

Won’t a handful of recent Law Court clerks please just pitch-in and help put the documents in proper order, so the Law Court can check the box, close the books and keep the machinery moving. Frankly, most of these appeals just result in affirmances in a memorandum of decision anyway. What’s the big deal?