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So You Should Cross-Appeal To Preserve an Alternative Argument – But Should You Have To?

I recently blogged about the need to file a cross-appeal of a favorable judgment in order to preserve an argument that provides alternate grounds for affirmance at the Law Court.  As I noted, the Court has declined to reach alternative arguments for affirmance where the prevailing party did not cross-appeal.

The Law Court recently did so again, in Jones v. Secretary of State.  In that case, the Superior Court had found in favor of petitioners challenging a determination by the Secretary of State that there were insufficient signatures to place a people’s veto onto the November ballot.  While the Superior Court held in favor of the petitioners on the single count asserted, it did not accept all of the arguments raised by the petitioner.  The Secretary of State appealed, and the petitioners did not cross-appeal from the judgment in their favor.  Before the Law Court, the petitioners asserted that one of the arguments raised below provided alternative grounds for affirming the Superior Court’s judgment.  The Law Court declined to reach this argument, noting that the petitioners “did not file a cross-appeal and therefore cannot raise claims of error.”

Jones raises an interesting question (interesting, that is, at least for appellate lawyers): is the Court’s approach correct? A few idle musings on that point:

  • First, there is at least some apparent tension with the text of the Maine Rules of Appellate Procedure, which simply state that “[i]f the appellee seeks any change in the judgment that is on appeal, the appellee must file a cross-appeal to preserve that issue.” R. App. P. 2C(a)(1).  In Jones, the plain text of Rule 2C would not seem to require a cross-appeal; the petitioner was not seeking any change in the judgment.  The Court’s approach seems to add what is at least a substantial gloss on the wording of Rule 2C
  • Second, there is some Maine law suggesting that it is not necessary to file a cross-appeal in order to preserve an alternative argument. For example, in Scott Dugas Trucking & Excavating, Inc. v. Homeplace Bldg. & Remodeling, Inc., the Law Court held that it was not necessary for the defendant to file a cross appeal in order to raise an argument as an “alternative ground for affirmance of a judgment,” even though the Superior Court had rejected the argument below.
  • Third, as I mentioned briefly in my earlier blog post, the standard applied in Jones and elsewhere seems to sit at least somewhat uncomfortably with general standing principles. Usually, there is no standing to appeal absent adverse impact by a judgment.  If an individual is not aggrieved by a judgment, why is a cross-appeal even permissible (much less required)?
  • Fourth, expanding the requirement for cross-appeals may unnecessarily complicate appellate procedure. It raises some thorny questions when statutes shorten the timeframe for filing appeals.  For instance, in Jones, the relevant statute requires filing an appeal within 3 days, and briefs within 10 days thereafter.  If the appellant waits to the last moment to file an appeal, can the cross-appeal be filed outside the 3-day deadline? Presumably so, given Rule 2C(a)(2), but that isn’t clear – particularly given that the rule contemplates 21 days for filing a cross-appeal, which would fall after the statutory briefing deadline applicable in Jones.  Finally, it raises some questions about the notice of appeal.   When one is cross-appealing on an aspect of a judgment, it is easy enough to identify specifically what is being appealed.  But how does one adequately specify an “issue” or an “argument” that is being cross-appealed?
  • Finally, it is worth noting that the filing of a cross-appeal increases the permissible length of the briefs submitted to the Law Court under Rule 7A(f)(1). Thus, increasing the number of cross-appeals will simply subject the Court to more extensive briefing – not necessarily something to be encouraged.

Ultimately, these are indeed just musings, because Jones seems to make the Court’s view quite clear:  file a cross-appeal if you wish to preserve an alternative argument.  Jones is also a reminder that appellate counsel ought to be involved early, to ensure proper preservation of issues for appeal.

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 274
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About this Author

Joshua Dunlap Civil Litigation Attorney
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Joshua Dunlap, a member of Pierce Atwood’s Litigation Group and Appellate & Amici team, focuses his practice on civil litigation at both the trial and appellate levels. He appears in federal as well as state court, representing clients in various commercial litigation matters. 

Joshua regularly defends clients in complex litigation, including class actions and multidistrict litigation. Much of his practice has involved representing financial institutions, manufacturers, retailers, and other institutional clients in state and national consumer class actions involving various...

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