State Right To Appeal: Has Maine Been Too Cautious?,
2025
University of Maine School of Law
State Right To Appeal: Has Maine Been Too Cautious?, David J. Corson
Maine Law Review
The Legislature of the State of Maine recently passed an act relating to appeals by the State on questions of law in criminal cases. The Governor's approval of the act on January 29, 1968, was the culmination of some three years of research and debate. The purpose of this comment is to examine the form and scope of the act in light of the continuing controversy in other jurisdictions over the conflict of interests between the people and the accused in what may be characterized as a trend toward more comprehensive state appeal laws, to the end of concluding whether …
How Post Is Post-Conviction Relief In Maine?,
2025
University of Maine School of Law
How Post Is Post-Conviction Relief In Maine?, Charles L. Cragin Iii
Maine Law Review
In a recent case the Maine Supreme Judicial Court delineated the prerequisites for relief under Maine's post-conviction relief statute. The court declared that actual or constructive custody is necessary for relief. In Thoresen v. State, petitioner was convicted of a felony in Maine in 1959. He had been represented by retained counsel, and had elected to plead guilty to an information charging him with grand larceny. His sentence was suspended by probation and he was permitted to leave the state. Formally complying with all the regulations of his probation, he was given a total discharge in 1961. In 1967, he …
Equal Protection As A Measure Of Competing Interests In Welfare Litigation,
2025
University of Maine School of Law
Equal Protection As A Measure Of Competing Interests In Welfare Litigation, John G. Richardson
Maine Law Review
Presently legal attacks on welfare programs focus upon the basic theory of the program, its definitions of need and obligation, and dissatisfaction with aspects of daily administration. Because these attacks seek to invalidate state action and federal forums are usually sought, conventional constitutional arguments of due process and equal protection are adapted to the peculiar issues posed by welfare cases. These attacks in substance allege that the state has so failed to support a needy person that its actions are fundamentally unfair and unacceptable. Equal protection has been raised often in welfare cases and some courts have granted relief based …
Right To Jury Trial: Lemieux V. Robbins,
2025
University of Maine School of Law
Right To Jury Trial: Lemieux V. Robbins, Stephen R. Sunenblick
Maine Law Review
A sagacious English liveryman named Tobias Hobson allowed each customer to choose the horse nearest the door, thereby presenting these customers with no real alternative. The State of Maine made a like proposition in Lemieux v. Robbins by implementing a novel criminal procedure whereby a defendant has a "choice" of either accepting his district court misdemeanor conviction as final, or appealing for a de novo trial by jury in superior court and possibly being convicted of a felony for contravening the same statute under which he was originally charged. The implementation of this procedure began with a complaint filed in …
The Administrative Discharge: Changes Needed?,
2025
University of Maine School of Law
The Administrative Discharge: Changes Needed?, Norman B. Lynch
Maine Law Review
At its annual convention in 1968 the American Bar Association adopted a resolution authorizing its Special Committee on Military Justice to urge congressional action with respect to the military administrative discharge and military due process of law. In response to this urging two bills were introduced in the 91st Congress dealing with the administrative discharge of members of the Armed Forces. One was sponsored by Congressman Charles E. Bennett, (D. Fla.). Another was introduced by Senator Sam J. Ervin, (D. N.C.). The Bennett bill proposes amendments to title 10 of the United States Code to limit the separation of members …
Procedural Rights Of The Military Accused: Advantages Over A Civilian Defendant,
2025
University of Maine School of Law
Procedural Rights Of The Military Accused: Advantages Over A Civilian Defendant, Homer E. Moyer Jr.
Maine Law Review
The Supreme Court recently decided in O'Callahan v. Parker that the military lacks jurisdiction to try servicemen for crimes that are not "service-connected." Justice Douglas, in rendering the majority opinion, was highly critical of military justice and criminal procedures in the court-martial system, which he characterized as "a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants . . . . .” The opinion further added that "courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law . . . …
The Civilianization Of Military Law,
2025
University of Maine School of Law
The Civilianization Of Military Law, Edward F. Sherman
Maine Law Review
Military law in the United States has always functioned as a system of jurisprudence independent of the civilian judiciary. It has its own body of substantive laws and procedures which has a different historical derivation than the civilian criminal law. The federal courts have always been reluctant to interfere with the court-martial system, as explained by the Supreme Court in 1953 in Burns v. Wilson: "Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted …
Bernier V. State - The Right To Counsel In Entrustment Revocation Proceedings,
2025
University of Maine School of Law
Bernier V. State - The Right To Counsel In Entrustment Revocation Proceedings, Peter J. Detroy
Maine Law Review
Theodore Bernier was adjudicated a juvenile offender in September, 1966, and was subsequently committed to the Boys Training Center (BTC) for the term of his minority. In February, 1968, he was released on entrustment to his parents. Almost a year and a half later, Bernier was questioned by local police regarding his possible involvement in the theft of greenstamps from a local store. Although he was released without the police taking further action, they notified an aftercare and placement worker assigned to the BTC of the questioning. As a result, the BTC revoked the entrustment, and the police took him …
Extending The Smith V. Hooey Duty To The Holding Jurisdiction,
2025
University of Maine School of Law
Extending The Smith V. Hooey Duty To The Holding Jurisdiction, Ronald D. Russell
Maine Law Review
The right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, "The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." …
State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?,
2025
University of Maine School of Law
State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?, Francis J. O'Toole, Thomas N. Tureen
Maine Law Review
Because of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal …
Extending The Smith V. Hooey Duty To The Holding Jurisdiction,
2025
University of Maine School of Law
Extending The Smith V. Hooey Duty To The Holding Jurisdiction, Ronald D. Russell
Maine Law Review
The right to a speedy trial has been an integral part of the Anglo-American legal system since its foundation. The first statement of this guarantee seems to be in the codification of basic rights included in the Magna Charta. It was incorporated into the earliest laws of colonial America and later expressed in the sixth amendment to the Constitution. In Klopfer v. North Carolina, the United States Supreme Court stated, "The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution." …
Bernier V. State - The Right To Counsel In Entrustment Revocation Proceedings,
2025
University of Maine School of Law
Bernier V. State - The Right To Counsel In Entrustment Revocation Proceedings, Peter J. Detroy
Maine Law Review
Theodore Bernier was adjudicated a juvenile offender in September, 1966, and was subsequently committed to the Boys Training Center (BTC) for the term of his minority. In February, 1968, he was released on entrustment to his parents. Almost a year and a half later, Bernier was questioned by local police regarding his possible involvement in the theft of greenstamps from a local store. Although he was released without the police taking further action, they notified an aftercare and placement worker assigned to the BTC of the questioning. As a result, the BTC revoked the entrustment, and the police took him …
State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?,
2025
University of Maine School of Law
State Power And The Passamaquoddy Tribe: "A Gross National Hypocrisy"?, Francis J. O'Toole, Thomas N. Tureen
Maine Law Review
Because of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal …
Search And Seizure,
2025
University of Maine School of Law
Search And Seizure, Daniel G. Lilley
Maine Law Review
Search and Seizure, authored by Colorado Judge Edward C. Fisher, is a book of better than 300 pages which purports to be a recent survey of the law dedicated to "peace officers of America." The foreword states that it is written for law enforcement officers and is a ready reference for attorneys, judges, and others concerned with the administration of criminal justice. The book is clearly written. It tells police officers how to conduct searches and seizures and it tells them why restrictions are imposed. Where there is still conflict and doubt, it gives the officer some "safe" approaches to …
Stewart V. Smith: A Misapplication Of North Carolina V. Pearce,
2025
University of Maine School of Law
Stewart V. Smith: A Misapplication Of North Carolina V. Pearce, Alton C. Stevens
Maine Law Review
Gordon Stewart was convicted of a felony and sentenced to fifteen to nineteen months in the house of correction and a $2,000 fine, or an additional 2,000 days in lieu thereof. Since he was indigent this represented a total sentence of approximately seven years. Upon petition to the Windsor County Court this original sentence was set aside as being in excess of the twenty-four month statutory maximum. Resentencing was ordered and a different judge sentenced respondent anew to a term of twenty-three to twenty-four months in the state prison with appropriate credit given for time already served. On appeal to …
In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings,
2025
University of Maine School of Law
In Re Adoption Of E: First Amendment Rights And Religious Inquiry In Adoption Proceedings, Francis J. Scanlon
Maine Law Review
The New Jersey Supreme Court decision, In re Adoption of E, represents an effort to define what considerations are to be given the religious beliefs of prospective adoptive couples in the screening process of the adoption courts. The majority opinion is emphatic in spelling out what courts cannot do. In overruling the lower court's decision, it was held that the first amendment prohibits the denial of a couple’s adoption request solely because the court disapproves of their religious beliefs. Though holding that a couple's religion cannot be a controlling factor in an adoption denial, the court did not see religion …
Enforcement Of Money Judgments And Divorce Decrees In Maine,
2025
University of Maine School of Law
Enforcement Of Money Judgments And Divorce Decrees In Maine, S. Peter Mills
Maine Law Review
Until recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court's discretion, there was no requirement either in statute or in common law that the court …
Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity,
2025
University of Maine School of Law
Nonstatutory Judicial Review Of Federal Agency Action: A New Approach To Sovereign Immunity, William P. Hardy
Maine Law Review
In deciding whether to review administrative agency action, an astute court seeks to maintain a delicate balance between over-interference with administration of legislatively created programs and denial of plaintiff's rights. This balancing process historically has been hindered by federal courts treating the doctrine of sovereign immunity as a jurisdictional bar to unconsented suits against the United States Government. Regardless of the validity of a plaintiff's grievance and in spite of the relative infrequency of such suits, the courts adhering to this traditional approach mechanically dismiss such actions solely because they seek relief against the sovereign. A few federal courts have …
Retroactivity Rethought: The Hidden Costs,
2025
University of Maine School of Law
Retroactivity Rethought: The Hidden Costs, Pierce B. Hasler
Maine Law Review
The validity of Justice Harlan's contention that retroactivity must be rethought is becoming increasingly evident, and it seems likely that extensive reevaluation of the doctrine will soon be necessary. The past six years have been marked by well over a dozen Supreme Court decisions addressed to the question of the retroactive or prospective effect to be given prior constitutional rulings in the area of criminal procedure. Rarely has an important constitutional doctrine achieved such full-blown proportions so quickly, yet several members of the Court would now vote to reject it and start anew. Linkletter v. Walkers was the landmark decision …
Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration,
2025
University of Maine School of Law
Maine's Coastal Conveyance Of Oil Act: Jurisdictional Consideration, Maine Law Review
Maine Law Review
Maine's Coastal Conveyance of Oil Act is the most comprehensive oil discharge control law in the United States. Such broad regulatory legislation inevitably raises questions of constitutionality and, as expected, the oil industry has brought a challenge to the Maine statute. In American Oil Co. et al. v. Environmental Improvement Commission, a declaratory judgment action, the Maine act has been alleged to violate the commerce, due process, equal protection and admiralty clauses of the United States Constitution. Although each allegation of constitutional conflict raises substantial problems, the most troublesome attack is that based upon the admiralty clause. Here the basic …
