Carey v. Maine Board of Overseers of Bar

          Argued: February 14, 2018

          Janet T. Mills, Attorney General, and Susan P. Herman, Dep. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellants Judge Maria Woodman and Judge Nancy Carlson

          Seth T. Carey (orally), appellee pro se Kennebec County Superior Court docket number CV-2017-17 For Clerk Reference Only

          Panel: SAUFLEY, C.J., and ALEXANDER, HJELM, and HUMPHREY, JJ.

          PER CURIAM

         [¶1] Judge Maria Woodman and Judge Nancy Carlson (collectively, the judges) appeal from an order of the Superior Court (Kennebec County, Anderson, J.) denying their motion to seal or strike portions of Seth T. Carey's response to their motion to dismiss his complaint. We dismiss the appeal because it is interlocutory and does not fall within any exception to the final judgment rule.

         I. BACKGROUND

         [¶2] The following facts are drawn from the procedural history. See Schulz v. Doeppe, 2018 ME 49, ¶ 3, - A.3d -. Carey is a lawyer and is the respondent in an attorney discipline proceeding. In November of 2016, pursuant to the agreement of Bar Counsel and Carey himself, a single justice found that Carey had violated provisions of the Maine Rules of Professional Conduct and suspended Carey from practicing law in Maine for two years but suspended the suspension subject to Carey's compliance with numerous conditions. Bd. of Overseers of the Bar v. Carey, BAR-16-15 (Nov. 21, 2016) (Brennan, J.). Although Carey agreed to that disciplinary order, in early 2017 he filed a lengthy, multicount complaint, which he later amended, against numerous entities and individuals-including the judges-based on their actions and involvement in the disciplinary proceeding.

         [¶3] In February of 2017, all of the defendants, in two groups, filed separate motions to dismiss Carey's amended complaint and sought imposition of sanctions. Carey filed a single response to the motions on March 6, 2017. Three days later, on March 9, the judges filed a motion to seal or, pursuant to Maine Rule of Civil Procedure 12(f), strike certain paragraphs of Carey's response in which he made assertions about the judges and a family member of one of them. In their motion, the judges stated that the assertions were both personal and extrinsic to Carey's complaint and therefore could not be properly considered in connection with the motion to dismiss the complaint.

         [¶4] In an order issued on September 1, 2017, the court denied the judges' motion to seal or strike. The court concluded that the material could not be stricken pursuant to Rule 12(f) because that Rule applies only to a "pleading, " which does not encompass an opposition to a motion to dismiss a complaint, and because the judges "provided no authority" for sealing the paragraphs. The September 1 order did not dispose of the motions to dismiss the complaint, and so the case remained pending in the trial court.

         [¶5] On September 21-twenty days after the court issued its order- the judges filed a notice of appeal from the court's denial of their motion to seal or strike. See M.R. App. P. 2A, 2B(c). Because the case was still pending in the trial court, we issued an order on October 12 requiring the judges to show cause why the appeal should not be dismissed as interlocutory. On October 16, in response to the show cause order, the judges filed a memorandum, to which they attached a copy of Carey's response to the motion to dismiss filed in the trial court, which included the material at issue here, in order to provide context for their contention that the appeal should not be dismissed. The judges also moved to seal the pertinent portion of Carey's filing that they had attached to their memorandum. One week later, on October 23, we issued an order permitting the appeal to proceed because it arguably fell within an exception to the final judgment rule but reserved to the parties the opportunity to argue the final judgment issue along with the merits. In that order, we also ordered that the attachment be impounded pending further order of the Court.^[1]

         II. DISCUSSION

         [¶6] Before it would be proper for us to address the merits of this interlocutory appeal, we must first address whether it falls within an exception to the final judgment rule.

         [¶7] A court order that does not result in a final judgment is interlocutory, and any appeal of such an order is ordinarily barred by the final judgment rule. Fiber Materials, Inc. v. Subilia,2009 ME 71, ¶ 12, 974 A.2d 918; Estate of Kingsbury,2008 ME 79, ¶ 4, 946 A.2d 389. There are several exceptions to the final judgment rule that would allow interlocutory appellate review. Davis v. Anderson,2008 ME 125, ¶ 9, 953 A.2d 1166. One is the death knell exception, which allows an appeal from an interlocutory order "when substantial rights of a party will be irreparably lost if review is delayed until final judgment." Kingsbury,2008 ME 79, ¶ 5, 946 A.2d 389 (quotation marks omitted). In other words, appellate intervention is warranted even when the case has not ...