Maine’s Grappling With the Prophylactic Pro Se Rule: State v. Hill

Benjamin DexterJ.D. Candidate, 2016

In the 1970s, the United States Supreme Court recognized the right of defendants to represent themselves in criminal trials. See Faretta v. California, 422 U.S. 806, 836 (1975) (vacating a defendant’s conviction when the trial court had forced the defendant to accept assistance of counsel rather than “conduct his own defense.”). Since Faretta, many states have struggled to establish effective conditions under which a criminal defendant may waive his or her right to representation and proceed pro se. Maine has developed very flexible but definitive case law regarding the waiver of the right. The Law Court has “refuse[d] to create any kind of prophylactic rule by which the conviction of any pro se defendant would automatically be vacated.” State v. Morrison, 567 A.2d 1350, 1353 (1990).

By refusing to adopt a “prophylactic rule” – a specific statement warning defendants of their rights – the Law Court has allowed itself wiggle room in applying a more open-ended test to determine whether or not a record meets waiver requirements. See, e.g., State v. Tomah, 560 A.2d 575, 575 (Me. 1989) (applying no specific test, but holding that the record was insufficient to establish a valid waiver); Morrison, 567 A.2d 1350, 1353 (Me. 1990) (applying a totality of the circumstances test). In order to show that a waiver was made without violating the defendant’s rights, the trial court must develop a sufficient record to show that a waiver was made voluntarily, knowingly, and intelligently. State v. Watson, 2006 ME 80, ¶ 23, 900 A.2d 702 (2006). These standards are reached when the trial court has warned the defendant of his or her right to be represented, that he or she will be held to the same standards as an attorney, and that there is risk in proceeding pro se. Id.

In 2014, the Law Court applied these warnings to a pro se case in State v. Hill, 2014 ME 16, A.3d 628 (2014). The defendant was charged with criminal OUI, and at arraignment, informed the judge he had chosen to represent himself. Id. ¶ 3. After a brief colloquy with the judge in which Hill’s attorney insisted that Hill was making an informed choice, he was allowed to proceed without representation. Id. ¶ 4. Hill was convicted and sentenced, and subsequently retained counsel for appeal, arguing that his waiver of counsel had not been made knowingly or intelligently. Id. ¶ 1. The Law Court ultimately agreed with Hill, and reversed his conviction, holding that the trial record was insufficient to show a knowing and intelligent waiver had been made. Id.

Justice Alexander, however, strongly dissented, arguing that the Court had abandoned earlier precedent, including a “totality of the circumstances” test, and essentially created a prophylactic rule, while professing to avoid one. Id. ¶ 19. He argued that reliance on representations by counsel regarding a “waiver of critical rights” was consistent with federal precedent, and that the Court could have “remanded for findings to learn the totality of the circumstances of what Hill knew and what he was advised by counsel and others regarding the risks and consequences of self-representation.” Id. ¶ 41.

In particular, Justice Alexander’s dissent raised one valid criticism and missed the mark with another. First, he argued that the Court had put in place new boundaries of inquiry into the record. The Law Court did seem to institute a new limit to the Court’s inquiry when determining whether a voluntary, knowing, and intelligent waiver was made, in stating that “review of a court’s acceptance of a defendant’s waiver of counsel ordinarily begins and ends with the record of the court’s colloquy.” Id. ¶ 8. This language was not present in previous waiver cases, including Watson, on which the majority relied heavily in analysis. It would therefore appear that this is a new rule concerning the breadth of inquiry into validity of a waiver.

Second, Justice Alexander argued that even when a Faretta warning is imperfect, the Law Court is able to find a valid waiver if the defendant is fully aware of the disadvantages of pro se representation. Id. ¶ 30. However, this is a misrepresentation of the standards the Law Court has established. The warnings are in place precisely to guarantee that the defendant is making the waiver “with eyes open.” Id. ¶ 7. Critics have argued the policy for and against allowing self-representation at criminal trials for many years: some claim that pro se representation in criminal cases gums up proceedings, while others assert that the acceptance of waivers of the right to counsel harms funding for legal resources for indigents. See John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years After Faretta, 6 Seton Hall Const. L.J. 483, 485 (1996) (“As a consequence of Faretta there are ‘trials’ in courts throughout the country that make a mockery of justice and disrupt courtroom procedure.”); Zachary L. Heiden, Too Low a Price: Waiver and the Right to Counsel, 62 Me. L. Rev. 488, 490 (2010) (“The acceptance of easy waivers today means that there will never be money tomorrow to provide court-appointed counsel to defendants . . . .”). By requiring that the trial record explicitly evidence a colloquy between a defendant and a judge that establishes the factors as outlined in Watson, the Law Court allows flexibility in the judge’s actual words to a defendant electing to proceed pro se, but guarantees that the Court is able to make a proper assessment of whether a defendant has made that election knowingly and intelligently.

Many agree, whatever the reason, that allowing a defendant to waive his or her right to counsel benefits neither litigants nor the courts. Heiden, at 495, 499. The Law Court’s holding in State v. Hill confirms that Maine’s justice system is dedicated to upholding the right to counsel, which benefits Maine’s defendants, and Maine’s courts.



Oil and Water: South Portland’s Battle Royale Between Local Police Powers and Constitutional Supremacy

Benjamin T. McCall, J.D. Candidate, 2016

On February 6, the Portland Pipeline Corporation (PPLC) was joined by the American Waterways Operators, a national trade organization for barge and tugboat operators, in bringing suit against the City of South Portland, seeking to enjoin the enforcement of the city’s “Clear Skies Ordinance.”  Complaint at 1, PPLC, et al. v. South Portland, No. 2015-cv-00054 (D. Me. Feb. 6, 2014).  Passed by the City Council in June of 2014, the Ordinance amends a number of city zoning ordinances — governing acceptable uses in industrial zones — to prohibit the loading of crude oil in bulk by any vessel.  See, e.g., South Portland, Me., Code §§ 27-780, 27-922, 27-944 (2014).

The lawsuit shouldn’t shock many who had observed the situation closely.  Local activists in South Portland had become increasingly concerned about the possibility that PPLC, who had for many years piped offloaded oil in South Portland for transport into Canada, would eventually reverse the flow of their pipes, opening up their business to the export of plentiful “tar sands oil” reserves from western reserves.  The company had long argued that they had no immediate intention to pursue such a course of action, but a change in policy by the Province of Alberta, as well as PPLC’s receiving an air emissions permit from the Maine Department of Environmental Protection, added enough fuel to the fire, to lead the city to act.  As such, the passing of the ordinance was seen by most as a preemptive strike to prevent the possible importation of this heavier petroleum product from reaching the Maine coast.

From a sociological perspective, the lawsuit encapsulates the growing tension in South Portland between an increasingly active group of environmentally-concerned residents, and those who make their livelihood from South Portland’s industrial waterfront.  But from a legal perspective, the suit presents a test case in how the Courts will resolve the tension between local governments utilizing their traditional police powers to insulate against local concerns and large companies, and potentially the federal government, attempting to quell these efforts under the auspice of interstate commerce.

PPLC’s complaint explains this dichotomy in depth.  “The purpose of the ordinance,” PPLC contends, is to stymie “international and interstate commerce and to discriminate against Canadian interests by prohibiting the loading of Canadian crude oil at the through-point of the harbor in South Portland.”  Complaint at 1, supra.  On the other hand, the City couches its argument by calling on its comprehensive plan, which seeks to promote mixed-uses on the waterfronts, and by taking traditionally-accepted actions to protect its own population.

“Whereas, the City under its broad home rule authority and general police powers as otherwise provided by law, has the ability to impose reasonable restrictions, conditions, and limitations on development, for the benefit of the public health and welfare; and Whereas, the City intends to protect its citizens and visitors from the harmful effect of air pollutants . . . .”

South Portland, Me. Clear Skies Ordinance at 6 (Jun. 20, 2014).

In the end, the lawsuit may hinge on a close reading of specific federal law, or on a technicality.  Yet at its heart, the case is a test for how far a municipality’s police powers may stretch — and specifically whether they may at all impinge traditional areas of federal interest.

Generally, the United States Supreme Court has favored a broad interpretation of local police powers, especially when used to regulate noxious and nuisance-causing uses.  Seminal property and land use cases like Mugler v. Kansas, 123 U.S. 623 (1887), and Hadacheck v. Sebastian, 239 U.S. 394 (1915) have afforded local ordinances a strong presumption of validity to police power actions, particularly when being used to protect public welfare.

Nonetheless, PPLC is hanging their hat on the Federal government’s authority to engage in unified trade deals with foreign powers, as well as the supremacy of federal law in the area of interstate pipeline regulation.  Not only is PPLC’s business with Canada governed by international trade agreements, Complaint at 6-7, but it argues that South Portland’s effort to modify their business is preempted by numerous federal laws relating to pipeline safety and maintenance.  Complaint at 24-27.

Perhaps of more interest, at least to burgeoning Constitutional scholars, is PPLC’s argument that the prohibition of the export of Canadian tar sands oil through South Portland has the effect of inhibiting the flow of interstate commerce.  Complaint at 29-30.  Not only does the Ordinance have the potential to inhibit commerce between the “several states,” but PPLC argues that the ordinance has both the purpose and the effect to interfere with the federal government’s business of conducting the trade of petroleum products with Canada, a “foreign nation” under Art. I, Sec. 18, cl. 3 of the United States Constitution.

On its face, it would appear that even under the narrower interpretation of the Commerce Clause favored by the current Supreme Court, see U.S. v. Lopez, 514 U.S. 549, 558 (1995) (holding that Congress retained power under the Commerce Clause to regulate the use, channels, instrumentalities, and things having a “substantial effect” on interstate commerce), Congress would retain the ability to regulate how oil passes through states, and between the United States and Canada.  However, the calculus may well change when this broad federal power collides with the equally powerful role reserved for states and municipalities.  See id. at 567-68 (rejecting the notion that the Commerce Clause was intended to give provide Congress with a federal police power).

Unfortunately, the outcome is far from clear.  Given the traditional preference for avoiding the resolution of unnecessary Constitutional questions, the case may ultimately be decided on a far narrower ground.  Nonetheless, the question will persist — to what extent can towns and states take actions to protect themselves against new pollutants?  Is the police power strong enough to allow dissenting towns to force a potentially significant area of commerce to move elsewhere?  Reasonable persons will certainly disagree, but the fact remains that the outcome will be significant – for our towns, our air quality, and the future of our national energy industry.


Note: for more professorial take on the issue, take a look at Maine Law Professor Dave Owen’s recent post on the Environmental Law Prof Blog.  Professor Owen, a current resident of South Portland, teaches Environmental Law, Natural Resources Law, and Legislation & Administrative Law, and is also the faculty advisor to MLR.



Of (Lab) Mice and Men

Of (Lab) Mice and Men: Caruso v. Jackson Laboratory

In August of 2014, The Maine Supreme Judicial Court, sitting at the Law Court, issued its opinion in Caruso v. Jackson Laboratory, 2014 ME 101, 98 A.3d 221.  In a unanimous opinion, the Court held that Santina Caruso was not entitled to relief on her claim that her dismissal from Jackson Laboratory was retaliatory and thus illegal under the Whistleblowers’ Protection Act (WPA) as codified in 26 M.R.S.A. § 833(1)(A) (2013).  The Court reasoned that although the trial court erred in instructing the jury that Caruso could recover only if her whistleblowing “made a substantial difference . . . .”  in the decision of whether or not to terminate her employment, she had failed to carry her burden to show either that the error resulted in prejudice or, alternatively, that the error was so egregious that “the verdict must have been based on a misconception of the law.”  Id. ¶ 14.  While the issue raised on appeal challenged whether the court erred in instructing the jury as to the relevant law, rather than whether Caruso’s employment was terminated unlawfully in contravention of the WPA, the opinion raises an interesting and important question: In order to claim protection under the WPA, must one be a benevolent whistleblower?

26 M.R.S.A. § 833(1)(A) prohibits an employer from discharging an employee because “The employee, acting in good faith, reports . . . to the employer or a public body . . . what the employee has reasonable cause to believe is a violation of a law or rule adopted under the laws of this State . . . or the United States.”  26 M.R.S.A. § 833(1)(A) (2013).  Further, “the plaintiff must show that the protected activity (whistleblowing) ‘was a substantial, even though perhaps not the only, factor motivating the employee’s dismissal.’”  Caruso v. Jackson Laboratory, 2014 ME 101, ¶ 13,  98 A.3d 221 (quoting Wells v. Franklin Broad. Corp., 403 A.2d 771, 773 (Me. 1979)).  Here, Caruso aired legitimate concerns that the mice at Jackson Laboratory were being treated inhumanely. Caruso, 2014 ME 101, ¶ 4.  However, she was not tactful in the way that she raised concerns, was very difficult to work with, was rude to her bosses, and refused to discuss these issues at meetings.  Id. ¶ 5-6.  She was terminated and she filed a complaint that her termination was “retaliatory . . . in violation of the WPA.”  Id. ¶ 7.

While the Court did state that unlawful retaliation necessitated a showing of a “causal link between the protected activity and the adverse employment action,” Id. ¶ 11 (quoting Costain v. Sunbury Primary Care, P.A., 2008 ME 142, ¶ 5, 954 A.2d 1051), and that to demonstrate that link the plaintiff must show that “the protected activity . . . ‘was a substantial, even though perhaps not the only, factor motivating the employee’s dismissal,’” Id. ¶ 13 (quoting Walsh v. Town of Millinocket, 2011 ME 99, ¶ 25, 28 A.3d 610), it remains unclear whether Caruso’s termination was motivated by her attitude or by the fact that she aired her concerns to the Office of Laboratory Animal Welfare.  Id. ¶ 4.  While the issue raised in this case was whether the court erred in its jury instruction regarding the applicable law, the concern remains that there may not be a valid check on an employer’s ability to use any number of excuses to fire an employee who has spoken out against that employer’s policy.  In lieu of a more restrictive rule limiting an employer’s power to terminate an employee who has acted as a whistleblower, 22 M.R.S.A. § 833(1)(A) may be a statute without teeth.



Maine Law Review, Vol. 67, No. 1

MLR 67:1

Announcing the publication of Maine Law Review, Volume 67, No. 1!   Congratulations to all of the authors.  PDF copies of each article are linked below.  Additionally, we are currently seeking submissions for next year’s volume.  Inquiries and questions can be directed to


Medical Debt as a Cause of Consumer Bankruptcy

Daniel A. Austin

Knock and Talk No More

Jamesa J. Drake

Inconvenient Truths: Facts and Frictions in Defense of Guardians ad Litem for Children

Dana E. Prescott

Reason and Reasonableness: The Necessary Diversity of the Common Law

Frederic G. Sourgens



Compelled to Testify: An Evaluation of 32 M.R.S.A. § 7005 and the Privilege for Maine Licensed Clinical Social Workers

Juliana Kirkland O’Brien


Case Notes

McCutcheon v. Federal Election Commission and the Supreme Court’s Narrowed Definition of Corruption

Mikala Noe

Dussault v. RRE Coach Lantern Holdings, LLC: Does the Maine Human Rights Act Recognize Disparate Impact Liability for Claims of Housing Discrimination Brought by Section 8 Recipients Under Maine Law?

Ari B. Solotoff




Submit Your Piece for Publication in MLR Volume 68

Maine Law Review is currently accepting submissions for publication for Volume 68, to be published in the Fall of 2015 and the Spring of 2016.

Every year, MLR receives submissions for all over the country; however, as Maine’s oldest law review, MLR has a commitment to publishing quality legal scholarship from local members of the bar and bench, as well as pieces focusing on Maine law, public policy, and jurisprudence.  We certainly hope to increase the submittal of these pieces in the near future.

If you are an author, or know of an author, who would like to be considered for publication in the coming year, we would appreciate the chance to review the piece. Submissions, preferably in MS Word format, or further inquires may be sent to



Blowing Smoke: Dee v. State

Benjamin Dexter, J.D. Candidate, 2016

Few citizens have tried as many times as Michael J. Dee to overturn Maine’s marijuana laws.  Dee has sought on more than a dozen occasions to legalize possession and cultivation of recreational cannabis in this state.  Recently, the Maine Supreme Judicial Court, sitting as the Law Court, noted that since 1983 he has “repeatedly and unsuccessfully challenged the constitutionality of marijuana prohibitions.”  Dee v. State, 2014 ME 106, ¶ 2, ___ A.3d ___.  Despite his previous lack of success, Dee once attacked the laws prohibiting his enjoyment of the most politically polarizing herb in the garden, and once again, the Law Court shut him down.

Dee has raised due process arguments under the Fourteenth Amendment of the US Constitution (State v. Dee, 2012 ME 26, ¶ 2, 39 A.3d 42), and fundamental rights arguments under the Fourth Amendment (State v. Dee, 2007 WL 4698274 (Me. Super. June 25, 2007).  In most instances his affirmative complaints (and after arrests, his spurious defenses) have been disposed on the weakness and incoherency of his case, but it seems that, several years ago, Maine courts finally became fatigued with his endless cipher of pro-pot challenges.

In 2007, the Superior Court enjoined Dee from filing further suits to challenge Maine’s marijuana laws without prior court approval. Id.  Dee did not take the hint.  After Superior Court (Cumberland County, Wheeler, J.) dismissed his complaint for declaratory judgment seeking marijuana legalization, he appealed to the Law Court.  With three short paragraphs the Law Court affirmed: “[T]he court acted well within its discretion in rejecting Dee’s request for approval to file suit and granting the State’s motion to dismiss his petition with prejudice.”  As one Maine Law professor likes to explain to his first-year Civil Procedure class: in court, you don’t get any do-overs.

Despite Dee’s series of losses, the tide seems to flow in favor of marijuana legalization throughout Maine.  While once a controversial topic, more and more communities have been raising the question of whether or not to allow citizens recreational access to cannabis.  What the Law Court has emphasized in Dee v. State is that any future legalization efforts must be made legislatively.

Medical marijuana, for example, has been available in Maine since 1999, when the legislature passed a bill allowing limited possession and writing of prescriptions for medical grade cannabis.  See 22 MRS § 2383-B (2014); Maine’s Medical Marijuana Law,, (last updated Aug. 26, 2014).  Possession of marijuana without a medical prescription remains, under state statute, a civil violation that carries a fine of $350-$600 for up to 1 ¼ ounces and $700-$1000 for 1 ¼ ounces to 2 ½ ounces.  22 M.R.S. § 2383 (2014).  But as more municipalities (particularly in Southern Maine) institute decriminalizing measures, the state possession fines look more and more susceptible to amendment.

For example, a 2013 a voter referendum in Portland decriminalized the recreational possession and use of marijuana. Portland, Maine, Legalizes Recreational Marijuana, (last updated 11/6/2013).  Per city ordinance an individual may possess up to 2 ½ ounces, as well as paraphernalia.  Portland, Me., City Code of Ordinances, ch. 17, art.VIII, §§ 17-113, 114 (2014). A group of citizens in York have been trying to put measures legalizing  recreational marijuana use on the ballot for some time.  Dennis Hoey, York Selectmen Vote Against Pot Referendum Again, Portland Press Herald, (last updated 9/9/2014).  And both South Portland and Lewiston slated referendums for their November, 2014 ballots. Gillian Graham, Lewiston Voters to Decide Whether to Legalize Marijuana in Their City, Portland Press Herald, (last updated 9/2/2014).  South Portland voters, of course, approved the measure, while Lewiston voters narrowly declined to do so.  Local Election Results, Portland Press Herald, (last accessed 11/11/2014).

This is not a problem to be solved judicially.  Instead, Dee should seek to spark referendums in other communities, using his long record of “grass” roots activism to affect the changes he desires in drug law.  The Law Court firmly sees this as an issue for the voters, and as another Maine Law professor likes to say: if Dee has a problem with the current law, he should tell it to the legislature.


Join the Maine Law Review and the Muskie School of Public Service in Celebrating the Legacy of Ed Muskie

MLR Muskie Symposium


Introducing the Maine Law Review, Volume 67!

On behalf of the Executive Board, we would like to welcome the new members of the Maine Law Review, Volume 67:

The Editorial Board and Staff of the Maine Law Review, Volume 67


Samuel J. Baldwin

Editorial Team

Executive Editor:       Juliana O’Brien*

Symposium Editor:    Elizabeth Frazier*

Articles Editors:        Xi Chen & Benjamin Wahrer

Production Team

Managing Editor:      Ari Solotoff*

Production Editor:     Derek Jones

Technical Editor:       Laura Shaw

Research Editors:      Mikala Noe

Writing Team

Head CN/C Editor:      Joseph Gousse*

CN/C Editors:             Pardis Delijani & Brandon Farmer



* Executive Board Members


Maine Law Review Staff

Anthony Aloisio

Emily Atkins

Kasey Boucher

Benjamin Dexter

Cynthia Hunter

Samuel Johnson

Daniel Keenan

Peter Kenlan

Nicholas Kline

Benjamin McCall

Carson Phillips-Spotts

Patrick Redding

Mark Rucci

Daniel Taylor

Elizabeth Tull

Academic Advisors

Professors Dave Owen and Dmitry Bam




Maine Law Review, Vol. 66, No. 2


Symposium: Who’s Governing Privacy?  Regulation and Protection in a Digital Era


Peter J. Guffin, Kyle J. Glover, and Sara M. Benjamin


The Glass House Effect: Big Data, The New Oil, and the Power of Analogy

Dennis D. Hirsch

Local Law Enforcement Jumps on the Big Data Bandwagon: Automated License Plate Recognition Systems, Information Privacy, and Access to Government Information

Bryce Clayton Newell

The Promise and Shortcomings of Privacy Multistakeholder Policymaking: A Case Study

Omer Tene and J. Trevor Hughes

Privacy Law’s Precautionary Principle Problem

Adam Thierer

Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era

Joris V.J. van Hoboken and Ira S. Rubinstein


Waiting for Gluskabe: An Examination of Maine’s Colonialist Legacy Suffered by Native American Tribes under the Maine Indian Claims Settlement Act of 1980

Joseph G.E. Gousse

Case Notes

Trott v. H.D. Goodall Hospital: When Analyzing Employment Discrimination Cases Under Maine Law, Should Maine Courts Continue to Apply the Mcdonnell Douglas Analysis at the Summary Judgment Stage?

Ari B. Solotoff

What is the Scope of Searches of Cell Phones Incident to Arrest?  United States v. Wurie and the Return of Chimel

Benjamin Wahrer 


Maine Law Review, Vol. 66, No. 1

Maine Law Review, Vol. 66, No. 1


Death, Taxes, and Property (Rights): Nozick, Libertarianism, and the Estate Tax

Jennifer Bird-Pollan

The Magic Mirror of “Original Meaning”: Recent Approaches to the Fourteenth Amendment

Bret Boyce

The State Response to Hazelwood v. Kuhlmeier

Tyler J. Buller

Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School

Shailini Jandial George

Election SLAPPs: Effective at Suppressing Political Participation
and Giving Anti-SLAPP Statutes the Slip

Leah McGowan Kelly

Book Review

More Than a Ramble: A Law Student’s Review of Hugh G. E. MacMahon’s Progress, Stability, and the Struggle for Equality: A Ramble Through the Early Years of Maine Law, 1820-1920

Christopher Harmon


Allocating Power: Toward a New Federalism Balance for Electricity Transmission Siting 

Kevin Decker

The Post-Crawford Rise in Voter ID Laws: A Solution Still in Search of a Problem

David M. Faherty

Of Asthma and Ashtrays: Examining the Rights of and Exploring Ways to Protect Maine Tenants Living in Multi-Unit Rental Housing Who are Involuntarily Exposed to Secondhand Tobacco Smoke in Their Homes

Amy K. Olfene

Case Notes

Personal Jurisdiction in the Data Age: MacDermid v. Deiter’s Adaptation of International Shoe Amidst Supreme Court Uncertainty

Ryan Almy

Fuhrmann v. Staples Office Superstore East, Inc.: A Split in the Law Court as to the Definition of “Employer” Demonstrates the Need for Legislative Action to Amend the Maine Human Rights Act in Order to Protect Maine Employees

Stephen B. Segal