MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2024 ME	5

Docket: Ken-24-24

Submitted	on

Memoranda: January	24,	2024

Decided: January	24,	2024

Panel: STANFILL,	 C.J.,	 and MEAD,	 JABAR,	 HORTON,	 CONNORS,	 and	 DOUGLAS, JJ.,	 and	

HUMPHREY,	A.R.J.	

DONALD	J.	TRUMP

v.

SECRETARY	OF	STATE et	al.

PER	CURIAM

[¶1]		“With	the	exception	of	opinions	issued	on	solemn	occasions	under	

article	 VI,	 Section	 3,	 of	 the	 Constitution,	 the	 judiciary	 in	 this	 state	 is	 not	

empowered	 to	 render	 advisory	 opinions.”	 	 Bar	 Harbor	 Banking	 &	 Tr.	 Co.	 v.	

Alexander,	411	A.2d	74,	76	(Me.	1980).		Consistent	with	our	judicial	role,	and	to	

avoid	 issuing	 advisory	 opinions,	 we	 adhere	 to	 a	 final	 judgment	 rule	 that	

requires	a trial	court’s decision to	be	final before	we	consider	an	appeal.	 See	

id.;	 State	 v.	 Me.	 State	 Emps.	 Ass’n,	 482	 A.2d	 461,	 463,	 465 (Me.	 1984).	 	 “The	

reasons	 for	 the	 final	 judgment	 rule	 are	 many	 and	 strong.	 	 It	 helps	 curtail	

interruption,	delay,	duplication	and	harassment;	it	minimizes	interference	with	

the	 trial	 process;	 it	 serves	 the	 goal	 of	 judicial	 economy;	 and	 it	 saves	 the	
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appellate	court	from	deciding	issues	which	may	ultimately	be	mooted,	thus	not	

only	leaving	a	crisper,	more	comprehensible	record	for	review	in	the	end	but	

also	in	many	cases	avoiding	an	appeal	altogether.”		Me.	State	Emps.	Ass’n,	482	

A.2d	at	464.

[¶2]	 Here,	 the	 Secretary	 of	 State	 and	 three	 challengers	 to	 Donald	

J. Trump’s	 primary	 petition—Kimberley	 Rosen,	 Thomas	 Saviello,	 and	 Ethan	

Strimling—appeal	from	an	interlocutory	order	of	the	Superior	Court	(Kennebec	

County,	Murphy,	J.)	remanding	to	the	Secretary	of	State the	matter	in	which	the	

Secretary	of	State decided	that the	petition	submitted	by former	President	of	

the	 United	 States	 Donald	 J.	 Trump	 as	 a	 candidate for	 the	 Maine	 Republican	

Party’s	 presidential	 primary	 was	 invalid	 because	 of	 a	 false	 declaration	 of	

qualification	on	his	candidate	consent	form.		Because	the	appeal	is	not	from	a	

final	judgment,	we	dismiss	the	appeal	as	interlocutory and	not	justiciable.

I.		BACKGROUND

[¶3]		By the	filing	deadline	of	December	1,	2023,	Donald	J.	Trump	filed	a	

petition	 for	his	candidacy	 for	President	of	 the	United	States	and	submitted	a	

required	 notarized	 candidate	 consent	 form	 for	 the	 Republican	 Party’s	

presidential	primary.		See	21-A	M.R.S.	§	336	(2023),	amended	by P.L.	2023,	ch.	

304,	§	A-5	(emergency,	effective	June	26,	2023) (to	be	codified	at	21-A	M.R.S.	
3

§ 336);	 P.L.	 2023,	 ch.	 389,	 § 2	 (effective	 Oct.	 25,	 2023) (to	 be	 codified	 at	

21-A M.R.S.	 §	 336(3)).	 	 On	 the	 form	 provided, Trump	 supplied	 identifying	

information, stated his	voting	residence,	and	included his	notarized	signature	

beneath	the	following	language:

Qualifications	of	President	of	the	United	States	(U.S.	

Constitution,	Article	II,	Section	1)

§ Be	a	natural	born	U.S.	Citizen

§ Have	been	a	resident	of	the	United	States	for	at	least	14	years

§ Be	at	least	35	years	of	age

____________________________________________________________________________

Candidate’s	Consent

I	 hereby	 declare	 my	 intent	 to	 be	 a	 candidate	 for	 the	 Office	 of	

President	of	 the	United	States	and	participate	in	 the	Presidential	

Primary	for	the	party	named	above	to	be	held	on	March	5,	2024,	in	

the	State	 of	Maine.	 	 I	 further	 declare	 that	my	 residence	is	in	 the	

municipality	and	state	listed	above;	that	I	am	enrolled	in	the	party	

named	on	 this	consent;	 that	 I	meet	 the	qualifications	 to	hold	 this	

office	as	listed	above;	and	that	this	declaration	is	true.

[¶4]		By	December	8,	2023—the	statutory	deadline	for	raising	challenges	

to	 the	 petition—the	 Secretary	 of	 State	 received	 three	 challenges.1	 	 See	

21-A M.R.S.	 § 336(3);	 21-A	 M.R.S.	 § 337(2)(A) (2023). Rosen,	 Saviello,	 and	

Strimling	together	 argued	 that	 Trump	 should	 be	 removed	 from	 the	 primary	

1		Because	two	of	the	challengers,	Mary	Anne Royal	and	Paul	Gordon,	have	not	appealed	from	the	

Secretary	of	State’s	decision	on	their	challenges	or	from	the	trial	court’s	order,	we	do	not	discuss	the	

issues	that	they	raised	in	their	challenges.
4

ballot	 because,	 having	 previously	 taken	 an	 oath	 as	 President	 of	 the	 United	

States	“to	 support	 the	Constitution	 of	 the	United	States,”	Trump “engaged	in	

insurrection	or	rebellion	against	the	same,” which	precludes	him	from	holding	

the	 office	 of	 President	 under	 Section	 3	 of	 the	 Fourteenth	 Amendment.	 	U.S.	

Const.	amend.	XIV,	§	3.2 The	Secretary	of	State	held	a	hearing in	accordance	

with	21-A	M.R.S.	§	337	and	the	Maine	Administrative	Procedure	Act,	5	M.R.S.	

§§ 9051-9064 (2023),	 on	 December	 15,	 2023.	 	 The	 Secretary	 of	 State was	

required	to determine,	after the	hearing, whether	“any	part	of	the	declaration”	

in	the	candidate	consent	form	was	false,	thereby	rendering	the	consent	and	the	

primary	 petition	 void.	 	 21-A	 M.R.S.	 § 336(3)	 (“If,	 pursuant	 to	 the	 challenge	

procedures	in	section	337,	any	part	of	the	declaration	is	found	to	be	false	by	the	

Secretary	of	State,	the	consent	and	the	primary	petition	are	void.”).

[¶5]	 On	December	19, after	the	hearing	and	the	parties’	initial	briefing,

the	 Colorado	 Supreme	 Court	 certified	 an	 opinion	 holding	 that	 Trump	 was	

2		This	section	provides:

No	person	shall	be	a	Senator	or	Representative	in	Congress,	or	elector	of	President	

and	Vice	President,	or	hold	any	office,	civil	or	military,	under	 the	United	States,	or	

under	any	State,	who,	having	previously	taken	an	oath,	as	a	member	of	Congress,	or	

as an	officer	of	 the	United	States,	or	as	a	member	of	any	State	legislature,	or	as	an	

executive	 or	judicial	 officer	 of	any	State,	 to	 support	 the	 Constitution	 of	 the	United	

States,	shall	have	engaged	in	insurrection	or	rebellion	against	the	same,	or	given	aid

or	comfort	to	the	enemies	thereof.	 But	Congress	may	by	a	vote	of	two-thirds	of	each	

House,	remove	such	disability.

U.S.	Const.	amend.	XIV,	§	3.
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disqualified under	Section	3	of	the	Fourteenth	Amendment from	appearing	on	

the	primary	ballot	in	Colorado.		Anderson	v.	Griswold,	No.	23SA300,	2023	WL	

8770111,	 --- P.3d	 --- (Colo.	 Dec.	 19,	 2023),	 cert.	 granted sub	 nom.	 Trump	 v.	

Anderson,	No.	23-719,	2024	WL	61814	 (U.S.	 Jan.	5,	2024).	 On	December	21,	

2023,	 the	 Secretary	 of	 State	 accepted	 supplemental	 briefs	 from	 the	 parties

addressing	the	Colorado	decision.

[¶6]		In	the	Secretary	of	State’s	decision,	issued	on	December	28,	2023,	

she	 concluded	 that	 she	 had	 the	 authority	 to	 exclude	 unqualified	 candidates	

from	the	primary	ballot	and	found	that	Trump	was	not	qualified	to	appear	on	

the	 ballot	 because	 he	 had	 sworn,	 as	 President,	 to	 support	 the	 United	 States	

Constitution	and	had	 then	engaged	in	insurrection	against	 the	United	States.		

See	U.S.	Const.	amend.	XIV,	§	3. She	suspended	the	effect	of	her	decision	until	

the	Superior	Court	ruled	on	any	appeal.	

[¶7]		Trump timely	appealed	to	the	Superior	Court by	filing	a	petition	for	

review	 of	 final	 agency	 action	 on	 January	 2,	 2024,	 within	 five	 days	 after	 the	

Secretary	of	State	issued	her	decision.		See 21-A M.R.S.	 § 337(2)(D);	5	M.R.S.	

§§ 11001,	 11002	 (2023);	 M.R.	 Civ.	 P.	 80C. Among	 other	 proceedings	 in	 the	

Superior	Court,	Trump	moved	to	stay	the	court	proceedings	after the Supreme	

Court	 of	 the	 United	 States	 issued	 a	 writ	 of	 certiorari	 on	 his	 appeal	 from	
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Anderson	 v.	 Griswold,	 No.	 23SA300,	 2023	 WL	 8770111,	 --- P.3d	 ---.	 	 The	

Secretary	of	State	and	Rosen,	Saviello,	and	Strimling	opposed	Trump’s	motion	

to	stay.

[¶8]		After	receiving	briefs	from	all parties	and	several	amici,	the	court	

entered	an	order	on	January	17,	2024. Among	other	rulings,	the	court	denied	

Trump’s motion	 to	 stay the	 court	 proceedings; stayed,	 by	 agreement	 of	 all	

parties, the	effect	of	the	Secretary	of	State’s	ruling	pending	the	outcome	of	the	

United	States	Supreme	Court’s	decision	in	Anderson;	and	remanded	the	matter	

to	 the	 Secretary	 of	 State	 with	instructions	 to	issue	 a	 new	 ruling	“modifying,	

withdrawing,	 or	 confirming” her	 December	 28	 decision after	 the	 Supreme	

Court	reaches	a	decision	in Anderson.		The	court	reasoned	that	a	remand	was	

necessary	 because	 Maine’s	 statutory	 scheme	 contemplates	 the	 Secretary	 of	

State—not	 the	 courts—having	 the	 initial	 authority	 to	 decide	 a	 challenge	

asserting the	falsity of	a	candidate’s	oath in	a	candidate	consent	form.

3

[¶9]		The	Secretary	of	State appealed	to	us	by	filing	a	notice	of	appeal	in	

the	 Superior	 Court	 on	 January	 19,	 2024,	 within	 the	 three-day	 period	

established by	section	337(2)(E).		See	also	M.R.	Civ. P. 80C(n);	5	M.R.S.	§	11008	

3	 	 See	 Bar	 Harbor	 Banking	 &	 Tr.	 Co.	 v.	 Alexander,	 411	 A.2d	 74,	 77	 (Me.	 1980)	 (explaining	 the	

“judicial	 policy	 of	 not	 deciding	 an	issue	 concerning	 which	 an	 administrative	 agency	 has	 decision	

capacity	until	after	the	agency	has	considered	the	issue”	(alteration	and	quotation	marks	omitted)).
7

(2023).	 On	 that	 same	 day,	we	 ordered	the	Secretary	 of	State	and	any	 other	

appellants	 to	 show	 cause	 why	 the appeal	 should	 not be	 dismissed	 as	

interlocutory.		Rosen,	Saviello,	and	Strimling	thereafter	filed	a timely notice	of	

appeal. On	January	23,	2024,	we	accepted	memoranda	on	the	issue.		We now

dismiss	 the	 appeal	 because	 we	 conclude	 that	 it	 is	 interlocutory and	 that	 no

statutory	or	judicially	created exception	to	our rule	requiring	a	final	judgment	

on	appeal applies.

II.		DISCUSSION

[¶10]	 	 An	 appeal	 to the	 Law	 Court is	 generally	“not	 ripe	 for	 appellate	

review	unless	 the	appeal	is	 from	a	 final	judgment.”		Stewart Title Guar. Co. v.

State Tax Assessor, 2006 ME 18, ¶ 3, 892 A.2d 1162. It	is	well	settled	that	when	

a	matter	has	been	remanded	to	an	agency	for	further	proceedings,	the	Superior	

Court	 decision is	 not	 a	 final	 judgment because	 it	 does	 not	 fully	 decide	 and	

dispose	 of	 the	 entire	 case,	 “leaving	 no	 further	 questions	 for	 .	 .	 .	 future	

consideration	and	judgment	by	the	administrative	agency.”		Est.	of	Pirozzolo	v.	

Dep’t	 of	 Marine	 Res.,	 2017	 ME	 147,	 ¶ 5,	 167	 A.3d	 552 (quotation	 marks	

omitted); see	also,	e.g., Fox	Islands	Wind	Neighbors	v.	Dep’t	of	Env’t	Prot.,	2015	

ME	53,	¶	9,	116	A.3d	940.		Rule	80C(m)	expressly	contemplates	that	any	appeal	

to	us	occurs	after	the	remand	and	that issues	generated	before	a	remand	to	an	
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agency	will	be	considered	if	raised	in	an	appeal	brought	after	the	entry	of	a	final	

judgment.4		See	also	Farrell	v.	State,	Dep’t	of	Hum.	Servs.,	415	A.2d	828,	829	(Me.	

1980)	(“Our	dismissal	of	plaintiff’s	appeal	is	solely	because	it	is	premature	and	

does	not	foreclose	later	review	of	the	whole	case	to	determine	whether	he	has	

been	caused	any	prejudice	by	the	action	of	the	Superior	Court.”).

[¶11]	 	 We	 have,	 on	 rare	 occasions,	 considered	 appeals	 from remand	

orders	“when	 the	 remaining	action	[was] essentially	ministerial,	 such	as	 the	

formal	issuance	of	a	permit,” Est.	of	Pirozzolo,	2017	ME	147,	¶	5,	167	A.3d	552

(quotation	marks	omitted).		The	remand	order	here,	however, directs actions	

that	 are	 more	 than	 ministerial.	 	Where	“the	 issue	 which	 the	 parties	 seek	 to	

present	 to	 this	 court	 might	 be	 affected	 by	 the	 action	 taken	 pursuant	 to	 the	

remand	 order,	 we	 will	 usually	 refrain	 from	 entertaining	 the	 appeal.”	 	 Id.	

(quotation	marks	omitted).

[¶12]		Although	 the	order	on	appeal	here	is	patently	interlocutory,	the	

Secretary	 of	 State and	 the	 challengers	 to	 Trump’s	 petition contend	 that	

(A) there	 is	 statutory	 authorization	 for	 an	 interlocutory	 appeal	 and	 (B)	 two	

4 “If	the	court	remands	the	case	for	further	proceedings,	all	issues	raised	on	the	court’s	review	of	

the	agency	action	shall	be	preserved	in	a	subsequent	appeal	taken	from	a	final	judgment	entered	on	

review	of	such	agency	action.”		M.R.	Civ.	P.	80C(m).		The	1997	Advisory	Committee’s	Note	to	Rule	

80C(m)	states, “Rule	80C(m)	is	amended	to	clarify	that	an	order	of	remand	from	the	Superior	Court	

to	 the	 governmental	 agency	 is	 not	 a	 final	 judgment	 from	 which	 an	 appeal	 lies,	 absent	 special	

circumstances.”
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judicially	created	exceptions	to	our final	judgment	rule apply: (1)	the	judicial	

economy	exception and (2)	the	death	knell	exception.		See	Me. State	Emps.	Ass’n,	

482	A.2d	at 464.

A. Statutory	Authorization	for	Interlocutory	Appeal

[¶13]		The	Secretary	of	State	argues that	section	337(2)(E)	requires	us	to	

enter	a	final	opinion	on	the	merits	of	the	matter	before	us.		The	judicial	review	

portions	of	section	337(2)	provide in	relevant part	as	follows:

D. A	 challenger	 or	 a	 candidate	 may	 appeal	 the	 decision	 of	 the	

Secretary	of	State	by	commencing	an	action	in	the	Superior	Court.		

This	action	must	be	conducted	in	accordance	with	the	Maine	Rules	

of	Civil	Procedure,	Rule	80C,	except	as	modified	by	this	section.	.	.	.	

The	court	shall	issue	a	written	decision	containing	its	 findings	of	

fact	 and	 conclusions	 of	 law	 and	 setting	 forth	 the	 reasons	 for	 its	

decision	within	20	days	of	the	date	of	the	decision	of	the	Secretary	

of	State.

E. Any	aggrieved	party	may	appeal [to	the	Law	Court] the	decision	

of	 the	 Superior	 Court,	 on	 questions	 of	 law,	 by	 filing	 a	 notice	 of	

appeal	within	3	days	of	that	decision. .	.	.	As	soon	as	the	record	and	

briefs	 have	 been	 filed,	 the	 court	 shall	 immediately	 consider	 the	

case.	 The	court	shall	issue	its	decision	within	14	days	of	the	date	of	

the	decision	of	the	Superior	Court.

In	accordance	with	section	337(2)(D),	the	Superior	Court	conducted	the	action	

by	 following	Rule	80C	of	 the	Maine	Rules	of	Civil	Procedure,	which	provides	

that	“[t]he	manner	and	scope	of	review	of	final	agency	action	or	the	failure	or	

refusal	of	an	agency	to	act	shall	be	as	provided	by	5	M.R.S.A.	§	11007(2)	through	
10

§ 11007(4).”		M.R.	Civ.	P.	80C(c).		As	authorized	by	section	11007,	the	Superior	

Court	decided	to	“[r]emand	the	case	 for	 further	proceedings	.	.	.	or	take	such	

action	 as	 the	 court	 deems	 necessary.”	 	 5	 M.R.S.	 § 11007(4)(B)	 (2023).	 	 The	

Secretary	of	State	then	appealed	to	us,	invoking	21-A	M.R.S.	§	337(2)(E).

[¶14]	 	 We	 have entertained appeals	 from	 orders	 other than	 final	

judgments where	 there	is specific	statutory	authorization	 for	such	an	appeal

from	a	particular	interlocutory	order.		Me.	Cent.	R.R.	Co.	v.	Bangor	&	Aroostook	

R.R.	 Co.,	 395	 A.2d	 1107,	 1113	 (Me.	 1978).	 	 For	instance,	the	 Legislature	 has	

expressly	 authorized interlocutory	 appeals “from	 [a]n	 order	 denying	 an	

application	 to	 compel	 arbitration.” 14 M.R.S.	 § 5945(1)(A)	 (2023);	 see	

Champagne	v.	Victory	Homes,	Inc.,	2006	ME	58,	¶	7,	897	A.2d	803.		We	review	

jeopardy	and	medical	treatment	orders	in	child	protection	proceedings	because	

the	 Legislature	 has specifically authorized	 those	 interlocutory	 appeals	 even	

though	 the orders do	 not	 finally	 resolve	 a	 child	 protection	 matter:	 “A	 party	

aggrieved	by	an	order	of	a	court	entered	pursuant	to	section	4035	.	.	.	or	4071	

may	appeal	directly	to	the	Supreme	Judicial	Court	sitting	as	the	Law	Court .	.	.	.”		

22 M.R.S.	 §	 4006 (2023);	 see	 22	 M.R.S.	 § 4035 (2023)	 (jeopardy	 orders);	

22 M.R.S.	§ 4071	(2023) (medical	treatment	orders);	In	re	Dakota	P.,	2005	ME	
11

2,	¶	12,	863	A.2d	280.		By	statute, certain	decisions	in	criminal	matters	may	also	

be	appealed	immediately	even	though	they	are	not	final	judgments:

An	appeal	may	be	taken	by	the	State	in	criminal	cases	on	questions	

of	law	from	the	District	Court	and	from	the	Superior	Court	to	the	

Supreme	Judicial	Court	sitting	as	the	Law	Court:	From	an	order	of	

the	court	prior	to	trial	which	suppresses	any	evidence,	including,	

but	not	limited	to,	physical	or	identification	evidence	or	evidence	

of	 a	 confession	 or	 admission;	 from	 an	 order	 which	 prevents	 the	

prosecution	from	obtaining	evidence;	from	a	pretrial	dismissal	of	

an	indictment,	information	or	complaint;	or	from	any	other	order	

of	 the	 court	 prior	 to	 trial	 which,	 either	 under	 the	 particular	

circumstances	 of	 the	 case	 or	 generally	 for	 the	 type	 of	 order	 in	

question,	 has	 a	 reasonable	 likelihood	 of	 causing	 either	 serious	

impairment	to	or	termination	of	the	prosecution.

15	M.R.S.	§	2115-A(1) (2023).	 In	the	presence	of	such	an	explicit	authorization,

we	honor	“a	legislative	intention	to	create	an	exception	to	the	final	judgment	

rule	allowing	immediate	appeal	of	such	interlocutory	orders.”		Me.	Cent.	R.R.	Co.,	

395	A.2d	at	1113.

[¶15]	 	 Here,	 there	 is	 no	 such	 explicit	 authorization.	 	 To	 the	 contrary,	

section	337(2)(D)	states	that	the	appeal	“must	be	conducted	in	accordance	with	

the	 Maine	 Rules	 of	 Civil	 Procedure,	 Rule	 80C,	 except	 as	 modified	 by	 this	

section.”		Nothing	in	section	337	modifies	the	final	judgment	rule	or	authorizes	

any	interlocutory	appeal.		Moreover,	the	statute	requires	the	Superior	Court	to	

“issue	a	written	decision	containing	its	findings	of	fact	and	conclusions	of	law	

and	 setting	 forth	 the	 reasons	 for	its	 decision.” 21-A	M.R.S.	 § 337(2)(D).	 	By	
12

statute,	 the	 Superior	 Court	 is	 expressly	 authorized	 to enter	 a	 decision

“[r]emand[ing] the	case	for	further	proceedings	.	.	.	or	tak[ing] such	action	as	

the	court	deems	necessary.”		5	M.R.S.	§ 11007(4)(B).

[¶16]		As	to	the statutory	authorization	of	an	appeal	from	“the	decision	

of	 the	 Superior	 Court”	 and	 the direction	 in	 the	 statute	 that	 we	 “issue	 [a]	

decision”	 within	 fourteen	 days	 after	 the	 Superior	 Court’s	 decision,	 id.

§ 337(2)(E),	 the	 Legislature	 cannot	 “supplant	 the	 power	 of	 the	 courts	 to	

determine	whether	a	justiciable	 controversy	 has	 been	 presented.”	 Bryant	 v.	

Town	of	Camden,	2016	ME	27,	¶ 14	&	n.	4,	132	A.3d	1183	(citing	Me.	Const.	art.	

III,	 §§	 1,	 2	 (establishing	 the	 separation	 of	 powers	 between	 the branches	 of	

Maine’s	government	and	prohibiting	any	branch	from	exercising	the	powers	of	

another	branch)).		Our	decision	to	dismiss	the	appeal	as	interlocutory	within	

that	period	may	not	be	the	final	word	in	the	matter,	but	it	decides	the	case	as	it	

has	been presented to	us.		Accordingly,	we	are	not	persuaded	that	the	statute	

requires	us	to	disregard	the	lack	of	justiciability	of	the	decision	challenged	on	

appeal.5

5 We	note	this	is	not	the	first	time	a	matter	has	been	remanded	to	the	Secretary	of	State	upon	the	

Superior	Court’s	judicial	review	of	an	election-related	decision.		In Reed	v.	Sec’y	of	State,	2020	ME	57,	

232	A.3d	202,	the	Secretary	of	State	issued	a	decision	declaring	a	petition	 for	a	direct	initiative	of	

legislation	valid	and	the	proposed	legislation	eligible	 for	a	statewide	vote.		Id. ¶	7;	see	21-A M.R.S.	

§ 905(1)	(2018) (since	amended	in	ways	not	relevant	here,	most	recently	by	P.L.	2023,	ch.	342,	§	1	

(effective	Oct.	25,	2023) (to	be	codified	at	21-A	M.R.S.	§	905(1))).		On	appeal	to	the	Superior	Court,	

the	court	remanded	the	matter	for	the	Secretary	of	State	to	take	additional	evidence,	after	which	the	
13

B. Judicially	Created	Exceptions	to	the	Final	Judgment	Rule

[¶17]		The	next	question	is	whether	a	judicially	created	exception	to	the	

final	 judgment	 rule weighs	 in	 favor	 of	 immediate	 appellate	 review	 of	 the	

Superior	Court’s	interlocutory	order.

1. Judicial	Economy	Exception

[¶18]	 	 The	 judicial	 economy	 exception	 applies	 when resolution	 of	 the	

appeal	 can “establish	 a	 final,	 or	 practically	 final, disposition	 of	 the	 entire	

litigation” and	 the	 interests	 of	 justice	 require	 that	 an	 immediate	 review	 be	

undertaken.	 	 Me. State	 Emps.	 Ass’n,	 482	 A.2d at	 464-65;	 see	 Forest	 Ecology	

Network	 v.	 Land	 Use	 Regul.	 Comm’n,	 2012	ME	 36,	 ¶	 17,	 39	 A.3d	 74; see also

Maples	v.	Compass	Harbor	Vill.	Condo.	Ass’n,	2022	ME	26,¶ 17	n.9,	273	A.3d	358	

(“We	clarify	here	 that	 the	availability	of	 the	judicial	economy	exception	does	

not	depend	on	our	deciding	the	case	in	a	certain	way, cf.	U.S.	Dep’t	of	Agric.,	Rural	

Hous.	Serv.	v.	Carter,	2002	ME	103,	¶	13,	799	A.2d	1232,	and,	with	respect	to	the	

first	 requirement,	 a	 party	 need	 only	 demonstrate	 that,	 in	 at	 least	 one	

alternative,	 our	 ruling	 on	 appeal	 might	 establish	 a	 final,	 or	 practically	 final,	

Secretary	of	State	issued	a	final	decision,	the	Superior	Court	reviewed	that	decision,	and	the	matter	

came	to	us	on	appeal.	Reed,	2020	ME	57,	¶¶	8-11,	232	A.3d	202.		This	process	enabled	us	to	make	a	

final	 decision	 that	 did	 not	 depend	 on	 any	 additional	 proceedings	 and	 decision-making.	 	 See	 id.

¶¶ 12-24.
14

disposition	of	the	entire	litigation,	see,	e.g., Liberty	v.	Bennett,	2012	ME	81,	¶	19,	

46	A.3d	1141;	Cutting	v.	Down	E.	Orthopedic	Assocs.,	P.A.,	2021	ME	1,	¶¶	16-18,	

244	A.3d	226.”).

[¶19]		Uncertainties	regarding	multiple issues	of	federal	law	pervade	the	

proceedings	pending	in	Maine	and	are	likely to	require	additional	proceedings	

to	ensure	the	proper	application	of	the	law.		We	would	run	a	high	risk	of issuing	

an	 advisory	 opinion	 if	 we	 decided	 the	 matter	 on	 the	 merits	 before	 a	 final	

judgment	has	been	entered.		Especially	when	several	possible	outcomes	of	the	

present	appeal	would	not	finally	resolve	the	matter,

6 we	cannot	conclude	that	

our	 review	 “has	 the	 potential	 to establish	 a	 final	 disposition	 of	 the	 entire	

litigation.”		Forest	Ecology	Network,	2012	ME	36,	¶	23,	39	A.3d	74.

[¶20]		The	expedited	timeline	set	forth	by	statute	does	not	persuade	us	

of	the	need	for	our	immediate	review.

7 If	we	were	to	issue	a	final	decision,	only	

then	 to	 learn from	 the	 Supreme	 Court	 that,	 for	 instance, Section	 3	 of	 the	

6 As	just	two	examples,	we	could	vacate	the	Superior	Court’s	decision	and	remand	the	matter	for	

the	court	to	reach a	final	judgment, or we	could affirm	the	Superior	Court’s	decision,	which	would	

result	in a	remand to	the	Secretary	of	State.

7		If a	final	determination	of	disqualification	were	to	be made before	the	ranked-choice	primary

on	March	5,	2024,	the vote	could proceed,	with	the Secretary	of	State	issuing	a	notice	informing	voters	

of	the	disqualification.		See	21-A	M.R.S.	§§ 1(27-C)(E), 371(5),	441(1), 723-A	(2023),	amended	by	P.L.	

2023,	ch.	304,	§§	A-14	to	A-19, A-39	(emergency,	effective June 26,	2023,	except	as	to	21-A	M.R.S.	

§ 723-A(5-B),	which	is	effective	Jan.	1,	2024)	(to	be	codified	at	21-A	M.R.S.	§ 723-A).
15

Fourteenth	 Amendment	 is	 not	 self-executing	 or	 that	 all	 findings	 regarding	

insurrection	must	be	reached	by	a	higher	standard	of	proof	than	the	Secretary	

of	State	applied,8 a	flurry	of	court	activity	would	ensue	in	an	effort	to	reopen	

the	decision	of	the	Secretary	of	State or	seek	independent	judicial	relief,	causing	

delay	that	the	existing	interlocutory	order	might	avoid.		This	is	not	an	instance	

in	 which	 judicial	 economy	 concerns	 encourage	 us	 to	 undertake	 immediate	

review.

[¶21]		Finally,	in	their	discussion	of	the	judicial	economy	exception,	the	

challengers	 have	 also	 alluded	 to	 another	 potential	 exception	 to	 the	 final	

judgment	 rule	 without	 specifically	 raising	 it:	 the	 separation	 of	 powers	

exception.	 	 This	 exception	 applies	 if	 the	 Superior	 Court	 has	 interfered	 with	

“apparently	 legitimate	 executive	 department	 activity”	 in	 disruption	 of	 the	

administrative	 process,	 in	 a	 way	 that	 “encourages	 the	 circumvention	 of	

statutorily	 authorized	 investigation	 and	 enforcement	 mechanisms.”	 	 Bar	

Harbor	 Banking	 &	 Tr.	 Co.,	 411	 A.2d	 at 75-77	 (reviewing	 a	 Superior	 Court’s	

temporary	 restraining	 order	 enjoining	 a	 scheduled	 administrative	 hearing).		

The	court	here	remanded	for	the	Secretary	of	State	to	exercise	her	statutorily	

8		In	particular,	the	potential	for	the	Supreme	Court’s	decision	to	require	additional	fact-finding	by	

the	Secretary	of	State	weighs	against	our	acceptance	of	an	interlocutory	appeal.		See	Wilcox	v.	City	of	

Portland,	2009	ME	53,	¶¶	13-14,	970	A.2d	295.
16

authorized	 function	 of	making	a	 final	 determination	 of	whether	 “any	 part	 of	

[Trump’s]	declaration	is	.	.	.	 false”	after	the	Supreme	Court	decides	Anderson.		

21-A	M.R.S.	§	336(3).		Far	 from	interfering	with	“legitimate	executive	branch	

activity,” the	Superior	Court	order	respects the separation	of	powers	and	the	

primary	role	of	the	Secretary	of	State	in	making	the	determination	at	issue.

2. Death	Knell	Exception

[¶22]		“The	death	knell	exception	permits	judicial	review	when	failure	to	

do	 so	 would	 preclude	 any	 effective	 review	 or	 would	 result	 in	 irreparable	

injury.”	 	 Me. State	 Emps.	 Ass’n,	 482	 A.2d	 at	 464	 (quotation	 marks	 omitted).		

Thus,	 we	 will	 undertake	 immediate	 review	 when	 “the	 appellant	 would	

obviously	suffer	irreparable	harm	otherwise	and	the	issue	pressed	on	appeal	

would	be	effectively	mooted	if	not	immediately	addressed.”		Id.		“The	exception	

is	only	available	when	the	injury	to	the	plaintiff’s	claimed	right	would	otherwise	

be	imminent,	concrete,	and	irreparable.”		Carter,	2002	ME	103,	¶	12,	799	A.2d	

1232 (quotation	marks	 omitted); see also	Me.	 State	 Emps.	 Ass’n,	 482	 A.2d	 at	

464-65 (declining	to	review	a remand	order	when	it could	be	challenged	after	

entry	of	a	final	judgment).

[¶23]	 	 Even	 when	 ballot	 printing	 deadlines	 are	 at	 issue,	 we	 have	 not	

always	applied the	death	knell	exception.	 In	Crafts	v.	Quinn,	482	A.2d	825	(Me.	
17

1984),	 we	 declined	 to	 apply	 the	 death	 knell	 exception	 in	 a	 case	 where	 the	

plaintiffs	sought	injunctive	relief	to	allow	more	time	to	obtain	signatures	for	the	

Libertarian	Party’s	presidential	candidate,	even	 though	a	 final	disposition	by	

the	 Superior	 Court	 would	 not	 be	 reached	 before	 the	 election	 without	 our	

acceptance	of	an	immediate	appeal. Id. at	827-29.

[¶24]		In	contrast,	in	Alliance for	Retired	Americans	v.	Secretary	of	State,	

2020	ME	123,	240	A.3d	45,	we	applied	the	death	knell	exception	to	review	an	

interlocutory	order	denying	a	preliminary	injunction enjoining	the	rejection	of	

certain	 absentee	 ballots.	 	 Id. ¶¶	 1,	 5.	 The	 plaintiffs	 sought	 a	 declaratory	

judgment that	 statutes	 governing	 the	 deadline	 for	 absentee	 ballots	 and	 the	

validation	and	rejection	of	absentee	ballots	were	unconstitutional as	applied	

during	 the	 COVID-19	 pandemic.	 	 Id. ¶	 1 &	 n.4.	 	 We	 reviewed	 the	 decision	

immediately	 because	 “once	 the	 November	 election	 [was] held,	 the	 claimed	

injury	 to	 [the	 plaintiff	 voters’]	 constitutional	 right	 to	 vote”—which	 was	

“specific	 to	 th[e] pandemic-affected	 election	 cycle—[could	 not] be	 repaired,	

even	if	they	eventually	prevail[ed] on	their	complaint	for	declaratory	judgment	

after	the	election.”		Id. ¶	6.

[¶25]	 	 The	 Secretary	 of	 State suggests that there	 is	 irreparable	 harm	

because	a	delay	in	certainty	about	whether	Trump’s	name	should	appear	on	the	
18

primary	 ballot will result	 in	 voter	 confusion.	 	 This	 uncertainty	 is,	 however,	

precisely	 what	 guides	 our	 decision	 not to	 undertake	 immediate	 appellate	

review in	 this	 particular	 case.	 	There	are	multiple alternative	 outcomes	 that	

would	 be	 more	 effectively	 addressed	 through	 the	 Superior	 Court’s	 order of	

remand to	the	Secretary	of	State.

[¶26]	 	 We	 are	 also	 struck	 by	 the	 fact	 that	 the	 parties,	 including	 the	

Secretary	of	State,	all agreed	that	the	effect	of	the	Secretary	of	State’s decision	

should	be	stayed	until	Anderson is	decided.		Given	that, we	cannot	conclude	that

concrete, irreparable	 harm	 would	 flow	 from	 our	 decision	 not	 to	 review	 this	

matter	immediately.	 Carter,	2002	ME	103,	¶	12,	799	A.2d	1232.		Indeed,	there	

is	at	least	as	great	a risk	of	additional	 process	and	 delay	if	we	 consider	 this	

appeal and	 reach	an	 ostensibly	 final	 decision,	and	 then	 the	Supreme	 Court’s	

decision	makes	additional	court or	administrative action necessary	to	comply	

with	the	federal	law	it	announces with	no	clear	path	for	resolution.		Given	the	

high	level	of	uncertainty,	the	Secretary	of	State	has	not	identified	a	concrete and	

irreparable	 harm arising	 from	 our	 decision	 not	 to	 review	 this	 matter	

immediately.		See	id.		
19

III.		CONCLUSION

[¶27]		Our final	judgment	rule	exists	 for	situations	such	as	 this,	where	

other	decisionmakers’ choices	are	likely	to	alter	the	landscape	of	the	case and	

narrow	 the	scope	of	our	 review. See	Me.	State	Emps.	Ass’n,	482	A.2d	at	464.		

Requiring	 a	 final	 judgment in	 this	 situation	 serves	 the	 interests	 of	 justice;

enhances	 administrative	 and	 judicial	 efficiency; averts	 our	 issuance	 of	 what	

would	likely	be,	at	least	in	some	part,	an	advisory	opinion;	and	allows	for	true

and	effective	 decision-making	when	the matter	is	 ripe.	 See	Est.	 of	 Pirozzolo,	

2017	ME	147,	¶ 5,	167	A.3d	552;	Bar	Harbor	Banking	&	Tr.	Co.,	411	A.2d	at	76.

The	entry	is:

Appeal	dismissed	as	interlocutory.

Aaron	 M.	 Frey,	 Attorney	 General,	 Thomas	 A.	 Knowlton,	 Dep.	 Atty.	 Gen.,	 and	

Jason	 Anton,	 Asst.	 Atty.	 Gen.,	 Office	 of	 the	 Attorney	 General,	 Augusta,	 for	

appellant	Secretary	of	State	

Benjamin	Gaines,	Esq.,	Gaines	Law,	LLC,	Brunswick,	and	James	T.	Kilbreth,	Esq.,	

Drummond	 Woodsum,	 Portland,	 for	 appellants	 Kimberley	 Rosen,	 Thomas	

Saviello,	and	Ethan	Strimling

Bruce	W.	Hepler,	Esq.,	and	Benjamin	E.	Hartwell,	Esq.,	The	Law	Offices	of	Bruce	

W.	 Hepler,	 LLC,	 Portland;	 Scott	 E.	 Gessler,	 Esq.,	 and	 Geoffrey	 N.	 Blue,	 Esq.,	

Gessler	Blue	LLC,	Greenwood	Village,	Colorado;	Ronald	D.	Coleman,	Esq.,	and	

Gary	M.	 Lawkowski, Esq., Dhillon	 Law	 Group,	 Inc.,	Newark,	New	 Jersey,	 and	

Alexandria,	Virginia,	for	appellee	Donald	J.	Trump

Kennebec	County	Superior	Court	docket	number	AP-2024-1

FOR	CLERK	REFERENCE	ONLY