In a highly unusual move, the full 1st U.S. Circuit Court of Appeals has agreed to rehear an appeal of a federal court ruling dismissing former Maine House Speaker Mark Eves’ lawsuit against Gov. Paul LePage.

The court said Friday that a majority of the judges voted to hear the appeal of the case’s dismissal, which had previously been upheld by a panel of three of the circuit court’s judges.

“We’re one step closer to holding the governor accountable for an egregious abuse of power,” said Eves, who is now running for governor. “I’m not going to give up.”

Eves, who was finishing up his term in the State House at the time, was hired in 2015 to be president of Good Will-Hinckley School, which also operates the Maine Academy of Natural Sciences charter school in Hinckley. The school’s board rescinded the offer, saying it wanted to “avoid political controversy” after LePage threatened to block state funding for the school if it went ahead with the job offer to Eves, a Democrat and frequent political opponent of the governor.

LePage argued that Eves had opposed charter schools as House speaker and therefore shouldn’t be hired to run an organization that also operated a charter school.

Eves then filed a federal lawsuit against LePage, accusing the Republican governor of “blackmailing” the school for at-risk students and asserting that LePage was violating Eves’ rights to free speech, political affiliation and due process by saying funding would be blocked if the job offer wasn’t withdrawn.

ORIGINAL REPEAL REJECTED

In May 2016, U.S. District Judge George Z. Singal dismissed Eves’ lawsuit in federal court in Maine, ruling LePage had immunity from a legal challenge on funding decisions as governor. Eves’ appeal of that decision was rejected, 2-1, by a three-judge panel of the 1st U.S. Circuit Court of Appeals in November 2016.

In agreeing to hear the case before the full slate of judges, called an “en banc” review, the court set out a series of questions for lawyers to answer, including whether LePage had “met his burden of proof” in asserting immunity from the suit. The court also asks whether an “objectively reasonable governor” might realize he or she is infringing on an individual’s First Amendment rights by threatening to withhold state funds from a group that hired a person with different views than the governor on schools and education policy. In addition, the court referenced one case that extended public employees’ free-speech rights to government contractors, and another that said the government could put limits on the use of government funds to make sure they are used the way the government intended.

FULL COURT REVIEW RARE

The decision to grant another hearing before the full court is very rare, said James Burke, a professor at the University of Maine School of Law.

According to the New York Law Journal, only four full en banc rehearings were granted in the 1st U.S. Circuit Court of Appeals from 2011 through July 2016. The 9th U.S. Circuit Court of Appeals, which covers eight states in the Rockies, on the West Coast and Alaska and Hawaii, granted the most during that period, with 40, while the 2nd U.S. Circuit Court of Appeals (New York, Connecticut and Vermont), granted only two.

“It doesn’t happen very often,” Burke said. “It’s not common and it is a big deal.”

But Burke cautioned against thinking the decision means the full slate of judges will come up with a different decision than the three judges who heard the appeal more than a year ago. While some of the judges may disagree with the finding of the three-judge panel, he said, the judges also might want to hear the case again to provide a greater explanation for the ruling.

But, he said, “they aren’t going to do a full review and then say, ‘Well, yes,’” he said. “There are enough people on the bench that want to take another look at something.”

David Webbert, Eves’ lawyer, said he was heartened by the court’s decision to hear the case again before the full panel of judges, a decision which also wipes out the earlier ruling by the three-judge panel. He said decisions to rehear a case are especially unusual because the 1st U.S. Circuit Court of Appeals has only six active judges and taking up a case before the full panel adds to each judge’s workload more than it would in a larger court. The 9th U.S. Circuit Court of Appeals, for instance, has 29 active judges.

He also said the court doesn’t often lay out a set of questions for lawyers to answer.

Webbert believes the court wants to tackle what he called “abuse of power by the executive branch” which, he said, has continued in the more than two years since LePage thwarted Eves’ hiring by the school.

“(LePage) keeps going further and further across the line,” he said. “Maybe 2018 is the year of the comeback for the rule of law. I’m really hopeful that this is a pushback and (a finding) that there are lines you can’t cross.”

A spokeswoman for LePage said the governor’s office can’t comment on ongoing litigation. Patrick Strawbridge, the lawyer who represented LePage in the case, did not return a call seeking comment.

The court order said the lawyers are to file their briefs in the case by Feb. 21 and reply briefs two weeks later. Oral arguments before the court are set for April 3 in Boston.

Edward D. Murphy can be contacted at 791-6465 or at:

[email protected]

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