MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2017	ME	1	
Docket:	   Ken-16-32	
Argued:	   October	25,	2016	
Decided:	  January	5,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                               CONSERVATORSHIP	OF	EMMA	
	
	
SAUFLEY,	C.J.	

        [¶1]		The	Kennebec	County	Probate	Court	(J.	Mitchell,	J.)	has	reported	a	

question	 to	 us	 that	 concerns	 public	 access	 to	 information	 held	 by	 probate	

courts	 in	 electronic	 format,	 specifically,	 financial	 information	 in	

conservatorship	 matters.	 	 Because	 we	 conclude	 that	 the	 reported	 question	

(1)	raises	 broad	 issues	 that	 extend	 beyond	 the	 controversy	 at	 hand,	

(2)	requests	 decisions	 that	 are	 inconsistent	 with	 our	 basic	 function	 as	 an	

appellate	 court,	 and	 (3)	 may	 be	 rendered	 moot	 by	 subsequent	 proceedings,	

we	decline	to	answer	the	reported	question.	

                                        I.		BACKGROUND	

	       [¶2]		In	February	2011,	Emma’s	husband	petitioned	to	be	appointed	as	

her	 guardian	 and	 conservator	 in	 the	 Kennebec	 County	 Probate	 Court.1	 	 He	



    1		We	granted	the	current	conservator’s	motion	to	de-identify	the	protected	person	in	this	matter	

and	have	provided	the	pseudonym	“Emma.”		
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amended	 his	 petition,	 with	 leave	 of	 the	 court,	 to	 seek	 the	 appointment	 of	 an	

attorney	as	Emma’s	guardian	and	himself	as	the	conservator	of	her	estate.		As	

conservator,	 he	 filed	 an	 inventory	 and	 accounts	 identifying	 the	 approximate	

value	of	the	estate’s	assets.		See	18-A	M.R.S.	§§	5-418,	5-419	(2015).			

	      [¶3]		Emma’s	husband	died	in	February	2014,	and	her	son	successfully	

petitioned	to	be	appointed	as	the	new	conservator.		With	his	petition,	Emma’s	

son	filed	an	updated	inventory	of	the	estate’s	assets	indicating	an	increase	in	

the	 value	 of	 the	 estate.	 	 After	 being	 appointed	 as	 the	 estate’s	 conservator	 in	

October	2014,	the	son	filed	an	amended	inventory.	

	      [¶4]	 	 In	 August	 2015,	 Emma’s	 son,	 as	 conservator,	 moved	 to	 have	

financial	 details	 regarding	 the	 value	 of	 the	 estate	 removed	 from	 the	 publicly	

available	 docket	 in	 the	 case,	 pursuant	 to	 M.R.	 Prob.	 P.	 92.12.	 	 The	 court	

summarily	 denied	 the	 motion.	 	 The	 conservator	 moved	 for	 the	 court	 to	

reconsider	and	to	amend	the	judgment	pursuant	to	M.R.	Prob.	P.	59	and	M.R.	

Civ.	P.	59.		The	conservator	focused	in	this	motion	on	limiting	the	availability	

of	 the	 inventory	 and	 account	 information	 on	 the	 Probate	 Court’s	 public	

website.		After	a	hearing,	the	court	indicated	that	it	would	consider	whether	to	

report	a	question	to	us	pursuant	to	M.R.	App.	P.	24(a).			
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	     [¶5]	 	 While	 the	 court	 had	 the	 matter	 under	 consideration,	 the	

conservator	filed	a	request	for	the	financial	information	to	be	removed	from	

the	 public	 docket	 as	 an	 accommodation	 pursuant	 to	 the	 Americans	 with	

Disabilities	Act	of	1990,	42	U.S.C.S.	§§	12101-12213	(LEXIS	through	Pub.	L.	No.	

114-248),	based	on	his	argument	that	persons	without	the	kinds	of	disabilities	

that	 invoke	 probate	 court	 jurisdiction	 are	 not	 subject	 to	 public	 disclosure	 of	

that	 information.	 	 Two	 days	 later,	 the	 court	 reported	 to	 us	 the	 following	

question:	

      	      When	 a	 conservator	 files	 an	 inventory	 and	 account	 for	 the	
      ward,	 a.	 should	 the	 image	 of	 the	 documents	 be	 available	 on	 line;	
      b.	should	the	summary	numbers	from	the	documents	be	available	
      on	 line	 while	 the	 document	 images	 remain	 as	 publicly	 available	
      only	in	the	court	(current	practice	in	Kennebec);	c.	should	neither	
      the	 image	 of	 the	 document	 nor	 any	 summary	 numbers	 be	
      available	 on	 line	 (current	 practice	 in	 fourteen	 counties);	 or	
      d.	should	the	Probate	Court	adopt	a	policy	different	from	a,	b,	or	c	
      above?	
      	
The	 court	 made	 clear	 that,	 despite	 the	 request	 for	 ADA	 accommodation,	

“[t]hat	does	not	appear	to	be	a	recurring	type	of	request	and	no	certification	of	

that	question	is	implied.”		The	court	entered	a	separate	ruling	on	the	request	

for	ADA	accommodation,	however,	stating	that	it	had	“certified	a	similar	issue	

to	 the	 Law	 Court,”	 and	 that	 “[p]ending	 the	 result	 of	 that	 certification,	 but	

without	 deciding	 the	 issue	 finally,	 the	 Court	 will	 accommodate	 [the	
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conservator]	by	removing	from	the	docket,	as	available	on	line,	the	summary	

numbers	from	the	inventory	and	account	he	has	filed	for	[Emma].”			

                                      II.		DISCUSSION	

	      [¶6]		By	rule,	a	court	“may,	where	all	parties	appearing	so	agree,	report	

any	 action	 in	 the	 trial	 court	 to	 the	 Law	 Court	 if	 it	 is	 of	 the	 opinion	 that	 any	

question	 of	 law	 presented	 is	 of	 sufficient	 importance	 or	 doubt	 to	 justify	 the	

report,	 provided	 that	 the	 decision	 thereof	 would	 in	 at	 least	 one	 alternative	

finally	dispose	of	the	action.”		M.R.	App.	P.	24(a).		A	properly	reported	action	

“shall	be	entered	in	the	Law	Court	and	heard	and	determined	in	the	manner	

provided	 in	 case	 of	 appeals,	 with	 the	 plaintiff	 or	 the	 party	 aggrieved	 by	 a	

reported	 interlocutory	 ruling	 being	 treated	 as	 the	 appellant.”	 	 M.R.	

App.	P.	24(d).	

	      [¶7]		Because	Rule	24	exists	as	an	exception	to	the	final	judgment	rule,	

see	Littlebrook	Airpark	Condo.	Ass’n	v.	Sweet	Peas,	LLC,	2013	ME	89,	¶	10,	81	

A.3d	 348,	 we	 begin	 by	 determining	 whether	 it	 is	 appropriate	 to	 accept	 the	

reported	 question	 for	 response.	 	 “When	 the	 trial	 court	 reports	 questions	 for	

review,	 we	 independently	 determine	 whether	 acceptance	 of	 the	 report	 is	

consistent	with	our	basic	function	as	an	appellate	court,	or	would	improperly	

place	us	in	the	role	of	an	advisory	board.”		Id.	¶	9	(quotation	marks	omitted).		
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“In	making	this	determination,	we	consider	the	following	factors:	(1)	whether	

the	 question	 reported	 is	 of	 sufficient	 importance	 and	 doubt	 to	 outweigh	 the	

policy	against	piecemeal	litigation;	(2)	whether	the	question	might	not	have	to	

be	decided	because	of	other	possible	dispositions;	and	(3)	whether	a	decision	

on	 the	 issue	 would,	 in	 at	 least	 one	 alternative,	 dispose	 of	 the	 action.”	 	 Id.	

(quotation	marks	omitted).	

	      [¶8]	 	 The	 first	 factor,	 in	 essence,	 asks	 whether	 the	 issue	 presented	 is	

sufficiently	significant	to	outweigh	the	purposes	served	by	the	final	judgment	

rule.	 	 Id.	 ¶	 10.	 	 The	 second	 factor	 addresses	 the	 possibility	 of	 other	 rulings	

rendering	the	question	moot.		Id.	¶	12.		If	there	exist	alternative	grounds	that	

could	result	in	a	final	disposition,	we	are	unlikely	to	accept	the	question.		See	

id.		The	third	factor	asks	whether	at	least	one	possible	answer	to	the	reported	

question	would	finally	resolve	the	dispute.		Id.	¶	13.	

	      [¶9]	 	 Regarding	 the	 first	 factor,	 the	 Probate	 Court	 has	 reported	 a	

significant	and	important	question	concerning	the	availability	of	court	records	

and	 docket	 information	 in	 electronic	 format.	 	 Across	 the	 country,	 state	 and	

local	courts	are	reviewing	and	amending	rules	addressing	the	shift	from	paper	

to	 electronic	 filing	 and	 file	 storage.	 	 See	 generally	 Hon.	 Paul	 H.	 Anderson,	

Future	 Trends	 in	 Public	 Access:	 Court	 Information,	 Privacy	 and	 Technology,	 in	
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Future	Trends	in	State	Courts	10-11,	14-16	(National	Center	for	State	Courts	

ed.	2011);	see,	e.g.,	Vt.	Pub.	Acc.	Ct.	Rec.	R.	1-8.		The	question	submitted	here	

concerns	 important	 public	 policy	 matters	 generated	 by	 the	 decisions	 of	

Maine’s	probate	judges	to	modernize	probate	records	by	making	certain	court	

records	 and	 docket	 information	 available	 to	 the	 public	 in	 electronic	 format,	

rather	than	confining	public	access	to	paper	files	and	docket	records	housed	

at	particular	courthouses.			

      [¶10]	 	 Although	 the	 question	 is	 important,	 and	 addresses	 significant	

matters	 of	 interest	 to	 the	 public,	 it	 is	 truly	 a	 question	 of	 policy,	 with	

long-ranging	and	far-reaching	implications.		The	issues	raised	by	the	question	

do	 not	 lend	 themselves	 to	 an	 adjudicatory	 response.	 	 Rather,	 they	 should	 be	

answered	 through	 rulemaking	 where	 the	 myriad	 questions	 regarding	 the	

treatment	 of	 digital	 records	 can	 be	 addressed	 together	 in	 an	 open	 forum.		

Unfortunately,	 no	 rulemaking	 or	 statutory	 amendments	 concerning	 privacy	

and	transparency	issues	 were	proposed	or	enacted	before	the	digitization	of	

probate	 records,	 leaving	 many	 weighty	 questions,	 including	 those	 which	 the	

Kennebec	County	Probate	Court	has	reported	to	us,	unanswered.			

      [¶11]		The	second	factor	also	militates	strongly	against	our	ruling	on	the	

question	 reported	 to	 us.	 	 The	 entire	 issue	 raised	 with	 respect	 to	 the	 Estate	
                                                                                           7	

may	be	moot	because	the	court	may	continue	to	preclude	public	access	to	the	

docketed	 financial	 information	 about	 Emma’s	 estate	 based	 on	 the	 ADA,	 an	

independent	 legal	 authority.	 	 Such	 a	 ruling	 could	 obviate	 the	 need	 for	 any	

opinion	 from	 us	 or	 could,	 if	 properly	 presented	 in	 an	 appeal	 from	 a	 final	

determination,	require	us	to	address	additional	legal	issues.	

       [¶12]		Regarding	the	third	factor,	the	broad	question	presented	could,	in	

at	least	one	alternative,	resolve	the	finite	dispute	about	the	display	of	Emma’s	

estate’s	 financial	 information	 in	 the	 docket	 entries	 publicly	 available	 on	 the	

Internet.	 	 It	 would	 not,	 however,	 resolve	 any	 substantive	 disputes	 regarding	

the	 accounting	 or	 other	 matters	 related	 to	 the	 estate,	 and	 would	 not	 finally	

resolve	 all	 issues	 arising	 from	 the	 conservator’s	 initial	 request,	 which	 asked	

the	 court	 to	 limit	 the	 inclusion	 of	 financial	 information	 in	 all	 docket	 entries,	

whether	or	not	available	on	the	Internet.		In	sum,	an	answer	to	the	question	

propounded	by	the	Probate	Court	will	not	have	an	impact	on	the	substantive	

proceeding	 before	 the	 court	 and	 should	 not	 be	 addressed	 unless	 a	 final	

judgment	has	been	entered.			

       [¶13]		Accordingly,	we	decline	to	answer	the	Kennebec	County	Probate	

Court’s	question	seeking	an	advisory	opinion	on	matters	that	reach	far	beyond	

the	 controversy	 presented	 in	 the	 matter	 at	 hand.	 	 We	 cannot	 undertake	 de	
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facto	 rulemaking—without	 public	 notice	 and	 a	 full	 opportunity	 for	 public	

comment—by	 responding	 to	 a	 reported	 question	 that	 seeks	 an	 advisory	

opinion	 in	 a	 matter	 that	 may	 well	 be	 resolved	 on	 a	 separate	 legal	 basis.		

Rulemaking	or	statutory	action	on	such	policy	questions	would	have	provided,	

and	 still	 may	 provide,	 the	 broader	 guidance	 that	 is	 sought	 in	 the	 Probate	

Court’s	question.	

         [¶14]	 	 Because	 the	 reported	 question	 may	 not	 be	 answered	 consistent	

with	 our	 basic	 function	 as	 an	 appellate	 court	 and	 instead	 seeks	 an	 advisory	

opinion	 on	 an	 issue	 that	 may	 be	 rendered	 moot	 by	 subsequent	

decision-making,	we	discharge	the	reported	question.	

         The	entry	is:	

                            Report	discharged.	
	
	      	      	      	      	     	
	
Patrice	A.	Putman,	Esq.,	Levey,	Wagley	&	Putman,	P.A.,	Winthrop,	and	Zachary	
L.	 Heiden,	 Esq.	 (orally),	 American	 Civil	 Liberties	 Union	 of	 Maine	 Foundation,	
Portland,	for	appellant	conservator	of	Emma	
	
Sigmund	D.	Schutz,	Esq.,	Preti,	Flaherty,	Beliveau	&	Pachios,	LLP,	Portland,	for	
appellee	Maine	Freedom	of	Information	Coalition	
	
	
Kennebec	County	Probate	Court	docket	number	2011-0102-2	
FOR	CLERK	REFERENCE	ONLY	
	
