MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	151	
Docket:	   Cum-15-410	
Argued:	   April	6,	2016	
Decided:	  October	13,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                 STATE	OF	MAINE	
                                         	
                                       v.	
                                         	
                               GEORGE	H.	HEDERSON	
	
	
PER	CURIAM	

      [¶1]		The	State	of	Maine	appeals	from	an	order	entered	by	the	trial	court	

(Cumberland	 County,	 Wheeler,	 J.)	 granting	 George	 H.	 Hederson’s	 motion	 to	

dismiss	 one	 count	 of	 a	 complaint	 alleging	 violation	 of	 a	 protective	 order	

(Class	D),	 19-A	 M.R.S.	 §	 4011(1)	 (2015).	 	 On	 appeal,	 the	 State	 contends	 that	

the	 court	 erred	 when	 it	 dismissed	 that	 count	 after	 concluding	 that	 the	

no-contact	 bail	 conditions	 ordered	 by	 a	 New	 Hampshire	 bail	 commissioner	

are	 not	 “similar”	 to	 a	 protective	 order	 for	 purposes	 of	 Maine	 statutes	

governing	 protection	 from	 abuse,	 see	 19-A	 M.R.S.	 §§	 4001-4014	 (2015).		

We	remand	the	matter	to	the	Unified	Criminal	Docket	for	further	proceedings.	
2	

                                I.		FACTS	AND	PROCEDURE	

	        [¶2]		On	January	29,	2015,	Hederson	was	arrested	in	New	Hampshire	on	

a	 domestic	 violence	 charge.	 	 He	 was	 released	 later	 that	 day	 on	 a	 $5,000	

personal	recognizance	bail,1	subject	to	a	“domestic	violence/stalking	criminal	

order	 of	 protection	 including	 orders	 and	 conditions	 of	 bail.”	 	 The	 bail	 order	

and	 conditions,	 also	 issued	 the	 same	 day	 by	 a	 New	 Hampshire	 bail	

commissioner,	required	that	Hederson	stay	150	feet	away	from	the	victim	and	

that	he	not	contact,	threaten,	or	abuse	the	victim.		The	order	also	established	

an	 arraignment	 date	 of	 March	 5,	 2015,	 and	 stated	 that	 the	 conditions	 were	

imposed	“pending	arraignment.”	

         [¶3]	 	 On	 April	 4,	 2015,	 Hederson	 allegedly	 assaulted	 the	 victim	 in	

Portland,	 Maine.	 	 On	 April	 6,	 Hederson	 was	 charged	 by	 complaint	 in	 Maine	

with	violation	of	a	protective	order	(Class	D),	19-A	M.R.S.	§	4011(1)	(Count	I),	

based	on	the	New	Hampshire	order;	and	domestic	violence	assault	(Class	D),	

17-A	M.R.S.	§	207-A(1)(A)	(2015)	(Count	II).	

         [¶4]	 	 On	 June	 24,	 2015,	 Hederson	 filed	 a	 motion	 to	 dismiss	 Count	 I	 on	

the	 ground	 that	 “a	 criminal	 bail	 order	 of	 protection	 issued	 by	 a	 bail	


     1This practice appears to be similar to release in Maine on an unsecured bond.
Compare N.H. Rev. Stat. Ann. § 597:2(I)(a) (LEXIS through ch. 330, 2016 Reg. Sess.), with 15 M.R.S.
§ 1026(2-A) (2015).
                                                                                                 3	

commissioner	in	New	Hampshire	is	not	the	same	or	similar	to	‘[a]	temporary,	

interim,	or	final	protective	order’	contemplated	in	[section	4011].”2		The	court	

heard	 oral	 argument	 and	 granted	 Hederson’s	 motion	 to	 dismiss	 Count	 I,	

concluding	 that	 the	 conditions	 of	 release	 prohibiting	 contact	 were	 not	 a	

“similar	order”	within	the	meaning	of	section	4011.		The	court	reasoned	that	

bail	 conditions	 are	 not	 similar	 to	 a	 protection	 from	 abuse	 order	 because	 the	

latter	 requires	 a	 finding	 of	 abuse	 by	 a	 preponderance	 of	 the	 evidence,	 see	

19-A	M.R.S.	§	4006(1),	and	the	former	does	not.		The	State	filed	a	motion	for	

reconsideration,	which	the	court	denied.		The	State	timely	appealed.	

                                         II.		DISCUSSION	

        [¶5]	 	 The	 State’s	 authority	 to	 appeal	 is	 controlled	 by	 15	 M.R.S.	

§	2115-A	(2015).		Section	2115-A	provides,	in	pertinent	part,	that	

        [a]n	 appeal	 may	 be	 taken	 by	 the	 State	 in	 criminal	 cases	 on	
        questions	 of	 law	 .	 .	 .	 from	 a	 pretrial	 dismissal	 of	 an	 indictment,	
        information	 or	 complaint[]	 or	 from	 any	 other	 order	 of	 the	 court	


  2   Title 19-A M.R.S. § 4011(1) (2015) provides:

        1. Crime Committed. Except as provided in subsections 2 and 4, violation of the
        following is a Class D crime when the defendant has prior actual notice, which may be
        notice by means other than service in hand, of the order or agreement:

           A. A temporary, emergency, interim or final protective order, an order of a tribal
           court of the Passamaquoddy Tribe or the Penobscot Nation or a similar order
           issued by a court of the United States or of another state, territory, commonwealth
           or tribe; or

           B. A court-approved consent agreement.
4	

     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).	

      [¶6]	 	 Although	section	2115-A	provides	the	State	with	the	authority	to	

appeal,	 “the	 question	 always	 remains	 whether	 in	 any	 particular	 case	 it	 is	

inappropriate	 for	 us	 to	 exercise	 that	 jurisdiction.”	 	 State	 v.	 Doucette,	

544	A.2d	1290,	1292	(Me.	1988).		On	the	record	before	the	Court,	we	note	an	

unanswered	question	of	sufficient	significance	so	as	to	present	the	possibility	

that	 we	 are	 being	 called	 upon	 to	 issue	 a	 purely	 advisory	 opinion.	 	 The	 scant	

record	from	the	New	Hampshire	proceedings	includes	only	copies	of	the	bail	

bond	and	the	“criminal	order	of	protection	including	orders	and	conditions	of	

bail,”	 both	 signed	 by	 a	 bail	 commissioner,	 and	 the	 complaint,	 signed	 by	 a	

justice	of	the	peace.		The	documents	required	Hederson	to	appear	before	the	

Ossipee	 Circuit	 Court	 on	 March	 5,	 2015,	 for	 arraignment.	 	 The	 issue	 of	 bail	

would	presumably	be	reviewed	de	novo	by	a	judge	at	that	appearance.	

	     [¶7]		The	arraignment	date	had	passed	by	April	4,	the	date	of	the	alleged	

assault	 in	 Maine,	 but	 we	 have	 no	 record	 of	 what,	 if	 anything,	 happened	 on	

March	 5.	 	 One	 possibility	 is	 that	 the	 bail	 conditions,	 which	 constitute	 the	

principal	 issue	 in	 the	 State’s	 appeal,	 were	 modified	 or	 even	 eliminated	
                                                                                      5	

because	 the	 no-contact	 condition	 was	 expressly	 ordered	 to	 remain	 pending	

until	the	arraignment	date.		If	the	bail	conditions	were	eliminated,	any	opinion	

by	us	regarding	the	issues	raised	in	the	briefs	would	be	purely	advisory.		If	the	

bail	conditions	were	addressed	or	modified	by	a	judge,	then	our	analysis	will	

depend	on	the	terms	of	the	order	entered	by	the	judge,	and	not	on	the	expired	

terms	in	the	bail	commissioner’s	order.	

      [¶8]	 	 On	 this	 record,	 without	 clarification	 of	 the	 status	 of	 the	 bail	

conditions	 after	 the	 arraignment	 date,	 we	 cannot	 adequately	 address	 the	

issues	 raised	 by	 the	 parties.	 	 Accordingly,	 we	 remand	 the	 matter	 to	 the	

trial	court	to	determine	the	facts	and	circumstances	regarding	the	conditions	

of	 bail,	 if	 any,	 in	 the	 New	 Hampshire	 proceedings	 as	 they	 existed	 on	

April	4,	2015.	

      The	entry	is:	

                   The	matter	is	remanded	to	the	Unified	Criminal	
                   Docket	 for	 further	 proceedings	 consistent	 with	
                   this	decision.		The	court	may	reopen	the	record	
                   for	 receipt	 of	 further	 evidence	 at	 its	 discretion.		
                   If	 the	 State	 intends	 to	 pursue	 an	 appeal	 after	
                   further	 action	 by	 the	 court,	 it	 shall	 file	 a	 notice	
                   of	appeal	in	the	ordinary	course.	
	
	     	     	      	      	      	
6	

	
On	the	briefs:	
	
      Stephanie	 Anderson,	 District	 Attorney,	 and	 Kate	 Tierney,	
      Asst.	 Dist.	 Atty.,	 Prosecutorial	 District	 Two,	 Portland,	 for	
      appellant	State	of	Maine	
      	
      Jamesa	J.	Drake,	Esq.,	Drake	Law,	LLC,	Auburn,	for	appellee	
      George	H.	Hederson	
	
	
At	oral	argument:	
	
      Kate	Tierney,	Asst.	Dist.	Atty.,	for	appellant	State	of	Maine	
      	
      Jamesa	J.	Drake,	Esq.,	for	appellee	George	H.	Hederson	
	
	
	
Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2015-1855	
FOR	CLERK	REFERENCE	ONLY	
