MAINE	SUPREME	JUDICIAL	COURT	                                              Reporter	of	Decisions	
Decision:	 2018	ME	73	
Docket:	   Ken-17-419	
Argued:	   February	14,	2018	
Decided:	  June	5,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                              SETH	T.	CAREY	
                                     	
                                    v.	
                                     	
                 MAINE	BOARD	OF	OVERSEERS	OF	THE	BAR	et	al.	
	
	
PER	CURIAM	

       [¶1]		Judge	Maria	Woodman	and	Judge	Nancy	Carlson	(collectively,	the	

judges)	 appeal	 from	 an	 order	 of	 the	 Superior	 Court	 (Kennebec	 County,	

Anderson,	J.)	denying	their	motion	to	seal	or	strike	portions	of	Seth	T.	Carey’s	

response	 to	 their	 motion	 to	 dismiss	 his	 complaint.	 	 We	 dismiss	 the	 appeal	

because	it	is	interlocutory	and	does	not	fall	within	any	 exception	to	the	final	

judgment	rule.		

                                     I.		BACKGROUND	

       [¶2]	 	 The	 following	 facts	 are	 drawn	 from	 the	 procedural	 history.	 	 See	

Schulz	 v.	 Doeppe,	 2018	 ME	 49,	 ¶	 3,	 ---	 A.3d	 ---.	 	 Carey	 is	 a	 lawyer	 and	 is	 the	

respondent	 in	 an	 attorney	 discipline	 proceeding.	 	 In	 November	 of	 2016,	

pursuant	to	the	agreement	of	 Bar	Counsel	and	Carey	himself,	a	 single	justice	
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found	 that	 Carey	 had	 violated	 provisions	 of	 the	 Maine	 Rules	 of	 Professional	

Conduct	and	suspended	Carey	from	practicing	law	in	Maine	for	two	years	but	

suspended	 the	 suspension	 subject	 to	 Carey’s	 compliance	 with	 numerous	

conditions.	 	 Bd.	 of	 Overseers	 of	 the	 Bar	 v.	 Carey,	 BAR-16-15	 (Nov.	 21,	 2016)	

(Brennan,	J.).		Although	Carey	agreed	to	that	disciplinary	order,	in	early	2017	

he	 filed	 a	 lengthy,	 multicount	 complaint,	 which	 he	 later	 amended,	 against	

numerous	 entities	 and	 individuals—including	 the	 judges—based	 on	 their	

actions	and	involvement	in	the	disciplinary	proceeding.			

      [¶3]	 	 In	 February	 of	 2017,	 all	 of	 the	 defendants,	 in	 two	 groups,	 filed	

separate	motions	to	dismiss	Carey’s	amended	complaint	and	sought	imposition	

of	sanctions.		Carey	filed	a	single	response	to	the	motions	on	March	6,	 2017.		

Three	days	later,	on	March	9,	the	judges	filed	a	motion	to	seal	or,	pursuant	to	

Maine	 Rule	 of	 Civil	 Procedure	 12(f),	 strike	 certain	 paragraphs	 of	 Carey’s	

response	in	which	he	made	assertions	about	the	judges	and	a	family	member	of	

one	of	them.		In	their	motion,	the	judges	stated	that	the	assertions	were	both	

personal	and	extrinsic	to	Carey’s	complaint	and	therefore	could	not	be	properly	

considered	in	connection	with	the	motion	to	dismiss	the	complaint.			

      [¶4]	 	 In	 an	 order	 issued	 on	 September	 1,	 2017,	 the	 court	 denied	 the	

judges’	motion	to	seal	or	strike.		The	court	concluded	that	the	material	could	
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not	 be	 stricken	 pursuant	 to	 Rule	 12(f)	 because	 that	 Rule	 applies	 only	 to	 a	

“pleading,”	which	does	not	encompass	an	opposition	to	a	motion	to	dismiss	a	

complaint,	 and	 because	 the	 judges	 “provided	 no	 authority”	 for	 sealing	 the	

paragraphs.		The	September	1	order	did	not	dispose	of	the	motions	to	dismiss	

the	complaint,	and	so	the	case	remained	pending	in	the	trial	court.			

      [¶5]		On	September	21—twenty	days	after	the	court	issued	its	order—

the	judges	filed	a	notice	of	appeal	from	the	court’s	denial	of	their	motion	to	seal	

or	strike.		See	M.R.	App.	P.	2A,	2B(c).		Because	the	case	was	still	pending	in	the	

trial	court,	we	issued	an	order	on	October	12	requiring	the	judges	to	show	cause	

why	 the	 appeal	 should	 not	 be	 dismissed	 as	 interlocutory.	 	 On	 October	 16,	 in	

response	to	the	show	cause	order,	the	judges	filed	 a	memorandum,	to	which	

they	attached	a	copy	of	Carey’s	response	to	the	motion	to	dismiss	filed	in	the	

trial	 court,	 which	 included	 the	 material	 at	 issue	 here,	 in	 order	 to	 provide	

context	 for	 their	 contention	 that	 the	 appeal	 should	 not	 be	 dismissed.	 	 The	

judges	also	moved	to	seal	the	pertinent	portion	of	Carey’s	filing	that	they	had	

attached	to	their	memorandum.		One	week	later,	on	October	23,	we	issued	an	

order	 permitting	 the	 appeal	 to	 proceed	 because	 it	 arguably	 fell	 within	 an	

exception	to	the	final	judgment	rule	but	reserved	to	the	parties	the	opportunity	
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to	argue	the	final	judgment	issue	along	with	the	merits.		In	that	order,	we	also	

ordered	that	the	attachment	be	impounded	pending	further	order	of	the	Court.1			

                                             II.		DISCUSSION	

	         [¶6]	 	 Before	 it	 would	 be	 proper	 for	 us	 to	 address	 the	 merits	 of	 this	

interlocutory	appeal,	we	must	first	address	whether	it	falls	within	an	exception	

to	the	final	judgment	rule.			

	         [¶7]	 	 A	 court	 order	 that	 does	 not	 result	 in	 a	 final	 judgment	 is	

interlocutory,	and	any	appeal	of	such	an	order	is	ordinarily	barred	by	the	final	

judgment	rule.		Fiber	Materials,	Inc.	v.	Subilia,	2009	ME	71,	¶	12,	974	A.2d	918;	

Estate	 of	 Kingsbury,	 2008	 ME	 79,	 ¶	 4,	 946	 A.2d	 389.	 	 There	 are	 several	

exceptions	to	the	final	judgment	rule	that	would	allow	interlocutory	appellate	

review.		Davis	v.	Anderson,	2008	ME	125,	¶	9,	953	A.2d	1166.		One	is	the	death	

knell	 exception,	 which	 allows	 an	 appeal	 from	 an	 interlocutory	 order	 “when	

substantial	rights	of	a	party	will	be	irreparably	lost	if	review	is	delayed	until	




     1	 	 Although	 we	 impounded	 the	 challenged	 material	 contained	 in	 Carey’s	 trial	 court	 filing,	 on	

December	12,	2017,	Carey	filed	a	motion	to	strike	the	appendix	filed	by	the	judges	because	it	did	not	
contain	that	material	or,	alternatively,	for	leave	to	file	a	supplemental	appendix	that	would	include	
that	material.		The	judges	promptly	filed	an	opposition.		Then,	on	December	19,	Carey	proceeded	to	
file	 a	 brief	 specifically	 describing	 the	 impounded	 material,	 and	 two	 days	 later,	 the	 judges	 filed	 a	
motion	to	seal	that	portion	of	Carey’s	brief.		On	January	5,	2018,	we	denied	Carey’s	motion	to	strike	
the	appendix	or	for	leave	to	file	a	supplemental	appendix,	impounded	Carey’s	brief,	and	ordered	the	
judges	themselves	to	file	a	revised	copy	of	Carey’s	brief,	with	the	impounded	information	redacted,	
that	would	constitute	the	“public	copy.”		The	judges	filed	the	redacted	appellee	brief	six	days	later.			
                                                                                          5	

final	judgment.”		Kingsbury,	2008	ME	79,	¶	5,	946	A.2d	389	(quotation	marks	

omitted).		In	other	words,	appellate	intervention	is	warranted	even	when	the	

case	 has	 not	 proceeded	 to	 a	 final	 judgment	 if,	 in	 the	 absence	 of	 that	 review,	

there	would	be	“a	substantial	loss	or	sacrifice	of	the	rights,	property,	or	claim	

at	issue.”		Id.		(quotation	marks	omitted).			

       [¶8]		One	situation	where	the	death	knell	exception	may	apply	is	in	an	

appeal	 from	 an	 order	 denying	 a	 motion	 to	 impound	 information.	 	 “If	 such	 a	

party	is	denied	the	opportunity	to	have	the	matter	reviewed	on	appeal	prior	to	

trial,	 the	 information	 will	 be	 disclosed	 and	 its	 secrecy	 forever	 lost.”	 	 Fiber	

Materials,	2009	ME	71,	¶	16,	974	A.2d	918.		In	order	to	determine	what	rights	

would	be	lost	if	we	were	to	dismiss	this	appeal,	we	must	consider	the	extent	to	

which	the	material	at	issue	has	already	been	available	to	the	public.		

	      [¶9]	 	 Carey	 filed	 his	 opposition	 to	 the	 judges’	 motion	 to	 dismiss	 his	

complaint	on	March	6,	2017,	and	the	judges	filed	their	motion	to	strike	or	seal	

the	challenged	portions	of	Carey’s	submission	three	days	later,	on	March	9.		By	

operation	 of	 an	 administrative	 order	 issued	 by	 the	 Maine	 Supreme	 Judicial	

Court,	upon	the	filing	of	the	judges’	motion,	the	material	they	sought	to	strike	

or	 seal	 became	 unavailable	 for	 public	 inspection.	 	 Public	 Information	 and	

Confidentiality,	Me.	Admin.	Order	JB-05-20	(as	amended	by	A.	1-15)	(effective	
6	

Jan.	14,	2015)	(stating	that	“materials	that	are	subject	to	a	pending	motion	or	

other	 request	 for	 impoundment	 or	 sealing”	 are	 not	 available	 for	 public	

inspection);	see	also	M.R.	Civ.	P.	79(b)(1)	(“Upon	the	filing	of	a	motion	or	other	

request	 to	 impound	 or	 seal	 documents	 or	 other	 materials,	 the	 clerk	 shall	

separate	 such	 materials	 from	 the	 publicly	 available	 file	 and	 keep	 them	

impounded	or	sealed	pending	the	court’s	adjudication	of	the	motion.”).			

       [¶10]		The	material	remained	impounded	pursuant	to	the	Administrative	

Order	until	the	court	denied	the	judges’	motion	on	September	1	because,	when	

the	 court	 acted	 on	 the	 motion,	 the	 motion	 was	 no	 longer	 pending	 and	 the	

protections	 afforded	 by	 the	 Administrative	 Order	 were	 extinguished.	 	 The	

judges	 did	 not	 request	 that	 the	 court	 delay	 the	 effective	 date	 of	 the	 order	 it	

issued	on	September	1,	and	they	did	not	take	any	other	steps	that	would	have	

extended	the	impoundment,	even	temporarily.		In	other	words,	as	the	judges	

acknowledged	at	oral	argument,	the	public	had	access	to	the	material	at	issue	

when	the	court	denied	their	motion.		Therefore,	from	September	1	until	at	least	

September	21,	when	the	judges	filed	a	notice	of	appeal,	the	challenged	material	

was	 fully	 available	 for	 public	 inspection	 with	 no	 attempt	 by	 the	 judges	 to	

impound	the	material	during	that	period.		And	beyond	that,	if	this	appeal	does	

not	 rise	 to	 the	 level	 of	 a	 “request	 for	 impoundment	 or	 sealing”	 within	 the	
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meaning	of	the	Administrative	Order—an	issue	we	need	not	decide—then	the	

material	remained	available	for	public	inspection	until	October	16,	when	the	

judges	specifically	moved	for	us	to	impound	the	material.			

      [¶11]	 	 As	 a	 general	 matter	 and	 as	 a	 function	 of	 both	 common	 and	

constitutional	 law,	 “the	 courts	 of	 this	 country	 recognize	 a	 general	 right	 to	

inspect	and	copy	public	records	and	documents,	including	judicial	records	and	

documents.”	 	 Nixon	 v.	 Warner	 Commc’ns,	 Inc.,	 435	 U.S.	 589,	 597-98	 (1978)	

(footnote	omitted).		The	general	availability	of	court	documents	to	the	public,	

however,	 is	 subject	 to	 “countervailing	 interests	 [that]	 heavily	 outweigh	 the	

public	interests	in	access.”		Rushford	v.	New	Yorker	Magazine,	Inc.,	846	F.2d	249,	

253	 (4th	 Cir.	 1988).	 	 The	 court	 records	 at	 issue	 here	 are	 not	 declared	

confidential	by	statute	or	court	rule,	do	not	fall	within	recognized	restrictions	

created	by	federal	law,	and	are	not	otherwise	declared	nonpublic.			

      [¶12]	 	 Because	 public	 confidence	 in	 the	 judicial	 process	 is	 vitally	

important,	our	review	of	requests	to	seal	documents	must	be	undertaken	very	

carefully	 and	 must	 be	 guided	 by	 the	 crucial	 principle	 of	 public	 access.	 	 This	

means	that,	in	the	circumstances	of	this	case,	we	place	great	significance	on	the	

access	that	the	public	had,	for	at	least	nearly	three	weeks,	to	the	material	that	
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the	judges	seek	to	impound	here.2		The	full	availability	that	the	public	had	to	

that	material	for	a	significant	period	materially	diminishes	the	justification	for	

sealing	the	 material	 now.	 	We	have	reached	the	same	conclusion	in	the	 past,	

although	in	a	case	where	the	dissemination	of	the	challenged	material	may	well	

have	been	greater	than	here.		See	Fiber	Materials,	2009	ME	71,	¶¶	15-16,	24,	

974	A.2d	918	(concluding	that	the	death	knell	exception	did	not	apply	because	

materials	 the	 appellant	 sought	 to	 strike	 had	 “already	 been	 widely	 disclosed”	

and	were	a	“matter	of	public	record	for	seven	days	until	the	memo	was	sealed	

by	the	court”);	see	also	Gambale	v.	Deutsche	Bank	AG,	377	F.3d	133,	144	(2d	Cir.	

2004)	 (stating	 that,	 although	 the	 confidential	 information	 became	 publicly	

available	as	a	result	of	the	trial	court’s	own	error,	“[w]e	simply	do	not	have	the	

power,	even	if	we	were	of	the	mind	to	use	it	if	we	had,	to	make	what	has	thus	

become	public	private	again.	.	.	.		We	have	not	the	means	to	put	the	genie	back	

[in	 the	 bottle]”);	 Level	 3	 Commc’ns,	 LLC	 v.	 Limelight	 Networks,	 Inc.,	 611	 F.	

Supp.	2d	 572,	 584-85	 (E.D.Va.	 2009)	 (where	 a	 motion	 to	 impound	 was	 filed	

after	 the	 records	 at	 issue	 had	 been	 admitted	 in	 evidence	 at	 a	 trial	 and	 three	



   2		We	do	not	hold	against	the	judges	the	several	days	that	elapsed	between	Carey’s	initial	filing	in	

the	trial	court	and	the	motion	to	strike	or	seal	because	the	judges	acted	with	considerable	dispatch	
in	responding	to	Carey’s	submission	by	moving	to	seal	or	strike	it,	which	resulted	in	the	material	
being	impounded	while	the	motion	remained	pending.		The	public’s	access	to	the	documents	after	
the	court	denied	the	impoundment	motion	is	another	matter.	
                                                                                         9	

weeks	after	the	jury’s	verdict,	concluding	that	the	party	had	waived	the	right	to	

seek	any	such	relief).	

	        [¶13]	 	 The	 death	 knell	 exception	 to	 the	 final	 judgment	 rule	 serves	 to	

preserve	 and	 protect	 rights	 from	 being	 irreparably	 lost.	 	 See	 Kingsbury,	

2008	ME	79,	¶	5,	946	A.2d	389.		Because	the	material	was	unprotected	and	fully	

available	to	the	public	for	a	number	of	weeks,	and	the	judges	were	aware	of	that	

circumstance	but	failed	to	take	available	and	timely	steps	to	protect	against	the	

harm	they	seek	to	avoid	now,	they	have	not	demonstrated	the	irreparable	harm	

necessary	for	appellate	review	of	the	court’s	interlocutory	order,	and	we	do	not	

reach	the	merits	of	the	appeal.			

         The	entry	is:	

                            Appeal	dismissed.		The	orders	of	impoundment	
                            dated	October	23,	2017,	and	January	5,	2018,	are	
                            vacated	effective	fourteen	days	after	the	date	of	
                            this	Opinion.		
	
	     	      	      	     	     	
	
Janet	T.	Mills,	Attorney	General,	and	Susan	P.	Herman,	Dep.	Atty.	Gen.	(orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellants	Judge	Maria	Woodman	
and	Judge	Nancy	Carlson	
	
Seth	T.	Carey	(orally),	appellee	pro	se	
	
	
Kennebec	County	Superior	Court	docket	number	CV-2017-17	
FOR	CLERK	REFERENCE	ONLY	
