Committee Advisory Note [December 2014]
The Rule parallels the content of Rule 71 of the Maine Rules of Criminal Procedure except in all of its subdivisions the word “court” replaces “assigned justice.” See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 70.
[Advisory Notes to former Maine Rules of Criminal Procedure]
Advisory Committee Note—1981
[M.R. Crim. P. 71.] Rule 71 incorporates the substance of the now- repealed 15 M.R.S. section 2129, subsection 8 (repealed by P. L. 1981, ch. 238, § 5) with the single exception of its third sentence. Rule 71 places the same restriction on the respondent relative to the inclusion of argument, citation, and discussion of legal authorities as is imposed upon the petitioner pursuant to Rule 67(e).
Advisory Committee Note—1984
[M.R. Crim. P. 71.] The amendment makes clear that the respondent may annex helpful documents to its response, no matter whether the response is an answer or any of the forms of response identified in Rule 71.
Advisory Committee Note – 1986
[M.R. Crim. P. 71.] The Rule is amended for consistency with the contemporaneous amendment to Rule 70(c)(2).
Advisory Committee Note – 1986
[M.R. Crim. P. 71.] The first sentence of Rule 71 is altered to reflect the elimination of the assigned justice’s order to respond in Rule 70(c)(2).
Advisory Committee Note – 1993
[M.R. Crim. P. 71.] See Note 8.
[8. M.R. Crim. P 70(c)(2). Experience has shown that enlargements of time need not be as sparingly granted for petitions for post-conviction review as for criminal trials and appeals. Accordingly, the strict standard of enlargement of Rule 45(b) should be disentangled from post-conviction petitions. The amendment substitutes a more lenient standard of enlargement.]
Advisory Note – October 2013
Former Rule 71 has been deleted and replaced because it failed to provide adequate guidance to the respondent. New Rule 71 structurally contains four subdivisions, each addressing a separate aspect of response procedure.
New subdivision (a) explains under what circumstances a respondent is required to file a response to the original or any amended petition. It makes clear that a response is required only when the respondent is directed to do so pursuant to Rule 70(c), is ordered by the assigned justice to file a supplemental response under subdivision (c) of this rule, or is ordered by the assigned justice to respond to a further amendment of the petition following the filing of an initial response pursuant to Rule 72A(b)(3).
New subdivision (b) sets the conditions and timing for the respondent to seek an enlargement of time within which to file a response, supplemental response, or additional response. It expressly allows the assigned justice, upon a showing of cause, to grant additional time “before or after the time has expired, with or without motion or notice.” See also Advisory Note – October 2013 to M.R. Crim. P. 70(c)(2).
New subdivision (c) provides the content requirements for a response to the original or amended petition. The response must answer each of the grounds asserted except as to any ground that the respondent believes fails to satisfy one or more of the five statutory prerequisites to an adjudication on the merits identified in Rule 66. As to any such ground believed by the respondent to be so barred, the response must expressly allege which of the five statutory prerequisites to an adjudication on the merits bars the ground. Thereafter, respondent has a choice as to how next to proceed. Respondent may either move to dismiss the allegedly barred ground in the response without also addressing its substantive merits or, alternatively, move to dismiss and address the substantive merits. The latter is the best course unless the response and any accompanying exhibits affirmatively disclose that the ground is barred since the assigned justice, upon a review of the filed response, may order the respondent to supplement the respondent’s filed response by addressing the merits of the allegedly barred ground. Finally, the response must not include argument, citation, and discussion of legal authorities other than in the context of moving to dismiss a ground. However, such may be filed in a separate document accompanying the response.
New subdivision (d) describes what the respondent must or may attach to the response or file with it. In the context of an allegedly barred ground, the respondent must attach to the response or file with it whatever further documents or other materials the respondent is relying upon in support of the allegation. In the context of an answer to a ground, the respondent is encouraged to attach to the response or file with it the documents or other materials that the respondent believes may assist the assigned justice in adjudicating the ground on the merits.
