Maine Appeals

is timing everything?

Last week the Maine SJC decided another 80B case, so of course I must blog on the same:  Adams v. Town of Brunswick, 2010 ME 7, majority opinion by Justice Mead, Justice Jabar dissenting:

http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me7ad.pdf

Basically, Brunswick has ordinances the spirit of which I think it's safe to say is to prevent Bowdoin students from piling into off-campus housing like a bunch of gerbils.  Justice Jabar thought there was enough language in the ordinances to achieve that anti-gerbilizing objective in the particular context presented (leasing a house divided into two apartments to a total of 11 students); the majority thought such language was lacking.  That aspect of the opinion provides a good example of how the Court parses ordinances and more specifically the use of the "family" concept, the modern version of which, for various reasons, most ordinances do not focus on the need for blood relations.

But the aspect of the decision that has a more universal application is the court's discussion of the difference between an appealable decision on the merits, interpreting whether a use fits the ordinance, and an unappealable decision to enforce or not enforce the ordinance, so interpreted.

In May 2007, the neighbors learned the gerbils were coming -the owners leased the first apartment to 6 students beginning September and 5 students to the other apartment in the same time frame.  After their discovery, the neighbors contacted the CEO, and on May 30, the CEO issued an opinion that it was an allowed use, then appealed to the ZBA.  The ordinance recited that the ZBA has authority "to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the" CEO.  The ordinance also expressly recited that whenever anyone files a complaint with the CEO that the ordinance "is being" violated, the CEO shall examine the complaint and if he declines to take action than neither that non-action "nor any written record or report on the complaint" constitutes an appealable order, requirement, decision or determination.

So was the CEO's conclusion an appealable decision or an unappealable declination to take action?  The SJC ruled it was the former, for two reasons.  First, it said that because the ordinance gave the CEO prosecutorial discretion when a complaint is filed asserting that the ordinance "is being" violated, and the students hadn't moved in yet, so the Ordinance was just going to be violated, this made a difference.  So one takeaway from this decision is if you find out about the violation before it occurs, that apparently is relevant, at least under the language of this ordinance.

Second, the SJC deemed the CEO's memorandum "an advisory opinion, not a decision declining to take an enforcement action, because absent a violation occurring at that time there was nothing to enforce."  While this is couched in terms of a second point, it's really related to the first point - if it hasn't happened yet, there's nothing to exercise discretion about.  The language of the court's reasoning on this second point, however, I think is infused with a separate concept, focusing on the contents of the memo.  Because the violation hadn't occurred yet, the CEO's language in his memo was all and only about whether the use was allowed under the ordinance.

I will be interested in seeing how this ruling works in application.  For example, from one perspective, the timing issue seems a little metaphysical - why should it matter whether you learn about the violation before or after it starts and what tense the ordinance uses?  Can a CEO bulletproof his conclusion simply by saying something like "whether or not this use is an allowed use, I am not going to enforce it?"  Or what if the CEO doesn't issue anything in writing?  If someone complains about something (before or after it starts) and the CEO thinks that his interpretation of the ordinance is correct, can he avoid review by simply doing nothing, and the complanant is stuck?

There's a balance that needs to be struck between the inequity of a flagrant ordinance violation with no ability of a neighbor to do anything about it (although if the use is sufficiently unreasonable and damaging, he can always file a common law private nuisance action against the neighbor), and the inequity of a newbie or harassing neighbor complaining (and in theory repeatedly) about a longstanding inoffensive use. It's the in-between is murky.  Looking only at the equities, as represented in this opinion, it seems more on the fairness side to allow judicial review - the complaint wasn't harrassing regarding a longstanding use; the issue presented, for the first time, was whether the use fit the ordinance; and the CEO's memo was couched exclusively in terms of ordinance interpretation, not enforcement.     

Because the enforcer in the non-80B/80C context (e.g. a criminal prosecutor) is a separate person from the adjudicator, it's easy to figure out whether a decision is an adjudication or an exercise of prosecutorial discretion.  The AAG could send a letter to the complainant saying "I'm not going to prosecute because I think X hasn't violated the law," and that would still be deemed an exercise of prosecutorial discretion, not an appealable decision by an adjudicator, even though he couched his decision in terms of interpreting the statute.  It's the dual role of CEO as enforcer and adjudicator that complicates things.  The SJC's citation of the timing factor as key to finding the dividing line could make sense in this context because if you complain about something before it happens, as the Court noted, obviously there's no discretion to exercise.  If you called up a criminal prosecutor and said "X is going to rob a bank tomorrow," that prosecutor (absent some conspiracy evidence, i.e. something already happening) can't do anything and isn't exercising any prosecutorial discretion.

In sum, I look forward to seeing how this ruling plays out. Is the timing factor dispositive?  Or is the nature and content of the CEO's reaction determinative?  

Stay tuned.     

Quo vadis qui tam?

Last Monday Bill Kayatta argued an interesting qui tam case in front of the First Circuit, U.S. ex rel. Loughren v. Unum Group.  Justice Souter was on the panel.  The RSS feed is now on line, so if you can hear the argument (link to cite below).

Among other things, Justice Souter's questioning of the appellee, and honing in on his issue, is very instructive, and if he continues to sit on First Circuit panels (see previous entry), we are lucky and had better be on our game.       

 -http://www.ca1.uscourts.gov/

The Eight Percent Solution

Following up on my previous entries, here is the full skinny on the session on appellate practice held a week ago at the winter bar meeting.  It was well attended and we had a great set of panelists.  I only wish we had had more time to go into more depth on some of the topics.

The subject was the ten biggest mistakes made on appeal and here’s who talked on which mistake:

• Judge Lipez - overreaching & tone

• Justice Alexander - failure to follow the rules

• Justice Levy - ignoring the standard of review & not answering the question 

• AAG Macomber - avoiding the bad fact/decision & including too many issues

• Melissa Hewey - use of exhibits & post-argument filings

• moi – appealing in the first place.

Briefly:

• Judge Lipez gave a thoughtful and succinct summary, with specific examples, of what constitutes overreaching and improper tone, and noted, among other things, that an ad hominem or improper tone only results in loss of credibility.  There’s no upside on the overreaching front, either, because the clerks are going to check all your cites in any event. 

• Justice Alexander gave a plea in particular with respect to the appendix.  I’ve blogged on this issue before, but I will just note my growing personal understanding of the critical importance of this point.  The busier a court is, the more it needs to rely on the lawyers to (a) give it what it wants and (b) cull a workable portion of the record on which it should focus.  Judge Lipez noted that the addendum is a useful mechanism for the really important items in the First Circuit (in the Law Court, Justice Alexander noted that there should be no duplicates of anything, so be more cautious about using an Addendum to your brief there).

• Justice Levy gave audio examples of his topics, and I thought made a very interesting point about it being ok not to answer the question, in that lawyers should be very cautious about making concessions in the oral argument.  While other judges might grow frustrated at the failure to answer a yes or no question yes or no, Judge Lipez and Justice Levy observed that they don’t ask a lot of yes or no questions, and they understand that more fulsome responses are often required.

• AAG Macomber returned us to Judge Lipez’s overreaching topic, by noting that it does no good to overreach by avoiding the bad fact or question.  Cluttering your case with too many issues also doesn’t help.  Given that he works in the criminal arena, he pointed out that a defense lawyer can always choose to focus on the strongest points in his or her brief, and let the client, if he or she insists, brief the other points that he or she may want, separately themselves.

• Melissa Hewey concisely noted that the use of exhibits never works, and everyone agreed, with the limited exception that if you have a land use case or similar appeal where a map is useful, then the mechanism to deal with this may be to make sure the map is in the record, and give the judges individual copies of the map, and, if you can, to follow in the argument.  On the post-judgment front, she reported the statistics that graphically demonstrate that a moti0on for reconsideration rarely wins in the Law Court.  Justice Alexander, while agreeing that such motions that just re-hashed the argument is not appropriate, said that he thought a motion correcting a clerical-type mistake (mis-citing a statute etc.) or addressing a point in a decision that had not been briefed and had unintended ramifications could be the exception to the rule.  On the Rule 28(j) front, Judge Lipez noted that counsel should adhere to the rules and limit themselves.  Note that there is no state counterpart to Rule 28(j), and although people seem to file the equivalent type letters with abandon before the SJC, your shouldn't.  Instead, file a motion to allow you to do so (and don't do it often). 

• I basically cited the statistics that show that, looking at the brief covers, “blues” generally lose.  The general statistic in the First Circuit is that @ 8% of cases are reversed.  The statistics from the Law Court are more opaque, but after the session, Justice Alexander told me that the number is about the same - @ 8%.

As I noted, my regret is that, with such a great group, we didn’t have more time to go into these topics or others in more depth.  I personally could have asked a lot of questions that we just didn’t have time for.  I’d be interested in the thoughts of anyone who attended this session as to what was good or bad and what topics should have been included etc., so if you have any comments, please send them along. 

The Sixth Man?

A full report of the well-attended session on appellate practice at the Maine State Bar Association winter meeting will follow, but first this tidbit of First Circuit news.

If you've been looking at the calendar for January and February for the panels for First Circuit arguments, you've noticed a visitor - David Souter.  Apparently he was unenamored of Washington, not judging, so voila - a new Kevin McHale in Boston to relieve the starters and keep them on their toes.  What an excellent development.   

A good lawyer is like a rare and expensive bottle of wine

On January 14, Chief Judge Lynch (with Judges Stahl and Judge DiClerico, D.Ct. NH, visiting) issued an excellent commerce clause opinion, striking down a Massachusetts law imposing disparate restrictions on "large" winery direct shipping sales:  Family Winemakers CA. v. Jenkins, 09-1169: http://www.ca1.uscourts.gov/

The commerce clause is another one of those issues I could write a book about, and this decision confirms what I've always thought about such cases and why I like this area of the law:  good lawyering matters.

I'm not going to get into the details.  Suffice it to say that C.J. Lynch provides a stellar framework for making a commerce clause claim - save this decision and keep it on your refrigerator if you've got such a claim or are contemplating one, because it goes through the A,B,Cs.  

The point I want to focus on here is a comparison of this ruling to another First Circuit decision in which the Court (Judge Selya, with Judge Boudin and visiting Judge Schwarzer) upheld a Maine law restricting direct shipping sales;  Vineyard v. Baldacci, 505 F.3d 28 (1st Cir. 2007). 

The Massachusetts law made large wineries, defined as producing over 30,000 gallons of wine annually, choose whether to use retailers or direct shipping, while small wineries could use any option - retail, wholesalers, direct shipping.  It just so happens that there are no "large" wineries in Massachusetts so defined.  Thus, the law hurt the large wineries and helped the local Mass industry.  Among those representing the challengers to the law was Kenneth W. Starr.  The folks on the defense side were basically AGs. 

The Maine law only allows face to face direct shipping sales.  Hence, unlike the Mass. case, the small out of state folks are disadvantaged, which could be viewed as helping the big guys.  So our AG (represented by Chris Taub and Paul Stern, two very able and experienced folks) had a big line up of amici supporting them, including lawyers like, e.g. Carter Phillips. 

Judge Lynch distinguished the decision in Baldacci from that in Family Winemakers by saying (n. 13) that the challenge in Baldacci "failed because plaintiffs did not introduce any evidence that the law benefitted Maine vineyards or harmed out-of-state wineries."

In other words, the record in a commerce clause claim is key - this is one of those rare constitutional claims where there's some opportunity to provide some facts, and you'd better do your best to do so.  

 Although in theory (and rare cases) a challenger to a state law can prevail by showing only discriminatory effect or an "excessive" burden on interstate commerce, a key to winning is very often making the court understand what's really going on.  Even when it's obvious, however, there's some precedent that still upholds the law.  Maybe you can say it's the luck of the draw of judges sometimes, but to me the lesson is you've got to get as many facts in there as possible.  Supply the fingerprints of the legislature passing protectionist legislation.

CJ Lynch, I think we would all agree, does not lack in the synapse-jumping department, so she can see the handwriting on the wall if everyone could just dump any old evidence into the record, and the court is very circumspect in this decision about the type of evidence it will look at, leaving for another day fighting about material other than basic undisputable facts and legislative history.  Still, acknowledging that the view of one legislator isn't decisive, she notes that it is evidence.  There's also caselaw from elsewhere that allows a broader spectrum of evidence in when the law was passed by referendum (a.g. anti-waste laws or ordinances).  

In sum, while there are differences between these two laws, and obviously there were different panels, those are two factors that are predicates for the attorney - you can't change them.  What you can do, however, is make the best argument, citing the best precedent (and this decision is pretty helpful) making the best record you can.  Good lawyering might not always, and may not in this instance, have made a difference.  But it can.  

NRG, MSBA & CTA1

Here's a short grab bag of recent-looming events etc.:

1.  The Supreme Court decided a case in which the Maine Public Utilities Commission was among the respondents- NRG Power Marketing LLC v. MPUC, http://www.scotuswiki.com/index.php?title=NRG_Power_Marketing%2C_LLC_v._Maine_Public_Utilities_Commission

The MPUC was represented by Lisa Fink at the Commission, and Donald Sipe at Preti also signed on to the brief for IECG (this entry is all about acronyms), but it looks like the CT AG did most of the heavy lifting for the respondents.  The petitioners were represented by Jeffrey Lampken, a very nice and bright fellow with whom I worked on the appeal in the Rhode Island lead paint litigation case. 

The action involved the Mobile-Sierra doctrine, which is actually something I know about, but I am going to spare you the details.  Petitioners won, with the decision by Justice Ginsburg.

2.  The MSBA winter meeting is only a week away.  As previously blogged, I'll be moderating a stellar panel - Judge Lipez, Justices Alexander and Levy, AAG Donald Macomber and Melissa Hewey - on appellate practice issues.  I'm told that the our breakout session is the most popular in terms of who has signed up, and it should be an excellent event.  I am going to try to leave substantial time for questions, so put your thinking caps on.  If you can't come or you have a burning question that you really want to make sure is answered, then just contact me and I'll try to get it in.  January, incidentally, marks the start up of the presidency of the MSBA by Pierce Atwood's own Gigi Sanchez, yay.

3.  If you've been invited to the 2010 First Circuit Judicial Conference May 13-14, then you can see that they've lined up some plenty big guns.  The conference has been slimmed down for fiscal reasons to one packed day, basically, but the quality of the content certainly hasn't diminished.   Speakers include Justice Breyer, Richard Posner, Linda Greenhouse, and Solicitor General Kagan.  I've heard speeches from Justice Breyer and Linda Greenhouse before, and they are both excellent speakers, and I've seen Judge Posner in action eviscerating counsel from the bench in Chicago, so it should be an entertaining as well as informative day.  Your intrepid blogger will give a full report.  

Hope springs eternal

In Hostar Marine Transport Systems, Inc. v. U.S. Department of Internal Revenue Service, No. 08-2535 (Jan. 7, 2010), http://www.ca1.uscourts.gov/, the First Circuit held that the IRS's duty to treat all similarly situated taxpayers similarly is "aspirational.":  "Despite the goal of consistency in treatment, the IRS is not prohibited from treating such taxpayers disparately.  Rather than being a strict, definitive requirement, the principle of achieving parity in taxing similarly situated taxpayers is merely aspirational."  (slip op. at 19).  

The case involved a refund claim that focused solely on a due process, not equal protection argument.  I would assume that if the basis for the IRS's disparate treatment were improper, as opposed to mere arbitrariness, e.g. the decision was based on the taxpayer's membership in a suspect class, that the Constitution would under those circumstances preclude such conduct and provide a remedy.  Otherwise, however, while you can always argue that a tax was wrong under the applicable regulations, you can't defend yourself on the basis that the IRS chose only to apply the tax to you, and not all the other taxpayers exactly like you.

I understand the practical logic behind this rule - given the task the IRS has, there has to be some leeway in its decision-making.  The conclusion, however - that the IRS can be entirely arbitrary - seems, at a minimum, a little ... sad.  

A somewhat similar issue of when arbitrary decision-making becomes a constitutional violation arises in the administrative context relating to local land use decisions.  If a planning board denies you a permit because you are Muslim, that's actionable.  If a planning board denies you a permit because it's misapplied the applicable ordinance, you can generally appeal - and that right to appeal and fix a random mistake means that there has been no procedural due process violation (remedy the old prison tool kit case?)  But if a planning board has given everyone in the same situation as you a permit, and doesn't give you one, with no rational explanation as to why others were treated differently, are you out of luck?  Generally speaking, if an administrative body changes its interpretation of a rule, it can do so, but it must (a) recognize that it is doing so; and (b) articulate a basis for it.  So my blogosphere gut tells me that the board would at least need to articulate some rational explanation for its deviation.  Often courts avoid drilling into this issue by simply finding that the other approved applicants weren't similarly situated. 

In theory, the rational basis test requires rationality, yes?  The problem, of course, is that no federal court wants to federalize local land use decisions by finding a constitutional claim.  Usually the administrative test for review is arbitrariness and capriciousness (which sounds to me like it requires a rational explanation).  But not all arbitrary conduct can be deemed unconstitutional in this murky world of substantive due process.

 The result?  The outcome is fairly straightforward - your chances of prevailing on a constitutional claim are slim -  while the reasoning why ... is not so clearly articulated.              

New date for Coffin celebration

The event to celebrate Judge Coffin's life has now been re-scheduled to May 8, same place (Abromson center).

May 8, as History aficionados may know, is V-E day, the day WWII ended in Europe.  I know this because my mother's birthday was May 7, while Harry Truman's was May 8.  She never forgave Harry for what she thought was postponing the end of the war one day to have it on his birthday instead of hers, and maybe it's not just coincidence that as soon as she was old enough to vote she registered Republican and voted R for the rest of her life.

Harmless error and administrative appeals

A paragraph in a recent SJC decision (Mulready v. Maine Board of Real Estate Appraisers, 2009 ME 135 (12/29/09)) got me pondering.  It is an 80C decision, naturally to whetting my insatiable my administrative appeal appetite.

The decision itself is straightforward – it affirms a Superior Court decision that, in turn, affirmed a decision of the Board of Real Estate Appraisers (BREA) to issue a warning and order the appellant to pay hearing costs pursuant to 10 M.R.S. §§ 8003(5-A)(A)(2), (B)(2).

The section of the decision that has me musing is the following:

…the BREA erred in finding that Mulready should have evaluated 80 Exchange as a leased fee.

However, “[w]e will not disturb a judgment if an error is harmless.”  Tolliver v. Dep’t of Transp., 2008 ME 83, ¶ 39, 948 A.2d 1223, 1235. A preserved error is harmless “if it is highly probable that the error did not affect the judgment.” Id. The BREA’s error on this issue was harmless because it was not identified during the deliberations as a basis for finding a violation or determining a sanction, and because there was sufficient evidence, as discussed below, for the BREA to conclude that Mulready had violated Standards Rule 2-1(b). See id.

Mulready, 2009 ME 135, ¶¶ 28-20.  Tolliver is not an administrative appeal but involved a jury finding.

Thus, the SJC upheld an agency decision on harmless error grounds because (1) the deliberations did not indicate that the agency relied on the error; and (2) there was enough other material in the record to support the sanction.

The first question I asked myself is whether you can ever have harmless error in the administrative context.  A court isn’t supposed to substitute its judgment for the agency’s – that’s why, for example, the court can’t uphold an agency decision on alternate grounds:

‘in dealing with a determination or judgment which an administrative agency alone is authorized to make, (a court) must judge the propriety of such action solely by the grounds invoked by the agency.  If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.  To do so would propel the court into the domain . . . set aside exclusively for the administrative agency.’  Securities & Exchange Commission v. Chenery Corporation, 332 U.S. 194, 196 … (1947).

In Re Maine Motor Rate Bureau, 357 A.2d 518, 526-527 (Me. 1976).

So, if a board lists – “invokes” – 100 reasons for deciding something, and one of those reasons is wrong, then it would seem to me that the court would have to remand and can't affirm, even if every single one of those other 99 reasons could sustain the decision.  To do so would be do substitute the court's reasoning for the agency's. 

On the other hand, if a board doesn’t say that it’s basing its decision on a particular fact or conclusion – if it’s not “invoking” – then why can’t the court affirm on harmless error grounds? Is merely stating a finding or conclusion in a written agency decision "invoking” that finding or conclusion as a basis for the decision, so that the court must remand?  Some agency decisions have gazillions of findings that go on for many pages, made on many preliminary and tangential matters.  It would wreak even more havoc than the normal delays if the itsiest little mistake in a written decision required a remand to clarify, causing yet more delay.

Hence, the SJC’s position that not every finding and conclusion in a written decision needs to be correct in order to affirm the decision makes sense.

The next question I asked is about the test the SJC applied for harmless error – looking, subjectively, at what the board said in its deliberations, and then, objectively, at the record for supportability absent the finding at issue.

On the subjective front, things get a little complicated because of the “deliberative process privilege.”  There is law for the proposition that courts shouldn’t look to statements made in deliberations; it’s only the written decision that counts.  See 1 M.R.S. § 407 (“Every agency shall make a written record of every decision involving the conditional approval or denial of an application, license, certificate or any other type of permit.  The agency shall set forth in the record the reason or reasons for its decision and make finding of the fact, in writing, sufficient to appraise the applicant and any interested member of the public of the basis for the decision”); 5 M.R.S. § 9061 (agency must make findings of fact and state them on the record or in writing, with a copy of the “decision” sent to the parties).  A primary reason for providing a privilege as to the deliberations preceding the written determination is “to protect the decisionmaking process by insuring that officials are judged by what they actually do, not by what they considered before deciding.”  R. Weaver & J. Jones, The Deliberative Process Privilege, 54 Mo. L. Rev. 279, 289 & n. 49 (1989), citing Russell v. Department of the Air Force, 682 F.2d 1045, 1048  (D.C. Cir. 1982);Jordan v. United States Dep't of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978), overruled on other grounds, Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981); Marzen v. U.S. Dep't of Health & Human Servs, 632 F. Supp. 785, 813 (N.D. Ill. 1986), aff'd, 825 F.2d 1148 (7th Cir. 1987).  See also American Federation of Government Employees, AFL-CIO v. U.S. Department of Health & Human Services, 63 F. Supp. 2d 104 (D. Mass. 1999) (to prevent agency officials from being “judged not on the basis of their final decisions, but for matters they considered before making up their minds”), citing City of Virginia Beach v. U.S. Dep't of Commerce, 995 F.2d 1247, 1252-53 (4th Cir.1993).

Looking at deliberations is also a dangerous proposition as a practical matter because the statement of one board member can hardly represent the whole.  How would you conclude whether a majority felt one way or the other – count up statements by individuals?  This messiness is one reason why we require written decisions in the first place.

On the other hand, taken to the extreme, not looking at deliberations ever, for any reason, wouldn’t make sense either.  If, for example, all members of a board announced in deliberations that they were rejecting an application because the applicant was black, or a woman, or a Muslim, etc., then however pristine the subsequent written decision articulating other grounds for denial, I’m thinking that the deliberations might be relevant to an appeal.

Also, completely precluding examination of deliberations in all contexts could exacerbate a situation one sees sometimes when board members say one thing in deliberations, ask their counsel to write up a decision for them, and mysteriously the bad bases articulated in the deliberations are purged and replaced.  Even if this change is not as obvious as the exclusion of rampant expressions of prejudice, any kind of serious deviation between the articulation of grounds in deliberations and the written decision leads one to question who is actually making the decision – the elected or delegated officials, or their lawyer? (particularly if there isn’t a second vote to approve the written decision).

So again I’m on board, thinking yes, it could make sense to look at deliberations in some situations for some purposes.  And looking at them for clues to whether a finding was material could logically be one of them, in the proper context, understanding the limitations and potential pitfalls in examining this evidence.  If no one on a board makes any mention of the erroneous finding -- which appears to be the situation in this case, while such silence might not be determinative of the question whether the error was harmless, it also isn't totally irrelevant -- just as the announcement by a board member of the importance of the finding to him or her would have some relevance in showing that the error was not harmless.  Beyond these two ends of the spectrum, given the nature of deliberations, the usefulness of this evidence would appear diluted.

Similarly relevant as an end-of-the spectrum factor is the other point cited by the Court – if the remainder of record doesn’t support the decision, there can be no affirmance.  To be immaterial, at a minimum, you need to hack out the bad stuff and see if a logical, cogent decision, supported by the facts, remains.  If it doesn't, there can be no affirmance.

But even if a board doesn't mention a point in deliberations, and even if the record can support the ruling even with the error excised, that may not end the matter.  I’m also thinking that you need to look at the nature of the a finding or conclusion, it's tangentialness.  Once you hack out the bad finding, what remains – is it like removing an imperceptible hangnail, or has a major organ now gone missing?  And in the end, doesn’t that analysis sound much like the harmless error test in jury cases?

So, finally we reach my fundamental question – should the harmless error test be the same in administrative appeals as in appeals from jury cases (with the difference, of course, that you don’t have the jury’s deliberative statements to review)?  An error is deemed harmless in the jury context if it is ‘highly probable” that the jury didn’t rely on it.  Does that test make sense in the administrative context, when the board is both factfinder and legal interpreter?  Like sausages and politics, for various reasons, we don’t like looking under the rug at jury decisions – juries aren’t supposed to issue written decisions setting forth their logic.  In contrast, as noted above, we require agencies to do so.  And unlike judges, if an agency’s reasoning is not sustainable but alternate reasoning can sustain the conclusion, we, as noted, don’t say that’s ok – because the role of the court’s review of an agency decision is different than it is for a trial ruling.  Because an agency is to some extent both the jury and the judge, should that change the harmless error test in any way?

This entry is already far too long, so I’m going to stop there.  And keep pondering. 

Ouija board or the Second Restatement of Torts?

So Christmas break is over, I managed to fly down to DC and back without anyone exploding anything in their underpants (yay), and we begin the new year by looking at two recent SJC decisions, one in which the Court expanded tort law (Dyer v. Maine Drilling & Blasting, Inc., 2009 ME 126) and one in which it declined to do so (Cilley v. Kane, 2009 ME 133):   

http://www.courts.state.me.us/court_info/opinions/supreme/index.shtml#mostrecent

In Dyer, the Court abrogated existing common law to adopt the Second Restatement of Tort's rule of strict liability for blasting.  In Cilley, the Court rejected a new bystander duty to rescue.

So how do we predict when the Court will change tort law?  Do these cases give us any clues? 

You could look at the case law from the past few years and say that this Court is generally expanding the law (see Picher v. Roman Catholic Bishop of Portland, 974 A.2d 986; Dragomir v. Spring Hill Hospital, 970 A.2d 310; Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208).  But you have to be careful when making sweeping generalizations like that, because there's no backwards in this area - a court never abrogates existing common law to eliminate or limit a tort. (This is one reason why courts are generally cautious in changing the common law status quo.  There aren't any take backs.)  

If you look at the big picture, the biggest factor in whether the Court will change the law appears to be what the Second Restatement of Torts says.  While the court is not a slave to the Second Restatement (see e.g. Stockly v. Doil, 870 A.2d 1208), if the Second Restatement recognizes a tort, combined with the majority of other jurisdictions recognizing that tort, then it's a pretty good bet that the Dirigo state will follow.  

Is this good or bad?  There are good things to say about going with the Second Restatement - not only is harmony v. discord among the states a plus, but going to the Second Restatement rule allows you to plug into caselaw from other jurisdictions -- it may not be Maine precedent, but there's a body of law out there to look at for guidance.  And if you are going to change the law, there aren't a lot of other resources except the Second Restatement, which has the test of time in its favor and had the goal in the first place of identifying existing law, and not attempting to change that law (in contrast with, e.g. the Third Restatement)

One downside may be in thinking that the Second Restatement is more than it is.  There are areas in which the language of the Second Restatement rule is pretty fuzzy, and it's important  to understand that broad language doesn't mean that it's an "anything goes to the jury" tort; rather, the rule must be examined in the context of the other common law in that jurisdiction to impose some parameters.

The Second Restatement rule on public nuisance (section 821B) is a classic example.  The rule has vague language about how the tort requires "unreasonable interference."  Hmm - unreasonable - doesn't that mean when I'm the one who wants relief?  That's not a very workable test.  

Well, go read the fine print (you're a lawyer, right, isn't that what we do?)  If you look at all the Second Restatement's text on public nuisance, you will see that it (like many other sources, e.g Prosser) says that public nuisance law is a big mushy mess.  Instead of trying to fix this mess, comment e to Section 821B says that "if interference with a public right is not within the traditional common law, the court is acting without an established standard."  Translation - if you want to have any limits to the tort, you'd better apply some from your jurisdiction's common law.  

In sum, the Second Restatement isn't necessary a replacement for a jurisdiction's common law; it may simply help inform it.