Maine Appeals

Justice Clifford and Judge Lipez

Two events to report on from last week.

First, Wednesday the SJC held a short salute to Justice Clifford, who is retiring this year after 30 years on the bench.  CJ Saufley gave an eloquent summary of Justice Clifford's career, character and why he will be missed by everyone who appeared before him and worked with him.  Justice Clifford then gave a short response that he didn't know why everyone was making a fuss.  The world would be a better place with more judges (and lawyers, and people in general for that matter) with Justice Clifford's temperment and broad and practical perspectives, and I'm sorry he is stepping down.  Aside from his judicial talents, he is also very nice and giving fellow.  He is a posterchild of civility and all-around good citizen.  Ave atque vale.  

The next day, Judge Lipez held the second of his sessions with the local bar (for a summary of the previous session, see my entry for 11/13/08).  As the last time, there were lots of useful tidbits.

Statistics.  From 2000-2009 civil appeals have decreased 5.9% in the First Circuit, while criminal appeals have increased 36.6%  In 2000, Maine had 128 appeals; in 2008, 126.  Judge Lipez predicts that the decline will not continue, noting that bankruptcies are on the rise and eventually some disputes end up at the Court of Appeals, and that recent declines in criminal appeals in Massachusetts and Puerto Rico appeared aberrational.  

Settlement counsel.   The new settlement counsel, Patrick King (for everywhere but Puerto Rico) will no longer require memoranda from the parties, but rather will review the file himself and if he has questions, will call counsel.  He will also come to Maine, and not require travel down to Boston.  He does not view himself as taking an aggressive approach to mediation.  He may be willing to carry out the conference via telephone and will not require the conference if there appears no reasonable chance of settlement.  Judge Lipez also noted that the point of the conference is to see whether there can be a settlement before a significant expediture of appeal, so if, because the notices are coming from two different sources, you find that the briefing schedule requires the appellant brief to be filed before the settlement conference, the appellant is likely to obtain an enlargement of time to file its brief after the conference, should it desire.

ECF. As I mentioned before, ECF is coming.  The clerk's office is developing the training materials for implementation.

Court reference to settlement.   A topic of considerable discussion was whether the Court should , as it does infrequently, suggest that the parties try settlement one more time.  Judge Lipez queried whether this was coercive (who will say no to the court?) among other things.  Essentially, everyone who spoke up at the meeting seemed to think it was not a good idea.  As a practical matter,the status quo is unlikely to change.

Rebuttal.   I raised a point I raised last time - the local rule and actual practice seem not to jive.  The local rule discourages rebuttal, while apparently all the judges allow it except perhaps Judge Torruella.  I think rebuttal is a good idea.  But whether the court's view, my point is that the rule should reflect reality, so everyone knows, and is on an equal playing field.

28(j) letters.  the Court perceives that it is getting too many of these, beyond the scope of the rules; it is unlikely to strike them sua sponte, so if you think the other side is going too far, file the motion to strike yourself. 

lunching with Lipez

Thursday, June 18, Judge Lipez will be holding another informal lunch meeting with Maine lawyers at the MSBA offices in Augusta.  Those interested in attending should contact Karen Wolf (kWolf@fgwl-law.com).  I reported on the last meeting he held, which was very helpful.

Karen Wolf reports that one issue that Judge Lipez would like to discuss in this meeting is the Court's recent encouragement of settlement that it has articulated at oral argument in some cases.  He would like feeback on whether the timing of these post-argument settlement efforts and the forum in which the issue of settlement is raises (oral argument) are helpful and appropriate.

I plan on attending and think that anyone who appears in the First Circuit, even upon occasion, should as well.  It's always helpful to hear from a judge on what's going on in his court and what current issues are being discussed.  If you can't come, stay tuned for a summary here later in the week.     

Proposed First Circuit Rule Amendments

While, according to Tennyson, in Spring a young man's fancy lightly turns to love, apparently in summer, an appellate judge's fancy turns to changing its procedural rules.  My last entry reported on the proposed changes to the Maine Rules of Appellate Procedure. The First Circuit has proposed rule changes to introduce ECF - e-filing - starting in October.  Comments are due July 17.  http://www.ca1.uscourts.gov/whatsnew.htm.

I am on the Advisory Committee for the First Circuit local rules, so if you'd rather share your comments with me instead of directly to the Court, please do so, view a comment here or email me.  The proposed process is very similar to how ECF is done now in other circuits, but each circuit has tweaked its rules individually to some extent, so if you see some useful tweaking -- or even a big question or issue -- let me know.  

    

Proposed amendments to the Maine Rule of Appellate Procedures

The SJC has proposed changes to the Maine Rules of Appellate Procedure:

http://www.courts.state.me.us/rules_forms_fees/rules/Draft%20Appellate%20Rules%205-21-09[1].pdf

Comments are due to the Court by June 19 (send to lawcourt.clerk@maine.gov). 

There are a number of significant changes:  (1) brief due dates will be specific, instead of calculated by the date the appellant brief is filed; (2) we are crawling slowly toward e-filing with discretionary filing of additional copies via e-mail; (3) like the First Circuit, they are saving trees by double-siding the Appendix; and (4) the statement of issues will now need to include a statement of the standard of appellate review to be applied to that issue.  It will be interesting to see how that last requirement plays out.

Most courts require the first section of the argument to talk about the standard of review, not the statement of the issue section.  I assume the SJC is trying to encourage brevity; but sometimes what the standard of review is really isn't definable in a few words, or there are different standards for different aspects of one issue.  In sum, requiring the standard of review to be identified for each claim on appeal is common; doing it this way isn't, and might mean there' needs to be at least a little piece of argument under each issue in the statement of issues section.  And do they want a cite there, supporting the declaration of the standard?  Or is it enough just to say "Did the Court commit clear error when ..."?  If the court does want cites, would it be better to put this in the argument section?  hmmm.

The change that strikes me as potentially generating the most issues, however is the requirement that a copy of the municipal ordinance be included in the Appendix in 80B appeals. 

First, I read this as keeping the 300-page limit to the Appendix (although the language is ambiguous), including mandatory items.  Most appellate courts that impase page limits for appendices do so  for the non-mandatory items only.  What are the parties supposed to do if just the mandatory items exceed 300 pages?  Ordinances can also be huge - there goes the 300 pages right there.  One answer - file a motion - just creates more work for the lawyers and the court.  

Second, what exactly does this ordinance inclusion requirement mean?  Logically, an ordinance is a legal authority - the 80C equivalent to the ordinance is a statute or regulation.  Hence, it's not really evidence.  So it would make sense that instead of putting the ordinance in the appendix, signifiying that it is evidence, instead, the Court simply required a Supplement of Legal Authority in 80B appeals that includes the ordinance (which would get around the page limit problem).

By life is never this easy. There is a statute (30-A M.R.S. s. 3006) that provides:

The submission to any court or administrative tribunal of a municipal ordinance, bylaw, order or resolve of the legislative body or municipal officers of a municipality, when the ordinance, bylaw, order or resolve has been certified over the signature of the municipal clerk, is prima facie proof of the validity of that ordinance, bylaw, order or resolve.

Old case law decided under that statute says that the court cannot take judicial notice of an ordinance.  Hence, ordinances do appear to have to be "evidence" and, therefore a part of the Appendix.

Now, if you know all this odd background with respect to ordinances, you simply make sure you dump a complete copy of the ordinance in administrative record.  Then it's evidence, and everyone's happy (except for this page limit problem).  But what happens to people who aren't aware of this ordinance as evidence rule?  Can they just get a certified copy of the ordinance at the time of the appeal and stick it in the Appendix?  That doesn't sound right - if they are just creating this thing now, it can't be evidence for the purposes of an appeal, can it?  And what happens, when, as is often the case, there are changes to the ordinance between the time you sought your application and the time of appeal, so the current ordinance isn't the applicable version?  Can you even get a certified version of that old ordinance? 

It's a conundrum.  In this modern world, when you can usually just click on the town's web site to see an ordinance, Section 3006 and the old law about not taking judicial notice of ordinances seems ... quaint.  On the other hand, even if everyone agreed that we can now just cite the ordinance or, if the Court really wants a hard copy of the whole thing, that we can print it out without getting it certified and stick it in the appendix or a supplement, or wherever the Court prefers, that wouldn't solve the problem of the changing ordinance - when the one on the web site isn't the one that was in place at the time of the appealed decision.  Most of the time, moreover, the changes in the ordinance after a decision have nothing to do with the issue on appeal, so that which version you give the court as a practical matter doesn't matter.  But sometimes it will, and then what do you do?

As I noted, the easiest thing to do is get put a copy of the whole ordinance in the record at the time the administrative decision is being made (and now deal with the page limit issue, I guess, by motion).  If that hasn't been done at the administrative level, maybe you can fix it by stipulation or a  motion to admit additional evidence at the Superior Court level -- which seems like a lot of effort to address a simple issue.

Most of the time people don't even bring this issue up -the appellant didn't put the ordinance in the record below (certified or uncertified - I would think that if it's in the record, it really doesn't matter if it's certified under Section 3006), but they get a new copy on appeal and stick it in (uncertified) and no one beefs.  That, I suppose, is one alternative - but it's pretty risky if the other side does raise the issue and/or the ordinance language has changed.  And making inclusion of the ordinance mandatory will now highlight the issue.

       

Standing and breathing

Last week, the Maine SJC rejected an Rule 80B case on standing grounds that triggers some general musing in that area.  Nergaard v. Town of Westport Island, 2009 ME 56. 

The plaintiffs wanted to complain about decisions made to improve the town's public launch site.  They were not abutters, nor was their property "in close proximity to" the site.  Nor, apparently, did they actually use the launch.  The planning board found standing because the plaintiffs frequently traveled the road on which the launching site was located.  The Zoning Board disagreed with the Planning Board, finding no standing because the plaintiff's traffic impact injury was no different from anyone else's travelling that road, Route 144.  The Superior Court, then the SJC, agreed. 

On one hand, this is a rather pedestrian conclusion, consistent with the long line of Rule 80B cases discussing when a neighbor has standing to challenge a permit.  While every case is fact specific, the general rule is you need to be close enough so that something about the use of that property near you inflicts a potential injury different from that suffered by the general populace.  The Nergaard decision falls neatly in that category.  Ho hum, right?

Except that this is a public launch.  So does this mean that we should start looking at all the caselaw about citizen rights to complain about use or effects on public property - the old do trees have standing line of cases?  (E.g. Sierra Club v. Morton, 405 U.S. 727, 734 (1972); U.S. v. SCRAP, 412 U.S. 669, 689 (1973); Lujan v. National Wildlife Foundation, 497 U.S. 871 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Massachusetts v. EPA, 549 U.S. 497 (2007).) 

Justice Alexander, concurring, seemed to think so, stating that this decision puts Fitzgerald v. Baxter State Park Authority, 385 A.2d 189 (Me. 1978) on the scrap heap.  That's a case that applies Sierra Club v. Morton to conclude that people who use Baxter Park had standing to complain about a rule relating to that use.  The majority in Nergaard distinguished Fitzgerald on the ground that the plaintiffs there were "actual users" of the Park, while the plaintiffs in Nergaard weren't.  Justice Alexander found this of no moment because a gazillion people use Baxter Park while fewer use Rt. 144, so if the test is segregating the plaintiff's interest from the general public's, in terms of sheer numbers, the Nergaard plaintiffs fell within a far more select group.  

Now if you go down the Sierra Club and progeny case law line, actual use does make a difference, and there's lots of language about how it doesn't matter if a gazillion other people are similarly situated - particularized interest doesn't mean there can't be lots of others also so affected.  But the more interesting part of the discussion in the decision to me is its fusion of standing law, whether  private or public interests are involved -- neither the majority nor the concurrence suggested that the test was any different.

To me, this relates to the "zone of interests" test for standing.  The plaintiffs in Nergaard's interest as they articulated it was exactly the same whether the property at issue was public or private - the old "it's going to increase traffic" objection to development.  So it makes sense to apply the longstanding private property test - your property needs to be close enough to make the traffic impact on your property qualitatively different.

With public land or interests affected, in addition to this abutter neighbor private property interest, there can also be other citizen interests, based on use, depending on what interests are being protected by the statute triggering the administrative review.  The plaintiffs in Fitzgerald weren't complaining as abutters, but rather as users of the park - which the whole public can do, so then we go to this Sierra Club line of case law identify the limits imposed on citizen standing in those circumstances.  Actual, versus potential use is one of those requirements (compare Sierra Club v. SCRAP).  You also look at the specific interest that the statute is protecting.  For example, in the broadest standing case in Maine, Matter of International Paper Co., 363 A.2d 236 (Me.1976), the SJC found that everyone in multiple counties who breathed had standing - because the permit at issue protected air quality.  

The majority in Nergaard hinted at this distinction when it distinguished International Paper on the ground that it "involved a permit issued under a statute enacted to protect certain areas from environmental hazards, and the plaintiffs were located in the areas that the statute was designed to protect." 

When someone has to drive down a road that will have more traffic on it due to development, even if that person drives on it more often than the average person (however calculated), the interest he has isn't in protecting his unique (and therefore particularized) private property, or in protecting a citizen use recognized in a statute.  On the latter front, snail darters are protected under the Endangered Species Act so we can all enjoy their presence in a happy diverse environment.  So if you frolic in snail darter territory, even if you don't own land abutting it, your interest - in experiencing that diversity - is affected if the darters are snuffed.  Interestingly, there's a vicinity test in that context too (see Lujan v. National Wildife Federation), but tested by the specific statutory interests protected and claimed.

So, for example, if the plaintiffs in Nergaard had complained not because they drive by the launching site, but because, for example, the tranquility of the site would be affected by the changes, tranquility was a protected interest under the ordinance and the plaintiffs actually used the site to absorb all that tranquility, then they might have had standing to complain.  

I've dealt with standing multiple times, on both sides of the fence, arguing for and against, and this is one of those areas that is so fact specific and fraught with these different rules that how you present your interest can really make a difference.  In a run of the mill 80B, if you are an abutter, as a practical matter, you don't have to prove anything to show standing.  The more removed your property is from the site of the area getting permitted, however, the greater an interest different from the general public's you must prove, so if that's an issue, you should get going ladeling that evidence into the administrative record as much and as soon as you can.  If the land or interest being affected is a public one, then you might also have some more options to work with in identiying your interest, but you need to use the Sierra Club progeny as a blueprint, crossing all your t's and dotting those i's on immediacy etc.

In sum, while Justice Alexander says that this decision is the death of "drive by standing," that might not be the case, at least if the plaintiff is driving in a snail darter habitat, and the interest protected by the permitting statute includes the ability to experience the presence of the darter as you go by.              

Clearer claims needed against Clearwire

On May 19, the First Circuit (Boudin, Howard and a visitor, opinion by Judge Boudin) issued one of those opinions with multiple something for everyone nuggets, North American Catholic Educational Programing Foundation, Inc. v. Cardinale, http://www.ca1.uscourts.gov/

The case comes out of a complicated factual predicate involving Clearwire.  The defendants moved to dismiss under Rule 12(b)(2), 12(b)(5) and 12(b)(6).  The district court (RI) dismissed all claims on grounds of lack of personal jurisdiction. 

Because jurisdiction was based on specific jurisdiction, before wading through each cause of action for each defendant and each related entity, the Court decided to see if any of those causes of action should get knocked off first under 12(b)(6).  While the defendants argued their 12(b)(6) alternate ground for the judgment in their Appellee Brief, the plaintiff didn't respond in its reply, instead simply citing its opposition to the Rule 12(b(6) motion below and asking for another brief if the Court proposed to address the issue.

Bad move -- or was it?       

The opinion has nice cites for the proposition that an appellee can defend the judgment below on any valid ground, and just cross referencing a brief filed below can be deemed forforeiture. 

Nonetheless, this is Mr. Nice Guy Judge Boudin, so he looked at the merits anyway -- and like many of his opinions, you get the impression that he's coming up with a lot better arguments than the party ever did or could have in its briefing.  

The rest of the case talks about the specificity needed under Rule 9(b) for fraud claims, and what kind of fraud claims must meet Rule 9(b) (not just claims of "fraud," but "associated claims where the core allegations effectively charge fraud.")  In the end, he rejects the claims that make no sense as (vaguely) articulated, and gives the plaintiff another shot to be more specific as to claims that he thinks could be plausible from a logic point of view. 

This culling under Rule 9(b) and 12(b)(6) narrowed the matter down to a couple more manageable causes of action about which to assess personal jurisdiction.  Clearwater was  sending enough into RI for jurisdiction, so the question was whether the individual defendants could be roped in based on those contacts.  Because the complaint alleged that the defendants were in control of Clearwater at the relevant time, and that issue doesn't require particularity in pleading, and given that there was no discovery yet, the claims survived.  The decision notes that, while the "case law is less than definitive," and may be fact-sensitive, there was First Circuit precedent upholding personal jurisdiction "when an offer is specifically directed from outside of the state to a resident within it, the information conveyed is culpably false or incomplete, and the offeree suffers damage as a result of the conduct by its action or inaction within the state." Judge Boudin notes that after establishing such contacts, there still needs to be a gestalt factor review by the district court, but because the outcome "is not patently implausible," the claims survived -- maybe:  "the fraud version of the claim will depend on the willingness of the district court to allow an amended pleading to comply with rule 9(b) and, probably more relevant, the ability of the plaintiff to supply additional facts to satisfy the rule.  Rule 9(b) might or might not apply to the dilution version of the claim based on fidiuciary duty but it is not clear that this version of the claim would support personal jurisdiction."

Got that?  Judge Boudin then goes on to muse upon the elements of a dilution claim and what might be developed.  Sometimes I get the impression that Judge Boudin is one of those people who can play chess in his head.

Understanding that this case needs a rather complicated score card, he closes by suggesting that the district court start by taking the "most vulnerable" defendant with respect to the two remaining claims, and provides some more suggestions on what might happen.

Phew.

Fashion and the law

So the juxtaposition of a few events have me contemplating garb and work.  First, business casual season commences at PA when we return from Memorial Day.  Second, there was an amusing article in Saturday's New York Times about a colloquy among a panel of Seventh Circuit judges about the wardrobe they had seen in the court room.  And finally, today's NY Times style section's photo array displays how "men, once limited to an unyielding style of dress" have now expanded their sartorial horizons.

It is certainly true that standards have changed.  Even before casual season begins, trying to put a tie on some young associates is like putting a leash on a cat (rowr!).  Compare this to the pre-WWII days portrayed in a All Creatures Great and Small, with the local vet wearing a tie when he's sticking his arm up a cow's rear.    

Usually a discussion about what to wear invites snorting condemnation as being hopelessly OTD (Older than Dirt).  Personally, I couldn't care less if you wear your jammies to the office - what matters is what your work looks like.  That said, however, what you wear does bother some other people, which is why you have to pay attention.

That's what the Seventh Circuit article was about.  While there was some mild allusion to ticky-tacky ties in court (with smilely faces), the bulk of the griping was about women wearing skirts too short and necklines too plunging.  The complaining has to be carefully phrased (for fear of sounding not only OTD but chauvinistic), but the gist is that this sort of dress is distracting.

And therein lies the point.  When you do an oral argument, it's hard to believe, but it's not all about you.  In fact, if you could be invisible, that would be great.  The goal is to dig out the questions that the court has and to answer them.  And anything that distracts the judges from that exercise - musing, for example, why you didn't feel the need to wear underwear that day - is not a good thing.  Worse still, what you wear can be deemed, whether intended or not, a signal of disrespect to the court.

So, in the life is too short category, since there are so many things stacked against you in an appeal, why add surmounting speculation about your clothes sense and the message you are trying to send?  Many women understand this.  Every time I go argue at the First Circuit, all the women lawyers surrounding me (and me) look like clones in our basic black suit (skirt at the knee).  Yes, it's boring.  But it's simple.  You have other things to concentrate on.

Again, people just don't understand how, rightly or wrongly, the people forced to stare at you in court can't help their minds wandering off to your fashion choices if you give them the opportunity.  Story #1:  my aunt was on a jury once.  She said they obsessed on the fact that one of the lawyer's shirt cuffs was frayed.  What message was that sending?  And what did the lawyer want them to be thinking about while they were wondering why he couldn't find a decent shirt that morning?

Story #2:  back in Chicago, many years ago, the DC Strike Force came in to try a case against alleged mobsters.  One of the defense lawyers used the comic defense -- it's hard to convict someone when you're laughing at the prosecution.  So throughout the trial, he'd say things like"FBI, you know what that stands for - Find and Blame Italians." One of the strike force prosecutors was independently wealthy, and in a multi-week trial wore a different dazzling outfit every day.  We willl call her Madam X.  So at the beginning of closing argument, in making his introductions, this defense lawyer said, turning to each group or individual, "Ladies and gentlemen of the jury," turning, "your honor," and, turning, ran through the many others participating, using the format "Mr./Ms. [Name] of the [insert organization."  At the end, he turned to the Strike Force prosecutor and finished with, "and Madame X of Nieman & Marcus."

His client was acquitted.  The standing order at the U.S. Attorney's office became that you wore a total of no more than 4-5 suits for the length of a trial (not that many could afford otherwise).

You may or may not be what you wear.  But the people who see you don't know that.  Heaven knows, I can be pretty offbeat in the clothes department.  But not in court.  It's the boring black suit for me.         

SJC motion practice

Here's something I never noticed before - there's no page limit for a motion in the Maine SJC (see Me. R. App. P. 10).    This is true even for motions to reconsider (see Me. R. App. P. 14.)  This could lead to the rather odd situation in which a motion to reconsider is longer than a brief.   While actually filing a motion to reconsider longer than 50 pages would fall into the "don't try this at home" category (filing any motion to reconsider, of whatever length, is almost always a dubious proposition), this seems to me a pretty quirky situation.

I assume that the rule is as it is because this issue hasn't come up, meaning people just don't file long motions.  But the First Circuit imposes a 20-page limit for a motion and any opposition and 10 pages for replies (the SJC is silent re replies).  Isn't verbosity just as potentially a problem in the state appellate court as its federal counterpart?  Maybe Maine lawyers are just more terse.

Also on the quirky front, Me. R. App. P. 9(f) says that briefs must be produced in "at least 12 point font not smaller than 12 point Bookman," while Me. R. App. P. 10 (d) regarding motions just says 12 font, no reference to Bookman or otherwise.  Which type of font you use makes a difference only in that the squishy Times New Roman type fonts can squeeze more words on a page than Bookman (see my blog entry last September).  So if there's no page limit, there's a certain logic in letting you use whatever font you want.  Still, it seems a little odd to allow certain typefaces for motions, not briefs. 

3 day rule gone (state, not fed)

Yesterday the SJC issued a change in Me. R. Civ.P. 1 eliminating the sentence that says the civil rules govern the procedure in the SJC when sitting as the Law Court.  

http://www.courts.state.me.us/court_info/rules/rules.html

The Advisory Note explains that before, there was confusion on the relationship between the Maine Rules of Appellate Procedure and Civil Procedure, and, specifically, M.R.Civ.P. 6(c).  Rule 6(c) gives you three extra response days if you are served by mail.  Me. R. App. P. 15 incorporates Rule 6(a) (on how to compute time (e.g. start the day after the act, exclude intermediate weekends if less than 7 days), but does not incorporate Rule 6(c).

So, in short, it's now clear that you do not get 3 extra days to file your appellee brief or reply brief (or a response to a motion, or to provide a counterdesignation of the Appendix etc.) before the SJC.  Justice Alexander had always said that Rule 6(c) didn't apply in his Maine Appellate Practice (p. 130); now it's officially without ambiguity.

Given the lack of e-filing, this could generate a problem if the other party puts its document on the slow boat to China when a response is due quickly - e.g. a counterdesignation is due 7 days (after "delivery," not service, see Me. R. Civ. P. 8(d)(1), so what does that mean?); reply briefs are due 14 days after the appellee brief.  I just had an AG send me something via U.S. priority mail from Augusta to Portland, and it took 5 days.

Usually I send the other side a pdf of my filing and ask them to do the same, which they usually do.      

Don't get this confused with the rule in the First Circuit - there, you still get the extra three days, even if they email the document to you.  http://www.ca1.uscourts.gov/ (F.R.A.P. 26(c)).

Vague docks

The SJC has posted the summaries for its upcoming arguments, http://www.courts.state.me.us/maine_courts/supreme/oral_arguments.shtml.

If it wasn't  way up in Bangor, I'd go to the Uliano argument.  This involves the neverending saga of DEP review of applications to build docks in Maine; this latest round might tell us important things about the test for vagueness and excess delegation in Maine.

The saga begins with a case we worked on, Kroeger v. DEP, 2005 ME 50, 870 A.2d 566.  Kroeger had oceanfront property on Mount Desert Island.  He wanted to build a big dock to park his big boat.  Neighbors, including our client, objected.  You need a NRPA permit to build a dock.  See 38 MRS 480-C.  Kroeger didn't get his in part because the DEP found that he didn't meet the "won't interfere with existing scenic uses" criterion.  He appealed.   The SJC, majority opinion by Justice Calkins, affirmed, with a dissent from Justices Dana and Alexander.

Shortly thereafter the SJC decided Uliano (now I suppose to be deemed Uliano I).  Uliano v. DEP, 2005 ME 88, 876 A.2d 16.  We aren't involved in this one.  Tell me if this sounds familiar.  Plaintiff has waterfront property (this time in Bar Harbor.)  He wants to build a big dock to park his big boat.  Neighbors object.  The DEP approved; the BEP reversed, again based on the scenic values criterion.  The SJC vacated the reversal, remanding .  This time Justice Levy wrote the majority opinion, with no dissent. 

Apparently on remand the BEP denied the application again, again on the scenic factor, and so here we are again. with Uliano II. 

What's the difference between the Kroeger and Uliano?  Why was the finding in Kroeger upheld, but rejected in Uliano I, and what does that bode for Uliano II? 

It is much too nice and sunny a day for me to dwell on details.  One interesting point is, in Kroeger, the applicant didn't preserve his vagueness argument, and in Uliano I the SJC didn't reach a vagueness/excessive delegation claim.  I see that Uliano is raising a vagueness claim now, according to the summary, so the SJC might have to reach this issue this time around.

Obviously, as these cases show, if you have a squishy criterion like aesthetics, there's a potential for a vagueness claim or, more appropriately in this Maine agency context, a claim that the statute excessively delegates to the executive branch board.  When beauty is in the eye of the beholder, you can get too subjective to meet the express Separation of Powers provisions in Maine's Constitution.  The squishier a criterion, the more unpredictable and subjective the agency decision can be, leading to the potential for favoritism, politics and the esssence of arbitrariness.

On the other hand, you probably can come up with a definition of aesthetics that would past constitutional muster.  I think that the DEP came up with some rules after Kroeger and Uliano I to bring some clarity to this -- although I haven't burdened myself by actually checking and seeing what the rules actually say.

No, all I want to do is raise some questions.  What happens if you have a too-squishy statutory criterion but the agency limits it by rule?  That should bring predictability and seems to address constitutional concerns -- except that it's the agency, not the Legislature bringing the definition to the rule, so don't you still have a delegation problem?  (Unless the Legislature approves the rule).  Also, how do vagueness principles comport with a delegation analysis?  For example, people mix up facial and as-applied vagueness claims all the time.  Really only as-applied matters in a civil, non-First Amendment context - but what about the delegation clause?  And how do you analyze an as-applied vagueness claim in an agency context?  Say the property owner wants to build the biggest, ugliest dock ever in the history of creation.  Hence, the application should go down in flames under an as-applied analysis.  But if the legal principle is to ensure agency consistency, then isn't the squishiness of the rule enough to strike the rule or statute down as a whole, and doesn't/shouldn't the applicant have the standing to raise that generic issue, and isn't the proper relief not to apply the factor at all?  But is that fair?  Is it right that Mr. Butt Ugly dock doesn't have to meet the now invalid criterion at all, when a valid criterion could be developed?  These rules are all limits on the use of property, so one could say yes (and presumably the other, less squishy and so valid criteria would take care of more anti-environmental harms).  But that's cold comfort to the neighbor of the world's most obnoxious looking dock, painted screaming neon, glow-at-night yellow.

If the Court gets to the vagueness question, it may also shed some light, implicit or explicit, on the 80B-80C dichotomy.  As a practical matter, you can find multiple decisions striking down ordinance language for vagueness under Rule 80B; but a vagueness finding in a Rule 80C statutory context is rare.  The only logical legal explanation ever suggested in the decisions for this difference is that one reads language in context, and vague statutory language can be salvaged by reading it in the context of other statutes, and the whole statutory framework.  Another explanation - that the Court gives more leeway to the professional staffers in Augusta than local volunteers - wouldn't make sense as a legal matter, and would also seem dependent upon individual circumstances and be suspect for that reason, too.

Finally, even if the SJC once again avoids the constitutional questions, it still has to decide whether the individual agency decision was arbitrary and capricious - a concept closely wrapped up, obviously, with the predictability goal of the constitutional requirement.  

Everyone would love to have bright lines in legal tests, and no one is particularly happy with a "I know it when I see it" standard.  The courts certainly try to avoid them, because the squishier the test, the more it invites litigation - the applicant and objectors might as well roll the dice all the way up to the SJC.  

So I will be interested to see if the SJC brings coherance to this area, and to the general issue of making a criterion like aesthetics meet anti-arbitrary, constitutional standards.