Maine Appeals

The nerve!

A unanimous Supreme Court in Hertz Corp. v. Friend  adopted the "nerve center" test today for citizenship under 28 U.S.C. s1332.

http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf

Basically this means that plaintiffs in California can't avoid federal court by arguing that the proportional percentage of a corporation's business in California  is so large (since California is so large and populous) that the corporation is a California citizen.   So a corporation does still have some control over the identity of the state of which it will be deemed a citizen.

Between a rock and a hard place

The SJC issued a rather straightforward decision that, per usual, has led to musings on more difficult situations.   MSAD 37 v. Pineo, 2010 ME 11.  [http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me11pi.pdf ] 

 

This is a Rule 80B mandamus action that required selectmen to put something out to warrant that they thought was statutorily wrong.  The Court court rejected their statutory interpretation and held that the statute says they "shall" put it out, so they had no discretion.  The decision has a threshold discussion on mootness and is an example of how the Court seems to interpret the interface between the statutory continuation of mandamus with the rule eliminating it - file the action as "a Rule 80B mandamus."  (As a practical matter, I think this means that you must always seek relief in the Superior Court per Rule 80B instead of having the option of going directly to the SJC per the statute in the administrative agency context, i.e. if you are seeking a mandamus requiring a state or local administrative body to act.)      

 

The more interesting question to me is what happens if the statute or ordinance says a selectman, board member or other administrative adjudicator must do something that he or she thinks is unconstitutional?  

 

This can come up, for example, when referenda are used to advance discriminatory aims.  Citizens, for example, can vote to preclude approvals to hoard resources in violation of the commerce clause, or discriminate against classes.  It is legendary in my home town in Illinois how, when it appeared that some low income housing was going to be built, all of sudden the citizenry felt a burning need to build a public pool at that very location.

 

What should the administrator do?  On the one hand, an ordinance or law may compel him or her to engage in the ministerial acts that allow this discriminatory conduct to go forward.  On the other hand, isn't that administrator's highest duty to the constitution?  And if he or she goes along with the action, he or she could end up a defendant in a civil rights suit.  See Suss v. American Society for the Prevention of Cruelty to Animals, 823 F.Supp. 181, 187 n.11 (S.D.N.Y. 1993) (“the duty to obey constitutional requirements to the best of one’s ability applies to the entire public sector at federal, state and local levels.  It is an abdication of responsibility if administrative and other public sector personnel who make crucial decisions on the spot leave application of established constitutional principles to judicial enforcement alone”) (citation omitted).  See also Cooper v. Eugene School District No. 4J, 301 Or. 358, 364-65,723 P.2d 298, 303 (1986).

 

One solution, of course, is to get some good legal counsel throughout the process to avoid these conundra if possible.  But sometimes a section of the populace is simply not interested in constitutional niceties, and often municipalities are strapped for funds to hire lawyers upfront, while if they get sued, the civil rights act their insurance will pay. 

 

A board member faced with this sort of situation ultimately can quit.  That would certainly make for another mess, wouldn't it?  What if all the board members refusing to put out the warrant just resigned? 

 

One of the many things I like about 80B and 80Cs is that the adjudicator is this interesting mix of an elected representative and a neutral adjudicator.  We all know the pitfalls of elected judges.  But our board members to some extent engage  in similar decision-making every day.  Another murky area of the law is when a board member must recuse him or herself based on political grounds - if someone runs for the very purpose of e.g. keeping a business out of town, does that predisposition then bar that person from adjudicating an application by that business?

 

Nobody said democracy was easy.   

Losing

So last week I lost an appeal.  I'm not going to blog on that case because there is nothing one can say in this situation that puts one in a positive light.  It's over, the ice cream cone is on the sidewalk, the definition of the right interpretation of Maine law is what the SJC says it is, end of story.

Instead, I want to talk more generically about strategies to make the hopefully infrequent experience of losing more palatable.

1.  Make it a learning experience.  This sounds lame, but I think it's true that you learn more from your losses than your wins.  After all, if you win, you did what you thought made sense and it worked - yay, but the lessons learned are not obvious.  There are times when the lesson from a loss is very clear - from one experience, for example, I learned the perils of not briefing a non-waivable issue that the other side hadn't brought up.  I thought I had a simple explanation should the issue be brought up in oral argument.  Wrong.  Don't throw new matter up in the oral argument; get it in the brief.  Other times, the lesson may be less obvious.  But even if you can't think how you could have presented your case any differently, you are still learning something about the court and its decision-making that you can incorporate in your approach going forward.    

2.  Be born Irish.  With this comes an instinctive sense of Celtic fatalism, accompanied by the understanding of the glories of a heartfelt if ultimately unsuccessful effort.  As long as you have given your client a realistic cost-benefit analysis, and have a reasonable argument, there's nothing unworthy about a game but unprevailing attempt.  This lesson was brought home to me in law school, when I was working for a very good and very successful criminal defense lawyer in Chicago, who not-so-laughingly referred to the Seventh Circuit as the Court of Affirmance.  Some challenges -- many in the criminal defense arena -- are uphill; that doesn't mean you don't climb.

3.  Get cancer.  Obviously this strategy has its downsides, but it does wonders for giving you perspective. 

Yes, victory always feels better, and hopefully loss doesn't become a habit, but no one said that this would be easy, and sometimes tackling the more challenging cases is the better part of valor. Litigators protecting their win-loss percentages can get too risk adverse to the detriment of the best interests of the client.  So when you lose say, "Rats!" in the privacy of your home or office; take a deep breath identify what you've learned; pat your dog on the head; and move on.    

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/