The Maine SJC issued two recent opinions in 80B cases addressing issues of general import, so of course we are going to chat about them here. Town of Minot v. Starbird, 2012 ME 25 [http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me25st.pdf] and McGettigan v. Town of Freeport, 2012 ME 28 [http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me28mc.pdf].
Starbird allowed an interlocutory appeal on the basis of judicial economy. Lately, the SJC has been rather adamant about not allowing a Rule 80B or 80C to proceed directly to it if the Superior Court has granted a remand, so Starbird is a welcome recognition that sometimes there really should be exceptions to the rule. Here, the Court applied the judicial economy exception because the Superior Court had remanded for review of an issue that had clearly been waived. Hence, the whole remand excercise would have been an exercise in futility. Justice Mead cautioned that interlocutory appeals would still be the exception, not the norm, but "when a cursory review of the record reveals an obvious flaw in the court's decision to remand a matter for further proceedings, we will not hestitate to reach the merits of an appeal if the remaining issues fall within an exception to the final judgment rule."
Again, this is good news. The tricky question is, of course, when does this "cursory review" judicial economy exception apply?
In the 80C context, the SJC came out today with decision in the Plumcreek case, Forest Ecology Network v. LURC, 2012 ME 36. I'm only going to discuss the portion of that ruling discussing the interlocutory appeal issue presented in that matter. there, the Superior Court remanded for further process to be heard. LURC filed an interlocutory appeal. Again, the SJC heard the appeal under the judicial economy exception, again saying allowing this was rare. This time the "judicial interference" type of claim was invoked – this is an argument that the ordered remand intrudes upon the executive powers of the agency. One interesting twist in the application of this argument here was the Court's suggestion that it applies only in 80Cs, not 80B's (P21), because there's no separation of power issue with 80Bs as with 80Cs. Hmmm. If the court tells the agency of a muncipality to do something that it cannot do, either under state law or an ordinance, then it seems to me there may be a judicial interference argument lurking in there. If a statute forbids the local agency from doing it, then maybe there's an argument that the judiciary is interfering with the legislative branch. If the judiciary is ordering a local body to do something that the ordinance forbids it to do, then maybe it's a not separation of powers problem per se, but a violation of the Home Rule powers as reflected in the Constitution etc. However characterized, this kind of argument could only be used if the court were remanding for the local body to do something ultra vires, not just to re-assess the facts or engage in the usual activity ordered on remand. So 80B or 80C, the application of this exception is still an exception, not the norm.
At this point, perhaps the only clearly consistent must in these situations to address the interlocutory issue head on. Don't just drop a footnote saying of course the judicial economy or interference with administrative authority applies – acknowledge the appeal is interlocutory and give some flesh to the bones of your argument why the exception applies.
As I've mentioned before, having to go through a futile administrative proceeding on remand is often a justice delayed is justice denied situation, given the impact these additional delays and costs can have on project applications. So this decision is good news, and anything that could be done to establish the predictability of a narrow but fair route to immediate review would be great.
On my probably impractical wish list would be a process in which the question whether the appeal would be heard could be decided separately and early on in an appeal, to avoid delay and costs if the Court ultimately is not going to apply an exception. The problem with this two-step approach, of course, is its inefficiency for the court, having to look at a matter two times. Still, if the test is a cursory review, then this burden shouldn't be too great.
One procedural problem with such a two-step approach is that the party filing the appeal is positing that it can be heard, so they can't file a motion to dismiss. There's really no mechanism I'm aware of for the appellant to trigger a preliminary review. When I had an appeal that I thought was premature in the First Circuit, but if I was wrong, I would lose my chance to appeal altogether, so I had to appeal, the only way I could figure out getting a preliminary review of the issue was begging the staff attorney to issue an order to show cause as why the appeal shouldn't be dismissed. It worked, but it's not exactly an efficient process. The previous SJC clerk used to send out orders to show cause once in a while on the most basically obvious appeals with jurisdictional problems. I don't know if any are issued these days. Of course the appellee can always file a motion to dismiss, but you can't count on that, and in any event the odds of having the motion determination not consolidated with the briefing on the merits has at least in the past been very low.
Still, focusing on these decisions themsevles, this recognition that sometimes it makes sense to allow an interlocutory appeal under 80B or 80C is, again, good news.
Moving on to McGettigan, another opinion by Justice Mead, at the Superior Court level, the Court found that the appellants had standing, but that their substantive claim was moot. The SJC dispatched the mootness claim because that claim was really an argument on the merits. It then ruled on the merits against the appellants, saying that it therefore didn't have to reach the standing issue.
Assuming standing is jurisdictional, then it looks like this decision stands for the proposition that the SJC need not deal with jurisdictional issues, or at least standing, before getting to the merits — if it can avoid a thorny issue about something like standing by disposing of the appeal on the merits, then it has the power, and it will deem it sensible, to do so. Under this reasoning, I suppose it could have declined to rule on the mootness question also, cutting to the chase on the merits, but it chose to address that particular jurisdictional question.
