The Maine SJC issued a decision last week relating to the commercial copying of public documents that includes a cornucopia of legal analysis – MacImage of Maine, LLC v. Androscoggin County et al., 2012 ME 44 http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml
A company filed a FOAA request on all Maine counties to pony up in bulk and specified digital format, copies of every document in their registry of deeds, including their indexes. The counties all responded in various ways, charging different amounts, some providing indexes, some not. The fundamental issue was how much could the counties charge for the copying. Under Maine's Freedom of Access Act (FOAA), the answer is not much. Other states have enacted statutes to address this specific issue of commercial copying. So has Maine as to registry documents, but only mid-stream of this suit and with subsequent amendment, leading to retroactivity issues, as discussed below.
Q #1 – does FOAA apply? Answer: no.
Even before this request, there was a statute, 33 MRSA 751 (2009), that provided that county commissioners could charge "a reasonable fee" for copies. In 2010, this was amended to identify specific factors the counties could consider in setting fees, and in 2011 the Legislature set specific fee amounts (with certain transition provisions). The Court found that the more specific registry fee statute applied, not FOAA.
In reaching this conclusion, the Court used the terms "general" and "specific," without citing the rule of statutory construction supporting the conclusion that specific language takes precedence over general language. The Court also cited the 2010 amendment and FOAA's reference to applying "except as otherwise provided by statute." The Court also said that this conclusion was consistent with FOAA's purpose – no one was stifling public access.
Q #2: which version of the registry fee statute applies? 2009's "reasonable fee"? 2010's, which listed factors and didn't expressly provide it was to apply retroactively? Or the 2011 version, enacted after trial and the Superior Court's judgment, but which provided that the new version was to apply retroactively to September 1, 2009, i.e., before this request was made. A: 2011.
First, the 2011 statute was explicit regarding retroactivity, which is what the SJC has consistently said since the Fisherman's Wharf decision is what 1 M.R.S. s. 302 requires to reflect legislative intent of retroactivity.
Second, this intended retroactivity does not conflict with any constitutional right.
The Court's analysis on the second point is interesting. In a footnote (n. 10), the Court cites as examples of instances in which the constitution could prevent retroactivity as the contract clause preventing retroactive impairment of contracts, or ex post facto laws. In the text, the Court discusses whether retroactivity here violates Maine's separation of powers clauses, equal protection, due process, the takings cause or the special legislation clause. (I said cornucopia, didn't I?)
The no on the separation of powers front is because a legislative act that affects cases pending in the system doesn't always violate this clause. Public interests were at stake here, the Court said, and because the 2011 legislation is "policy-based," it was a reasonable law for "the benefit and defense of the people of this State," which the Legislature can enact under Art. IV, part II, s. 1 of the Maine Constitution.
The takeaway from this part of the decision, I think, is that just because a law is enacted because a specific lawsuit has prompted the Legislature to act, it doesn't follow that there is a separation of powers problem when it acts, even if its action is specifically designed to have an impact on that suit. This has long been the SJC's view as to due process (see below).
Moving onto the due process front, the SJC said that all that is needed is a rational basis, and the 2011 law was a rational exercise of the state's police power. In discussing why the law is rational, the SJC noted that it is a law of general applicability addressing a problem presented in an area of "evolving technology and varied fiscal considerations." This analysis is logical insofar as it goes. I think it would have been nice had the SJC also spoken a little bit on the issue of vested rights.
What can make a retroactive law, even if rational, violate the substantive due process clause as applied (versus facially) is if it interferes with vested rights. This law doesn't as a general matter (facially) impair any vested right. There is no vested right in any law in the abstract – no Legislature is bound by a previous one. So the real substantive due process question here is the "as applied" one – whether the company requesting the documents had done something in reliance on the language in the 2009 law that would vest rights in going forward under the law as written then. For example, if you are halfway done building an X on your property and thereafter the law changes to prohibit building X, the substantive due process clause could prevent that new law from applying to you.
I can't see from the facts presented in the decision how there could have been a vested right interfered with here. In previous decisions, the SJC has ruled that taking steps like making an application to build X doesn't vest any rights, no matter how pricey that application is – you need shovels in the ground. (There's also a bad faith component to the vested rights doctrine, but let's not get into that now, except to say that a legislative reaction to a specific project does not in itself, alone, constitute bad faith under the case law – e.g. WDI v. Town of Porter; see Kittery Retail Ventures LLC v. Town of Kittery.)
In short, there is no vested rights problem that I can see here, so whether the SJC talks about the due process analysis in those terms or not, the result is the same.
Onto equal protection. This is easy, since there was no suspect class and setting a consistent fee is rational. Everyone similarly situated is charged this fee. (There's a line of jurisprudence about classes of one that could conceivably tick up the deferential standard of review meter, but not in this context.)
The takings argument is equally a non-starter. If there's no vested right, there's no property interest here either. No one has a property interest in any law per se, and the 2011 law doesn't do anything to the requesting company's own existing property.
The special legislation clause also poses no difficulty given the general applicabilty of the law.
In sum, as a general matter, the Legislature can enact a retroactive law without offending any constitutional right, as long as it's not impairing a vested right, whether a contract, tangible or intangible property or otherwise, and the law on its face is generally applicable. That the law may put the kebosh on the application of a specific person or entity doesn't matter, absent unlawful discrimination. Someone can come along with a new idea and start pursuing it, and the Legislature is within its rights to say hold the phone, we can't have that, and do something to stop it. The fact that a specific request alerted the Legislature to the general issue doesn't change this analysis.
Issue #3 -what about the fact that the 2011 retroactive statute came even after the Superior Court decision? Answer: No problemo. See U.S. v. Schooner Peggy and Miller v. French. These cases stand for the proposition that when a law changes after the trial, while the matter remains in the system, the court applies the new law (absent any constitutional problem with retroactivity). If new factfinding is needed, the SJC said, it will remand for another go around at the trial level applying the new law; if not, then the SJC itself will simply apply to new law to the existing facts as found.
There were a few other legal points discussed, and I've simplified some of the issues, but it seems to me that this is enough for today (phew).
The bottom line takeaway is as I've noted above – as long as the Legislature uses the magic express retroactive language, there's generally no problem in changing a law and applying it retroactively, even if that change was prompted by a specific, pending request from an individual under the old law. Unless and until the rights under the old law vest, and unless the Legislature is trying to single out someone instead of address the generic issue brought up by the pending application, it can usually act.