Administrative Appeals: The Remedy When the Fact Finder Doesn’t Make Factual Findings

What is the remedy in an administrative appeal when the fact-finder doesn’t do its job by making findings of fact to explain its decision? As the Law Court recently reaffirmed in Fair Elections Portland, Inc. v. City of Portland, the proper remedy is generally a remand for further proceedings.

Fair Elections Portland involved a Rule 80B challenge relating to a citizen-initiated change to a municipal charter.  Under Maine law, charter “amendments” and charter “revisions” are treated differently.  The former must be submitted directly to the voters, while the latter can only be submitted to voters upon recommendation of a charter commission.  If a charter revision is proposed and is accompanied by statutorily-mandated language, it must be put to the voters as a proposal to form a charter commission.   In Fair Elections Portland, voters sought to modify Portland’s charter, and characterized it as an amendment; however, the statutory form language regarding a charter commission was not included.  The City Council voted not to put the measure to the voters as a charter amendment, and also voted not to send the question out as a charter revision.  The Council made no findings supporting its decisions.

In reviewing the City’s decisions, the Law Court concluded that the absence of any findings of fact required a remand.  In the Court’s view, the critical question in the case was whether the charter modification was an amendment or a revision – and this question, the Court concluded, requires municipal officials to make a fact-intensive determination regarding the scope of the modification.  To enable judicial review of this determination, the Law Court concluded that the municipal officers must make findings of fact and law explaining their determination.  Because the record did not include findings of fact, the Court held that it could not “determine whether the rejection of the petition involved legal error, an abuse of discretion, or findings not supported by substantial evidence.”  Thus, instead of “attempt[ing] to infer what findings and conclusions might underlie the City Council’s votes,” the Court vacated the judgment and remanded for further proceedings.

In so doing, the Court reaffirmed its prior precedent, standing for the proposition that the remedy for an agency’s failure to make sufficient and clear findings of fact is a remand, rather than an assumption that an agency has found facts to support its conclusion.  Thus, in the ordinary case, when an agency fails to make necessary findings, the proper solution is further agency proceedings – not affirmance of the agency decision, nor, it stands to reason, vacatur of the agency decision.  The basis of the decision must, in the ordinary course, be determined before the validity of the decision is finally determined on appeal.

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