The SJC issued a decision today striking down a scallop regulation. State v. McCurdy, 2010 ME 137.
The decision is notable because it strikes down a state regulation as unconstitutionally vague. The SJC hasn't done that in eons and as noted in previous blogs, has previously made a distinction between state regulations and local ordinances making it more difficult to win a state challenge. So going forward, if you have a vagueness challenge to a state regulation, this is the precedent to cite.
One part of the decision, however, isn't clear to me. The regulation was vague because it didn't explain how the size of the scallops at issue was supposed to be measured. Since the date of the harvest at issue, the regulation has been clarified to clearly indicate that the scallops are supposed to be measured in the way that the state had measured them. Since that clarified regulation wasn't in effect when these scallops were caught, the new regulation wasn't in play at the time the defendant was fined.
However, there is a lot of discussion in this decision as to how boneheaded the regulation is. As far as I understand what they are talking about, because you can't measure how large scallop meats are until you open them, the methodology used in the regulation essentially requires scallopers to shuck scallops while they fish and if they are too small, dump the too-small, dead ones back in the ocean, then keep scalloping until they reach their quota. In other words, you end up killing more scallops than you would with a different measurement, and futilely, because they end up dead on the floor of the ocean. This is the opposite of the goal of the regulation and law behind it.
Sheer loopiness is at least in theory one type of due process violation. The language in this decision, however, makes it unclear to me whether the SJC is saying that this loopiness of this regulation remains a potential basis for challenge in the future.
If it isn't, then why did they talk about the loopiness so much in the decision? If they were just saying that they weren't dealing with that issue this time around (saying multiple times that the clarified regulation wasn't before them), ok. But if that is the case, then how to explain the last sentence of the decision saying the new regulation is for the other branches to deal with?
In sum, it seems clear that unclear regulations are potentially infirm under the due process clause, but stupid regulations may not be. That could be a logical conclusion post-Lochner. But the loopiness of this regulation appears to be that it inexorablyachieves the opposite result as the legislatave goal. The parameters of substantive economic due process aside, don't such regulations exceed the power of the regulating body to enact, as contrary to the legisltive intent of the law giving the regulator the power to enact regulation on that subject?
Again, perhaps beyond the scope of the decision and left for another day.