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.  [


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.