Did they have to kill the cat?

Practice area:

Time for a tour around the Law Court to see what our SJC has been up to recently, opinion-wise.

Two decisions came out yesterday of note:

1. Scamman v. Shaw’s Supermarkets, 2017 ME 41

This was on a certified question from the District Court of Maine pursuant to 4 M.R.S. § 57, asking whether Maine’s anti-age discrimination statute, 5 M.R.S. § 4572(1)(A), applies a “reasonable factor other than age” test in disparate impact cases, or “business necessity” test.

It’s easier for an employer to meet the “reasonable factor” test, which is used in the federal counterpart ADEA.  Basically, if all the old folks are earning more, and the company is in a money crunch, then the company can get rid of the oldsters more easily under that test.  In contrast, the federal statute uses the “business necessity” test for Title VII, harder for the company to prove.  Johnson, Webbert & Young argued for the employee, Jackson Lewis for the employer, with amici briefs from the Maine Human Rights Commission and Dick O’Meara at Murray Plumb & Murray for AARP.

The employee won – the business necessity test applies.

Basically, the SJC said that the language of the Maine statute wasn’t clear because the “reasonable factor” test wasn’t expressed in its text, unlike the ADEA.  The SJC resolved the ambiguity by deferring to the agency, the MHRC, which says it’s business necessity. Justice Humphrey wrote the decision, which was unanimous and heard by all except Justice Alexander.

Whether you like the result or not, the opinion is thorough and its reasoning straightforward.  The only thing on my wish list from just a general reading would be some more explanation as to how the agency deference test in Maine jives (or doesn’t) with the federal court’s test.  E.g., does the SJC apply the Chevron-Skidmore distinction as to the weight given the agency’s position depending upon when/how the agency articulates its position?  Here, the MHRC wasn’t a party, and there was no formal rule, but the agency stated its position in an amicus brief, and in its own investigation preceding the suit, the investigator had applied the business necessity framework.  Logically, the degree of deference given an agency should depend on the formality, consistence and coherency of the agency’s position, which is basically what the federal courts say.  The SJC upon occasion have alluded to Chevron, and I’ve never seen anything to my recollection rejecting the Skidmore distinction.

2.  Millay v. McKay, 2017 ME 39

This is a divorce case announcing no earthshattering new law.  I mention it here because of the Court’s discussion, in its per curiam decision, regarding “buckshot” appeals.   Martha Harris represented the appellant, Peter Bickerman, the appellee.  The Court said:

We take this opportunity to encourage counsel to reduce costs and improve chances of success by better focusing their arguments on appeal. On this appeal, Millay, through counsel, has taken a “buckshot approach,” arguing numerous procedural and substantive issues, apparently “hoping something will stick.” Leigh Ingalls Saufley, Amphibians and Appellate Courts, 51 Me. L. Rev. 18, 22-23 (1999) (“Do not use the buckshot approach hoping something will stick. Some very good arguments have been lost in a sea of extraneous issues. If your client is expecting your brief to be a lengthy and erudite tome, educate him or her on the necessity of brevity and clarity.” (emphasis in original)); see also United States v. Price, 988 F.2d 712, 714, 722  (7th Cir. 1993) (addressing an appeal that presented numerous, poorly supported challenges to a defendant’s guilty plea and resulting sentence and concluding that the “appeal reads like a criminal lawyer’s primer of defenses. This court has disapproved this sort of buckshot approach where the defendant has only a mere hope that a pellet will strike. None of [the defendant’s] pellets have found their mark.” (citation omitted)).

Word to live by.

A few days earlier, March 2, the Court decided:

3.  Perry v. Dean, 2017 ME 36

The SJC in this case held that the Department of Health and Human Services is immune from breach of fiduciary duty claims based on sovereign immunity when DHHS acts as a public conservator.  One reason the lower court concluded that immunity had been waived was because the public conservator is required by statute (18-A M.R.S. § 5-611) to obtain a surety bond for the benefit of the ward, and the court reasoned that there wouldn’t be much purpose in that requirement if DHHS was immune.  The SJC disagreed, expressly noting that it was not commenting on whether the ward (here the estate) would have a claim against the surety company.  Justice Humphrey wrote the decision for a unanimous court, this time with Justice Hjelm sitting out.  AAG Chris Taub argued for DHHS, with David Jenny and Cynthia Dill representing other parties.

Again, I leave the details on the SJC’s reasoning on the merits to your reading pleasure.  My own comment relates to the allegations made against DHHS as to its alleged bad acts:

the Department sold the Owls Head property for forty percent of the tax-assessed value, damaged Dean’s real and personal property by allowing the Rockland property’s water pipes to burst, euthanized Dean’s cat, sold Dean’s Cadillac for less than market value, and generally mismanaged Dean’s property.

Really?  Did they have to kill the cat?  I am on the board of the Animal Welfare Society.  Next time, DHHS, immune or not, please give us a call.

Next on our hit parade is a criminal case:

4.  State of Maine v. Boyd, 2017 ME 36

This is also from March 2, with the decision by the Chief Justice, unanimous, with everyone sitting.  ADA Joshua Saucier from York County for the appellant, and Amy McNally from Woodman Edmands etc. for the appellee.  The issue was suppression of a blood test in an OUI matter – the SJC affirmed the suppression.

The defendant was allegedly tooling around in his vehicle, had an expired inspection sticker, and when stopped at 10:00 am, the police officer conducted multiple field sobriety tests.  Concluding he had probable cause to arrest, the officer took the defendant to the Sanford Police Department for a breathalyzer test. But whoops, the machine malfunctioned, so they continued on to Wells, where during a 15-minute pre-test observation, the defendant coughed several times, which can bring alcohol into the mouth and invalidate test results.  So next, the policeman tried a blood test, saying that the defendant was very amenable and cooperative in acquiescing to the test.

The holding?  Amenable doesn’t cut it.  Absent a warrant, the defendant has to consent.  This means there must be a manifestation of affirmative consent.  The police should have asked; if the arrestee said yes, then the test results would have been admissible.  If he had said no, then the officer “would have known to warn of the consequences of refusal, see 29-A M.R.S. § 2521(3), and to ascertain that Boyd was refusing to consent with full knowledge of the possible consequences.”

As to what those consequences of refusal would have been, the SJC said it didn’t need to discuss that issue, noting the recent Supreme Court decision, Birchfield v. North Dakota, 579 U.S. —, 136 S.Ct. 2160 (2016).  There, the Supreme Court said breath tests can be taken without a warrant as incident to arrest, but not blood tests, since that’s more intrusive, and the state can’t criminalize a refusal to take a blood test without a warrant.  So there will no doubt be more coming down the pike on this subject matter in the future.

Finally, here’s a decision from a while back:

5.  21 Seabran, LLC v. Town of Naples, 2017 ME 3

This was a Rule 80B appeal (yes!), with the majority flipping the CEO’s denial, affirmed by the Board of Appeals, of a permit application on the basis that there was insufficient shore frontage for the proposed “renovation” of a garage, because it would add a second “residential dwelling unit” as defined by the Naples Shoreland Zoning Ordinance, requiring more frontage.  Justice Alexander dissented.  David Goldman from Norman, Hanson & DeTroy argued for the appellant, Sally Daggett at Jensen Baird, for the Town.

Remember, in 80B’s there is no deference to the agency’s ordinance interpretation, unlike with Rule 80C’s, although there is deference to fact finding.

The majority (opinion by Mead, J.) concluded that the garage would not become a “residential dwelling unit,” because the ordinance defined such a unit as “containing cooking, sleeping and toilet facilities.”  The BOA made no finding that the proposed structure contained cooking facilities, the majority said, so the frontage rule didn’t apply.  As the majority noted, there have been lots of decisions dealing with whether something is a dwelling unit, with some rulings saying cooking facilities were not required.  But those cases, the majority said, did not have the same text as this ordinance.

In his dissent, Justice Alexander, among other things, pointed out the ease of moving in equipment like a microwave, which the town has little ability to monitor.  This is an interesting point.  What exactly are “cooking facilities” in our modern world from the perspective of defining a dwelling unit?  If there is space in the unit to put a microwave on a counter, and a refrigerator in the corner, could the town say the counter and the corner are cooking facilities?  Would that be a fact determination to which the Court would defer?

As a practical matter, it sounds like if the intent of municipalities is to impose requirements on dwelling units, they need to remove defining text in their ordinances focusing on “cooking facilities,” or at least make such an element disjunctive and not a requirement to meet the definition.