Independent claims


Returning to the world of real CLE, Monday I participated in the MSBA’s seminar on Rule 80Bs and 80Cs, and learned useful things from the other presenters, Denis Culley and Mary Denison. 

One thing I learned that surprised me was that filing independent claims (see M.R.C.P. 80B(i) and 80C(i)) isn’t a particularly rare occurrence.  Included in the written materials from the seminar, drawn from materials from Justice S. Kirk Studstrup, is a list of cases in which the independent claims have been asserted.  The list includes declaratory judgment actions, claims based on procedural due process, equitable estopppel and goes on and on.

Well, this just doesn’t make sense to me.  My understanding is that the key to determining whether a claim is independent is remedy.  If you can’t get what you want through the direct 80B or 80C appeal, but can under a different cause of action, then that cause of action is an independent claim.  Otherwise, no.  This is because if you can get what you are looking for through the administrative appeal, that’s your exclusive avenue:

when a legislative body has made provision, by the terms of a statute or an ordinance, for a direct means by which the decision of an administrative body can be reviewed in a manner to afford adequate remedy, such direct avenue is intended to be exclusive.  Resort to the courts by alternative routes will not be tolerated, subject only to an exception for those circumstances in which the course of “direct appeal” review by a court is inadequate and court action restricting a party to it will cause that party irreparable injury.

Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981) (footnote omitted).

You can’t just slap a "declaratory judgment" title to count II and have at it, complete with discovery or whatever else you’re trying to get, just by calling your claim independent.  So, for example, the SJC affirmed the Superior Court’s striking of a declaratory judgment action attached to a Rule 80B appeal in Adelman v. Town of Baldwin, 2000 ME 91, ¶¶ 6-7, 750 A.2d 577, 581.  Because the petitioner’s claim (there, of bias) could be addressed in the direct administrative appeal, the “independent” claim would have been duplicative, and, thus, inappropriate.  See also Fitanides v. Perry, 537 A.2d 1139, 1141 (Me. 1988) (dismissing declaratory judgment action because declaratory relief was available under direct Rule 80B appeal); Advisory Committee’s Note to Rule 80B, dated Dec. 31, 1967 (“The amendments to Rule 80B(a), in conjunction with those to Rule 81, are intended to make the simplified procedures of Rule 80B the sole means of judicial review of action by all governmental agencies except those for which the legislature has expressly made a different provision”).      

In an 80B or 80C, your relief is an adjudication in your favor by the administrative body.  If that’s what you want in your "independent" claim, then I don’t see how it’s independent.  Maybe you are asserting a ground for obtaining the adjudication in your favor that you think the administrative body couldn’t review below (like maybe you thought the board couldn’t address your estoppel claim).  So what?  The Court can in the direct appeal – it can base flipping an adjudication on constitutional, statutory and lots of other grounds.   

Some people might try to get around this exclusivity principle by calling their independent claim a civil rights claim under Section 1983.  In some situations this might work and make sense — but not if the beef is procedural due process.  Remember the prisoner tool kit case, Parratt v. Taylor, 451 U.S. 521 (1981)?  There is no constitutional claim if the procedural slip-up was random — i.e., the alleged body’s boo-boo was being biased or otherwise unfair in that individual instance.  That’s because the administrative appeal itself is an adequate remedy, so you aren’t being deprived of due process.  See Moreau v. Town of Turner, 661 A.2d 677 (Me. 1995) (overruled on other grounds, Underwood v. City of Preque Isle, 1998 ME 166, 715 A.2d 148.)

In sum, there aren’t a lot of true independent claims.

The flip side I’ve seen are true independent claims that the other side doesn’t assert.  This happens when the challenge isn’t to the individual adjudication, but to an ordinance or rule itself.  Yes, you can cite the e.g. unconstitutionality of an ordinance or rule as a basis to get an adjudication flipped in the right circumstance (if you are the applicant and you were denied based on a rule that is no good).  But also, conceptually, what you are saying is that it’s not just the adjudication that went awry — indeed, the administrative body was stuck with this rule, so the adjudication was probably pre-ordained.  When you are arguing that the ordinance is no good, then you are also attacking a legislative act – the ordinance itself.  The proper and logical relief for such a claim to strike down the infirm part of that ordinance.  That relief isn’t available in a direct administrative appeal, which focuses not on the legislative act, but the individual adjudication.  So that’s a declaratory judgment count that really is an independent claim.

I know when the other side slaps on an independent claim that isn’t (usually to try to get discovery, avoid the deferential standard of review, delay or other tactical reason), I file a motion to dismiss.  I hope that other folks don’t just let these things slide, so the courts get clogged with claims that slow things down and that they shouldn’t have to address. They’ve got enough to do.