More 80B?


I have returned from my vacation on the Jersey shore (I have a theory that everyone was born in NJ, but only some of us admit it.)  Here's a snapshot of NJ folks – I searched in vain for iced decaf coffee.  They only do caffeinated.  Feisty!     

In any event, just to show that I am not the only person who ponders thorny issues like the latest 80B decision and wonder it means procedurally, here is an offering from loyal reader Laurie Gibson on the last blog, regarding the SJC's decision in Gorham v. Androscoggin County, 2011 ME 63

I had a different question when reading this decision:  what was the basis for the Superior Court’s jurisdiction to hear the appeal in the first place? Long ago the Court stated, in Lyons v. SAD 43, 503 A.2d 233 (Me. 1986) that “Rule 80B does not create an independent right to appeal any governmental action to the Superior Court. It only provides a procedural avenue for those disputes in which the court has jurisdiction. See, e.g., Colby v. York County Comm'rs, 442 A.2d 544, 547 (Me. 1982). In order for the Superior Court to review the Board's action on a complaint filed solely on the basis of Rule 80B(a), review must either be provided by statute or be otherwise available by law.”   The statute at issue in Gorham, 30-A MRS s. 501(3)(A)&(B), provides a process and standard for dismissing county employees but makes no provision for review of any decision by the county commissioners.  In other words, the statute not only “is silent as to the time for seeking review”, para. 10, it is silent on whether review is available at all.   The Law Court’s decision makes no reference to the basis for review other than 4 MRS sec 105 which provides that the Superior Court has civil jurisdiction over “A. Administrative appeals brought pursuant to Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure, Rules 80B and 80C. . .”  I never thought this statute filled any hole in Rule 80B; I just thought that if an appeal route was provided for in a statute, ordinance, etc., that this statute conferred upon the superior court the power and jurisdiction to hear the appeal through the procedural mechanism of 80B.   In any event, the next step of the inquiry is to determine whether review by the Superior Court is “otherwise available by law.” “Review is deemed ‘otherwise available by law’ if it is in the nature of that formerly available under the common law extraordinary writs, such as certiorari, mandamus or prohibition, adapted to current conditions.”  Lyons, 503 A.2d at 236 (citation omitted).

The right to obtain review by certiorari, mandamus and quo warranto by using the procedural vehicle of a writ was repealed.  14 MRSA ch. 603, 605 & 607.  Invocation of those substantive remedies is now solely available by utilizing the procedural vehicles provided by the civil rules.  E.g. Portland Sand & Gravel, Inc. v. Town of Gray, 663 A.2d 41 (Me. 1995).

Neither mandamus nor quo warranto would apply here. Certiorari might be a basis for Superior Court review in Gorham but its applicability is never mentioned, let alone explained for the benefit of some of us slower folk scratching our heads as to the basis on which the Superior Court acted in the first place.


All interesting points.  My understanding is that Rule 80B vis-a-vis governmental agency decisions is replacing the writ of certiorari, as a general matter.  Some agency decisions remain simply unreviewable post enactment of Rule 80B.  Here we have a statute silent on a right to appeal – should we assume no reviewability?  Apparently not.  But then what does make this agency decision reviewable?  That review would be available previously under the writ?  Would that be the case – would review of the agency decision provided for by statute be available under the writ of certiorari formerly?  That's my best guess, but that's all it is without doing more homework.  

My only other observation re Laurie's comments is that I'm not sure that currently the only way to seek relief that would formerly be under a writ is through the civil rules.  See 14 M.R.S. s. 5301, which was not repealed.  But we shall leave that question for another day.