more about agency deference; looming arguments; and youtube


1.  More on deference 

In our last entry, we were discussing when the Maine SJC defers to an agency interpretation and when it doesn't. I mentioned that there were a few recent decisions in which they didn't, and asked whether this was a trend.

Well, here comes another decision rejecting an agency interpretation - Zablotny v. State Board of Nursing, 2014 ME 46.  The ruling seems pretty straightforward – the SJC reverses the Superior Court's determination that "de novo judicial review" of an agency decision means only de novo review of the law, and not the facts.  In the decision, the Court finds the phrase "de novo judicial review" unclear, i.e. it can't do a plain language ruling.  It then looks to the legislative history to resolve the question in a way that makes good sense to me – the phrase means de novo review of both the facts and law. 

The only question I have is there's not even a mention of the rule of deference to an agency interpretation of a statute it administers — the SJC's reading appears to be contrary to what the defendant Board said the interpretation should be. 

Now the Board's interpretation isn't embedded in an agency ruling, but rather in an argument to the court as to what the standard of judicial review of an agency decision should be.  Does this make a difference as to the rule of deference to agency interpretations of statutes they interpret?  By silence on this issue, is the Court saying it does?  It's not the agency that is tasked with an interpretation about judicial review, that's for the Court alone? 

Or is the Court saying that the deference rule doesn't come into play until (a) the language of a statute isn't plain; AND (b) the Court has analyzed the legislative history and doesn't find resolution there? 

Just in case the Court is saying the latter, then I think it may behoove folks attempting to overcome an agency interpretation of its statute in an appeal, in whatever context, to use that order of analysis, assuming the legislative history helps their cause.

2.  Upcoming arguments

The  next session of arguments before the SJC is April 7-9, and it looks like there's some interesting ones on the list.  Remember, you can hear the arguments live just by clicking on the Court website, and they post them for a few weeks a day or so after the argument takes place. 

Based only on the little summary on the Court's web site, two that might be of interest are:  (1) Gifford v. Maine General Medical Center, dealing with some Maine Human Rights Act issues (April 7, 1:15 pm);  and (2) State of Maine v. Chapman, which interests me only because it's the State apealing a judgment of acquittal after a conviction, and I don't think that happens very often (April 7 10:50 am).

Also on the schedule is the neverending saga of Pike Industries, Inc. v. City of Westbook (4/8 at 9 am).  The general subject of this series of appeals is, roughly speaking, how a municipality and a property owner can settle a dispute when the conditions of the settlement may be viewed as inconsistent with existing land use ordinances — although it looks from the summary like that hurdle may have passed and now the issue is about whether the resolution constitutes contract zoning.   

Another appeal involving a dispute in the news is Friends of Congress Square v. City of Portland (April 9 at 1:15 pm).  This is the City's appeal from a ruling by the Superior Court telling the City it had to issue petition forms for a city initiative.  So the question before the SJC will be the scope of what is subject to citizen initiative under the City's initiative process ordinance.

Finally, the argument on potential reconsideration of the Goose Rocks ruling, discussed in previous entries (Goose Rocks, muskets and takings law, Goose Rocks Response, Goose Rocks redux – hold the phone! ) is scheduled for April 9 at 2:55 pm.  Aside from re-considering when a public prescriptive easement may be created, the Court might be thinking about addressing the issue it initially left for a later day as to the meaning or continuing applicability of the "fish, fowling and navigating" rule about what the public is allowed to do on most intertidal beachfront property in Maine owned by private property owners.   All three of the folks arguing this one are very good, so this is one argument to listen for that reason alone.

 3.  youtube

FInally, I was wandering around youtube the other day and stumbled across this 30-minute interview of Justice Scolnick.  It's worth viewing.