Nelson, agency deference & the AG as big kahuna


The SJC decided an administrative appeal on Thursday that has multiple points of interest. Nelson v. Bayroot:

The most obvious aspect of the decision of general import goes to the issue of standing.  Justice Levy includes a fulsome 9-page discussion of why the Nelsons, owners of property in a 31,000 acre subdivison, had standing to complain about an amendment of the subdivsion plan relating to a portion of the property 3500 feet across the lake and a peninsula from the Nelsons.  Justice Silver has a succinct concurrence presenting the opposite view — why he believes there was no standing.  There are several observations that could be made about the development of law in this area, but let’s leave this issue for another day.

Instead, I want to focus on another issue buried in paragraphs 15 and 17 of the decision, relating to agency deference. 

In paragraph 15, the Court notes that the deciding agency (LURC) took one point of view at the administrative level, then another later.  In paragraph 17, the Court notes the generic rule on agency deference — to defer unless the rule compels a contrary interpretation.  The Court then finds such a compelled different interpretation (from the agency’s subsequent view).

The interesting part of this discussion is what the Court does not say.  The federal law of agency deference is, of course, the wonderful world of Chevron, which is notable for that fact that even this writer can find the nuances of the steps and levels of deference to be mind-numbing.  One of the many Chevron principles is that less deference is given to an agency position if it has changed.  See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 698 (1992).

The SJC has indicated that it follows the Chevron template.  Cobb v. Board of Counseling Professionals Licensure, 2006 ME 48, P13, 896 A.2d 271.  Since the SJC was disagreeing with LURC in Nelson, it could have cited this principle as support.  Why didn’t it?

This is, of course, excessive tea-leaf reading.  The SJC didn’t have to cite the principle.  I happened to be at the oral argument for this case, and if I’m remembering correctly, the explanation provided, and as briefly alluded to in the decision, was that LURC just being very conservative in requiring permitting action at the administrative level, and, on ultimate reflection, thought it wasn’t necessary.  The fact that the Court didn’t want to get into what impact this train of thinking had on its degree of deference isn’t a big surprise.

It does, nevertheless, provide an opportunity for abstract musing upon whether there is anything different about Maine law from federal law that could lead to divergence on this nuance regarding deference — whether consistency should make less or more difference in judicial deference under Maine law.

One interesting aspect of Maine law goes to the role of the Attorney General.  The AG is the agency’s representative in court.  See 5 M.R.S. s. 191(3)(B).  So what happens if the AG and agency differ as to a statutory or regulatory interpretation?  What happens if the agency interpreted a law or rule one way when making its decision, but the AG disagrees when it comes time to defend the agency’s decision on appeal?

The SJC has said that the issue whether the AG has ultimate control – i.e. whether it can tell the agency that not only will it not defend the agency’s position, but no one will, so the other side wins – is still open in Maine.  See Superintendent of Ins. v. AG, 558 A.2d 1197, 1200 (Me. 1989).  Notably, the Court cited a Massachusetts case that said the AG could take this action — "the Attorney General’s control of the conduct of litigation ‘ includes the power to make a policy determination not to prosecute the Secretary’s appeal in this case’."  (citing Secretary of Admin. and Finance v. AG, 367 Mass. 154, 326 N.E.2d 334 (1975).)   

As a practical matter, that’s not what happens in Maine (as far as I know).  When there is a disagreement, as the Superintendent of Ins. case reflects, it’s been my experience that the AG lets the agency hire independent counsel.

But the at least strong suggestion that it’s the AG, not the agency, that determines what position to take in court, does lead to some interesting theoretical questions about agency deference.  In 99% of the cases, the agency and AG appear to agree, and there’s no switch in position between the administrative decision and the appeal.  But if there is, it could be because of this difference of opinion between the AG and the agency.  Since the reason for deferring is because the agency is the expert, can you argue that there should be no deference to an interpretation taken in a judicial appeal different from that of the agency below because this disparity must mean that the AG is imposing his will, and it’s not the agency’s view?  What if the briefing on behalf of the agency (filed by the AG) says no, no, it’s the agency’s view now, too, it’s just changed its mind — should that make a difference in degree of deference?  Hmmm.