ordinances, rules and the appendix


Just to show that you should always read the rules again every time you file a pleading, I discovered something new in Maine Rule of Appellate Procedure 8, regarding the appendix. 

In working on a couple of Rule 80C appeals, draft appendices were presented to me with state rules in them.  "Take them out!" I said imperiously, "yes, I know ordinances go in, but not state materials.  That would be silly – a state rule is like a statute; it's the law, not record material."

"Ah, but Cathy," the associate said nervously, "it's right here in the rule."  And he was right.  [http://www.courts.state.me.us/rules_adminorders/rules/MRAppPONLY1-12.pdf (p. 13)]  Whoops.

This still doesn't make sense to me.  The appendix is a record of the materials presented below.  You don't put the law in the appendix.  That's why you don't put in statutes.  

Then why do we put in ordinances, you may ask.  Well first, unlike a statute or a state rule, the Court can't get to it easily if it's not on an official town database.  Also, ordinances change all the time, so by the time an appeal gets to the SJC, the ordinance it should be looking at isn't necessarily the current one on line.  That's a practical reason.  Second, as a legal matter, I believe, it's because of 30-A M.R.S. s. 3006, which says:     

The submission to any court or administrative tribunal of a municipal ordinance, bylaw, order or resolve of the legislative body or municipal officers of a municipality, when the ordinance, bylaw, order or resolve has been certified over the signature of the municipal clerk, is prima facie proof of the validity of that ordinance, bylaw, order or resolve.

The SJC then said in a decision that it would not interpret an ordinance which was not properly before it, since the existence of municipal ordinances are not subject to judicial notice but must be proved. Summit Realty, Inc. v. Gipe (1974) Me., 315 A.2d 428.

Not to be too piciune about this (ok, let's), if you follow this line of reasoning in Section 3006 and Summit Realty, you should put a certified copy of the ordinance in the administrative record you are making before the board, as evidence.  Or at least put in an uncertified copy.  Or at least make sure the ordinance you put in the appendix is certified.  But technically speaking, if the Legislature has said that you need a certified copy, and the SJC has ruled that you have to prove the existence of the ordinance, then I don't see how you can just slap a copy of an ordinance (certified or not) into the appendix as part of the record first at the appellate level.  You can't throw in any other evidence at that point absent going through a lot of hoops.  Why is an ordinance different?  And does Rule 8 mean that the decision in Summit Realty is effectively superseded? 

Again moving away from technicalities to practicalities, given that a certified copy of an ordinance does prove its contents, it seems to elevate form over substance to say you can't rely on a certified copy of an ordinance on appeal if you haven't placed it into into the administrative record as evidence at that level.  I presume that the language of Section 3006 doesn't prevent the SJC from letting people file 80B appeals without having gone through this drill at the board level (or a lot of 80Bs would have to be dismissed or you'd have to file a lot of silly motions to take additional evidence to get them before the court).  Still, I always recommend that people put the ordinance into the record when they are at the board level.  It not only avoids this question, but it makes it easy to see what version of the ordinance existed at the relevant time, i.e., when the board was deciding the issue.

Of course that's not necessarily the relevant time for all aspects of an 80C appeal.  The municipality could change its rules about how to appeal after the board decision is made, at the time the parties are appealing.  You can't get that new version into the administrative record.  How else are you going to get that in front of the SJC except by giving them a copy?  Wouldn't it be foolish to require machinations to get that "evidence" into the record when, whatever Section 3006 and Summit Realty says, it's not really evidence in the ordinacy sense?  

Yes, of course.  So all in all, particularly since I think many people could be out of luck if the court stuck by the rule that the ordinance had to be proved by the evidence in the record, addressing the need to have the relevant ordinances in front of the SJC through a rule of appellate procedure saying just provide them to the Court as a part of the appeal makes sense.  But technically they aren't a part of the record and it would be helpful if the Court could identify whether they have to be certified.  (And I'm not even going to talk about the first level of judicial review, the Superior Court.  If the ordinance is "evidence" and it's not in the administrative record, then how can the Superior Court review it?)      

In any event, getting back to the point of this blog (I think this was the point), that doesn't explain why you need to put a state rule in the appendix.  No one says they have to be proven, either through a statute like Section 3006 or case law.  

"Oh what's the big deal, Miss Whiney Pants," you might say, "doesn't this requirement just make it easier for the SJC to review the appeal?"  And rules, just like ordinances, can change from the time of a decision to the time the appeal is reviewed, right, so why make some poor SJC clerk figure that out?

Well, sure.  This is why it would make sense for the SJC to indicate that the rules extant at the relevant times should be supplied to the court in some fashion.  But why in the appendix?  And why if there have been no changes in the rules?  Why not treat them like statutes?  

Again you are thinking oh whiney pants, whiney pants, but here's why it might matter.  Usually the relevant rule is itsy, and can take up a page or two, so who cares.  But sometimes in some  environmental cases, when you are arguing about the whole framework of the regulatory scheme, you could have a bundle of relevant rules (e.g. NRPA).  Are you supposed to dump all of them into the appendix?  Aren't we supposed to make the appendix as concise as possible?  If the Court can as easily wander through the regulatory framework on the state's website or a hard copy of the CMR as it can through a statutory framework, then why require the rules to be included in the appendix?

Oh the grand mysteries of life.  In the meantime, remember:  (1) get a certified copy of the ordinance into the administrative record if you get the opportunity before the administrative process is done; (2) check for changes in the ordinance as to how to appeal thereafter during the appellate process, and if there are any, get a certified copy before the court; and (3) make sure you put a copy of the relevant state rules into the appendix of an 80C appeal.  Also, make sure, if you can, that the folks before the state administrative proceeding put into the file a copy of the rules at the time they are before the administrative body, so that when you on appeal have to figure out what rules applied when, you've got a copy.