Recent 80B decisions Toomey and Camp

Two recent decisions from the Law Court are of interest, going to the interface between an administrative appeal of a town body’s adjudicatory decision under Rule 80B and other independent claims:

(1)  Toomey v. Frye Island:


(2) Camp v. Shapleigh:

Well, that is to say, they are of interest to people like me who find this kind of thing interesting.  There are certain appellate specialists who, when I start prattling eagerly about Rule 80B, get vacant looks in their eyes.  Apparently, issues of procedure and process in the administrative appeal do not sing to all.

1.  Toomey

The interesting part of this decision is the following language in footnote 2:

At the October 14, 2005, hearing, and in his brief, Toomey argues that reconsideration of the variance was improper because the Chair had had ex parte conversations with, and was acting on behalf of, the town manager and the Board of Selectmen. Boards have inherent authority to revisit their own decisions. Cardinali v. Town of Berwick, 550 A.2d 921, 921 (Me. 1988).  There is no mechanism in the relevant statute for us to go behind the decision of the Board and evaluate the motivations of individual Board members. 

The sentence about not evaluating motivations is an unremarkable and well recognized principle of administrative law.  The juxtasposition of this sentence, however, as a response to a claim based on ex parte conversations, and the Court’s language regarding "no mechanism in the relevant statute" to act raises interesting questions.  The Court could be saying one of two things:

1.  there is no cause of action at all for this kind of ex parte conduct; or

2.  there might be a cause of action, but not as a part of a direct 80B challenge to a board decision.

Looking at the first option, residents buttonhole their representatives on town boards on the street all the time one-on-one with their views.  As an abstract matter, I’m not sure that’s actionable; that may just be democracy.  Here, however, the decision states that the people approaching Chair member were other town officials.  There are complicated First Amendment questions as to what government officials can talk about and when, so more facts would be needed to resolve this question.  (I haven’t pursued this by e.g., looking at the briefs in the case.)  But the language in the decision uses the qualifying "in this statute," so I’m thinking that the second option might be more likely.

Option #2 might have included the consideration that ex parte conversations are expressly addressed in the Freedom of Access Act (1 M.R.S. sec. 401 et seq.), and should be pursued under that statute.  But relief under that statute, as I understand it, does not involve undoing clandestine board activity unless the decision itself was made ex parte (i.e. the challenger may be out of luck under FOAA if, as would invariably be the case, the conversation precedes the formal public vote).  Moreover, the general basis for challenging procedural irregularities like ex parte conversations, to the extent they are improper, is the due process clause.  So this leads to interesting questions about whether the language in Toomey can be interpreted as saying that there is no Rule 80B direct appeal, but is leaving open the possibility of filing an independent claim based on the due process clause.  But, if so:

  • as far as I know, due process irregularities have traditionally been treated as a part of a direct RUle 80B or Rule 80C appeal, and the APA expressly references constitutional claims;
  • there are sound reasons for not ramping off procedural due process claims to be independent causes of action.  First, claimants are always arguing that the process was unfair and the board was biased.  To manage such claims, Rules 80B and 80C require a prima facie showing supporting such a claim before it can proceed.  If such claims are no longer advanced through Rule 80B, does this mean regular discovery rules apply and no prima facie requirement is imposed?  Second, many constitutional claims can be the basis of actions under the federal civil rights statute, with juries, damages and attorney’s fees.  Traditionally, however, an unhappy participant in an administrative proceeding has not been able to raise a procedural due process claim as an independent action, including a Section 1983, because a direct administrative appeal, such as a Rule 80B action, provides due process.  Both the U.S. Supreme Court and the Law Court have noted that the post-deprivation mechanism of a direct administrative appeal to fix any irregularity in an individual adjudication constitutes adequate process.  If, however, one cannot raise such an ex parte claim in a direct Rule 80B or Rule 80C action, then it could follow that one would have a Section 1983 claim.

I’m fairly confident that the Law Court was not saying that this type of claim should be pursued as a civil rights action.  There are many decisions from both the SJC and the First Circuit admonishing litigants for transforming land use complaints into civil rights claims. 

So I’d be interested in any thoughts as to the significance of this language in Toomey, and the prudent action an attorney representing a client with a complaint about ex parte communications with board members should now take.  To be safe, until this issue is resolved, I would think one might need to file at least an independent due process claim.  One could try to minimize the delays that an independent claim causes under Rule 80B by filing a motion to specify future course of proceedings that proposes a schedule without discovery and on the same track as the Rule 80B direct appeal, and one wouldn’t have to raise the claim as a Section 1983 with damages and fees, but could simply raise the issue in a declaratory judgment action.  (I’ve done before successfully when the Rule 80B is accompanied by other types of a declaratory judgments, such as a challenge to the ordinance itself, which is a legislative act and thus doesn’t fall within the direct administrative appeal of the adjudication.)

But if this language leaves the door open to file a civil rights claim, some attorneys might think it’s in their client’s best interest to at do that.

I know I’m missing something so again I welcome suggestions. 

I’ll post my thoughts and questions on the second case, Camp, in a bit.                   

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