Rules v. decisions

So it’s a sunny, crisp Thanksgiving day.  What better time to drink some cider, sit by the fire, pet your Newfie and yes, ponder again the niceties of Rule 80B and 80Cs?

A while back I talked about the difference between a Rule 80B or 80C appeal and an independent claim, noting that the primary distinction seemed to be the remedy.  There seems to be a blurry line between a direct 80B/80C appeal and a declaratory judgment action when the claim is that the underlying legislation (ordinance) or rule is no good, infecting a specific adjudication – the claim attacks the legislative act, for which the ordinary remedy is to strike it down, so this would be a declaratory judgment action; but the relief the plaintiff wants is to change the adjudication applying that legislation specifically to him, making the action an administrative appeal. 

A similar conundrum arises when trying to decide in some cases whether a governmental action is a rule under 5 MRS 8002, in which case the challenge is a declaratory judgment action (see 5 MRS 8058) or final agency action under 5 MRS 11001, in which case the challenge proceeds under that section of the APA.  (The municipal equivalent is town legislation or regulation, triggering a declaratory judgment review, or an adjudication reviewed under Rule 80B).

The November 20, 2008 edition of the Maine Lawyers Review has an article about two Superior Court decisions involving reviews of impact fees – in one the Superior Court (Warren, J.) found the challenge was not an 80B, noting, consistent with my previous blog entry, that challenges to a town’s legislative decisions are addressed in declaratory judgment actions.  In the other decision, Justice Murphy found an impact fee challenge a Rule 80B claim, noting, as I have also done in previous blog entries, that a cause of action is only independent if Rule 80B is unavailable or would not provide an adequate remedy.

So who is right?  And does it make any difference?

First, I am unburdened by reading anything but the short summary of decisions in the review, so this is just a general riff on what is a rule v. an adjudication, not any comment about the specifics of those cases.

Second, it doesn’t make a huge difference whether the challenge is called a Rule 80B/80C or a declaratory judgment action — if you file your claim within the 30-day appeal period for 80Bs & 80Cs.  However you caption a complaint shouldn’t matter, as long as it states a claim and you meet the statute of limitations. So if you are in doubt whether the thing you are challenging is a rule or an adjudicatory decision, file within that 30-day time period.  In most cases, that deadline is jurisdictional (when it is and when it isn’t is a very thorny issue for another day.)

Third, the general answer to this question 80B/C or dj action when the line is blurred is contained in Cumberland Farms Northern, Inc. v. Maine Milk Commission, 428 A.2d 869 (Me. 1980).  As the definitions in Section 8002 provide, an adjudication is something that impacts specific individuals, while a rule or legisation has general applicability.  The line between these two concepts blurs when the agency is doing something like, as in Cumberland, setting rates.  The SJC (Godfrey, J.), said that the challenge was both:  the rate decision was both a rule and an adjudication.  In such situations, the Court said, "the general provisions of [Section 11007] must yield to the more specific provisions of section 8058 by application of the normal constructional preference that gives controlling force to specific statutory provisions over general ones."  (p. 873).

Now I’m not so sure that the language in the 8000’s defining "rules" is any more specific than its definition of "adjudicatory proceeding" and the language in the 11000’s about "final agency action."  But the principle that when it doubt, call the thing a rule seems fair enough, if only to help those folks who didn’t file within the thirty-day period.  But in the end, aside from the limitations period, the differences between a declaratory judgment challenging rulemaking and a Rule 80B/80C appeal should not be great.   

The argument in Cumberland revolved around whether the "arbitrary, capricious or abuse of discretion" standard of review for rules under 8058 applied, or the standard of review for adjudicatory proceedings included in 11007.  Frankly, as a practical matter, I don’t think there’s a big difference between the two standards. The government can’t enact a irrational rule or issue an irrational adjudication.  An adjudication must be supported by substantial evidence – but that’s not much; and a rule has to have some sort of grounding in reality, too.  Particularly if the "rule" is hovering on that blurry line between rule and adjudication, e.g., rates, there had better be some evidence in the administrative record to support why the agency set the rates as it did. 

Another theoretical difference between a declaratory judgment action challenging a rule and a Rule 80B/80C appeal is procedural:  a declaratory judgment action is a general trial proceeding, and so, in theory, could have discovery etc., while 80Bs and 80Cs are normally briefed on the administrative record.  But again, I think this distinction is usually only theoretical.  Substantively, in any administrative appeal, you aren’t normally supposed to probe the mental processes of the decision-maker, and whether a rule is arbitrary, capricious or an abuse of discretion would logically, in the typical case, be based on the administrative record before the agency.  So in an ordinary challenge to a rulemaking, one would think that there would be no discovery, and the matter should proceed on briefs like a Rule 80B/80C.

So, for example, in a case we have pending challenging a rule, all the parties agreed, and the Superior Court entered an procedural order, using this process:  the agency filed the administrative record, and the matter is now being briefed, just as in a Rule 80C; we call just the briefing a motion on the stipulated record.  Aside from having to hand over the filing fee for a dispositive motion, this procedure is just like that followed under Rule 80B or 80C.               

In sum, an administrative appeal is, in the end, an administrative appeal, whether it’s a challenge to a rule or an adjudication.  While there are some distinctions — and that limitations period is the biggie — both are governed by overarching principles, such as the limited scope of judicial review.  In both situations, the Court makes sure that the agency acted rationally, based on the administrative record. 

Happy turkey day (or for us vegetarians, happy everything but the turkey day).   

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