Well naturally the minute after I posted my blog last week saying not much was happening, the SJC issued six opinions. They've since issued yet more, and the First Circuit has been issuing some interesting ones too.
Let's start with ALLIED RESOURCES, INC. v. DEPARTMENT OF PUBLIC SAFETY et al., 2010 ME 64 [http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me64al.pdf]. This involved the denial of a liquor license renewal. The statute says if the City doesn't act within 120 days, a license is deemed renewed. 28-A M.R.S. s. 653(1)(C). (Contrast this with the general rule under the APA, where if the agency doesn't act within the time alloted, the only power the court has is to order them to act within a specified period.)
The issue was whether the clock stopped ticking the day the City announced its denial, or issued its written decision, which came after the 120 day period. The language in the statute referenced "final action," without defining the term. The Court (Saufley, C.J.) held that it meant the written decision, so that the license was deemed renewed.
Setting aside whether you agree with the merits of this conclusion, I found the analysis path that the Court took to get there encouraging. The Court said that the term "final action" is in isolation ambiguous. (P20) But it didn't defer to the interpretation of the state agency (the city's decision was affirmed by the Department of Public Safety) because, it said, the court doesn't defer if the agency's interpretation is unreasonable, and to assess reasonableness, the court looks at legislative history and context.
In other words, ambiguity doesn't automatically mean two reasonable interpretations, resulting in deference. If you've got an argument that context and/or legislative history shows that a particular meaning was intended (or at least that the agency's interpretation wasn't intended), then you have a shot in prevailing against an agency interpretation.
Second, in looking at context, this includes "statutory purpose and the consequences of a particular interpretation." (P 24). In other words, the Court will look at the practical implications of the interpretation – which, as I've blogged on before, is a positive thing.
In sum, agency deference isn't the death knell of a statutory construction argument – you can argue context, purpose, legislative history and results, all before the Court will then determine whether one interpretation is reasonable versus another.