David Lourie responds to the April 17, 2008 Toomey post as follows:
Your ruminations over the procedural due process argument may be overblown. I think that the Law Court relegated the issue of ex parte communication to a footnote because it thought the claim insubstantial. It probably did not think that contacts resulting only in a (procedural) event – the Board initiated reconsideration – rose to the level of a due process violation. The contact was disclosed prior to the substantive hearing, I expect that the Court believed that the "flexible" due process standard before an administrative agency was probably not violated on the facts.
I found the gutting of the 10-day statutory period for reconsideration to be surprising. This is probably because of my experience under the predecessor to the current statute, which more clearly reflected a statutory intent to change the common law rule on reconsideration. The Court has now essentially returned to the common law rule, allowing reconsideration until the decision is appealed or the time for appeal is past, even where the losing party failed to file a request for reconsideration within the statutory 10-day period.
On the issue of reconsiderations, attached is a copy of a recent 80B decision from Justice Warren in which we participated for St. Joseph’s, discussing that issue. The matter is now final and unappealed.Download saint_josephs_college_order_20080213145738.pdf
I will now move onto non-80B issues, at least for a bit.