Tuscan footnote


In my Sept. 28 entry I mused upon whether a recent Maine SJC decision in a different context could be transferred to the 80B or 80C context, so that when one member of a decision-making body was tainted in some way, the whole could be deemed so, even if the outcome did not depend on the vote of the tainted member, e.g the vote was 4-1.

The answer to this question appears to be no, based on another SJC decision I did not reference, Nestle v. Town of Fryeburg, 2009 ME 30, 967 A.2d 702 (http://www.courts.state.me.us/court_info/opinions/2009%20documents/09me30ne.pdf).  This is kind of embarassing, because I represented the appellant and successfully argued against the other side's claim of taint of a board as a whole.  The SJC stated (paragraph 47):

"WMRRL contends that the Planning Board's forced recusal of its chair in 2007 for a potential conflict of interest invalidates its 2005 decision, in which that member participated. As the Superior Court noted, assuming arguendo that the member should have been recused in 2005, his participation did not affect the outcome of the 4–1 vote to approve the permit. We decline WMRRL's invitation to find that the single member imposed his will on the other members of the Board, and we do not address the issue further."

Harmonizing all this precedent, it seems to me that in the absence of evidence of "imposition of will" on others, the party with the burden of showing taint of the whole would lose.  If, however, there were evidence of such taint – in the deliberations or elsewhere – perhaps the proponent would have an argument.  But just one member with taint, without any additional evidence of imposition on others, would not be in itself prima facie evidence to allow deposing the other members in the 80B/80C context.    

Unless there's another brilliant victory I've forgotten about that says otherwise.