Your serve

A recent decision in the Business and Consumer Docket reminds us of a quirk in Maine law.  In Harold MacQuinn, Inc. v. LaMoine, the Court stayed proceedings in a declaratory judgment action challenging the constitutionality of an ordinance, on the ground that the plaintiff had not served the Attorney General with a copy of the complaint. (Order Staying Proceedings to Allow Attorney General an Opportunity to Respond)

As Justice Mulhern noted, this requirement is included in the Declaratory Judgment Act, 14 M.R.S. s. 5963.  It must be done or the complaint should be dismissed, as the Law Court noted in Ferraiolo Constr. Co. v. Town of Woolwich, 1998 ME 179.  Yet, as the decision in Ferraiolo and the other citations in MacQuinn suggest, this requirement is honored more in the breach.

Here is my question for the day:  does it make sense to have to serve the AG in a DJ action but not in an 80B appeal?

Assume your client seeks a permit.  It applies for the permit and is denied that permit based on failing to meet criterion X.  You appeal, arguing that criterion X is unconstitutionally vague.  Unconstitutionality is an allowable claim in an administrative appeal.  See 5 M.R.S. s. 11007(4)(C)(1), providing that the court may reverse or modify the administrative decision if it is “in violation of constitutional or statutory provisions.”  You win, and the matter gets to the Law Court, where you win again (yay). Hence, after that ruling, as a practical matter at least, that ordinance criterion is toast.  But because that proceeding was an 80B appeal, there was no need to serve the AG.

Take the same hypothetical, same facts.  Your client knows it will never be able to meet criterion X.  To challenge that criterion without first filing an application, however, you must file a DJ action, and under the DJA, you must serve the AG.

Why do you have to serve the AG under the second scenario and not the other?  The purpose of the DJA requirement is to give the AG an opportunity to intervene before the ordinance provision is adjudicated toast.  Isn’t the provision being adjudicated toast in both situations?

Theoretically, there might be a difference, in that the remedy in the DJ action is a declaration that the criterion is toast across the board, or as applied as reflected in the language of the declaration.  (See MacQuinn, noting that the DJA AG service rule applies whether the challenge is as-applied or on its face.) In contrast, the typical remedy in an 80B is that the individual applicant gets his permit without having to meet the criterion.

Should this distinction matter? While a Superior Court decision is not binding precedent, like a Law Court opinion, if there is a Superior Court order declaring a criterion toast, whether in an 80B or a DJ action, the municipality, as a party to the action/appeal is bound by the Superior Court ruling.  If the action was an 80B, could the municipality nevertheless apply the offensive criterion in another proceeding? Does this become only an issue of offensive collateral estoppel?

Is the distinction a practical one – the AG doesn’t want to be inundated with copies of Rule 80B complaints?  Does the AG ever intervene when service with a DJ action involving an ordinance anyway?

Whatever the reasoning behind the rule, remember, if you are arguing that an ordinance is unconstitutional in some way, even only as applied to your client, if it’s a DJ action, serve the AG; if it’s an 80B, apparently no need.

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