articulating, in relation to a civil rights claim for violations of due process and First Amendment rights, that when direct review of a municipal proceeding 34 is available it is the "exclusive process for judicial review unless it is inadequate" and holding that BOB review was available to "correct any process errors" that occurred during a town's decision making process on a petition to secede
How later courts described this case
- articulating, in relation to a civil rights claim for violations of due process and First Amendment rights, that when direct review of a municipal proceeding 34 is available it is the "exclusive process for judicial review unless it is inadequate" and holding that BOB review was available to "correct any process errors" that occurred during a town's decision making process on a petition to secede
Written by the judges who cited it.
The opinion
MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 143
Docket: Aro-15-406
Submitted
On Briefs: May 26, 2016
Decided: September 15, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
RICHARD CAYER et al.
v.
TOWN OF MADAWASKA
ALEXANDER, J.
[¶1] Richard and Ann Cayer appeal from a judgment of the Superior
Court (Aroostook County, Hunter, J.) dismissing, as untimely, their appeal from
decisions of the Madawaska Board of Select People declining the Cayers’
requests to schedule an advisory referendum, pursuant to former 30-A M.R.S.
§ 2171-D (2012), on the Cayers’ petition, pursuant to 30-A M.R.S. § 2171-B
(2015), seeking to have their properties within the Town of Madawaska
secede from the Town.1 Because the court did not err in determining that the
appeal was untimely, we affirm.
1 The issues in this case involve application of the municipal secession statute,
30-A M.R.S. §§ 2171 to 2171-G (2012 & 2015), portions of which were amended during the course
of the proceedings before the Town. See P.L. 2013, ch. 384 (emergency, effective July 1, 2013)
(codified at 30-A M.R.S. §§ 2171-C-1, 2171-D (2015)). The legislation added section 2171-C-1 and
amended section 2171-D. All other sections of the statute remained unchanged.
2
I. CASE HISTORY
[¶2] In this appeal from an order on a petition for review of
governmental action pursuant to M.R. Civ. P. 80B, we draw the facts from the
statements of material facts, M.R. Civ. P. 56(h), including what purports to be
the record of the municipal decision, that appear in the summary judgment
record. Summary judgment is appropriate when review of the parties’
statements of material facts and the record evidence to which the statements
refer, considered in the light most favorable to the nonmoving party, here the
Cayers, demonstrates that there is no genuine issue of material fact that is in
dispute and the moving party is entitled to judgment as a matter of law.
Remmes v. Mark Travel Corp. 2015 ME 63, ¶ 18, 116 A.3d 466.
[¶3] On May 28, 2013, the Cayers filed a petition to secede from the
Town of Madawaska pursuant to 30-A M.R.S. 2171-B. Since its enactment in
1999, P.L. 1999, ch. 381, § 2, section 2171-B has specified:
The secession process may be initiated by submitting to the
municipal officers a petition signed by more than 50% of the
registered voters within the secession territory that requests a
municipal public hearing for the purpose of discussing whether
the specified territory should secede from the municipality. The
petition must set forth the physical boundaries of the secession
territory, the resident population, the nonresident population and
a list of not more than 5 people who will serve as representatives
of the secession territory. For purposes of this subchapter,
3
“secession territory” means the area described in the petition for
secession.
The registrar of voters of the municipality shall verify the
signatures on the petition within 30 days of the receipt of the
petition.
[¶4] The “secession territory” identified in the petition consists of six
parcels of land owned by the Cayers; the only residents of the territory were
the Cayers. The Town Manager determined that the Cayers’ petition to secede
complied with section 2171-B. However, no public hearing was scheduled
pursuant to former 30-A M.R.S. § 2171-C (2012), which, without setting a time
within which a hearing shall be scheduled, stated that “[u]pon receipt of a
petition with the required number of verified signatures, the municipal
officers shall call and hold a public hearing. The purpose of the public hearing
is to allow municipal residents, officers and residents in the secession
territory to discuss secession.” Id.
[¶5] The statements of material fact indicate that Town officials were
uncertain about application of the law and contacted a legislator and the
Maine Municipal Association regarding that uncertainty.
[¶6] On July 1, 2013, the Legislature enacted and the Governor
approved a bill, L.D. 1561 (126th Legis. 2013), becoming P.L. 2013, ch. 384
(emergency legislation, effective July 1, 2013). The new law changed the
4
Legislature’s practice for receiving and considering secession petitions. The
new practice requires that, before any municipality conducts any advisory
referendum on a petition to secede, a representative from the secession
territory must first “obtain the authorization of the Legislature to proceed
with the secession process.” 30-A M.R.S. § 2171-C-1 (2015).
[¶7] The version of the statute in effect when the Cayers filed their
petition to secede had provided that before consideration of a petition to
secede by the Legislature “the municipality shall conduct an advisory
referendum within the secession territory” at least thirty days but not more
than 120 days after an initial public hearing on the petition to secede.
30-A M.R.S. § 2171-D (2012). Thus, the effect of the Legislature’s action was
that legislative authorization must now precede any municipal advisory
referendum on a secession petition.
[¶8] The Town determined that the amended statute governing
legislative consideration applied to the Cayers’ petition and scheduled a
hearing on the petition for July 30, 2013. At the hearing, Richard Cayer spoke
and described the problems that prompted him and his wife to petition to
secede. See 30-A M.R.S. § 2171-C(2) (2015). As required by law, the Town
refrained from taking any action on the petition at the public hearing.
5
See 30-A M.R.S. § 2171-C (“The purpose of the public hearing is to allow
municipal residents, officers and residents in the secession territory to discuss
secession[;] . . . no . . . official vote may be taken at the public hearing.”).
[¶9] Richard Cayer attended a regularly scheduled meeting of the
Board on August 6, 2013, and again described the reasons why he and his wife
sought to secede. At that meeting, the Board voted unanimously that it did not
support the Cayers’ petition, and advised Richard Cayer that, pursuant to the
newly enacted section 2171-C-1, he would need to obtain approval from the
Legislature before the Town could hold an advisory referendum on the
petition pursuant to section 2171-D.
[¶10] On November 5, 2013, the Cayers again appeared before the
Board and argued that the procedures stated in the repealed version of the
secession statute, requiring that the Town hold an advisory referendum
within 120 days after the July 30, 2013, hearing, should apply. The Board
voted unanimously that it would not proceed to schedule an advisory
referendum on the petition to secede, and that it was a “closed matter” as of
that November meeting date. The Town took no further formal action on the
Cayers’ petition after the November 5, 2013, vote.
6
[¶11] On February 5, 2014, the Cayers filed a complaint against the
Town, pursuant to M.R. Civ. P. 80B, seeking review of the Town’s denial of the
Cayers’ request to schedule an advisory referendum. The complaint also
sought, in Count II, a declaratory judgment that the repealed statute applied to
the Cayers’ petition pursuant to M.R. Civ. P. 57 and 14 M.R.S. § 5953 (2015); in
Count III, damages and attorney fees, pursuant to 42 U.S.C. §§ 1983 and 1988
(2016), for alleged violations of the Cayers’ First Amendment and due process
rights; and, in Count IV, a writ of mandamus compelling the Town to take all
actions mandated by the repealed version of the secession statute.
[¶12] After some preliminary proceedings to develop a process to
address the independent claims pursuant to M.R. Civ. P. 80B(i), the Town
moved for summary judgment, M.R. Civ. P. 56, on all counts of the Cayers’
complaint. As part of the statement of material facts, M.R. Civ. P. 56(h),
submitted with its motion, the Town filed an affidavit of the Town Manager
providing what purported to be the administrative record of the proceedings.
The Cayers objected to the Town Manager’s affidavit and, pursuant to M.R.
Civ. P. 80B(e)(1), filed their own version of the record of the proceedings
before the Town as part of their opposition to the motion for summary
judgment. Resolution of disputes about the administrative record is not
7
important for this appeal because there is no dispute about any material fact
relevant to a decision on the motion for summary judgment.
[¶13] On July 23, 2015, the trial court, in an opinion that thoroughly
examined the facts and the legal issues, entered a summary judgment in favor
of the Town and, finding the appeal untimely, dismissed the Cayers’ Rule 80B
appeal and the independent claims, which the court found either unsupported
in the law or subject to the thirty days after notice of action filing time limits
set in Rule 80B(b). In its opinion, the court determined that the repealed
mandate of former 30-A M.R.S. § 2171-D (2012) to hold an advisory
referendum within 120 days of the public hearing applied to the Cayers’
petition, but found the Cayers’ challenge to the Town’s explicit refusal to take
any action untimely.2 The Cayers timely appealed the trial court’s judgment.
II. LEGAL ANALYSIS
A. Application of the Thirty-day Filing Limit in Rule 80B
[¶14] The Cayers acknowledge, as they must, that their action was not
filed “within 30 days after notice of any action or refusal to act of which
2 We will assume for purposes of this opinion that the trial court, citing 1 M.R.S. § 302 (2015),
properly determined that the repealed provisions of law continued to apply to the Cayers’ petition.
However, we note that the primary impact of the new legislation was for the Legislature to add a
new prerequisite for ultimate legislative approval of a secession petition. Because efforts to obtain
legislative approval of the Cayers’ petition had not yet been initiated, and were not pending before
the Legislature when the new law was enacted, section 302 may not have barred the application of
the new legislative preapproval requirement to the Cayers’ petition.
8
review is sought” as required by Rule 80B(b). But they argue that the Town’s
actions here constituted a “failure to act” rather than a “refusal to act,”
entitling them to file their action any time “within six months after expiration
of the time in which action should reasonably have occurred.” M.R. Civ. P.
80B(b).
[¶15] The Town expressly refused to act on the Cayers’ petition twice:
first, at the August 6, 2013, meeting, when the Board voted unanimously that
it did not support the Cayers’ petition and stated that the Town would not
take further action on the petition absent Legislative approval; and second, at
the November 5, 2013, meeting when the Board voted unanimously that it
would not schedule an advisory referendum on the petition to secede under
the repealed version of the statute, and determined that the secession request
was a “closed matter.” The thirty-day appeal period from the Town’s “refusal
to act” expired no later than December 5, 2013, two months before the action
was filed.
B. Exclusivity and the Federal Civil Rights Claim
[¶16] “[W]hen direct review is available pursuant to Rule 80B, it
provides the exclusive process for judicial review unless it is inadequate.”
Gorham v. Androscoggin Cty., 2011 ME 63, ¶ 22, 21 A.3d 115. “Resort to the
9
courts by alternate routes will not be tolerated, subject only to an exception
for those circumstances in which the course of ‘direct appeal’ review by a
court is inadequate and court action restricting a party to [Rule 80B review]
will cause that party irreparable injury.” Colby v. York Cty. Comm’rs, 442 A.2d
544, 547 (Me. 1982). Review pursuant to Rule 80B is inadequate when an
alleged deprivation of civil rights occurs before, and not as a part of, the action
or inaction for which a plaintiff seeks review. See Gorham, 2011 ME 63, ¶ 25,
21 A.3d 115.
[¶17] Here, the Cayers sought a declaratory judgment that the repealed
secession statute applied to their petition, and that the Town’s failure to apply
that statute violated their due process rights. The Town’s determination that
the amended statute governed the petition was a part of the process by which
the Town decided not to hold a referendum on the Cayers’ petition for
secession. From that decision-making process, the Cayers had available Rule
80B review to correct any process errors. Consequently, Rule 80B review
provided all the process the Cayers were due, had they timely exercised their
right of appeal.
[¶18] The Cayers also argue that genuine issues of material fact exist as
to their section 1983 claim, alleging deprivations of due process and First
10
Amendment rights. The due process issue is addressed above. The First
Amendment claim apparently arises from some alleged impropriety in Town
officials’ speaking with a legislator and the Maine Municipal Association about
perceived uncertainties in application of the repealed statutes.
[¶19] Nothing precludes municipal officials from exercising their First
Amendment rights to speak with legislators or the Maine Municipal
Association about concerns in application of statutes the municipal officials
must administer. In fact, we have on occasion urged municipal officials to
engage in such conversations to improve operation of State laws and
municipal ordinances. See Bryant v. Town of Camden, 2016 ME 27, ¶ 22,
132 A.3d 1183 (“We again encourage Maine’s cities and towns, perhaps with
the assistance of the Maine Municipal Association, to review the myriad
provisions in local ordinances addressing finality and appealability. The
creation of standardized, understandable, and comprehensive rules for the
provision of appellate review could substantially diminish the problems of
cost and delay created by the language of the municipalities’ disparate
ordinances.”); Witham Family Ltd. P’ship v. Town of Bar Harbor, 2015 ME 12,
¶ 5 n.2, 110 A.3d 642 (“Parties affected by municipal decision-making would
benefit from efforts by the Legislature, or individual municipalities, to specify
11
how and when to appeal from municipal decisions” consistent with the
requirement that a decision brought to a court for review must be final.).
[¶20] Municipal officials speaking with legislators or others about
clarifications or improvements in laws they are administering do not violate
42 U.S.C. § 1983 or any other civil rights law.
[¶21] While municipal officials and municipalities may be subject to
civil actions for local ordinances that violate individuals’ civil rights, municipal
officials speaking to legislators about clarifications or improvements in state
law do not render the municipality civilly liable for laws the Legislature may
ultimately enact. Only the State and the Legislature are responsible for laws
the Legislature enacts.
[¶22] The late Justice Antonin Scalia, concurring in an opinion that had
quoted, as legislative history, a House Committee Report that had “indicate[d]
concern with abusive practices undertaken by attorneys,” responded:
Perhaps, but only the concern of the author of the Report. Such
statements tell us nothing about what the statute means, since
(1) we do not know that the members of the Committee read the
Report, (2) it is almost certain that they did not vote on the Report
(that is not the practice), and (3) even if they did read and vote on
it, they were not, after all, those who made this law.
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 253 (2010)
(Scalia, J., concurring). The Town officials here, and the individual legislator
12
the Town officials may have spoken with, are not the ones “who made this
law,” and the Cayers cannot hold the Town legally liable for the Legislature’s
making the law.
[¶23] The Town’s actions provide no basis for a civil rights claim or a
declaratory judgment action.
C. The Mandamus Claim
[¶24] The Cayers seek to avoid the filing limits imposed by Rule 80B(b)
by bringing a separate claim for a writ of mandamus. When originally
adopted in 1959, and subject to a few statutory exceptions, Rule 80B replaced
the old extraordinary writs such as certiorari and mandamus and became the
exclusive means for review of State and local government administrative
actions.3 See M.R. Civ. P. 80B, Advisory Committee’s Note to 1967 amend.;
First Mfrs. Nat’l Bank v. Johnson, 161 Me. 369, 375, 212 A.2d 840, 843 (1965).
[¶25] An action for a writ of mandamus provides no alternative cause
of action. Rule 80B is the exclusive means to challenge a municipal
administrative decision in a civil action.
3 When originally adopted in 1959, Rule 80B applied to judicial review of both State and local
administrative decision-making. That remained the case until the 1983 adoption of M.R. Civ. P. 80C
governing judicial review of State administrative decision-making.
13
The entry is:
Judgment affirmed.
On the briefs:
Luke M. Rossignol, Esq., Bemis & Rossignol, LLC, Presque Isle, for
appellants Richard and Ann Cayer
John J. Wall, III, Esq., and Matthew K. Libby, Esq., Monaghan Leahy, LLP,
Portland, for appellee Town of Madawaska
Aroostook County Superior Court docket number AP-2014-2
FOR CLERK REFERENCE ONLY