Spring Fever - Cautious Optimism for More Critical Appellate Review of Agency Actions


The calendar tells us that it is now spring – the season of hope and optimism.  While this may seem like a legal technicality given the weight of the objective physical evidence to the contrary, I, being a lawyer, have no compunction about hanging my hat on this technicality.  So, meteorology be damned, I’m going to be more optimistic.

Actually, my feelings of optimism began stirring ten days ago when the Law Court issued its decision in Lippitt v. Board of Certification for Geologists and Soil Scientists, 2014 ME 42, in which the Court rejected the claim that it was required to defer to the Board’s interpretation of one of its own regulations.  The Court correctly noted that the Board’s interpretation was contrary to the regulation’s plain language, and, therefore, was not entitled to deference.  The rejection of an agency’s attempt to re-write its regulation provided a spark for some optimism.

That spark was fanned into a small flame yesterday.  Nicely coinciding with the vernal equinox was the issuance of the decision in Zablotny v. State Board of Nursing, 2014 ME 46.  Zablotny was an appeal from a District Court judgment affirming a decision by the State Board of Nursing to revoke Mr. Zablotny’s professional nursing license.  Following the Board’s decision, Mr. Zablotny invoked his statutory right to “de novo judicial review” of that decision pursuant to 10 M.R.S. § 8003(5).  At issue was the scope of that review. For his part, Mr. Zablotny argued that “de novo means de novo,” and that the District Court was required to conduct a full evidentiary hearing, make its own credibility determinations, and give no deference to the Board’s decision.  For its part, the Board argued for a more limited and deferential review based solely upon the evidentiary record developed below.

The District Court initially adopted Mr. Zablotny’s view, but later reversed course following a motion for reconsideration filed by the Board.  The Law Court then reversed.  After parsing the statute and reviewing the legislative history, the Court concluded that Mr. Zablotny was right after all and held that the statute required the District Court to conduct a full evidentiary hearing, evaluate the legal and factual issues afresh, and make its own independent decision without deference to the Board’s decision.

So, heading into spring, the Law Court has in consecutive cases put the kibosh on two instances of administrative overreach.  Does this mean that the Law Court is going to begin looking at the actions of administrative agencies with a more critical eye?  Two decisions hardly establish a trend, but if you can’t be optimistic on the first day of spring, when can you be?

Topics:  Appeals, Standard of Review

Published In: Administrative Agency Updates, Civil Procedure Updates, Health Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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