Colby v. York County Com'rs

• Decision Date: 12 March 1982
• Citation: 442 A.2d 544
• Parties: Robert COLBY v. YORK COUNTY COMMISSIONERS, Paul R. Reny, J. Peter Dennett and Andrew Frechette.
• Court: Maine Supreme Court

Page 544

442 A.2d 544

Robert COLBY v. YORK COUNTY COMMISSIONERS, Paul R. Reny, J. Peter Dennett and Andrew Frechette.

Supreme Judicial Court of Maine.

Argued Jan. 7, 1982.

Decided March 12, 1982.

Zbigniew J. Kurlanski (orally), Portland, for plaintiff.

Gene Libby, Dist. Atty. (orally), John R. Kugler, Asst. Dist. Atty., Alfred, for defendant.

Before McKUSICK, C.J., and GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

WATHEN, Justice.

Plaintiff appeals from an order of the Superior Court, York County, which dismissed the first count of his complaint as untimely filed and granted summary judgment in favor of the defendants on the second count. We deny the appeal, affirming the dismissal of count I and with regard to count II although we find the granting of summary judgment to be in error, we remand with instructions to dismiss since count II was also untimely filed.

Procedural Background

The complaint avers that plaintiff served as a York County Deputy Sheriff for six years, and was discharged on June 19, 1978 by the Sheriff for misconduct and failure to follow departmental policy. Asserting that his dismissal was without cause, plaintiff sought an investigation by the York County Commissioners, pursuant to 30 M.R.S.A. § 951 (1978). ¹ Plaintiff alleges that the investigation was held in executive session notwithstanding his request in writing that the investigation be held in open session pursuant to the freedom of access provisions set forth in 1 M.R.S.A. § 405(6)(A)(3) (1979). Plaintiff and his counsel were allowed to be present only during the portion of the investigation at which plaintiff testified. The Commissioners affirmed plaintiff's discharge by letter on September 5, 1978. ² On August 11, 1980, nearly two years after the decision of the Commissioners, plaintiff filed a complaint in Superior Court naming the Commissioners as defendants and challenging their decision. Count I of plaintiff's complaint asserted jurisdiction under 1 M.R.S.A. § 409(2) (1979) (freedom of access) and 14 M.R.S.A. § 6051(13) (1980) (general equity jurisdiction) and alleged that defendants' decision was arbitrary and capricious and an abuse of discretion on the following grounds: failure to hold a public hearing, lack of competent evidence to support the decision, refusal to allow plaintiff to examine witnesses and introduce evidence, and exclusion of the plaintiff from the proceedings. Under this first count plaintiff sought reinstatement, back pay, and counsel fees. Count II, relying on the same factual assertions, sought redress for the alleged violation of due process rights and requested a declaration that the Commissioners' action be declared null and void and sought actual and punitive damages together with counsel fees.

Defendants set forth affirmatively in their answers the issue of the timely filing of both counts of plaintiff's complaint. In their subsequent motion, only the dismissal of count I was sought as untimely under M.R.Civ.P. 80B. As to count II defendant moved to dismiss on the basis of quasi-judicial immunity and failure to state a claim. Defendants' motion was supported by a memorandum of law to which an affidavit of counsel was appended as Exhibit A. Plaintiff filed a memorandum of law in response to defendants' motion, but did not file any counter-affidavits.

The Superior Court ruled that count I was governed by M.R.Civ.P. 80B and dismissed the claim because plaintiff had failed to file it within thirty days after notice of the Commissioners' action. With respect to count II the court considered counsel's affidavit as a matter outside the pleading and treated the motion as one for summary judgment in accord with M.R.Civ.P. 12(b). The court found that defendants' affidavit, unrefuted and unobjected to by plaintiff, was sufficient to negate the existence of any triable issue of fact. Finding as a matter of law no violation of plaintiff's constitutional rights, the court granted summary judgment in favor of defendants on count II.

I.

Plaintiff filed his complaint nearly two years after the Commissioners issued their affirmation of his dismissal. The Superior Court treated count I of the complaint as a petition for review of governmental action and dismissed it because it was not filed within thirty days as provided in M.R.Civ.P. 80B(b):

The time within which review may be sought shall be as provided by statute, except that if no time limit is specified by statute, the complaint shall be filed within 30 days after notice of any action or refusal to act of which review is sought unless the court enlarges the time in accordance with Rule 6(b), and, in the event of a failure to act, within six months after expiration of the time in which action should reasonably have occurred.

Plaintiff's initial argument is easily resolved. He contends that the thirty day limitation is not applicable and relies on 1 M.R.S.A. § 409(2) ³, which provides appeals from actions of governmental bodies taken in executive session. Plaintiff gains nothing here, however, since Section 409(2) does not provide a time limit for the bringing of such actions. The limitations supplied by M.R.Civ.P. 80B apply to the review of the commission proceedings in executive session and the action was not timely filed under Section 409(2).

Plaintiff further asserts that collateral equitable relief from the denial of the public investigation was available to him and that he therefore escapes the time requirements. Defendants counter that such an action is barred because direct review of the decision of an administrative body, as provided in 1 M.R.S.A. § 409(2), is intended to be exclusive unless such a review is inadequate and will cause the party irreparable injury. Also included in count I, but not specifically discussed in plaintiff's brief, is a claim for review of the decision of the Commissioners based on their investigation under 30 M.R.S.A. § 951. Section 951 provides no statutory authorization for judicial review.

Against the foregoing backdrop of conflicting arguments, this Court must decide whether count I is controlled by M.R.Civ.P. 80B and thus time barred, or whether it appropriately invokes an independent basis for relief. Rule 80B provides a procedural avenue for those disputes in which the courts have jurisdiction to review administrative action by virtue of statutory provision or substantive review previously available through the use of extraordinary writs. (P.L. 1967, ch. 441 § 7 and the accompanying amendment of M.R.Civ.P. 81(c) accomplished the procedural abolition of the extraordinary writs). An action premised on either source is subject to the time requirements of Rule 80B(b). If an action is timely filed within thirty days of an administrative decision, there is little significance to a determination of the precise basis for jurisdiction. However, in the present circumstance where the action is filed after the expiration of thirty days, the existence of an independent basis for judicial intervention or an exception to the exclusivity of direct review is crucial. Count I of the plaintiff's complaint presents even further difficulty since it rests in part upon 1 M.R.S.A. § 409 which provides for judicial review, and also upon 30 M.R.S.A. § 951 which makes no provision for judicial review. Plaintiff seeks to invoke the general equitable jurisdiction of the court, 14 M.R.S.A. § 6051(13) (1980) to deal with both.

In Fisher v. Dame, Me., 433 A.2d 366, 372 (1981), after an extensive review of earlier decisions, this Court formulated the principle of exclusivity as follows:

The principle that emerges from these cases is that when a legislative body has made provision, by the terms of a statute or ordinance, for a direct means by which the decision of an administrative body can be reviewed in a manner to afford adequate remedy, such direct avenue is intended to be exclusive. Resort to the courts by alternative 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 it will cause that party irreparable injury.

Exclusivity of remedy is not confined to review based upon statute and reason does not suggest to the contrary. Review authorized by statute and review by extraordinary writ have been combined under one procedural umbrella to afford prompt, effective, expeditious and direct judicial review of administrative action. ⁴ When direct review is available pursuant to Rule 80B it is exclusive unless inadequate. Accordingly we must determine whether direct review is available and the adequacy of that review.

Count I includes three claims: (1) denial of public investigation (1 M.R.S.A. § 409); (2) decision based on incompetent evidence (30 M.R.S.A. § 951); and (3) denial of right of cross-examination, presentation of evidence and presence during the proceedings.

Defendants concede correctly that the proceedings were subject to the freedom of access law, 1 M.R.S.A. §§ 401-410 (1979). Direct review of a claimed denial of public investigation is clearly provided under 1 M.R.S.A. § 409(2), and the Superior Court is empowered...