Dowey v. Sanford Housing Authority

• Decision Date: 28 October 1986
• Parties: 1 IER Cases 1291 Lucille S. DOWEY v. SANFORD HOUSING AUTHORITY.
• Court: Maine Supreme Court

Page 957

516 A.2d 957

1 IER Cases 1291

Lucille S. DOWEY v. SANFORD HOUSING AUTHORITY.

Supreme Judicial Court of Maine.

Argued Sept. 17, 1986.

Decided Oct. 28, 1986.

Murrough H. O'Brien, (orally), Portland, for plaintiff.

Hewes, Beal & Douglas, John J. Aromando, (orally), Philip M. Coffin, III, Portland, for defendant.

Before NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

SCOLNIK, Justice.

The plaintiff, Lucille S. Dowey, appeals from a judgment of the Superior Court, York County, on Count II of her amended complaint that, pursuant to Rule 80B of the Maine Rules of Civil Procedure, sought review of her dismissal by the defendant, Sanford Housing Authority (SHA), as Secretary and Executive Director of the SHA. On appeal, the plaintiff contends that her termination as Secretary and Executive Director of the SHA on June 14, 1983 denied her the procedural due process to which she was entitled under Article I, Section 6-A of the Maine Constitution and the Fourteenth Amendment of the U.S. Constitution. Because we hold that the Superior Court lacked jurisdiction to review the actions of the SHA on Count II, we vacate the judgment and remand for dismissal of that portion of the complaint.

Although the Superior Court proceeded to the merits without addressing the jurisdictional issue and the defendant has at no time contested it, if a jurisdictional question exists, we will not hesitate to address it on our own motion. Bacon v. Penney, 418 A.2d 1136, 1138 (Me.1980). For this matter to be reviewable under Rule 80B, review must be either provided by statute or be "otherwise available by law." ¹ Rule 80B "does not create an independent right to appeal any governmental action to the Superior Court, but only provides the procedure to be followed for those disputes in which the court has jurisdiction." Your Home, Inc. v. City of Portland, 505 A.2d 488, 489 (Me.1986); see also Lyons v. Board of Dir. of School Admin. Dist. No. 43, 503 A.2d 233, 235 (Me.1986); Bolduc v. Androscoggin County Comm'rs, 485 A.2d 655, 657 (Me.1984).

In her appeal to the Superior Court, the plaintiff relied on 30 M.R.S.A. § 4651(1) (Supp.1985) ² as the statutory basis for the creation of an independent right of appeal from the ruling of the SHA. Section 4651(1) does not provide an independent basis for appeal, but merely states that, where there does exist an independent basis for review, the SHA may be sued in accordance with Rule 80B. The 1983 amendment to 30 M.R.S.A. § 4651(1), which added the statutory language regarding Rule 80B, did not create an independent right of review, but merely clarified that Section 4651(1) "[did] not abrogate case law and recent acts governing the amenability of political subdivisions to suit." See L.D. 1397, Statement of Fact (111th Legis.1983). Therefore, Section 4651(1) as applied to the present case provides only that Rule 80B procedure is to be followed where there exists an independent basis for judicial review. The plaintiff does not cite, nor are we able to find, any other statutory authority for review of her Rule 80B appeal by the Superior Court. We therefore conclude that review of her Rule 80B complaint is not provided by statute.

The next step of our inquiry is to determine whether review by the Superior Court is "otherwise available by law." "Review is deemed 'otherwise available by law' if it is in the nature of that formerly available under the common law extraordinary writs, such as certiorari, mandamus or prohibition, adapted to current conditions." Lyons, 503 A.2d at 236. ³ The only two extraordinary writs that arguably would have been formerly available in the present case are those of certiorari and mandamus. Under the "otherwise available by law" language of Rule 80B, the Superior Court's review of an action formerly available under the common law writ of certiorari must show that the agency's actions were quasi-judicial in nature. Lyons, 503 A.2d at 236; see also Carlson v. Oliver, 372 A.2d 226, 229 (Me.1977); Carter v. Wilkins, 160 Me. 290, 293-295, 203 A.2d 682, 683-684 (1964). Similarly, a request for performance that would formerly have been available by mandamus requires that the plaintiff seek the ministerial performance of a specific duty imposed by law that the plaintiff, who would otherwise be without remedy, is entitled to have performed. Your Home, Inc., 505 A.2d at 489; see also Kelly v. Curtis, 287 A.2d 426, 429 (Me.1972); Rogers v. Brown, 135 Me. 117, 119, 190 A. 632, 633 (1937). The record before us fails to show that review of the plaintiff's action would have been formerly available under either certiorari or mandamus.

In reviewing the SHA's actions under the extraordinary writ of certiorari, we note that "[a]n agency's actions are quasi-judicial in nature when it adjudicates the rights of a party before it." Lyons, 503 A.2d at 236. The characterization of an administrative agency's action as judicial or quasi-judicial in nature to be reviewable under certiorari "depends on the nature of the act performed, rather than on the character of the officer or body performing it." Carter v. Wilkins, 160 Me. at 294, 203 A.2d at 684, quoting 14 Am.Jur. Certiorari § 17. Nevertheless, the agency's actions may not properly be considered "quasi-judicial" in nature where the party appearing before that agency possessed no right to appear before it in the first instance. Such was the case in both Lyons and in matter presently before this court.

In Lyons, we vacated the judgment and remanded to the Superior Court, which in turn vacated a decision of the Board of Directors of School Administrative District No. 43 (Board) terminating the plaintiff's employment with the Board. Although the plaintiff in Lyons suggested that the school district's educational policy statements restricted the Board's discretion in terminating his employment, we were unable to conclude, from the record before us, that the policy statements per se conferred any right of continued employment with the school board. As the plaintiff failed to allege any contractual rights or any constitutionally protected property or liberty interest in continued employment with the Board, we concluded that "[t]here [was] no indication that the plaintiff had any right that restricted the Board's discretion to terminate his employment." Id., 503 A.2d at 237 and n. 4. The plaintiff, in effect, was an employee at will. The fact that the Board erroneously suggested that such a right actually existed and conferred on Lyons "a right to which he was not entitled does not warrant a conclusion that the Board acted in a quasi-judicial capacity unless in fact that right existed." Id. at 238. Because the plaintiff's right to appeal the Board's action was neither available by statute nor "otherwise available by law," we held that the Superior Court lacked jurisdiction to review the Board's action under Rule 80B. Id.

Similarly, the plaintiff in the present case was an employee at will. ⁴ As such, her position with the SHA was terminable at the will of either party. See, e.g., Broussard v. Caci, Inc. Federal, 780 F.2d 162, 163 (1st Cir.1986); Buchanan v. Martin Marietta Corp., 494 A.2d 677, 678 (Me.1985); Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 99 (Me.1984). However, unlike the plaintiff in Lyons, the plaintiff here contends that she was entitled to 30 days notice based on the SHA's personnel policy manual, which required that either party give 30 days notice prior to the cessation of the employment relationship. ⁵ It is her position that the failure of the SHA to provide such notice amounted to a violation of her procedural due process rights under Article I, Section 6-A of the Maine Constitution and under the Fourteenth Amendment to the U.S. Constitution. In particular, the plaintiff claims that she possessed both a property interest and a liberty interest in her position as Secretary and Executive Director of the SHA.

The plaintiff's allegations do not establish an independent basis for review pursuant to Rule 80B as "otherwise available by law" under the extraordinary writ of certiorari. When as a matter of state law, one is employed at the will and pleasure of his employer, he or she has no property interest in continued employment that is entitled to constitutional protection. See Bishop v. Wood, 426 U.S. 341, 345 n. 8, 96 S.Ct. 2074, 2078 n. 8, 48 L.Ed.2d 684 (1976). ⁶ Any property interest that might have arisen from the SHA's failure to provide her with 30 days notice of termination under the terms of its personnel policy manual was extinguished by the payment to the plaintiff of 30 days severance pay. See, e.g., Breeden v. City of Nome, 628 P.2d 924, 927 (Alaska 1981). Similarly, the plaintiff was not entitled to a hearing because of her at-will status. The fact that she was given one by the SHA, during which (she claims) her reputation was damaged, thereby foreclosing her ability to take advantage of other employment opportunities, does not confer on her a right that she never possessed in the first place. ⁷ Because no constitutionally protected property or liberty interests were implicated, she was not entitled to a hearing prior to termination. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-578, 92 S.Ct. 2701, 2705-2710, 33 L.Ed.2d 548 (1972). Nor does the fact that the SHA gratuitously conducted a hearing that appeared to adjudicate the rights of the plaintiff transform that hearing into one which was "quasi-judicial" in nature for purposes of determining whether the court has jurisdiction to conduct a Rule 80B review. Cf. Lyons, 503 A.2d at 238 ("Merely because the Board erroneously conferred on the plaintiff a right to which he was not entitled does not warrant a conclusion that the Board acted in a quasi-judicial capacity unless in fact that right existed.")

Similarly, the plaintiff's allegations do not establish that review would have been formerly available under...