Maine Real Estate Commission v. Kelby

• Decision Date: 13 July 1976
• Citation: 360 A.2d 528
• Parties: MAINE REAL ESTATE COMMISSION v. Jane F. KELBY.
• Court: Maine Supreme Court

Page 528

360 A.2d 528

MAINE REAL ESTATE COMMISSION v. Jane F. KELBY.

Supreme Judicial Court of Maine.

July 13, 1976.

Robert J. Stolt, Asst. Atty. Gen., Augusta, for plaintiff.

Fitzgerald, Donovan & Conley, P. A. by Mark L. Haley, J. Michael Conley, III, Bath, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

On October 6, 1972, plaintiff Maine Real Estate Commission (now the Board of Real Estate Brokers and Salesmen ¹) filed a complaint with the Administrative Hearing Commissioner (now the Administrative Court Judge ²) seeking the revocation or suspension of defendant Jane F. Kelby's real estate broker's license. The complaint was brought pursuant to 32 M.R.S.A. § 4056(1) and charged Kelby with violating § G ('Count I') and § N ('Count II') of that statute. ³ After a hearing, the Commissioner issued a written decision dated November 28, 1972, adjudicating the defendant guilty as charged in both counts of the complaint. The Commissioner ordered Kelby's license suspended for a period of ninety days beginning on December 13, 1972, and additionally ordered her license suspended for a period of six months, with the reservation that '(S)aid additional six months suspension shall not take effect at this time, but may be added to any penalty imposed for any further violation of the instant nature occurring on or before October 1, 1973.'

The defendant exercised her right to appeal the Commissioner's decision to the Superior Court. 5 M.R.S.A. § 2451. That court reversed the Commissioner's finding of guilty on Count I, but affirmed the finding of guilty on Count II and the ninety-day suspension of the defendant's license previously imposed by the Commissioner. ⁴

The defendant has now appealed to this Court under authority of 5 M.R.S.A. § 2452 that part of the Superior Court's judgment which affirmed the Commissioner's finding that Kelby is guilty, as charged in Count II of the complaint, of violating 32 M.R.S.A. § 4056(1)(N). We deny the appeal.

The arguments advanced by the appellant may be fairly summarized in the following fashion:

1) section 4056(1)(N) is unconstitutionally vague;

2) the court erred in affirming the Commissioner's determination that the defendant violated § 4056(1)(N);

3) section 4056(1)(N) represents an unconstitutional delegation of legislative power to an administrative body;

4) the conduct for which the defendant was found to have violated § 4056(1)(N) is constitutionally protected.

We immediately note that arguments 3) and 4) were not raised by the defendant in her appeal to the Superior Court and, accordingly, were not ruled on by the Justice below. ⁵ As to these issues, '(W)e see no reason to depart from our sound tenet of appellate practice that '(A)n issue raised for the first time at the appellate stage will be denied cognizance in the appellate review of the case. '' Atlantic Acoustical & Insulation Co. v. Moreira, Me., 348 A.2d 263, 266, n. 1 (1975), citing Walsh v. City of Brewer, Me., 315 A.2d 200, 209 (1974). This rule is controlling even when, as here, the belatedly raised issues allege constitutional violations. Reville v. Reville, Me., 289 A.2d 695, 697 (1972); Younie v. State, Me., 281 A.2d 446, 448-49 (1971).

We therefore confine our discussion to the first two issues identified by the appellant.

Before turning to these substantive questions, we are obliged to mention that this case has come to us in a somewhat peculiar posture. Although the Commissioner's decision contains purported 'findings of fact,' what actually appears under that heading in the decision is a detailed recitation of the evidence adduced at the hearing, rather than 'a concise statement of the conclusions on each contested issue of fact,' as required by 5 M.R.S.A. § 2407(1). Technically, then, the Superior Court was not properly apprised of the factual findings on which the Commissioner's decision was predicated. ⁶ Nonetheless, the Commissioner's recitation of the evidence was considered by the presiding Justice as though it were a statement of findings of fact and as such was accepted as conclusive. Since there is no dispute at this stage of the litigation as to the factual premises of the Commissioner's decision and the court's partial affirmance thereof, we see no compelling reason why this Court should otherwise treat the Commissioner's evidentiary summary.

I.

Is § 4056(1)(N)

Unconstitutionally Vague?

The defendant asserts that § 4056(1)(N) is 'void for vagueness.' We disagree.

It is a fundamental requirement of the due process clauses of the Maine and the United States Constitutions, Art. I, § 6-A, Amend. XIV, § 1 respectively, that a statute 'must provide reasonable and intellibible standard to guide the future conduct of individuals and to allow the courts and enforcement officials to effectuate the legislative intent in applying these laws.' Shapiro Brothers Shoe Co., Inc. v. Lewiston-Auburn Shoeworkers Protective Association, Me., 320 A.2d 247, 253 (1973) (footnote omitted). A statute which fails to meet this test, i. e., that 'sets guidelines which would force men of general intelligence to guess at its meaning, leaving them without assurance that their behavior complies with legal requirements and forcing courts to be uncertain in their interpretation of the law,' Id., is characterized as 'void for vagueness.'

Although the void-for-vagueness doctrine receives its commonest application in the criminal law context, '(T)he doctrine has (also) been applied in instances where one must conform his conduct to a civil regulation.' Id. (Footnote omitted.) See also Swed v. Inhabitants of Bar Harbor, 158 Me. 220, 182 A.2d 664 (1962); State v. The Fantastic Fair and Karmil Merchandising Corp., 158 Me. 450, 467-71, 186 A.2d 352, 363-65 (1961).

Subsections A through M of § 4056(1) describe specific acts of misconduct which constitute grounds for the suspension or revocation of a real estate broker's or real estate salesman's license. Subsection N of § 4056(1) sets out an additional ground: 'Any act or conduct whether of the same or different character than (those acts specified in §§ A-M), which constitutes or demonstrates bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealings.' ⁷

The manifest purpose of § 4056(1) is to protect the public from improper conduct on the part of real estate brokers and salesmen. Subsection N proscribes 'bad faith, incompetency or untrustworthiness, or dishonest, fraudulent or improper dealings,' not in the abstract, but on the part of real estate brokers and salesmen. Subsection N is, in effect, a codification of the normative standards which guide the conduct of the members of the real estate profession. Subsection N is sufficiently definite to apprise those in the profession of the line between permissible and forbidden conduct.

Subsection N is not unconstitutionally vague merely because it does not delineate precise instances of proscribed conduct. The statutory terms 'bad faith,' 'incompetency,' 'untrustworthiness,' and 'dishonest, improper or fraudulent dealings' are neither so general that persons of common intelligence must guess at their meaning, nor so indefinite as to defy evenhanded interpretation by the judiciary. The observation of Mr. Justice White, writing in an analogous context for a majority of the Supreme Court in United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796, 816 (1973) is apposite:

(T)here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with . . ..

We hold that § 4056(1)(N) is not unconstitutionally vague.

II.

Was the Court Correct in Affirming the Commissioner's

Determination that theDefendant Violated § 4056(1)(N)?

The defendant has no quarrel with the evidence which was adduced at the hearing before the Commissioner. Rather, she contends that on this evidence, she should not have been found guilty of violating § 4056(1)(N).

The evidence may be briefly summarized as follows:

In March, 1971, Kelby, a licensed real estate broker with an office in Brunswick, was contacted by one Donald MacMillan who asked her to handle the sale of his residence in Topsham. The defendant and MacMillan signed a contract granting the defendant an exclusive right to sell the property for a period of ninety days, and providing for a broker's commission of $500.

Upon the expiration of this contract, MacMillan continued to 'list' the property with the defendant, although on a non-exclusive basis. MacMillan and the defendant did not embody their non-exclusive listing agreement in a written contract, however, and had no discussion with regard to the amount of the broker's commission under this new arrangement. ⁸

In August, 1971, Kelby obtained a buyer for the MacMillan property and drafted a purchase and sale contract which she forwarded to MacMillan, now a resident of Connecticut, for his signature. The contract was silent as to the amount of the broker's commission. MacMillan signed the contract and returned it to the defendant.

Kelby attended the closing of the sale of the MacMillan property in October, 1971 as 'agent for MacMillan' and retained $1,000 out of the purchase price of the property as her commission. She subsequently mailed a closing statement, along with her receipt for a $1,000 'non-exclusive real estate commission' to MacMillan in Connecticut. When MacMillan received this material, he immediately phoned Kelby and informed her that it was his understanding that their agreement called for a $500 commission. The defendant agreed with MacMillan and promised to refund $500 to...