Pinkham v. Dep't of Transp.

• Decision Date: 19 May 2016
• Docket Number: Docket No. Han–15–95.
• Citation: 139 A.3d 904,2016 ME 74
• Parties: Terrence E. PINKHAM v. DEPARTMENT OF TRANSPORTATION.
• Court: Maine Supreme Court

139 A.3d 904

2016 ME 74

Terrence E. PINKHAM

v.DEPARTMENT OF TRANSPORTATION.

Docket No. Han–15–95.

Supreme Judicial Court of Maine.

Submitted on Briefs: Oct. 21, 2015.

Argued: April 6, 2016.

Decided: May 19, 2016.

Jeffrey T. Edwards, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Portland, for appellant Terrence E. Pinkham.

Rebecca H. Farnum, Esq., and Jason P. Donovan, Esq. (orally), Thompson & Bowie, LLP, Portland, for appellee Maine Department of Transportation.

Jonathan Arey, Esq., Maine Turnpike Authority, Portland, for amicus curiae Maine Turnpike Authority.

Sigmund D. Schutz, Esq., Preti, Flaherty, Beliveau & Pachios, LLP, Portland, for amici curiae Maine Freedom of Information Coalition and New England First Amendment Coalition.

Richard L. O'Meara, Esq., Murray Plumb & Murray, Portland, Lauri Boxer–Macomber, Esq., Kelly, Remmel & Zimmerman, Portland, and Ben D. Kappelman, Esq., Dorsey & Whitney LLP, Minneapolis, MN, for amicus curiae Maine Trial Lawyers Association.

Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, for amicus curiae American Civil Liberties Union of Maine Foundation.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

GORMAN, J.

[¶ 1] Terrence E. Pinkham appeals from a judgment entered by the Superior Court (Hancock County, R. Murray, J. ) after a jury trial, awarding him $41,500 as just compensation for the Maine Department of Transportation's (the MDOT) taking of a portion of his property by eminent domain for a road improvement project.¹ Pinkham contends that the court erred by ruling that the MDOT was not required to provide in discovery those portions of its appraiser's report appraising other properties taken for the project pursuant to 23 M.R.S. § 63 (2015). We agree, and vacate the judgment.

I. BACKGROUND

[¶ 2] Viewing the evidence in the light most favorable to Pinkham, as the prevailing party, the jury rationally could have found the following facts. See Caruso v. Jackson Lab., 2014 ME 101, ¶ 2, 98 A.3d 221. By notice provided in May of 2009, and amended in July of 2010, the MDOT informed Pinkham that it was taking by eminent domain a portion of Pinkham's property abutting Route 1A in Ellsworth in order to widen the road. See 23 M.R.S. § 153–B (2015). The taking included a seventeen-foot-wide strip of land running alongside the highway, together with associated drainage easements.

[¶ 3] The MDOT had the property appraised by Michael Moniz, a certified real estate appraiser. See 23 M.R.S. § 153–B(2). The MDOT provided Pinkham with a copy of those portions of Moniz's appraisal report that applied to Pinkham's property, and then made Pinkham an offer of “just compensation” for the taking as required by 23 M.R.S. § 155 (2015). After Pinkham rejected the offer, the matter was referred to the State Claims Commission. See 23 M.R.S. §§ 155, 156 (2015). Ultimately, the MDOT paid Pinkham a total of $13,609 for the taking.

[¶ 4] In December of 2012, Pinkham challenged the Commission's decision by filing a complaint in the Superior Court for de novo review of the matter.² See 23 M.R.S. § 157 (2015). Soon after, Pinkham requested that the MDOT produce copies of Moniz's appraisals of all of the properties acquired as part of the widening project. The MDOT objected on the ground that “the information concerning the negotiations for and appraisals of property acquired” for the widening project was confidential pursuant to 23 M.R.S. § 63. After a hearing, the court (A. Murray, J. ) ordered that the MDOT was “protected from producing any assessments, appraisals, [and] settlement/transaction documents relating to the project in question” pursuant to section 63 because the widening project had not yet been completed.

[¶ 5] The court conducted a jury trial on November 5 to 7, 2014. Pinkham testified that he suffered a loss in value to his property of $1,375,000 as a result of the taking. Moniz was designated as the MDOT's expert witness to testify about “the value of the property rights acquired from [Pinkham]”; over Pinkham's objection, Moniz testified that Pinkham's property lost $13,000 in value as a result of the taking. The parties stipulated, and the jury was informed, that the MDOT had previously paid Pinkham $13,600. The jury returned a unanimous verdict awarding Pinkham $41,500 as just compensation for the taking. The court entered a judgment on the verdict, which it later amended to offset the damages amount by the $13,600 the MDOT had already paid Pinkham. Pinkham appeals.³

II. DISCUSSION

A. Confidentiality and Privilege

[¶ 6] Pinkham contends that the trial court erred by ruling that Moniz's appraisal report, except as it pertained to Pinkham's property, was confidential pursuant to 23 M.R.S. § 63. We examine section 63 by first evaluating its plain language. See Semian v. Ledgemere Transp., Inc., 2014 ME 141, ¶ 8, 106 A.3d 405. If that plain language is unambiguous, we afford the provision that plain meaning; if the statute is ambiguous, we will look beyond its plain language to other indicia of the Legislature's intent in enacting it, including its legislative history. Id.

[¶ 7] The MDOT, as well as the Maine Turnpike Authority, encourage us to consider the statute with deference to the MDOT's interpretation. If a statute is ambiguous, we afford deference to an agency's interpretation of a statute it administers when the issue is a matter within that agency's expertise. Davric Me. Corp. v. Me. Dep't of Transp., 606 A.2d 201, 203 n. 3 (Me.1992). In evaluating 23 M.R.S. § 63 in this matter, however, we must consider notions of discovery; privilege; and the intersection of section 63 with the Freedom of Access Act, 1 M.R.S. §§ 400 –414 (2015). These are not areas within the MDOT's expertise, and therefore we do not afford deference to the MDOT's interpretation on these points. See Guilford Transp. Indus. v. Pub. Utils. Comm'n, 2000 ME 31, ¶ 10, 746 A.2d 910 (“[W]hen the legal issue decided by the agency is an issue in which the courts have particular competence, there is no reason for the court to defer to the agency.”).

[¶ 8] Section 63 provides in its entirety as follows:

§ 63. Confidentiality of records held by the [MDOT] and the Maine Turnpike Authority

1. Confidential records. The following records in the possession of the [MDOT] and the Maine Turnpike Authority are confidential and may not be disclosed, except as provided in this section:

A. Records and correspondence relating to negotiations for and appraisals of property; and

B. Records and data relating to engineering estimates of costs on projects to be put out to bid.

2. Engineering estimates. Engineering estimates of total project costs are public records after the execution of project contracts.

3. Records relating to negotiations and appraisals. The records and correspondence relating to negotiations for and appraisals of property are public records beginning 9 months after the completion date of the project according to the record of the [MDOT] or Maine Turnpike Authority, except that records of claims that have been appealed to the Superior Court are public records following the award of the court.

23 M.R.S. § 63. Section 63 therefore deems certain of the MDOT's records “confidential” and sets out when that confidentiality is no longer in place.⁴ 23 M.R.S. § 63.

[¶ 9] Although section 63 does not define “confidentiality” or specify its scope, the Legislature has already defined confidentiality for purposes of all Maine statutes—in Maine's Freedom of Access Act (FOAA), 1 M.R.S. §§ 400 –414. FOAA was enacted in service of the public's interest in holding its government accountable by requiring that “public actions be taken openly.” MaineToday Media, Inc. v. State, 2013 ME 100, ¶ 8, 82 A.3d 104 (quotation marks omitted); see 1 M.R.S. § 401. To that end, FOAA sets out the general rule as to documents that “[e]xcept as otherwise provided by statute, a person has the right to inspect and copy any public record in accordance with this section within a reasonable time of making the request to inspect or copy the public record.”⁵ 1 M.R.S. § 408–A. Excepted from the definition of “public records” is a list of twenty-two types of materials to which the general disclosure requirements of FOAA do not apply. 1 M.R.S. § 402(3)(A)–(U) ; see Guy Gannett Publ'g Co. v. Univ. of Me., 555 A.2d 470, 471 (Me.1989) (stating, pursuant to 1 M.R.S. § 401, that FOAA “should be liberally construed and applied to promote its underlying purpose” of open government, and that exceptions to public disclosure must be strictly construed (quotation marks omitted)); Wiggins v. McDevitt, 473 A.2d 420, 422 (Me.1984) (“It is apparent that the legislature sought to avoid uncertainty by enacting a very broad, all-encompassing definition [of ‘public records'] subject only to specific exceptions.... It leaves little room for qualification or restriction.”).

[¶ 10] Among the exceptions to the definition of “public records,” and therefore not subject to public disclosure despite otherwise meeting the definition of “public records,” are “[r]ecords that have been designated confidential by statute.” 1 M.R.S. § 402(3)(A) (emphasis added). FOAA defines confidentiality by explaining, “ ‘Public records exception’ or ‘exception’ means a provision in a statute or a proposed statute that declares a record or a category of records to be confidential or otherwise not a public record for purposes of subchapter 1.” 1 M.R.S. § 431(1) (2015). Likewise, in section 63, the Legislature has used “public records” when referring to the time at which the information at issue is no longer “confidential.” 23 M.R.S. § 63(2) (providing that engineering estimates “are public records after the execution of project contracts”); 23 M.R.S. § 63(3) (stating that negotiation and appraisal documents become “public records beginning 9 months after the completion date of the project according to the record of the [MDOT]” or, for “records of...