HP0791, LD 1119, item 1, An Act To Establish Superior Court as the Forum in Which Appeals of Agency Decisions Must Be Taken

An Act To Establish Superior Court as the Forum in Which Appeals of Agency Decisions Must Be Taken

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 35-A MRSA §1305, sub-§4, as enacted by PL 1987, c. 141, Pt. A, §6, is amended to read:

4. Right to appeal. Either the examiner or the commissioner, who is the presiding officer at the hearing, shall at the outset of the hearing inform the public as to the steps necessary to preserve its right to appeal the final order or decision of the commission to the Supreme Judicial Superior Court under the provisions of section 1320.

Sec. 2. 35-A MRSA §1320, sub-§1, as enacted by PL 1987, c. 141, Pt. A, §6, is amended to read:

1. Final decisions. An appeal from a A final decision of the commission may be taken to the Law Court on questions of law in the same manner as an appeal taken from a judgment of is deemed to be final agency action subject to appeal to the Superior Court in a civil action as provided in Title 5, chapter 375, subchapter 7.

Sec. 3. 35-A MRSA §1320, sub-§6, as enacted by PL 1987, c. 141, Pt. A, §6, is repealed.

Sec. 4. 35-A MRSA §1320, sub-§§7 and 9, as enacted by PL 1987, c. 141, Pt. A, §6, are amended to read:

7. Stay. While an appeal under subsection 1 is pending, no injunction may issue suspending or staying any order of the commission and the appeal shall does not excuse any person or corporation from complying with and obeying any order or decision or any requirement of any order or decision of the commission or operate in any manner to stay or postpone the enforcement of the order or decision, except in the cases and upon the terms as the commission orders. While an appeal under subsection 5 is pending final determination by the court, the Chief Justice, or in his absence any other justice, judge may enjoin or stay the effect of the ruling or order upon the terms and conditions as he the judge determines proper.

9. Certification of decision, costs. The result of the appeal shall must be certified by the clerk of the Law Superior Court to the administrative director of the commission and to the clerk of the Superior Court for Kennebec County. The prevailing party shall recover costs to be taxed by the Superior Court in accordance with the law for the taxation of costs on appeal in civil actions. Execution for these costs shall must be issued from the Superior Court of Kennebec County in the same manner as in actions originating in the court. Double costs shall must be assessed by the court upon any party whose appeal appears to the court not to be a fit subject for judicial inquiry or appears to be intended for delay.

Sec. 5. 38 MRSA §346, sub-§4, as repealed and replaced by PL 2011, c. 420, Pt. A, §34, is amended to read:

4. Appeal of decision. A judicial appeal of final action by the board or commissioner regarding an application for an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4, or a general permit pursuant to section 480-HH or section 636-A must be taken to the Supreme Judicial Court sitting as the Law is deemed to be final agency action subject to appeal to the Superior Court as provided in Title 5, chapter 375, subchapter 7. The Law Court has exclusive jurisdiction over request for judicial review of final action by the commissioner or the board regarding expedited wind energy developments or a general permit pursuant to section 480-HH or section 636-A. These appeals to the Law Court must be taken in the manner provided in Title 5, chapter 375, subchapter 7 and the Maine Rules of Civil Procedure, Rule 80C.

Sec. 6. 39-A MRSA §314, sub-§6, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:

6. Finality. The findings of fact made by the arbitrator acting within the arbitrator's powers, in the absence of fraud, are conclusive. If the arbitrator expressly finds that any party has or has not sustained the party's burden of proof, that finding is considered a conclusion of law and is reviewable in accordance with section 322. Any party may appeal the decision of the arbitrator to the Law Superior Court pursuant to section 322 within 20 days of receipt of notice of the filing of the decision by the arbitrator.

Sec. 7. 39-A MRSA §318, last ¶, as enacted by PL 1991, c. 885, Pt. A, §8 and affected by §§9 to 11, is amended to read:

Clerical mistakes in decrees, orders or other parts of the record and errors arising from oversight or omission may be corrected by the board at any time of its own initiative, at the request of the hearing officer or on the motion of any party and after notice to the parties. During the pendency of an appeal, these mistakes may be corrected before the appeal is docketed in the Law Superior Court and thereafter, while the appeal is pending, may be corrected with leave of the Law Superior Court.

Sec. 8. 39-A MRSA §322, as amended by PL 2011, c. 647, §21, is further amended to read:

§ 322. Appeal from decision of hearing officer or board

1. Appeals. Any party in interest may present a copy of the decision of the division or a decision of the board, if the board has reviewed a decision pursuant to section 320, to the clerk of the Law Superior Court within 20 days after receipt of notice of the filing of the decision by the division or the board. Within 20 days after the copy is filed with the Law Superior Court, the party seeking review by the Law Superior Court shall file a petition seeking appellate review with the Law Superior Court that sets forth a brief statement of the facts, the error or errors of law that are alleged to exist and the legal authority supporting the position of the appellant.

2. Procedures. The Law Superior Court shall establish and publish procedures for the review of petitions for appellate review of decisions of the board.

3. Discretionary appeal; action. Upon the approval of 3 or more members of a panel consisting of no fewer than 5 Justices of the Law Court, the petition for appellate review may be granted. If the petition for appellate review is denied, the decision of the board is final. The petition must be considered on written briefs only.

If the petition for appellate review is granted, the clerk of the Law Superior Court shall notify the parties of the briefing schedule consistent with the Maine Rules of Civil Procedure and in all respects the appeal before the Law Superior Court must be treated as an appeal in an action in which equitable relief has been sought, except that there may be no appeal upon findings of fact. The Law Superior Court may, after due consideration, reverse, modify or affirm any decision of the board.

Sec. 9. 39-A MRSA §324, sub-§1, as amended by PL 2011, c. 361, §1, is further amended to read:

1. Order or decision. The employer or insurance carrier shall make compensation payments within 10 days after the receipt of notice of an approved agreement for payment of compensation or within 10 days after any order or decision of the board awarding compensation. If the board enters a decision awarding compensation, and a motion for findings of fact and conclusions of law is filed with the hearing officer or an appeal is filed with the Law Superior Court pursuant to section 322, payments may not be suspended while the motion for findings of fact and conclusions of law or appeal is pending. The employer or insurer may recover from an employee payments made pending a motion for findings of fact and conclusions of law or appeal to the Law Superior Court if and to the extent that the hearing officer or the Law Superior Court has decided that the employee was not entitled to the compensation paid. The board has full jurisdiction to determine the amount of overpayment, if any, and the amount and schedule of repayment, if any. The board, in determining whether or not repayment should be made and the extent and schedule of repayment, shall consider the financial situation of the employee and the employee's family and may not order repayment that would work hardship or injustice. The board shall notify the Commissioner of Health and Human Services within 10 days after the receipt of notice of an approved agreement for payment of compensation or within 10 days after any order or decision of the board awarding compensation identifying the employee who is to receive the compensation. For purposes of this subsection, "employer or insurance carrier" includes the Maine Insurance Guaranty Association under Title 24-A, chapter 57, subchapter 3.

summary

This bill amends the laws governing appeals of agency decisions.

Currently, appeals of decisions of the Workers' Compensation Board and the Public Utilities Commission and appeals of final action by the Board of Environmental Protection or the Commissioner of Environmental Protection on applications for expedited wind energy development, general permits for tidal energy demonstration projects and general permits for offshore wind energy demonstration projects are heard by the Law Court. Under this bill, those decisions are instead subject to appeal to the Superior Court.

HP0791 LD 1119	Session - 126th Maine Legislature		LR 1834 Item 1
	Bill Tracking, Additional Documents	Chamber Status

Bill Tracking		Chamber Status
Amendments	Testimony, Public Hearings & Work Sessions		Committee Information
Other Documents			Title & Section

Search Bill Text		Search Bill Status
Bill Directory	Session Information		Legislative Information
Download MS-Word, Printed PDF		Maine Legislature

Office of Legislative Information 100 State House Station Augusta, ME 04333		voice: (207) 287-1692 fax: (207) 287-1580 tty: (207) 287-6826
Word Viewer for Windows		Disclaimer