An Act To Establish Superior Court as the Forum in Which Appeals of Agency Decisions Must Be Taken
Maine Legislature, Session 126, LD 1119
Committee: Judiciary
Sponsors: CROCKETT, DUNPHY
Amends: 35-A MRSA §1305, 35-A MRSA §1320, 38 MRSA §346, 39-A MRSA §314, 39-A MRSA §318, 39-A MRSA §322, 39-A MRSA §324

Legislative Document 
No. 1119 
H.P. 791 
House of Representatives, March 21, 2013 
An Act To Establish Superior Court as the Forum in Which Appeals 
of Agency Decisions Must Be Taken 
Reference to the Committee on Judiciary suggested and ordered printed. 
MILLICENT M. MacFARLAND 
Clerk 
Presented by Representative CROCKETT of Bethel. 
Cosponsored by Representative: DUNPHY of Embden. 
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repealed.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.