Opinion
BCD-CIV-2021-00058
01-18-2023
NECEC TRANSMISSION, LLC, et al., Plaintiffs & Intervenors, v. BUREAU OF PARKS AND LANDS, et al., Defendants & Intervenors.
ORDER DENYING PLAINTIFFS' MOTION TO STRIKE JURY DEMAND
Michael A. Duddy, Judge
Plaintiffs NECEC Transmission, LLC ("NECEC") and Avangrid Networks, Inc. ("Avangrid") (collectively, "Plaintiffs") move to strike under Maine Rule of Civil Procedure 39(a)(2) the Demand for Jury Trial filed by Defendant-Intervenors National Resource Council of Maine ("NRCM") and Thomas B. Saviello, Christine M. Geisser, Wendy A. Huish, Jonathan T. Hull, Theresa E. York, and Robert C. Yorks (collectively, "NRCM") on October 24, 2022. For the foregoing reasons, the Plaintiffs' Motion to Strike Jury Demand is DENIED.
BACKGROUND
On November 3, 2021, Plaintiffs filed a three count Verified Complaint for Declaratory Judgment and Injunctive Relief seeking to prevent the retroactive application of a recently enacted referendum (the "Initiative") that would prevent completion of the New England Clean Energy Connect Project (the "Project"). (Pls.' Compl. ¶¶ 143-179.) After this Court denied Plaintiffs' Motion for Preliminary Injunction, Plaintiffs filed a Motion to Report Interlocutory Ruling Pursuant to Maine Rule of Appellate Procedure 24(c). The Court reported the questions of law presented in its Order Denying Plaintiffs' Motion for Preliminary Injunction, NECEC Transmission LLC v. Bureau of Parks & Lands, No. BCD-CIV-2021-00058, 2021 Me. Bus. &Consumer LEXIS 2 (Dec. 16, 2021), for consideration by the Law Court.
Of Plaintiffs' three claims brought under the Declaratory Judgment Act, only Count I seeking a declaration of their vested rights remains at this stage of the litigation.
On remand, the Law Court determined that "Maine's vested rights doctrine is a constitutional limitation on legislative authority, including citizen initiatives." NECEC Transmission LLC v. Bureau of Parks & Lands, 2022 ME 48, ¶ 33, 281 A.3d 618. According to the Law Court, the applicability of the vested rights doctrine in this case "turns on whether NECEC acquired a cognizable property right that the Maine Constitution protects from being impaired by retroactive legislation." Id. ¶ 44. That question, in turn, depends on a factual inquiry: Did Plaintiffs undertake substantial good-faith expenditures on activity within the scope of the Certificate of Public Convenience and Necessity ("CPCN") prior to the enactment of the Initiative, meaning that the expenditures were made (1) in reliance on the CPCN, (2) before the Initiative was enacted, and (3) "according to a schedule that was not created or expedited for the purpose of generating a vested rights claim." Id. ¶¶ 47, 50. Those are the "factual determinations" that must be decided on remand. Id. ¶ 51. If Plaintiffs acquired vested rights based upon this factual inquiry, then the legal analysis is simple. Applying the Initiative to the Project would violate the due process clause of the Maine Constitution. Id. ¶¶ 42, 52.
On September 26, 2022, this Court issued a Scheduling Order setting forth various deadlines, but indicated "Not Applicable" in the section reserved for setting a deadline to request a jury. On October 24, 2022, pursuant to Maine Rule of Civil Procedure 38(b), NRCM made a demand for trial by jury to make the factual determinations at the heart of this vested rights case.
DISCUSSION
Plaintiffs first argue that the Defendants have no constitutional right to a jury trial because Plaintiffs seek equitable relief, and historically there was no right to a jury trial in equity proceedings. (Pls.' Mot. Strike Jury Demand 4-8.) Plaintiffs next point to the Court's scheduling order, which indicates that a jury demand is "[n]ot applicable." Case Mgmt. Scheduling Order No. 1, NECEC Transmission, LLC, BCD-CIV-2021-00058, slip op. at ¶ 4 (Me. B.C.D., Sept. 26, 2022). Plaintiffs assert that recognizing a right to a trial by jury at this stage in this case would be contrary to and inconsistent with that order. (Pls.' Mot. Strike Jury Demand 1, 8.) The Court addresses each of the Plaintiffs' arguments, beginning with whether the relief sought by Plaintiffs controls whether a jury trial is available to Defendants as a matter of right.
I. It is not "affirmatively shown" that a jury trial was historically unavailable in vested rights actions.
The Constitution of the State of Maine provides that "[i]n all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced." Me. Const. art. I, § 20. According to the Maine Rules of Civil Procedure: "The right of trial by jury as declared by the Constitution of the State of Maine . . . shall be preserved to the parties inviolate." M.R. Civ. P. 38(a).
Maine's Constitution was adopted in 1820, the first year of Maine's statehood. City of Portland v. De Paolo, 531 A.2d 669, 670 (Me. 1987). Accordingly, litigants are entitled to a jury trial on their claims "unless it is affirmatively shown that a jury trial was unavailable in such cases in 1820" or in "'suits of the same general nature." N. Sch. Congregate Housing v. Merrithew, 558 A.2d 1189, 1189-90 &n.4 (Me. 1989); see also Kennebec Fed. Sav. &Loan Ass'n v. Keuter, 1997 ME 123, ¶ 3, 695 A.2d 1201 (recognizing presumption favoring jury trials). In other words, trial by jury is the rule, trial by judge is the exception. See Merrithew, 558 A.2d at 1190 n.4. Parties are entitled to a jury trial except in actions that were decided without one according to the common and statutory law of the Commonwealth of Massachusetts prior to adoption of the Constitution of the State of Maine in 1820. De Paolo, 531 A.2d at 670; Dunn v. Burleigh, 62 Me. 24, 37 (1873). The burden to show that trial by jury is unavailable as a matter of right is on the party seeking to invoke the court's equity jurisdiction. See State v. One 1981 Chevrolet Monte Carlo, 1999 ME 69, ¶ 9, 728 A.2d 1259.
Notably, Massachusetts courts' equitable powers were less extensive than those enjoyed by English courts. Dale E. Oesterle, Formative Contributions to American Corporate Law by the Massachusetts Supreme Judicial Court from 1806-1810, in The History of the Law in Massachusetts, The Supreme Judicial Court 1692-1992 127, 135 (Russel K. Osgood ed. 1992) ("An often overlooked, but very important, part of the legal picture is that Massachusetts courts did not have the full powers of the English courts. The Massachusetts Supreme Judicial Court, unlike the federal courts, had very limited equity jurisdiction before the Civil War."). Ostensibly, this dynamic worked a limitation on the number of actions in which no trial by jury was available as a matter of right.
Based on this pre-1820 legal history, the Law Court has determined that "the Maine Constitution provides a jury trial for legal claims, but not equitable ones." DesMarais v. Desjardins, 664 A.2d 840, 844 (Me. 1995); see also Cyr v. Cote, 396 A.2d 1013, 1016 (Me. 1979). However, distinguishing between law and equity is often an "elusive question." Cyr, 396 A.2d at 1016. The analysis is especially complicated where, as here, a new cause of action is involved. Thermos Co. v. Spence, 1999 ME 129, ¶ 9, 735 A.2d 484. An action for a declaratory judgment did not exist in the courts of Massachusetts before 1820. See Sears, Roebuck &Co. v. Portland, 144 Me. 250, 256, 68 A.2d 12, 15 (1949).
"Actions for declaratory judgments are neither legal nor equitable." Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 284 (1988). Indeed, in Maine "the right to trial by jury is preserved" in an action seeking a declaratory judgment, so long as the right is provided in the Maine Constitution. M.R. Civ. P. 57. Accordingly, in order to determine whether the right to a jury trial exists in this case, the Court must "determine the nature of the cause of action, identify a pre-1820 analogue to that cause of action, and determine the treatment of that analogue prior to 1820." Thermos Co., 1999 ME 129, ¶ 9, 735 A.2d 484.
Consequently, Plaintiffs' prayer for declaratory relief and claim under the Declaratory Judgments Act, 14 M.R.S. §§ 5951-5963 (2022), is not dispositive of, even if it is germane to, the issue of whether Defendants are entitled to a jury trial as a matter of right. "The right of jury trial in what is essentially an action at law may not be denied a litigant merely because his adversary has asked that the controversy be determined under" the Declaratory Judgments Act. Me. Broad. Co. v. Eastern Tr. & Banking Co., 142 Me. 220, 226 (1946) (quoting Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321, 325 (4th Cir. 1937)); see also Perkins v. Applebee, No. CV-80-667, 1982 Me. Super. LEXIS 63, at *3 (Jan. 20, 1982) ("a request for a declaratory judgment does not transform a legal action into an equitable one"); M.R. Civ. P. 57 reporter's notes, Dec. 1959, Me. Judicial Branch website/rules/rules-civil (clarifying that when an action brought under the Declaratory Judgments Act is "legal in nature, the right to trial by jury is preserved."). Indeed, when such a proceeding "involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending." 14 M.R.S. § 5961 (2022). Since the factual considerations remanded to this Court comprise a "legal" question (as opposed to "equitable"), this controversy imparts a right to trial by jury that cannot be extinguished by stating the claim within the Declaratory Judgments Act.
In order to evaluate the nature of the cause of action, the Court must look at "the nature of the issues to be tried and the remedy sought." Id. ¶ 10. In conducting this analysis, the Court looks beyond mere characterizations. See id., ¶¶ 12-19. Instead, the Court evaluates the "gravamen" of the action based on the "controlling issues for adjudication." Id. ¶ 21. The Court's analysis begins with the "nature of the issues to be tried" before turning to the remedy Plaintiffs seek.
In this case, Plaintiffs seek a declaration that retroactive application of the Initiative to the Project would unconstitutionally deprive them of their vested rights to complete construction. The Constitutional question turns on whether Plaintiffs have vested rights. As the Law Court clarified, vested rights is a legal doctrine based on the Maine Constitution-not on equitable considerations. NECEC Transmission LLC, 2022 ME 48, ¶ 41, 281 A.3d 618. The legal question hinges on a factual inquiry. The issues to be tried are whether Plaintiffs undertook substantial good-faith expenditures on activity within the scope of their CPCN prior to the enactment of the Initiative, meaning that the expenditures were made (1) in reliance on the CPCN, (2) before the Initiative was enacted, and (3) "according to a schedule that was not created or expedited for the purpose of generating a vested rights claim." Id. ¶ 47. After that, the Constitutional issue is simple. If Plaintiffs have vested rights, the Initiative cannot be applied to the Project; if not, then it can. Hence, the gravamen of the action is a legal determination of vested rights, and the controlling issues for adjudication are purely factual.
Plaintiffs nevertheless press the argument that the nature of the case is equitable because they seek an injunction. See Thermos Co., 1999 ME 129, ¶ 18, 735 A.2d 484 ("the nature of equitable claims as those requiring creative, injunctive, or unique action by the court remains constant"). In this case, however, the request for an injunction is the least "significant component[]" of the action. Id. ¶ 19. This Court has previously rejected Plaintiffs' argument that they need an injunction in this case in order to obtain relief. See Order Granting State Defs.' Mot. Dismiss All Claims Against The Bureau, NECEC Transmission LLC, slip op. at 1-4 (Me. B.C.D. Jan. 3, 2023). Where there appears to be no evidence to suggest an executive branch agency would disregard the decision of a court, courts are reluctant to enjoin the agency. See Avangrid Networks, Inc. v. Sec'y of State, 2020 ME 109, ¶ 39, 237 A.3d 882. That is the case here. There is no indication that the Public Utilities Commission ("PUC") will act in a manner inconsistent with the Court's pronouncements. To the contrary, the PUC is simply waiting for the courts to decide the vested rights issue. Under the circumstances in this case, even if the Court were to provide a declaratory judgment, the Court would decline to issue an injunction against the PUC.
In support of their argument, Plaintiffs cite to five Massachusetts cases in which courts sitting in equity granted injunctive relief to prevent action injurious to the claimants' property rights. (Pls.' Reply to Defs.' Opp'n to Pls.' Mot. Strike Jury Demand 5.) However, these cases decided by Massachusetts courts during the 20th century fall outside of the analysis for whether a right to trial by jury exists under Me. Const. art. I, § 20.
At oral argument, Plaintiffs argued that it is not their request for an injunction per se that makes this case equitable, but rather the lack of a "plain, adequate and complete remedy at law." Socec v. Me. Tpk. Auth., 152 Me. 326, 332, 129 A.2d 212, 215 (1957). However, if Plaintiffs obtain a declaratory judgment with the effect of allowing them to complete construction of the Project, they will have achieved the outcome they seek and an adequate remedy at law.
This scenario contrasts sharply with easement and other property rights cases wherein a plaintiff seeks an injunction to protect its property rights against a private party. See Thompson v. Pendleton, 1997 ME 127, ¶ 10, 697 A.2d 56.
Moreover, even if the Court were to consider issuing an injunction, that would not convert this legal action into equity. If a fact finder determines that Plaintiffs have vested rights, the Court would not then need to wrestle with the remaining permanent injunction factors: (1) whether the plaintiff will suffer irreparable injury if the injunction is not granted, (2) whether such injury outweighs any harm which granting the injunctive relief would inflict on the defendant, and (3) whether the public interest will not be adversely affected by granting the injunction. Dep't of Env't Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989). Applying the Initiative to the Project would be unconstitutional, thereby rendering equitable considerations largely if not completely irrelevant. See Lewis v. Webb, 3 Me. 326, 335 (1825) (a retrospective law that destroys vested rights is void); see also Foster v. President, 16 Mass. 245, 271 (1819). For all of these reasons, the nature of this case is a legal action to determine vested rights.
Having distilled the nature of Plaintiffs' cause of action, the Court must identify its pre-1820 analogue and determine how that analogue was treated prior to 1820. See Thermos Co., 1999 ME 129, ¶ 9, 735 A.2d 484. Vested rights jurisprudence under the common law of Maine as well as Massachusetts' prior to 1820 supplies that analogue. This jurisprudence reveals that the establishment of a vested right involves factual considerations best resolved in the context of property rights, and that courts treated these cases as among those providing a jury trial to litigants as a matter of right. See, e.g., Proprietors of Kennebec Purchase v. Laboree, 2 Me. 275 (1823); Proprietors of Kennebec Purchase v. Springer, 4 Mass. 416 (1808). Therefore, it cannot be affirmatively shown that trial by jury was historically unavailable for vested rights claims.
The vested rights doctrine derives from the commitment "to guard against the retroactive effect of legislation upon the property of citizens." Laboree, 2 Me. at 290 (quoting Me. Const. art. I, § 1); accord Adams v. Palmer, 51 Me. 480, 490-91 (1863); Prince George's County v. Equitable Tr. Co., 408 A.2d 737, 741 (Md. Ct. Spec. App. 1979) (discussing the vested rights doctrine's foundation in the constitutional prohibition against government taking of private property for a public purpose without just compensation); see also Inhabitants of Stoughton v. Baker, 4 Mass. 522, 525 (1808) ("The privilege ... is as strictly an estate as land itself."). Accordingly, the recognition and concomitant protection of vested rights "has been rooted in the Maine Constitution since Maine became a state." NECEC Transmission, LLC, 2022 ME 48, ¶ 38, 281 A.3d 618 (citing David M. Gold, The Tradition of Substantive Judicial Review: A Case Study of Continuity in Constitutional Jurisprudence, 52 Me. L. Rev. 355, 364-70 (2000)). Whether in the Commonwealth of Massachusetts before 1820 or afterwards in the State of Maine, jury trials were available at common law to protect property interests and resolve disputes over the existence of vested rights. See Adams, 51 Me. at 490-91; Laboree, 2 Me. at 284; Springer, 4 Mass. at 417.
Because this Court's conclusion in this matter rests on Maine and Massachusetts common law, there is no need to search for statutory authorization.
Thus, the Court will not strike Defendants' jury demand on the basis of the remedies sought in Plaintiffs' prayer for relief, especially where the gist of the underlying action seeks recognition of a vested property right and it is not otherwise affirmatively shown that a jury trial was unavailable in such a case in 1820.
II. This Court's scheduling order does not affect NRCM's Demand for Jury Trial.
Plaintiffs contend that Defendants' Demand is inconsistent with the Case Management Scheduling Order No. 1 (the "Scheduling Order") issued by this Court on September 26, 2022. The Scheduling Order indicates "Not applicable" in response to the "Jury Demand" prompt. Case Mgmt. Scheduling Order No. 1, NECEC Transmission, LLC, No. BCD-CIV-2021-00058, slip op. at ¶ 4. See M.R. Civ. P. 38(b), (c). The Scheduling Order merely reflects that neither party made a demand for a trial by jury as of the date of the scheduling conference it memorializes. The "Not applicable" entry was not intended as a substantive comment on the right to jury trial in this case. No deadline was established, so NRCM retained the right to demand to a trial by jury in this case (provided it was not made too late in the process). Here, NRCM made its jury demand less than a month after the Scheduling Order was issued, during the discovery phase of the case, and well before trial preparations. Accordingly, Defendants demand for trial by jury is not inconsistent with the Scheduling Order.
Maine Rule of Civil Procedure 38(b) provides that "any plaintiff may demand a trial by jury for any issue triable of right by a jury by filing a demand . as required by the scheduling order entered by the court." M.R. Civ. P. 38(b). However, Rule 38(c) adds that, "[i]f a plaintiff demands a trial by jury for none . of the issues, the defendant shall file . a demand for a trial by jury of any other or all of the issues of fact in the action." M.R. Civ. P. 38(c).
III. Even if Defendants are not entitled to a trial by jury as a matter of right, the Court would convene an advisory jury in this case.
Apart from NRCM's right to a trial by jury, the Court views the controversy in this case as fit and suitable for a trial by jury and absent a right to a jury trial, would convene an advisory jury to aid in deciding the issue on remand. The Court has discretion to do so. "In all actions in the Superior Court not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury." M.R. Civ. P. 39(d); see also Call v. Perkins, 65 Me. 439, 446 (1876) ("It is within the province of the court sitting in equity to order such a trial on its own motion. And when the fact in controversy is peculiarly fit and suitable for a jury to try, the court, in the absence of any statute requiring it, have ordered it on motion of either party."). Thus, in the event there is no right to trial by jury the Court will use an advisory jury as contemplated by Rule 39(d).
CONCLUSION
For the foregoing reasons, Plaintiffs' Motion to Strike Jury Demand is DENIED.
So Ordered.
Pursuant to M.R. Civ. P. 79(a), the Clerk is instructed to incorporate this Order by reference on the docket for this case.