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Martin v. Unemployment Ins. Comm.
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:	1998 ME 271
Docket:	Ken-98-259 	
Submitted 
On Briefs:	November 20, 1998
Decided:	December 18, 1998	


Panel:CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.




GREGORY MARTIN v. UNEMPLOYMENT INSURANCE COMMISSION


SAUFLEY, J.

	[¶1]  Gregory Martin appeals from a decision of the Superior Court
(Kennebec County, Marden, J.) affirming a decision of the Unemployment
Insurance Commission in which the Commission declined to relieve Martin
of his status as an employer.   We affirm the judgment of the Superior Court.  
I. Background
	[¶2]  Greg's Place is a small family restaurant located in South China,
Maine, owned and operated by Gregory Martin.{1}  In 1985, a waitress who
had worked at the restaurant filed a claim for unemployment benefits.{2}  At
that time, Greg's Place was not covered by unemployment insurance.  The
Director of Unemployment Compensation investigated the claim and
determined that Greg's Place was an "employer" subject to the provisions of
the Unemployment Security Law.  Greg's Place was therefore required to
carry unemployment insurance.  Martin did not appeal that decision.  
	[¶3]  In the following years, Martin made contributions from Greg's
Place to the Unemployment Compensation Fund and filed quarterly reports
with the Commission. Each quarterly report asked employers to provide,
among other things, employees' names and social security numbers, and the
amount of wages each employee was paid.  On each quarterly report Martin
reported that Greg's Place had "no employees" and "no payroll," and
provided only the "estimated tips" received by its waitresses.  He also
refused to include the waitresses' social security numbers. 
	[¶4]  In 1995, the Unemployment Compensation Division, for the first
time, assessed a penalty of $25 against Martin for failing to report the social
security numbers of his waitresses, and Martin appealed this decision to the
Unemployment Insurance Commission.  He then initiated this separate
action, requesting that the "employer" status of the restaurant be
terminated under the Unemployment Security Law, pursuant to 26 M.R.S.A.
§ 1222(2)(C).  The Commissioner of the Department of Labor denied this
request, and Martin appealed the denial to the Unemployment Insurance
Commission.
	[¶5]  A hearing was scheduled for the appeal from the Commissioner's
denial of Martin's request to terminate the "employer" status of Greg's
Place.  Martin and his father George attempted to record the proceedings
with their own audio and video equipment.{3}  They refused to turn the
equipment off after being asked to do so by the Commissioners, and as a
result, the Commission terminated the hearing and no evidence was
entered.  The Commission subsequently issued a decision in which it
affirmed the decision to maintain "employer" status for Greg's Place, and
held that it had properly exercised its authority to terminate the hearing. 
Martin requested reconsideration of that decision, and the Commission
denied that request in a written decision.
	[¶6]  Martin then filed a petition for review of final agency action in
Kennebec County Superior Court pursuant to M.R. Civ. P. 80C and followed
the appeal with multiple motions, including a motion for summary
judgment, while the 80C appeal was pending.  Ultimately, the Superior
Court affirmed the Commission's decision and Martin filed this appeal.{4}
	[¶7]  Although Martin sets out thirty-four issues in his brief, most of
those issues are without merit, and we therefore address only his claims
that:  (1) the Superior Court erred in declining to act on his motions for
summary judgment filed during the pendency of the 80C appeal; (2) the
Commission violated his rights by refusing to allow the private recording of a
hearing before the Commission, and by terminating the hearing after Martin
refused to turn his recording equipment off; and (3) Greg's Place is not an
"employer" required by law to carry unemployment insurance.
II. Discussion A.The Motion for Summary Judgment.
	[¶8]  We first address Martin's confusion regarding the availability of
summary judgment relief in the context of his 80C appeal.{5}  Initially, it is
clear from the record that the matter was before the court only on the
appeal pursuant to 5 M.R.S.A. § 11001 and M.R. Civ. P. 80C, and that all of
the facts necessary to the resolution of the appeal were contained in the
record of the administrative proceedings.  Martin does not assert that any
factual information outside of the record was necessary to a determination of
the issues on appeal.{6}
	[¶9]  Generally, "a motion for summary judgment is inappropriate in
an appeal on questions of law only" from administrative agencies.  Grace v.
Maine Employment Security Comm'n, 398 A.2d 1233, 1234 n.1 (Me. 1979)
(citing Garon v. Glazer, 267 A.2d 381 (Me. 1970)).  Indeed, a motion for
summary judgment is an inappropriate vehicle for judicial action in any
matter presented to the court solely in its capacity as an appellate tribunal,
where the court has no independent factfinding authority.{7}  An appellate
court reviews the factual findings and decisions of law of another tribunal. 
The appropriate mechanism for bringing asserted errors of that tribunal to
the attention of the appellate court is through briefing of the appeal. See
5 M.R.S.A. § 11007(2)-(4) (1989); M.R. Civ. P. 80C(f), (g).
	[¶10]  In contrast, a motion for summary judgment is designed to
provide a court that is determining the facts in the first instance with a
procedure for applying the law to material facts that are not in dispute.   See
Cook v. Lisbon School Comm., 682 A.2d 672, 675 (Me. 1996).  As we held in
Garon, a motion for summary judgment "has a limited purpose and is not
needed or intended for use in the disposition of appeals" from other
tribunals.  267 A.2d at 382.  Martin was therefore not entitled to have the
court consider his motion for summary judgment.
B.The Commission's Authority to Prohibit the Use of Recording Equipment.
	[¶11]  Martin next challenges the Commission's authority to prohibit
his use of audio and video recording equipment at the hearing on the
petition to terminate his restaurant's status as an employer.  He asserts that
he had the right to make recordings of the proceedings before the
Commissioners pursuant the Freedom of Access Act, 1 M.R.S.A. §§ 401-410
(1989 & Supp. 1998), which provides that, "[e]xcept as otherwise provided
by statute . . . all public proceedings shall be open to the public." 1 M.R.S.A.
§ 403 (1989).  Where the proceedings are open to the public, the Act
provides that:
[A]ll persons shall be entitled to attend public proceedings and
to make . . . taped or filmed records of the proceedings . . .
provided the taping [or] filming does not interfere with the
orderly conduct of proceedings.  The body or agency holding the
public proceedings may make reasonable rules and regulations
governing these activities, so long as these rules or regulations
do not defeat the purpose of this subchapter.
1 M.R.S.A. § 404 (1989).    

	[¶12]  The Commission responds that its hearings fall within a
statutory exception to the provision that all proceedings are "open to the
public."  Specifically, it argues that the hearings are made confidential by
section 1082 of the Employment Security Law.{8}  26 M.R.S.A. §§ 1041-1251
(1988 & Supp. 1998).  At all relevant times, section 1082 provided in
pertinent part:
Information . . . obtained from any individual pursuant to the
administration of [the Employment Security Law] shall, except to
the extent necessary for proper presentation of a claim, be held
confidential and shall not be published or be open to public
inspection . . . in any manner revealing the individual's or
employing unit's identity . . . .
26 M.R.S.A. § 1082(7) (1988) (emphasis added) (amended without
substantive change by P.L. 1997, ch. 687, § 1 (effective June 30, 1998)).  
This provision explicitly makes confidential the identities of employing units
and individuals who come before the Commission pursuant to
Unemployment Security Law.  It necessarily follows that a hearing before the
Commission for the determination of whether an employing unit is an
"employer" must be closed to the public, to protect against the disclosure of
confidential identifying information.  The Legislature's intention that the
proceedings not be open to the public is highlighted by the contrasting
language providing that the written decisions resulting from these hearings
are to be made available to the public once the confidential information
contained in the decision has been redacted.{9}
	[¶13]  Accordingly, pursuant to the Freedom of Access Act, the
proceedings of the Commission are not "open to the public," see 1 M.R.S.A.
§ 403, and the parties may not make their own recordings of the
proceedings.{10}  The Commissioners acted within their authority in declining
to allow Martin to videotape the proceeding.{11}  
C.Entry of the Decision by Default.
	[¶14] We next address Martin's assertion that the Commission denied
his due process rights by ending the hearing and issuing a decision after the
hearing was terminated.  Although Martin presents the issue as one of due
process, an analysis of his claim demonstrates that the real question
presented is one of appropriateness of the sanction imposed by the
Commission in response to Martin's disruptive conduct.
	[¶15]  The essential requirement of due process in the administrative
context is that a party be given notice and an opportunity to be heard.  See
Secure Envts. v. Norridgewock, 544 A.2d 319, 325 (Me. 1988).  The
Commission is required to afford an employer appealing a decision by the
Commissioner of the Department of Labor "a reasonable opportunity for a
fair hearing," the conduct of which is governed by Subchapter IV of the
Administrative Procedures Act (APA).  5 M.R.S.A. §§ 8001-12015 (1989 &
Supp. 1998).  See 26 M.R.S.A. § 1226(1)(B) (1988).  The APA requires that
"[i]f a scheduled hearing is canceled or postponed to a later date, the agency
shall provide timely notice to the [parties]," 5 M.R.S.A. § 9052(5) (1988),
and that an agency may "[m]ake informal disposition of any adjudicatory
proceeding by default, provided that notice has been given that failure to
take required action may result in default, and further provided that any
such default may be set aside by the agency for good cause shown."  5
M.R.S.A. § 9053(3) (1988).  In addition, the APA states that "unless
otherwise limited by the agency to prevent repetition or unreasonable delay
in proceedings, every party shall have the right to present evidence and
arguments on all issues."  5 M.R.S.A. § 9056(2) (1988).
	[¶16]  Here, Martin was afforded both notice and a meaningful
opportunity to be heard.  There is no dispute that he was notified of the date
and time of the hearing, that he was able to attend the hearing at the date
and time set, that he was given an opportunity to present evidence, and that
the Commissioners convened the hearing and stood ready to take evidence
from Martin and his witnesses.  Nor is there any dispute that Martin had
previously been made aware that the hearings were not open to the public. 
Thus, Martin was not deprived of his due process rights.  See Dineen v.
Town of Kittery, 639 A.2d 101, 102-03 (Me. 1994) (holding that a party was
not denied his right to due process when he did not take advantage of
"ample opportunity to present his position to the Committee").
	[¶17]  The question then is whether the Commission acted within its
discretion in ending the hearing and entering a decision when Martin failed
to respond to the request that he cease videotaping.  We conclude that it
did.  Martin was notified immediately by the Commission that he must turn
off his recording equipment.  He adamantly refused to do so.  He offered no
other alternatives to the Commission.  He was made aware that the hearing
would be terminated if he did not desist.  Because Martin declared his
intent to record regardless of the Commission's request that he not do so,
the Commission did not abuse its discretion in ending the hearing.{12}
	[¶18]  The burden of proof in a proceeding to terminate employer
status is on the petitioner.  See 26 M.R.S.A. §§ 1222(2), 1226(1)(B) (1988). 
The petitioner here, by his own actions, failed to present any evidence from
which the Commission could conclude that the employment status should be
terminated.  The Commission did not err in finding that Martin failed to
meet his burden of proof.  
	[¶19]  Martin also had the right, under rules promulgated by the
Commission pursuant to its statutory authority, see 26 M.R.S.A. §§ 1082(1),
1226(1)(B) (1988 & Supp. 1998), to request that the Commission
reconsider its decision, and to show good cause why the decision should be
set aside.  See also 5 M.R.S.A. § 9053(3) (1988) (requiring agency to set
aside default for good cause shown).  Although Martin moved for
reconsideration, he demonstrated a continued intent to record any hearing
opportunity provided.  The Commission did not err in concluding that
Martin failed to show good cause why its decision should be set aside.
	The entry is
Judgment affirmed.
    
For plaintiff: Gregory A. Martin P O Box 388 South China, ME 04358 Attorneys for appellee: Andrew Ketterer, Attorney General Elizabeth J. Wyman, Asst. Atty. Gen. Margaret P. Moss, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} . Greg's Place is apparently not incorporated and has been intermittently referred to in the record as a d/b/a ("doing business as") for Gregory Martin. {2} . Greg's Place was involved in two separate proceedings before the Unemployment Insurance Commission, but has appealed only from the decision in one of those proceedings. Nonetheless, the "record" submitted by the agency contains the transcripts, correspondence, and other documents filed in both proceedings. Martin made a timely objection to the contents of the record that was submitted, and we limit our review to those facts contained in the record of the matter that is presently before us. {3} . The Commission had already heard Martin's appeal of the $25 penalty. At that hearing, Gregory and George Martin attempted to record the proceedings with their own audio and video equipment, citing section 404 of the Freedom of Access Act as giving them the authority to do so. The Commission declined to allow Martin to record the hearing, on the grounds that "the hearing was not a public proceeding within the meaning of § 404." After Martin turned off the equipment, the hearing proceeded. The Commission later issued a decision affirming the assessment of the $25 penalty, and rejecting the argument put forth by Greg's Place that its waitresses were not employees. That decision was not appealed. {4} . Although the Commission argues that Martin's appeal was not timely filed, Martin filed his notice of appeal within the required thirty days of the Superior Court's order denying Martin's motion for "relief from judgment or order." This motion was in essence a motion to alter or amend the judgment, see M.R. Civ. P. 59(e), which, pursuant to M.R. Civ. P. 73(a), tolls the thirty-day period in which a party is entitled to appeal a judgment. {5} . Martin's motion for summary judgment was entered on the docket on February 24, 1997. The Commission did not file a "motion in opposition to summary judgment" until thirty-two days later, eight days after Martin filed a "motion for final summary judgment." Martin argues that because the Commission failed to file a timely response to the motion, he was entitled to a judgment as a matter of law. Because the court, by law, could not have considered the motion for summary judgment, this argument is without merit. {6} . Except in limited circumstances, judicial review of an agency decision "shall be confined to the record upon which the agency decision was based." 5 M.R.S.A. § 11006(1) (1989). In this matter, no motion to take additional facts was made. See 5 M.R.S.A. § 11006(1)(A), (B) (1989); M.R. Civ. P. 80C(e). Nor would such a motion have been granted. {7} . A court functioning in its capacity as a court of appeals may, in some specific cases, have the authority to find facts. See, e.g., 36 M.R.S.A. § 151 (Supp. 1998) (stating that Superior Court reviewing the decision of the State Tax Assessor "shall make its own determination as to all questions of fact or law"); Jackson Advertising Corp. v. State Tax Assessor, 551 A.2d 1365, 1366 (Me. 1988) (citing Frank v. Assessors of Skowhegan, 329 A.2d 167, 170 (Me. 1974)) (discussing reviewing court's power to make a limited review of questions of fact in appeals from decisions of the State Tax Assessor). Those circumstances, however, are narrow and closely defined by statute. There is no authority for a court reviewing a decision of the Unemployment Insurance Commission to independently find the facts. {8} . The Commission's interpretation of its enabling statute is accorded great deference. See Daniels v. Tew Mac Aero Servs., 675 A.2d 984, 987 (Me. 1996). {9} . "Final decisions of adjudicatory proceedings are available to the public provided that the names and addresses of claimants and employers are deleted from the decisions." 26 M.R.S.A. § 1082(7) (Supp. 1998). {10} . The Commission also argues that the hearing was an "executive session" under 1 M.R.S.A. § 405. This argument fails. The executive session exception was never intended to swallow an entire category of proceedings. Instead, the invocation of an executive session must be closely tailored to the protection of specific information. In addition, the Commission does not suggest that it made any attempt to comply with the procedures necessary to calling an executive session. "Executive sessions may be called only by a public, recorded vote of 3/5 of the members, present and voting, of such bodies or agencies." 1 M.R.S.A. § 405(3) (1989). Moreover, "[a] motion to go into executive session shall indicate the precise nature of the business of the executive session," and "[n]o other matters may be considered in that particular executive session." 1 M.R.S.A. § 405(4)-(5) (1989). See Vella v. Town of Camden, 677 A.2d 1051, 1054-55 (Me. 1996). {11} . We note that the Commission had the obligation itself to "record all hearings in a form susceptible to transcription," to "transcribe the recording when necessary for the prosecution of an appeal," and to "make copies of the record, copies of recordings or transcriptions available to any person at actual cost." See 5 M.R.S.A. § 9059(2), (3) (1989). There was no dispute that the Commission maintained its own audiotape equipment and recorded all hearings. {12} . This case is distinguishable from Berry v. Maine Public Utilities Commission, 394 A.2d 790 (Me. 1978), where we found that a party to an administrative hearing "was denied an opportunity to present and develop his case when the [Public Utilities] Commission decided it had 'heard enough' and intended to close the hearing at 5:30 that afternoon." Id. at 793. Here, Martin had a full opportunity to present evidence but declined to do so through his own actions.