Friday, January 8, 2010

For the record

Another post in a series about the Unistar case. Today it's all about footnote 6. To be precise, Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 98 n.6 (2009). Here is footnote 6 in its entirety:

"Although the record does not indicate what the conservation district is, its website indicates that it is a nonprofit organization 'dedicated to helping the towns and citizens of Eastern Connecticut with their conservation needs. . . . [The conservation district] assists citizens and towns in making sound natural resource decisions, and . . . promotes[s] sustainable use of natural resources.' See (last visited July 2, 2009)."

My penciled notes on the margin of my Connecticut Law Journal issue of August 18, 2009 are: "court went outside record." A pretty ho-hum issue, unless you have been training wetlands commission members for years about "making the record," i.e., getting all the information into the administrative record that a court will review to determine if there is substantial evidence in the record to support the agency decision. I was part of the team of assistant attorneys general who for years (in my case, 16 of them) drove around the state to training sessions sponsored by the DEP, where we presented legal topics to legal-advice-deprived commission members.

This footnote came back to me weeks later, as I read a newspaper article that the Public Service and Trust Commission Jury Committee of the state Judicial Department is likely to issue a rule this year prohibiting juror use of social networking sites to discuss or investigate the case in which they are serving. The current criminal jury instructions state: "Do not look anything up on the Internet concerning information about the case or any of the people involved . . ." (last visited January 7, 2010), 1.2-10 Your Conduct as Jurors.

What about the judges? The Unistar case is a wetlands appeal -- a case to be decided on the administrative record. The traditional tools available to the Court to discern the identity of the conservation district included the state statutes and state regulations. What can be gleaned from the statutes is that DEP establishes regional councils which may be empowered through regulations to provide technical assistance to municipal agencies. General Statutes § 22a-315. The regulations inform us that the conservation districts may review and comment on local projects affecting water resources. Reg. Ct. St. Agen. § 22a-315-14 (b) (1). Granted, there are pictures on the conservation district's webpage which make it more fun and the language is way more user-friendly than the statutes. It's not the first time the Supreme Court has "improved" the submission of a conservation district. In Finley v. Inland Wetlands Commission, 289 Conn. 12, 46 n.4 (2008), the concurring opinion written by Justice Norcott, identifies the Southwest Conservation District and explains what the district is, based upon the district's webpage, not the administrative record.

What the Supreme Court proved to us in footnote 6 in Unistar is that everyone uses the internet to become an instant expert. I must confess that I cited a company's webpage when writing to the Commissioner of DEP. I asked for state enforcement against a company bragging of engaging in certain activities. These activities, while rendering the site more commercially interesting to certain elements of the public, also indicated to others of us that the company was engaged in an activity which required a DEP permit. (I disclosed the webpage and the date it was last "accessed." The Supreme Court's citation form, date "visited" is more user-friendly. I've already penciled it into my Manual of Style as the proper citation form for a webpage.) However, this wasn't after a public hearing had been closed nor was it outside of an administrative record for a case on appeal. When meeting with DEP officials to discuss my letter, a manager discounted the importance of statements in a website by noting -- everyone distorts things on the internet. Ain't it the truth!

Is the administrative record passé? Until we know for certain, prudence dictates:

1. Conservation districts: the Supreme Court has got your back. If you're anyone else and wish to submit written comments that you want the agency to rely on, perhaps you ought to start by identifying yourself or your organization/entity in the first paragraph of your letter. It wouldn't hurt to add a resume to the letter.

2. If you (an applicant, a landowner, a neighbor in opposition, a wetlands commission member, a lawyer for any of the above) want to rely on a conservation district, or any other expert, and the expert hasn't complied with #1 above, you may need to make the record and identify the expert and his/her expertise.


Because you can't depend on your case making it to the Supreme Court.

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