The New Normal in DMR Suspensions

by Nicholas Walsh, PA

Everyone knows that the Maine Department of Marine Resources can suspend a fisherman’s license for a violating a fisheries law. But until recently, nearly all DMR license suspensions were for a court-adjudicated criminal or civil violation. Before DMR suspended you, there was a trial in front of a real judge.

A little background: When DMR receives notice of a court decision convicting a fisherman of violating a fisheries law, the commissioner has 60 days to decide whether to impose a suspension. If the commissioner decides to suspend, he must give the license holder written notice of the suspension. The notice letter states why DMR is suspending the license, states the effective date of the suspension, and tells the fisherman that he or she can ask for a hearing to argue for a lesser suspension.

A few years ago, DMR sponsored legislation allowing it to suspend a license not because a judge convicted the fisherman, but because in certain extreme circumstances DMR did not want to wait months for the court to hold a trial and issue a judgment. The process was originally intended for the rare case where DMR was convinced that it needed a bad actor out of the fishery right quick. Now, that procedure is the new normal.

This “administrative suspension” process begins when the chief of the Marine Patrol presents the commissioner with a sworn statement giving the details of the alleged violation. The commissioner reviews the affidavit and if the commissioner decides the facts as presented justify this type of suspension, which I assume happens always or nearly always, the suspension letter issues. The fisherman then has the right to request a hearing, not before the commissioner, but before an administrative hearing officer. The hearing happens quickly, usually within a few weeks.

Presently DMR uses a hearing officer borrowed from the Bureau of Motor Vehicles. The bureau, of course, holds dozens of hearings a year to determine if a driver’s license should be suspended for OUI or other offenses, and the suspension can occur even in the absence of any court conviction. The DMR process is in that respect similar.

If the DMR hearing officer finds that it is more probable than not that the violation occurred, the hearing officer issues a written decision to the commissioner, who then decides whether to impose the suspension. If a suspension issues (which again happens always or nearly always), the fisherman has the right to ask the commissioner for a hearing to argue for a reduced suspension.

Just two or three years ago, DMR rarely used the administrative hearing process. Instead, it was content to allow the District Court to, in effect, do the fact-finding for DMR. Now, however, DMR uses the administrative hearing process routinely.

The hearing officers are good people and I am sure they try their best to hold a fair hearing. I am sure they understand that it is the department’s burden to prove its case, and that therefore an evidentiary tie must go to the fisherman. But I also believe that a hearing officer who routinely hears DMR cases will tend to develop an affiliation with the department and its people, and will have a tendency to believe, before hearing a scrap of evidence, that the allegations against the fisherman are probably true.

Recently, I needed a continuance (postponement) of an administrative hearing, to complete my investigation and develop the case. I spoke to the hearing officer, who was reluctant to grant the continuance. Here’s what she said: “Is there really going to be a hearing? They nearly always confess.”

Sorry, but I really don’t want that mindset in the person deciding my client’s case. Give me a courtroom judge any day, one who is trained to look dispassionately at the evidence, to take the allocation of the burden of proof seriously, and who lacks any affiliation with DMR.

There’s another big disadvantage to a fisherman having his or her case decided by administrative hearing. In a courtroom, there are strict rules for the admission of evidence. A well-prepared lawyer can use the Maine Rules of Evidence to keep out damaging evidence, and sometimes the lawyer can cut the legs out from under the state’s case. But in the administrative hearing process, the Maine Rules of Evidence don’t apply. Instead, the hearing officer shall admit evidence “if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.” That loose standard means all kinds of hearsay can come in, a problem for the fisherman-defendant.

The use of administrative hearings to decide suspensions is another step in an alarming trend toward diminished procedural fairness for Maine fishermen facing suspension. This trend began a few years ago, when Molesting Lobster Gear was still a crime. As a crime, not only would the case be decided in court, but the state had to convince the judge or jury that it had proven its case “beyond a reasonable doubt,” a rigorous standard and a much more challenging standard of proof than the “more probable than not” standard used in civil cases. So DMR got a law passed that changed Molesting Lobster Gear from a crime to a civil offense, and now the standard of proof is the lax “more probable than not” – if the fact-finder decides the state has shown the scales of evidence to tip even the smallest degree toward DMR, DMR wins.

Even then, these cases would end up before juries, and juries – particularly those down east and midcoast – were often aware that if the court case went against the lobsterman, DMR would issue a three-year suspension. (A lawyer cannot mention such a thing in court, but the juries knew anyway.) So “jury equity” would occur, with the jury refusing to find for DMR even when the case seemed clear. In reaction, DMR got a law passed taking these cases away from the jury, and away from the court, and putting the decision into the hands of a state-employed hearing officer, with slackened evidence standards to boot.

That’s where we are today. The administrative suspension process used to be for hard cases, where DMR wanted someone off the water and out of the fishery fast. Now it’s the new normal.

Keep the following in mind, please: If the charge is Molesting Lobster Gear, there is one huge and possibly overriding advantage to having a case decided by the administrative process. Under DMR’s process for administrative suspensions, for a first offense the suspension cannot be for more than one year, and it could of course be much less. This is true even if (as in the case of trap molesting), had the fisherman been found liable in court the result would have been a mandatory three-year suspension. That’s something to think about.

Nicholas Walsh is an attorney practicing in Portland, Maine. He may be reached at (207) 772-2191, or at nwalsh@gwi.net.