STATE OF :NIAINE SUPERlOR COURT KENNEBEC, SS. LOCATION: AUGUSTA Docket No. AP-15-01
) BRlAN BRETON, Hll...LARY LISTER, ) BRlAN KING & MARK CROCKETT, ) ) ORDER ON RESPONDENTS' Petitioners, ) MOTION TO DISMISS ) v. ) ) MARY MAYHEW, in her official capacity ) as Commissioner of Maine Department of ) Health and Human Services & MAINE ) DEPARTMENT OF HEALTH AND ) Hl.JNIAN SERVICES, Division of ) Licensing and Regulatory Services, ) ) Respondents. )
Respondents Mary Mayhew-in her official capacity as Commissioner of the
Maine Department of Health and Human Services-and the Maine Department ofHealth
and Human services, Division of Licensing and Regulatory Services (collectively the
"Respondents" or "Department") move to dismiss Count II for declaratory judgment and
Count III for preliminary injunction or stay and permanent injunction of the Complaint
and M.R. Civ. P. 80C Appeal of Petitioners Brian Breton, Hillary Lister, Brian King, and
Mark Crockett (collectively, the "Petitioners"). The Department argues that Counts II
and III of the Complaint fail to state any independent claims upon which relief may be
granted and should be dismissed as duplicative of Petitioner's M.R. Civ. P. 80C appeal
put forth in Count I.
1 In their opposition, Petitioners stipulate to dismiss Count II of the Complaint for
declaratory judgment. This leaves Respondents motion to dismiss Count III for
injunctive relief. 1
The Petition and Complaint stem from a December 11, 2014 announcement on
the Department's website detailing the pending implementation of a custom online
service to allow licensed medical providers to certify patients for the use of medical
marijuana. The Department allegedly indicated that this online portal for certification
would be mandatory for all providers, and by extension all patients, beginning January 5,
2015. The Petition and Complaint allege that the Department erred by failing to carry out
the requisite rule-making procedures under the Administrative Procedures Act before
requiring use of the online portal.
The Department argues that Count III of the Complaint should be dismissed
because it is duplicative of the Rule SOC appeal and fails to allege any independent
claims. In particular, the Department points out that Count III is premised on the same
factual allegations as the SOC appeal in Count I. The Department further argues that the
injunctive relief Petitioners seek is available through Rule SOC(b) and 5 M.R.S. § 11004.
The Petitioners do not dispute that Counts I and III rely on the same factual
allegations. They respond, however, that preliminary injunctive relief is distinct from
final relief on their SOC appeal as it comes earlier and is subject to a different standard.
They also argue that in the alternative, the Court can-and should-construe Count III as
a motion for a stay of final agency action. Finally, they argue that dismissing Count III
1 In their opposition, Petitioners misstated that they stipulated to dismiss Count III
of the Complaint. As indicated by the substance of their opposition and as clarified at the oral argument on June 2, 2015, Petitioners stipulate to the dismissal of Count II.
2 or refusing to convert it into a motion for a stay pursuant to 5 M.R.S. § 11004 would
deny the Petitioners timely, equitable relief.
The Department replies that the Court should not construe Count III as a motion
for a stay because Petitioners have not taken or followed the requisite steps to raise said
motion.
Rule SOC(i) permits the joinder of an SOC Petition "with a claim alleging an
independent basis for relief from governmental action .... " When a claim joined with an
SOC orB Petition is duplicative of the Petition, the Law Court has affirmed the Superior
Court's dismissal on that ground. Kane v. Comm 'r of the Dep 't of Health and Human
Services, 200S N1E 1S5, ~~ 30-32, 960 A.2d 1196 ("the court did not abuse its discretion
in dismissing [petitioner's] independent claims as duplicative"); Adelman v. Town of
Baldwin, 2000 N1E 91, ~~ 6-7, 750 A.2d 577 (finding no abuse of discretion in Superior
Court striking an independent claim of bias as duplicative of the Rule SOB appeal); see
also Boucher v. Jvlaine Workers Compensation Board, 2011 Me. Super. LEXIS 123, *9
(June 30, 2011) (dismissing cause of action for declaratory and injunctive relief brought
with Rule SOB appeal because direct review of the agency's decision was "available and
adequate to address petitioners' complaints, [and because] that review is the petitioners'
exclusive remedy").
Rule SOC also provides, in pertinent part, that "[a]n application for a stay of final
agency action shall be as provided by 5 M.R.S.A. § 11004." M.R. Civ. P. SOC(b).
Section 11004, in turn, explains that filing a petition for review does not operate as a stay
of the final agency action pending judicial review. 5 M.R.S. § 11004. Instead, the
petitioner should ordinarily apply for a stay to the agency, which may issue a stay "upon a showing of irreparable injury to the petitioner, a strong likelihood of success on the
merits, and no substantial harm to adverse parties or the general public." Id. Section
11004 further provides that:
A motion for such relief may be made to the Superior Court, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the petitioner had requested. In addition, the motion shall show the reasons for the relief requested and the facts relied upon, which facts, if subject to dispute, shall be supported by affidavits. Reasonable notice of the motion shall be given to all parties to the agency proceeding.
!d. (emphasis added).
Here, the parties do not dispute that Count ill is premised on the same underlying
facts as Count I. In addition, Count III's request for injunctive relief is also available
under Count I. This is because Rule 80C and 5 M.R. S. § 11004 set out a specific path
and procedure for Petitioners to seek injunctive relief in an administrative appeal. Putting
this together, it is clear that Count III's request for injunctive relief is duplicative of-and
seemingly preempted by-Count I's 80C appeal. Accordingly, the Court grants
Respondents' motion to dismiss Count III of the Complaint.
In conjunction with this ruling, the Court also declines to convert Count III into a
motion for a stay pursuant to Rule 80C. This is because the Petitioners have not met the
requirements of bringing such a motion. Indeed, while two out of the four Petitioners
sent letters to the Department requesting a stay of implementation of the agency decision
pursuant to 5 M.R.S. § 11004 and the Department wrote back denying said request, the
Petitioners did not put forward an argument showing why their request for a stay should
be granted.
4 Accordingly, it is hereby ORDERED that Counts II and III ofPetitioners'
Complaint are DISJVIISSED.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated: July 6, 2015 Michaela Murphy, Justi e Maine Superior Court
5 Date Filed 1/9/15 Kennebec Docket No. AP-15-01 County Action: Petition for Review 80C J. Murphy
Brian Breton, et al. vs.
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STATE OF :NIAINE SUPERlOR COURT KENNEBEC, SS. LOCATION: AUGUSTA Docket No. AP-15-01
) BRlAN BRETON, Hll...LARY LISTER, ) BRlAN KING & MARK CROCKETT, ) ) ORDER ON RESPONDENTS' Petitioners, ) MOTION TO DISMISS ) v. ) ) MARY MAYHEW, in her official capacity ) as Commissioner of Maine Department of ) Health and Human Services & MAINE ) DEPARTMENT OF HEALTH AND ) Hl.JNIAN SERVICES, Division of ) Licensing and Regulatory Services, ) ) Respondents. )
Respondents Mary Mayhew-in her official capacity as Commissioner of the
Maine Department of Health and Human Services-and the Maine Department ofHealth
and Human services, Division of Licensing and Regulatory Services (collectively the
"Respondents" or "Department") move to dismiss Count II for declaratory judgment and
Count III for preliminary injunction or stay and permanent injunction of the Complaint
and M.R. Civ. P. 80C Appeal of Petitioners Brian Breton, Hillary Lister, Brian King, and
Mark Crockett (collectively, the "Petitioners"). The Department argues that Counts II
and III of the Complaint fail to state any independent claims upon which relief may be
granted and should be dismissed as duplicative of Petitioner's M.R. Civ. P. 80C appeal
put forth in Count I.
1 In their opposition, Petitioners stipulate to dismiss Count II of the Complaint for
declaratory judgment. This leaves Respondents motion to dismiss Count III for
injunctive relief. 1
The Petition and Complaint stem from a December 11, 2014 announcement on
the Department's website detailing the pending implementation of a custom online
service to allow licensed medical providers to certify patients for the use of medical
marijuana. The Department allegedly indicated that this online portal for certification
would be mandatory for all providers, and by extension all patients, beginning January 5,
2015. The Petition and Complaint allege that the Department erred by failing to carry out
the requisite rule-making procedures under the Administrative Procedures Act before
requiring use of the online portal.
The Department argues that Count III of the Complaint should be dismissed
because it is duplicative of the Rule SOC appeal and fails to allege any independent
claims. In particular, the Department points out that Count III is premised on the same
factual allegations as the SOC appeal in Count I. The Department further argues that the
injunctive relief Petitioners seek is available through Rule SOC(b) and 5 M.R.S. § 11004.
The Petitioners do not dispute that Counts I and III rely on the same factual
allegations. They respond, however, that preliminary injunctive relief is distinct from
final relief on their SOC appeal as it comes earlier and is subject to a different standard.
They also argue that in the alternative, the Court can-and should-construe Count III as
a motion for a stay of final agency action. Finally, they argue that dismissing Count III
1 In their opposition, Petitioners misstated that they stipulated to dismiss Count III
of the Complaint. As indicated by the substance of their opposition and as clarified at the oral argument on June 2, 2015, Petitioners stipulate to the dismissal of Count II.
2 or refusing to convert it into a motion for a stay pursuant to 5 M.R.S. § 11004 would
deny the Petitioners timely, equitable relief.
The Department replies that the Court should not construe Count III as a motion
for a stay because Petitioners have not taken or followed the requisite steps to raise said
motion.
Rule SOC(i) permits the joinder of an SOC Petition "with a claim alleging an
independent basis for relief from governmental action .... " When a claim joined with an
SOC orB Petition is duplicative of the Petition, the Law Court has affirmed the Superior
Court's dismissal on that ground. Kane v. Comm 'r of the Dep 't of Health and Human
Services, 200S N1E 1S5, ~~ 30-32, 960 A.2d 1196 ("the court did not abuse its discretion
in dismissing [petitioner's] independent claims as duplicative"); Adelman v. Town of
Baldwin, 2000 N1E 91, ~~ 6-7, 750 A.2d 577 (finding no abuse of discretion in Superior
Court striking an independent claim of bias as duplicative of the Rule SOB appeal); see
also Boucher v. Jvlaine Workers Compensation Board, 2011 Me. Super. LEXIS 123, *9
(June 30, 2011) (dismissing cause of action for declaratory and injunctive relief brought
with Rule SOB appeal because direct review of the agency's decision was "available and
adequate to address petitioners' complaints, [and because] that review is the petitioners'
exclusive remedy").
Rule SOC also provides, in pertinent part, that "[a]n application for a stay of final
agency action shall be as provided by 5 M.R.S.A. § 11004." M.R. Civ. P. SOC(b).
Section 11004, in turn, explains that filing a petition for review does not operate as a stay
of the final agency action pending judicial review. 5 M.R.S. § 11004. Instead, the
petitioner should ordinarily apply for a stay to the agency, which may issue a stay "upon a showing of irreparable injury to the petitioner, a strong likelihood of success on the
merits, and no substantial harm to adverse parties or the general public." Id. Section
11004 further provides that:
A motion for such relief may be made to the Superior Court, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the petitioner had requested. In addition, the motion shall show the reasons for the relief requested and the facts relied upon, which facts, if subject to dispute, shall be supported by affidavits. Reasonable notice of the motion shall be given to all parties to the agency proceeding.
!d. (emphasis added).
Here, the parties do not dispute that Count ill is premised on the same underlying
facts as Count I. In addition, Count III's request for injunctive relief is also available
under Count I. This is because Rule 80C and 5 M.R. S. § 11004 set out a specific path
and procedure for Petitioners to seek injunctive relief in an administrative appeal. Putting
this together, it is clear that Count III's request for injunctive relief is duplicative of-and
seemingly preempted by-Count I's 80C appeal. Accordingly, the Court grants
Respondents' motion to dismiss Count III of the Complaint.
In conjunction with this ruling, the Court also declines to convert Count III into a
motion for a stay pursuant to Rule 80C. This is because the Petitioners have not met the
requirements of bringing such a motion. Indeed, while two out of the four Petitioners
sent letters to the Department requesting a stay of implementation of the agency decision
pursuant to 5 M.R.S. § 11004 and the Department wrote back denying said request, the
Petitioners did not put forward an argument showing why their request for a stay should
be granted.
4 Accordingly, it is hereby ORDERED that Counts II and III ofPetitioners'
Complaint are DISJVIISSED.
Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this
Order by reference in the docket.
Dated: July 6, 2015 Michaela Murphy, Justi e Maine Superior Court
5 Date Filed 1/9/15 Kennebec Docket No. AP-15-01 County Action: Petition for Review 80C J. Murphy
Brian Breton, et al. vs. Mary Mayhew and DHHS
Plaintiff's Attorney Defendant's Attorney
Logan Perkins, Esq. William Hagedorn, AAG 21 Main Street, #202 6 State House Station Bangor, ME 04401. Augusta, ME 04333
Renee Guignard, AAG 6 State House Station Augusta, ME 04333 Date of Entry
1/23/15 Complaint and Petition for Review of Final Agency Action, filed 1/9/15. s/Perkins, Esq.
1/23/15 -Certified Mail Receipt, addressed to Janet Mills, date of delivery 1/15/15, no signature, filed 1/22/15. s/Perkins, Esq. -Certified Mail Receipt, addressed to Mary Mayhew, date of delivery 1/15/15, no signature, filed 1/22/15. s/Perkins, Esq. -Motion for Scheduling Order, filed 1/22/15. s/Perkins, Esq.
1/30/15 Entry of Appearance for Mary Mayhew, Commissioner, filed (1/29/15). s/Hagedorn, AAG
1/30/15 Entry of Appearance for Mary Mayhew, Commissioner, filed (1/29/15). s/Guignard, AAG
2/6/15 Respondent's Response to Motion for Scheduling Order, filed 2/4/15. s/Hagedorn, AAG
2/9/15 Supplemental Response to Motion for Scheduling Order, filed 2/9/15. s/Hagedorn, AAG
3/10/15 Respondents' Motion to Dismiss, filed 2/26/15. s/Hagedorn, AAG
3/20/15 ORDER ON MOTION FOR SCHEDULING ORDER, Murphy, J. (3/19/15) 1) Department may file Motion to Dismiss no later than 2/27/15. 2) Response will be governed by Maine Rules of Civil Procedure. 3) All other dates and deadlines will be stayed pending the Court's consideration of the Respondent's Motion to Dismiss. 4) Following Court's ruling on Motion to Dismiss, if any claims survive the Court will schedule a Case Management Conference, to be followed by the issuance of a Scheduling order. Copy to Atty Perkins, AAG Hagedorn, AAG Guignard
3/21/15 Motion to Enlarge Deadline to Respond to Motion to Dismiss, filed 3/20/15. s/Perkins, Esq. 4/2/15 ORDER, Murphy, J. (3/25/15)
Page 1 AP-15-01 Plaintiffs' Motion to Enlarge is GRANTED. Plaintiffs' Opposition to Motion to Dismiss is due 3/30/15. Copy to Atty Perkins, AAG Hagedorn, AAG Guignard
4/2/15 Petitioners' Response to Motion to Dismiss Counts 2 & 3, filed 3/27/15. s/Perkins, Esq.
4/7/15 Respondents' Reply to Petitioners' Response to Motion to Dismiss, filed. s/Hagedorn, AAG
4/9/15 Certificate of Service for Response to Motion to Dismiss, filed 4/8/15. s/Perkins, Esq.
4/14/15 Hearing on Motion to Dismiss scheduled on 6/2/15 at 10:00 a.m. Notice of Hearing sent to Atty Perkins and AAG Hagedorn
6/2/15 Hearing held, J. Murphy presiding. Logan Perkins, Esq. and William Hagedorn, AAG Courtroom 3 Under advisement
7/8/15 ORDER ON RESPONDENTS' MOTION TO DISMISS, Murphy, J. (7/6/15) It is hereby ORDERED that Counts II and Ill of Petitioners' Complaint are DISMISSED. Copy to Atty Perkins and AAG Hagedorn Copy to Repositories
Page 2 AP-15-01