Mohamud v. State of Maine

Opinion

STATE OF MAINE SUPERIOR COURT CUtvffiERLAND, ss. CIVIL ACTION DOCKET NO: AP-11;4~

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MUSE wl. WIOHAwiUD, Petitioner,

V. ORDER STATE Curnberl OF MAINE

and ss c··

STATE OF wiAINE, wiAINE ' ' ·lerk's Offlce REVENUE SERVICES, MAR 0 8 2012

Respondent.

RECEIVED

Before the court is the Respondent's motion to dismiss Petitioner's SOC appeal pursuant

to M.R. Civ. P. 12(b)(l). The motion asserts that this court lacks jurisdiction to hear the appeal because the notice of appeal was filed late.

BACKGROUND

On December 7, 2010, Muse Mohamud (Mohamud) was issued an assessment by

the Maine Revenue Services (MRS). Mohamud requested reconsideration on January 6, 2011. The assessor declin~d the reconsideration on August 5, 2011. In the notice from MRS, Mohamud was told that he had 30 days to file an appeal with the Superior Court.

On September 6, 2011, Mohamud submitted a notice of appeal and an application to proceed without payment pursuant to M.R. Civ. P. 91(£) and 91(b). September 6 was stamped on the filings, but the date was later crossed out because the notice of appeal was incomplete. The court issued a "Notice of Incomplete Filing" on September 15, 2011. This notice indicates that as of September 12, 2011, the clerk's office had received a filing that did not include the summary sheet as required by M. R. Civ. P. 5(h). Additionally, this notice states, "[t]he attempted filing has not been docketed

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and the filing is not effective until complete .... I£ there was a deadline for filing, that deadline has NOT changed."

Mohamud filed a complete notice of appeal, accompanied with an application to proceed without payment, on September 14, 2011. The application was granted on Septernber 19, 2011 and the appeal was docketed on September 16, 2011. MSR now moves to dismiss the appeal because the notice of appeal was filed late.

DISCUSSION

The court's authority to review the tax assessor's decision is granted through 36 M.R.S. § 151 (2011).1 Under the Maine Administrative Procedure Act the petitioner has 30 days to appeal the tax assessor's decision. 5 :tvl.R.S. § 11002 (2011) ("The petition for review shall be filed within 30 days after receipt of notice if taken by a party to the proceeding of which review is sought.") Therefore, Mohamud had 30 days to file his notice of appeal, as calculated by :tvl.R. Civ. P. 6(a).

:tviRS asserts that the 30-day requirement is jurisdictional and mandatory. See Brown v. State, 426 A.2d 880, 888 (:tvle. 1981) (stating "expressly that the [:tvlaine Administrative Procedure] Act's time limitations are jurisdictional"); see also City of Lewiston v. Me. State Employees Ass'n, 638 A.2d 739, 741 (Me. 1994) ("If a party does not file an appeal within the statutory period, the Superior Court has no legal power to entertain the appeal."). Mohamud does not dispute the filing deadline, but claims that the complaint was filed within the deadline on September 6, 2011.

"Filing occurs when the appeal is delivered 'to the court clerk or record custodian for placement into the official record .... " Persson v. Dep't of Human Servs., 2001 :tviE 124, 9I 12, 775 A.2d 363 (quoting Black's Law Dictionary 642 (7th ed. 1999)). t "The assessor's decision on reconsideration constih1tes final agency action that is subject to

review by the Superior Court in accordance with the Maine Adncinistrative Procedure Act, except that Title 5, section 11006 and 11007 do not apply." 36 M.R.S. § 151 (2011).

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Rule S(h) requires that' any pleading which sets forth a claim for relief ... shall be accompanied by a properly completed and executed Summary Sheet .... " M.R. Civ. P. S(h). Since the summary sheet was not included with the September 6, 201t filing the notice of appeal was late. 2 As Ivlohamud points out it would be "a gross miscarriage of justice" to dismiss a case because the individual was unable to pay the filing fee. (Br. of Pet. 3.) Here, however, the court must dismiss the case because the Plaintiff failed to file all of the appropriate paperwork prior to the deadline, not because of his failure to pay the filing fee.

The entry is:

The Motion to Dismiss the Plaintiff's SOC Appeal is

ST~~.TE <::~-~~ \;t~. ~~~J~~ r:~~_:rr:b~~:·:~:\;~,~. :.::? ~:;~~n·

2 Mohamud was acting prose while these filings took place. His attorney entered an appearance on September 26, 2011. The court n<ay not grant him any special leeway as a pro se litigant. See Dep't of Envtl. Prot. v. \1\foodman, 1997 ME 164, 9I 3 n.3, 697 A.2d 1295 ("It is well established that prose litigants are held to the same standards as represented parties.").

Date Filed __0:...::9~---=1:.::::5_--=.1.=..1_ _ Cumberland Docket No. AP-11-4i County

Action ----'8~0"-'C"'---'A~pt::-.Jp"-'e""a""l=--------------

MUSE M. MOHAMUD STATE OF MAINE MAINE REVENUE SERVICE 1390 FOREST AVENUE, #7M PORTLAND, ME 04103 vs.

Plaintiff's Attorney Defendant's Attorney

:IDOOOOO{ William H Laubenstein III AAG J n Languet Esq Office of the Attorney General BOX 249 6 State House Station psharn ME 04086 837-6155 Augusta, ME 04333-0006

Date of Entry 2011

Sept 16 Received September 15, 2011.

II " Complaint for 80C Appeal with Attachments filP.d.