Moore v. Abbott

• Court: Superior Court of Maine
• Decided: March 22, 2007
• Docket: CUMap-06-49
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT / CUMBERLAND, ss. CIVIL ACTION LJq ~ DOCKET NO. AP-06-3V Z n~l .... \.1i ~u 0 j') IrH l .:..... L 0 l -1­ 3 I "). er-,.l\oJo<' J: r - i_,. C' .A.. (\ '1 - !.•• J \ ?,-,' <- .'. ......;_ (' C'!" ). /

JAMES P. MOORE

Petitioner v. ORDER ON MOTION TO DISMISS CHARLES ABBOTT, ESQ., HON. EUGENE BEAULIEU, and MARVIN GLAZIER, ESQ.

Respondents AUG 0 ~ luul

Before the Court is Respondents Honorable Eugene Beaulieu, Marvin

Glazier and Charles Abbott's ("Respondents") motion to dismiss Petitioner

James P. Moore's ("Petitioner") appeal pursuant to M.R. Civ. P. 80C and 1

M.R.S.A. § 409(1) of Respondents' failure to comply with Petitioner's Freedom of

Access Act ("FOA") request. Specifically, Petitioner requested access to files,

records and reports compiled during Respondents' review of allegations of

misconduct by law enforcement and prosecutors in connection with the trial of

Dennis Dechaine for the 1988 murder of Sarah Cherry. This review was

conducted at the request of Attorney General G. Steven Rowe.

Respondents argue that Petitioner's appeal must be dismissed because of

a failure to comply with time limits established by 1 M.R.S.A. § 409(1) as well as

for a failure to properly serve process on Respondents.

In relevant part, the FOA sets out the following requirement regarding

time limits for appeal:

If any body or agency or official, who has custody or control of any public record, shall refuse permission to so inspect or copy or abstract a public record, this denial shall be made by the body or 1 agency or official in writing, stating the reason for the deniaL within 5 working days of the request for inspection by any person. Any person aggrieved by denial may appeal therefrom, within 5 working days of the receipt of the written notice of deniaL to any Superior Court within the State.

1 M.R.S.A. § 409(1). Respondents argue that because Petitioner's initial request

for information was dated August 30,2006 and because his appeal was not filed

until September 20, 2006, the appeal is untimely.

Respondents' argument ignores the uncontroverted fact that they never

responded to Petitioner's request. By its terms, § 409(1)'s time limit for filing an

appeal "applies only when a written notice of denial is received by the citizen

who requested access. The statute, however, specifies no time limit when a de

facto denial occurs as a result of a governmental agency's failure to fulfill its

statutory duty." Cook v. Lisbon Sch. Comm., 682 A.2d 672, 679 (Me. 1996). That is

precisely the situation in this case. Because Petitioner never received written

notice that his request had been denied, his time limit for filing an appeal was

not controlled by § 409(1).

Because the time limit for Petitioner's appeal was not controlled by §

409(lt the general time limits for Rule 80C appeals applied. See id. Under Rule

80C when review is sought of lithe failure or refusal of an agency to act/' time

limits for review are provided by 5 M.R.S.A. § 11002(3). M.R. Civ. P. 80C(b). That

statute states that in such a situation, lithe petition for review shall be filed within

6 months of the expiration of the time within which the action should reasonably

have occurred. 5 M.R.S.A. § 11002(3). Petitioner's FOA request was dated August

30, 2006 and he filed his appeal in this case on September 20, 2006. Under this

standard, Petitioner's complaint was clearly timely.

2 Respondents' argument regarding insufficiency of service of process is

also unavailing. Respondents argue that, per M.R Civ. P. 4(d)(I), Petitioner was

required to personally serve each Respondent in the manner provided by that

rule. The requirements for service on a Rule 80C appeal, however, are not

controlled by Rule 4(d)(I), but by Rule 80C(a). Under that rule,"[a] petition for

review shall be served as provided by 5 M.R.S.A. § 11003." M.R. Civ. P. 80C(a). 5

M.R.S.A. § 11003, in turn, states that "[t]he petition for review shall be served by

certified mail, return receipt requested, upon: A. The agency; B. All parties to the

agency proceeding; and C. The Attorney General." Petitioner complied with

these requirements. As a result, Respondents were properly served. 1

Therefore, the entry is:

Respondents' motion to dismiss for untimely filing is DENIED. Respondents' motion to dismiss for insufficiency of service of process is DENIED.

The clerk shall incorporate this Order into the docket by reference pursuant to M.R. Civ. P. 79(a).

Dated at Portland, Maine this 2l"'~ day of jl(tf,.v.~ ,2007.

!ldL Robert E. Crowley Justice, Superior Court

1In their brief, Respondents summarily state that they "deny that they are a body or agency or official" within the meaning of the FOA. At oral argument, counsel for Respondents expanded upon this assertion, arguing that application of the four factor test for determination of whether an entity qualifies as a public agency demonstrates that Respondents do not qualify. See Dow v. Caribou Chamber of Commerce and Indus., 2005 ME 113, err 12, 884 A.2d 667, 670. This analysis, however, requires a consideration of the facts and circumstances of the case that would be inappropriate on the present motion to dismiss. 3 Date Filed 9-20-06 CUMBERLAND Docket No. -----'A~P'--~0~6~-~42___~__ County

Action _ _8_0_C_A_P~PE_A_L" _ _~ _

• JAMES P. MOORE CHARLES ABBOTT, ESQ HON EUGENE BEAULIEU MARVIN GLAZIER, ESQ

YS.

Plaintiff's Attorney Defendant's Attorney

JAMES P. MOORE (PRO SE) SETH HARROW, ESQ. (BEAULIEU & GLAZIEI PO BOX 1032 PO BOX 919 BRUNSWICK ME 04011 BANGOR ME 04002-0919 947-6915 JOHN COLE, ESQ. (ABBOTT) PO BOX 3200 AUBURN, ME 04212-3/00 ..,,.., ­