Reiser v. Maine Bd. of Pharm.

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. Civil Action

Docket No. AP-00-015

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MARTIN REISER,

Petitioner

Vv.

DECISION AND ORDER

MAINE BOARD OF PHARMACY,

wee ee Ne ee ee ee ee we

Respondent

This matter is before the court on the respondent’s motion to dismiss the

petitioner’s appeal. The motion claims that this court lacks jurisdiction over this

appeal and it ought therefore be dismissed. For the reasons set out herein, the

motion is to be granted.

The petitioner was disciplined by the Maine Board of Pharmacy (Board) and,

apparently discontent with that action, appealed to the Administrative Court which

thereafter affirmed the Board’s action. He then filed a notice of appeal to this court,

believing that it had jurisdiction to further review this matter in its appellate

capacity. The Board, correctly perceiving that the petitioner has selected the wrong

forum to pursue his appeal, asks this court to dismiss the case.

The Maine Pharmacy Act, 32 M.R.S.A. § 13701-13810 (1998 & Supp. 1999),

establishes the Maine Board of Pharmacy and authorizes it to take disciplinary

action against a licensed pharmacist. Id. §§ 13711, 13741. If the Board determines

that disciplinary action is to be taken against a pharmacist, it may take a variety of

.

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actions “it deems appropriate as set forth in Title 10, Section 8003, subsection 5. . .”.

Id. § 13741. That provision reads in pertinent part as follows:

The jurisdiction to suspend occupational and professional

licenses conferred by this subsection is concurrent with

that of the Administrative Court. Civil penalties must be

paid to the Treasurer of State.

Any nonconsensual disciplinary action taken under

authority of this subsection may be imposed only after a

hearing conforming to the requirements of Title 5, chapter

375, subchapter IV, and is subject to judicial review

exclusively in the Administrative Court in accordance

with Title 5, chapter 375, subchapter VIL, substituting the

term “Administrative Court” for “Superior Court,”

notwithstanding any other provision of law.

10 M.R.S.A. § 8003(5) (Supp. 1999) (footnotes omitted).

The meaning of these cited statutes is plain and reveals a legislative intent

that the Board has the power to discipline pharmacists and that its authority to do so

is concurrent with the jurisdiction of the Administrative Court when the discipline

1

entails suspension of licensure.* Cook v. Lisbon School Comm., 682 A.2d 672, 676

(Me. 1996) (stating that when a court interprets a statute it must first look to the

plain meaning of the statutory language to give effect to legislative intent). Further,

when the Board imposes nonconsensual disciplinary action, including license:

suspension, the Administrative Court has the exclusive authority to review such

action in accordance with Title 5, chapter 375, subchapter VII (5 M.R.S.A. §§ 11001-

1 This case did not involve the suspension of the petitioner’s license and therefore was properly

heard by the Board. See also 5 M.R.S.A. § 10051(1) (stating that the Administrative Court has

jurisdiction to revoke or suspend licenses issued by an agency upon complaint of the agency or the

Attorney General).

11008 (1989)). Moreover, when reading section 11001 of the cited subchapter, one is

required by section 8003(5) of Title 10 to substitute “Administrative Court” for

“Superior Court,” “notwithstanding any other provision of law.” Consistent with

this legislative direction, 5 M.R.S.A. § 11001(1) must therefore be read in pertinent

part with these substituted words as follows:

“. .. any person who is aggrieved py final agency action

shall be entitled to judicial review thereof in the

[Administrative Court] in the manner provided by this

subchapter.”

These statutory directions to proceed to the Administrative Court for

appellate review of disciplinary decisions by professional boards are repeated at 5

M.R.S.A. § 10051(3) (Supp. 1999) and 4 M.R.S.A. § 1151(2-A) (1989). Section 10051(3)

of Title 5 reads:

3. Appellate jurisdiction. The Administrative Court has

exclusive jurisdiction to review disciplinary decisions of

occupational licensing boards and commissions taken

pursuant to Title 10, Section 8003 . . . The Maine

Administrative Procedure Act, chapter 375, subchapter

VII, governs these proceedings as far as applicable,

substituting “Administrative Court” for “Superior Court.”

(footnote omitted). Section 1151(2-A) of Title 4 reads:

2-A. Appellate jurisdiction. The Administrative Court

shall have exclusive jurisdiction to review disciplinary

decisions of occupational licensing boards and

commissions taken pursuant to Title 10, section 8003. The

Main [sic] Administrative Procedure Act, Title 5, chapter

375, subchapter VII, shall govern this procedure as far as

applicable, substituting “Administrative Court’ for

“Superior Court.”

(footnote omitted).

Thus, all the statutory provisions which specifically reference appellate

procedure to be followed after a professional licensing board imposes disciplinary

action require that appellate review be undertaken by the Administrative Court,

that chapter 375, subchapter VII of the Administrative Procedures Act governs this

appellate procedure, and that wherever “Superior Court” appears in that subchapter

“Administrative Court” is to be substituted.

Continuing to follow this legislative guidance as to the appropriate appellate

procedure as it may be found in Title 5, chapter 375, subchapter VII, and substituting

the words “Administrative Court” for “Superior Court,” one is directed at section

11008 of this subchapter that when an appeal to the Law Court is desired, “[a]ny party

to the review proceeding in the [Administrative Court] under this subchapter may

obtain review by appeal to the Supreme Judicial Court sitting as the law court... .”

5 M.R.S.A. § 11008(1).

Thus, because all the statutes applicable to appeals from licensing board

disciplinary decisions consistently require adherence to the procedure prescribed

within the cited subchapter, it can only be concluded that once the Administrative

Court has heard and disposed of an appeal in this context, the next appellate step is

to the Law Court and not to this court. To read these provisions otherwise is to

ignore their plain meaning and to defy the law’s requirement that a court reviewing

statutory language is to give effect to legislative intent so that the result reached is

harmonious with the whole statutory scheme. Daniels v. Tew Mac Aero Servs.,

Inc., 675 A.2d 984, 987 (Me. 1996).

Nevertheless, the petitioner cites the court to 4 M.R.S.A. § 1157 (1989) and M.

Admin. C.R. 73(a) to support his argument that he may proceed from the

Administrative Court to this court for a review of the former’s decision. The cited

statute reads:

Judicial review of an Administrative Court decision may

be had in the Superior Court in the manner provided by

rules adopted for this purpose by, the Supreme Judicial

Court. The resulting Superior Court Decision may be

appealed by any party thereto, in the same manner as in

other civil cases, to the Supreme Judicial Court, sitting as

the law court.

M. Admin. C.R. 73(a) reads:

(a) Appeal Generally. Except as provided in subdivision

(b) of this rule, Rule 76D of the Maine Rules of Civil

Procedure governs procedure on appeal to the Superior

Court, substituting “Administrative Court” for “District

Court” and “decision” for “judgment” wherever those

terms appear.

Thus, he argues, while the respondent may be correct that an appeal of a

professional disciplinary action may be taken directly to the Law Court from the

Administrative Court, the Legislature also intended that an aggrieved licensee, by

virtue of the cited statute and rule, can take an additional or intermediate appeal to

the Superior Court. This argument fails for several reasons.

First, there is a basic maxim in statutory interpretation that,

[w]here one statute deals with a subject in general terms,

and another deals with a part of the same subject in a

more detailed way, the two should be harmonized if

possible; but if there is any conflict, the latter will prevail,

regardless of whether it was passed prior to the general

statute, unless it appears that the Legislature intended to

make the general act controlling.

Koch Refining Co. v. State Tax Assessor, 1999 ME 35, 7 6, 724 A.2d 1251, 1253

(quoting Butler v. Killoran, 1998 ME 147, { 11, 714 A.2d 129, 133-34). Applying that

rule of construction to the debate at hand, it is evident that the more generalized

provisions relied on by the petitioner must yield to the specific legislative directions

that apply to appeals of administrative decisions affecting professional licenses that

do not originate in the Administrative Court. This conclusion is not inconsistent

with M. Admin. C.R. 73(a) which is designed to effectuate appeals from the

Administrative Court to the Superior Court when such is the appropriate appellate

step. When it is not, obviously the cited rule cannot apply because where there are

statutory requirements for making or perfecting an appeal, they require strict

compliance. Rice v. Amerling, 433 A.2d 388, 391 (Me. 1981) (citing Harris Baking Co.

v. Mazzeo, 294 A.2d 445, 453 (Me. 1972)). A court-made rule can not supersede a

legislative direction concerning appellate jurisdiction because the powers of a court

to review cases are “entirely and exclusively those plainly conferred by statute.” Id.

(quoting Papapetrou v. Edgar, 290 A.2d 202, 204 (Me. 1972)).

The Law Court, as the ultimate rule-making authority on court procedure,

and consistent with its acknowledgement of legislative authority to define a court’s

appellate authority, has refused to construe a rule of procedure in a way “to extend

the statutory jurisdiction of the Superior Court.” McNamara v. Elbthal, 515 A.2d

747, 748 (Me. 1986). That being so, this court is, of course, constrained from adopting

an interpretation of M. Admin. C.R. 73(a) which confers appellate jurisdiction on

this court when the Legislature has specifically prescribed an appellate process which

_”

does not include this court when the matter to be appealed is, as here, a professional

> disciplinary matter which has already been appealed to the Administrative Court.

All this being so, this court must concur with the respondent, and conclude

that it lacks appellate jurisdiction in this case and, therefore, grants the pending

motion.

Accordingly, the entry will be: e

Motion to Dismiss Petitioner’s Appeal is GRANTED.

So Ordered.

l

Dated: July ©, 2000 Le Low (gp wee

( John R. Atwood ~

Justice, Superior Court

ate Filed

3/13/00 _ | Kennebec Docket No. APOO-15

County

Martin Reiser

Action Administrative Court Appeal

ys, Maine Board of Pharmacy

Augusta Me

Date of

Entry

Plaintiff’s Attorney Defendant’s Attorney

James E Mitchell Esq James M Bowie AAG 3/22/00

86 Winthrop St 6*State House Sta

04330 Augusta Me 04333

3/13/00

3/22/00

> 3/24/00

3/31/00

4/3/00

4/21/00

5/26/00

5/26/00

5/30/00

6/30/00

Notice of appeal from the Administrative Court with all papers filed.

Agency record (including 9 audio cassettes filed in Vault drawers.

Letter entering appearance filed. s/Bowie AAG

Motion to dismiss petitioners appeal M.R. Civ.P. 12(b)(1) filed.

s/Bowie AAG

Memorandum of law in support of respondents motion to dismiss the

appeal filed. s/Bowie AAG

Request for hearing filed. s/Bowie AAG

Proposed order filed.

Petitioner's Response to Respondent's Motion to Dismiss, filed.

s/Mitchell, Esq.

Respondent's Reply Memorandum in Support of Dismissal of Petitioner's

Appeal, filed. s/Bowie, AAG

Copy of letter to James E Mitchell Esq regarding time periods filed.

s/Chute Clerk of Law Court

Request for Record on Appeal, filed. s/Mitchell, Esq.

REQUEST FOR RECORD ON APPEAL, Marden, J.

Issue before this court is jurisdictional at this time, request GRANTED.

Copies mailed to attys of record.

BONALD L. GAR Reece

Record picked up by Plaintiff LAW LIBRAS 7

Notice of setting for b/ 24 Loo AUG 15 200

sent to attorneys of record.

Hearing had on Motion to Dismiss held on 6/29/00 with Hon. Justice John

Atwood, presiding.

James Mitchell, Esq. for the Plaintiff and James Bowie, AAG for the Deft.

Oral arguments made to the court. Court to take matter under advisement.