The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
SOMERSET, ss. DOCKET NO. AP-99-013
DHM- 80M - S]i1[aeee
BONALD L. GARBRECHT
ROGER MARTIN, et al., LAW LISAARY
Petitioners MAY 22 ond
v. ORDER
MAINE BOARD OF Po
DENTAL EXAMINERS, wee
Respondent
This matter is before the court on respondent’s motion to dismiss petitioner’s
M.R Civ. P. 80C petition for review. Petitioner Roger Martin fled his petition for
review on July 19, 1999. He is seeking review of respondent Maine Board of Dental
Examiners’ decision adopting certain unspecified rules and regulations on an
unspecified date regarding the profession of denturity. He alleges that the Maine
Board of Dental Examiners (hereinafter MBDE) violated the Maine Administrative
Procedure (hereinafter the APA) by adopting these rules without holding public
hearings denying him and others the opportunity to participate in the rulemaking
process. He claims that these rules have an adverse financial effect on his practice
and that they limit the general public’s right to choose their healthcare
professionals. He asserts that he was not notified of MBDE’s decision to adopt the
rules and regulations. He requests that the public hearings on the rules be
~
reopened! and that implementation of the rules be stayed pending review by this
court.
In considering a Rule 12(b)(6) motion to dismiss, the court should “consider
the material allegations of the complaint as admitted and review the complaint in
the light most favorable to the plaintiffs to determine whether it sets forth elements
of a cause of action or alleges facts that would entitle the plaintiffs to relief pursuant
to some legal theory.” Bussell v. City of Portland, 1999 ME 103, 731 A.2d 862. “A
dismissal is appropriate only when it appears beyond doubt that a plaintiff is entitled
- to no relief under any set of facts that he might prove in support of his claim.”
’ Dexter v. Town of Norway, 1998 ME 195, 715 A.2d 169. The legal sufficiency of a
complaint is a question of law. Sargent v. Buckley, 1997 ME 159, 697 A.2d 1272.
MBDE argues that this court is without jurisdiction to hear this appeal
pursuant to 5 M.R.S.A. § 8058 (1989). Section 8058(1) of the Maine code provides that
“{jJudicial review of an agency rule... may be had by any person who is aggrieved in
an action for declaratory judgment in the Superior Court conducted pursuant to
Title 14, section 5951, et seq., which provisions shall apply to such actions. wherever
not inconsistent with this section... .” Section 8058(2) provides that the “failure to
seek judicial review of an agency rule in the manner provided by subsection 1 shall
not preclude judicial review thereof in any civil or criminal proceeding.” Review of
Martin’s Rule 80C complaints reveals that he is only seeking review of MBDE’s
1 The fourth and fifth paragraphs of the petition allege the Board failed to hold public
hearings. The last paragraph demands that the public hearings be “reopened.” Petitioner has never
explained this contradiction.
decision to adopt certain rules and regulations. Pursuant to section 5058(1), he
needed to do this by filing a complaint for declaratory judgment pursuant to
14 M.RS.A. § 5951-5963 (1980). Petitioner has not responded to MBDE’s argument
that this court is without jurisdiction to hear this appeal pursuant to 5 M.R.S.A.
§ 8058 (1989). For all these reasons, Martin’s petition for judicial review should be
dismissed as a Rule 80C appeal is not the proper way for him to seek review of
MBDE’s action adopting the rules.
Petitioner’s only objection to defendant’s motion to dismiss is to argue that
_ the plaintiffs were parties-in-interest and consequently any calculation of the time
* within which a petition for review could be filed must commence from the date of
notice to the party of interest. Petitioner submits that no notice of the Board’s rules
which became effective May 25, 1999, were ever forwarded to the plaintiff. Title 5,
section 11002(3) of the Maine Code sets out two different periods of appeal
depending on the appellant’s role or status within the agency proceeding and
decision appealed therefrom. If the appellant was a “party to the proceeding of
which review is sought,” then the petition for review must be filed within 30 days
after the appellant receives notice of the agency action. If the appellant is “any other
person aggrieved” by the decision, then he has 40 days from the date the decision
was rendered within which to file a petition for judicial review. MBDE asserts that
the 40-day period for persons aggrieved by a decision is applicable and that that
period expired prior to Martin filing his petition. Martin claims that the 30-day
period for parties applies because he was a party-in-interest and because the appeal
period for parties runs from the date they receive notice of the agency decision, his
appeal period has not expired because he has never received notice of the agency
decision to adopt the rules. What then was Martin’s status in the proceedings he is
challenging?
The APA does not provide a definition for a “person aggrieved.” However,
the petitioner’s complaint for review alleges that the rules MBDE has adopted have
_ a negative impact on him financially. This allegation might qualify the petitioner as
"a person “aggrieved” by that action. However, the petition was not filed within the
40-day time period applicable to persons aggrieved by an agency decision.
Accordingly, in order for this appeal to proceed, petitioner’s complaint must show
that he was a party to the rulemaking proceedings.
The APA defines “party” as:
A. _ The specific person whose legal rights, duties or privileges are being
determined in the proceeding;
B. Any person participating in the adjudicatory proceeding pursuant to
section 9054, subsection 1 or 2; and
Cc. Any person bringing a complaint to Administrative Court under
section 10051.
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2 MBDE adopted the rules on March 5, 1999. The 40-day appeal period expired on April 14,
1999. Martin did not file his petition until July 19, 1999.
4
5 M.R.S.A. § 8002(7) (1989). Only. section 8002(7)(A) could possibly apply to the
petitioner as he did not intervene in the proceedings as provided in section 9054(1)
or (2) and he has not brought a complaint to Administrative Court. Therefore, the
issue is whether Martin is a “specific person whose legal rights, duties or privileges
[were] determined in the proceeding” adopting the rules.
In Brown v. State, Dep't of Manpower Affairs, 426 A.2d 880 (Me. 1981), the
Law Court was presented the issue of whether a person who bid on a State contract
in the competitive bidding process but was not awarded the contract was a “party” to
that decision. In considering section 8002(7)(A), the Law Court found that it was
* “unconvinced that use of the word ‘proceeding’ in this definition [was] anything
more than legislative shorthand for ‘adjudicatory proceeding.’” Id. (citing 5
M.R.S.A. § 8002(1) (defining adjudicatory proceeding); L.D. 1768 (108th Legis. 1977)
(commentary to 5 M.R.S.A. § 8002(7)). The Court concluded that the competitive
bidding process was not an adjudicatory proceeding and noted that even if it were,
the only person whose rights, duties or privileges were determined in the final
_ decision awarding the contract were those of the person who was actually awarded
the contract.
Considering the Law Court’s analysis in Brown, it appears that in order for
Martin to meet the definition of party in section 8002(7)(A), he needed to show in
his petition that his legal rights, duties or privileges were determined in an
adjudicatory proceeding. “Adjudicatory proceeding” is defined in the APA as “any
proceeding before an agency in which the legal rights, duties or privileges of specific
persons are required by constitutional law or statute to be determined after an
opportunity for hearing.” 5 M.R.S.A. § 8002(1) (1989). Martin’s petition does not
show that he was the specific person whose legal rights, duties or privileges were
determined in the rulemaking proceedings, rather, he has only shown that his
rights were generally affected by the decision to adopt the rules. Therefore, the
proceeding was not an adjudicatory proceeding and so Martin was not a “party” to
those proceedings.
Additionally, the petition fails to show this court that Martin was entitled to a
_ hearing prior to adoption of the rules under the Constitution or some specific
* statutory provision. In his petition, he asserts that the rules were adopted without a
hearing in violation of the APA. However, the APA only requires that “[p]rior to
the adoption of any rule, the agency shall give notice as provided in section 8053 and
may hold a public hearing, provided that a public hearing is held if otherwise
required by statute or requested by any 5 interested persons.” 5 M.R.S.A. § 8052
(Supp. 1999) (emphasis added). Martin has failed to cite this court to any specific
statutory provision expressly granting him the right to a public hearing prior to the
adoption of the rules at issue. Under 32 M.R.S.A. § 1073(2) (1999), the MBDE is given
the discretion to adopt rules in accordance with the APA necessary for the
implementation of Chapter 16 of Title 32 which contains the statutory provisions
governing denturists. Pursuant to 32 M.R.S.A. § 1100-C (1999), MBDE is require to
adopt rules necessary to implement the statutory provisions specifically pertaining
to denturists. Neither section 1073(2) nor section 1100-D require the MBDE to hold a
public hearing prior to the adoption of rules under those provisions and so the
rulemaking proceedings were not “adjudicatory proceedings” under the APA.
Martin has failed to show that the rulemaking proceedings were adjudicatory
proceedings which determined his legal rights, duties or privileges and therefore he
has failed to show that he was a party to those proceedings. Consequently, the 40-
day period of appeal in 5 M.R.S.A. § 11002(3) (1989) applies. Because the petition was
filed beyond the 40-day time period and because this court is without authority to
extend this statutory time period,’ MBDE’s motion to dismiss should also be granted
as Martin's petition was untimely filed.
For reasons stated above, the entry will be:
Respondent’s motion to dismiss is GRANTED.
D Dated: May _ (7 _, 2000 BEE
Donald H. Marden
Justice, Superior Court
3 See Brown, 426 at 887-88.
Roger Martin et al Personally &
on behalf of The Maine Denturist
ey
The Maine Board of Dental
Date Filed 07/19/99 Somerset Docket No. AP-99-013
- County
> Action __ Appeal _ — 80C DONALD: CAR ERECHT
Bh hee NOP EEC ‘
, LAW | Mea my 4
MAY 22 ongy
07/23/99
07/29/99
08/18/99
08/19/99
09/14/99
09/21/99
12/03/99
Association VS. Examiners
Plaintiff’s Attorney Defendant’s Attorney
Dale Thistle, Esq. James Bowie, AAG
PO Box 160 State House Station #6
Newport ME 04953-0160 Augusta ME 04333-0006
Tel: #368-7755 Tel: #626-8800
Bar: #7483 Bar: #2496
Date of
> Entry
07/21/99 Petition for Review and $120.00 Filing Fee received in hand from Attorney
Dale Thistle on 07/19/99.
Attested copy of the Petition and Docket Sheet forwarded to the Attorney
General's office on this day.
Complaint Summary Sheet received and filed 07/23/99.
Letter filed to Clerk on 07/26/99: "Please enter my appearance for
the Respondent. The Respondent opposes the petition for review, seeks
dismissal of the petition for review and seeks affirmance of agency
action. Thank you for your assistance.’ Very truly yours, James
Bowie, AAG.
Proposed Order, Motion for Enlargement of Time with which to File
the Record (with Incorporated Memorandum of Law), Proposed Order,
Request for Hearing, Memorandum of Law in Support of Respondent's
Motion to Dismiss the Petition for Review, and Motion to Dismiss
the Petition for Review with Exhibit A & B all received and filed
08/17/99.
Order filed. The Maine Board of Dental Examiners’ motion for enlargement
of time within which to file the record is GRANTED, without objection;
The time for filing the agency record is enlarged to thirty (30) days
after entry of this Court's order on the Board's pending motion to
dismiss the petition for review. Dated this 18th day of August 1999
at Skowhegan, Maine. /s/ Francis C. Marsano, JSC. cc: Dale Thistle,
Esq. and James Bowie, AAG.
Plaintiff's Objection to Defendant's Motion to Dismiss received and filed
09/08/99.
Respondent's Reply to Petitioner's Objection to Dismissal with Exhibit
A all received and filed 09/16/99.
Case was scheduled for hearing on Motion to Dismiss the Petition for
5157) cia
Date of
Entry
AP~99-013 (P2)
Docket No.
12/03/99
01/18/00
05/19/00
Motion for Continuance received and filed 12/01/99. Motion Granted.
Clerk to reset. Dated this 2nd day of December 1999 at Skowhegan, ©
Maine. /s/ Jeffrey L. Hjelm, JSC. cc: Dale Thistle, Esq. and James
Bowie, AAG.
Case scheduled for hearing on Motion to Dismiss the Petition for Review
on January 11, 2000 before the Hon. Donald H. Marden. Dale Thistle,
Esq. present for Plaintiff and addressed court. Richards was the attorney
present for the Defendant, in place of James Bowie, AAG, and addressed
court. Case taken under advisement.
Order filed. SEE ORDER FOR FURTHER DETAILS. Respondent's motion to
dismiss is GRANTED. Dated: May 17, 2000 /s/ Donald H. Marden, JSC.
cc: Dale Thistle, Esq. and James Bowie, AAG., Ms. Deborah Firestone,
The Donald Garbrecht Law Library, Goss Data Services.