The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. AP-08-77
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MAINE SCHOOL AD:rvrrNISTRATIVE
DISTRICT NO. 63 (MSAD No. 63),
Petitioner
v. DECISION
COMMISSIONER OF THE
DEPARTMENT OF EDUCATION,
Respondent
And
LOUISE REGAN,
Party-In-Interest
Before this court is party-in-interest Louise Regan's motion to dismiss the
petitioner's 80C appeal pursuant to M.R. Civ. P. 12(b)(6) for failure to state a claim upon
which relief can be granted.
Louise Regan is the former Superintendent of MSAD No. 63. She was terminated
from her employment as Superintendent by the MSAD No. 63 School Board. She
appealed the Board's decision on August 6,2008, pursuant to 20-A M.R.S. § 1052(3).
Ms. Regan requested and suggested that the Commissioner stay her appeal while
a federal lawsuit was litigated in Federal District Court. The Commissioner granted the
request and stayed all the proceedings in the appeal until completion of the federal
lawsuit.
MSAD No. 63 filed an 80C appeal (Petition For Review Of Failure Or Refusal To
Act) arguing that the Commissioner must act on the pending appeal and that the
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Commissioner has no discretion to continue or stay the appeal pending the conclusion
of federal litigation. Regan has filed this Motion to Dismiss MSAD 63's 80C appeal.
Discussion
Petitioner argues that the stay constitutes an illegal delay in the appellate
process. Petitioner asserts that the appeal to the Commissioner of Education by Louise
Regan must be decided on the record established before the MSAD 63 school board and
not an adjudicatory hearing requiring presentation of evidence and examination of
witnesses.
An initial detennination of this issue is critical because there would be no reason
to hold off the appeal while the federal case is pending if the appeal was simply on the
record before the school board. However, if the parties to the appeal were able to
develop the facts prior to an adjudicatory hearing before the Commissioner, then there
is a legitimate interest in judicial economy in allowing the development of the facts by
way of the discovery process in the federal litigation. It would be inefficient for the
parties to proceed through a discovery process in the appellate procedure as well as a
discovery process in the federal litigation.
This court concludes that Louise Regan's appeal to the Commissioner of
Education is entitled to an adjudicatory hearing as set out in Title 5, Maine
Administrative Procedures Act.
Title 20-A M.R.S. § 3 states that rules conducting adjudicatory hearings shall be
held in accordance with the Maine Administrative Procedures Act.
Title 20-A M.R.S. § 1052(3) states that the Superintendent may appeal a school
board's decision to the Commissioner and the Commissioner shall hold a hearing as
part of the appeal. A hearing under this section necessarily includes a right to present
evidence and examine witnesses. The language contained in Title 20-A M.R.S. § 1052(3)
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uses the term "hearing" rather than" adjudicatory hearing" but so does in the language
contained the Maine Administrative Procedures Act, Title 5, §§ 952 and 952-A. They all
use the term "hearing" rather than "adjudicatory hearing." They mean the same thing.
Although section 1052(3) does not define "hearing" as an adjudicatory hearing under
Title 5, most authorities equate the term "hearing" with a proceeding where evidence is
admitted and witnesses are examined.
In Naylor v. Cardinal Local District of Education, 630 N.E.2d 725, 731 (Ohio 1994),
the court held that a statutory hearing provided to a teacher disputing a nonrewewal of
a contract includes the presentation of evidence and the examination of witnesses. See
also Watahomigie v. Arizona Brd. of Water Quality, 887 P.2d 550,560-561 (Ariz. Ct. App.
1994).
By explicitly stating that any appeal under section 1052(3) would entitle the
appellant to a hearing, the legislature clearly intended more than a review of the record
below.
iIt is not clear whether the Commissioner needs a good reason to continue or stay
the appeal of Regan pending the completion of the federal litigation; nevertheless, this
court finds and concludes that federal litigation involving the same facts and the
possible overlap of remedies certainly gives the Commissioner a good reason to
continue the appeal. If the appeal did proceed at the same time as the federal litigation,
the Commissioner most likely will be dealing with discovery and scheduling issues at
the same time as the federal courts would be dealing with the same issues.
The development of the facts during the discovery process will not be duplicated
by a discovery process in both the federal litigation and the appellate procedure before
the Commissioner. There is no question that the discovery of evidence in the federal
litigation will be used in the appellate process. Furthermore, the disposition of the case
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at the federal level may result in the resolution of the appeal. As stated above, the court
is not certain that the Commissioner needs a good reason to continue or stay the appeal
pending the federal litigation; however, this court finds and concludes that there is a
good reason to continue and stay the appeal pending the federal litigation.
For this reason, the court finds that the Regan's motion to dismiss this pending
SOC appeal shall be GRANTED. It is hereby ORDERED that the petitioner's SOC appeal
is hereby DISMISSED.
The clerk is directed to incorporate this Order into the docket by reference.
Dated: January ?-\ ,2009
Attorney for Petitioner
Brian Dench
P.O. Box 3200
Auburn, ME 04212-3200
Attorney for Respondent
Sarah Forster
Office of Attorney General
6 State House Station
Augusta, ME 04333-0006
Attorney for Party in Interest
Thad Zmistowski
P.O. Box 1210
Bangor, ME 04402-0111
Date Filed _~1~1"--,L---"1,",,,,3'-LL-,,,,0-'L8_ _ Kennebec Docket No. __--..eA.....P-uOCLJ8c=-:.L7..L7 ~ .
County
Action _ _~P"--'e"'_t....i""-t....i. .,QJ.jn"__.ofLJQ"_r"_____JR""'e"_'ylLi.. ,ec:.JwllL_ _
80C
Maofna ' .1 • .:I." Di!'lt'rict' VS. C:omm Qf Depart. Qf Education et al
Plaintiff's Attorney 1163 Defendant's Attorney
Sarah FQrster AAG
- Bryan M. Dench, Esq. 6 State HQuse StatiQn
95 Main Street Augusta ME 04333-0006
P.O. BQX 3200 (fQr LQuise Regan)
Auburn, maine 04212-3200 Thad ZmistQwski Esq
-Kelly M. HQffman, Esq. PO BQX 1210
PO BQX 3200 BangQr ME 04402-1210
Auburn, ME 04212-3200
Date of
Entry
11/13/08 PetitiQn fQr Review, filed. s/Dench, Esq.
12/09/08 Filed 12/04/08: Entry Qf Appearance Qn behalf Qf CQmmissioner Qf
the Department Qf Education filed by AAG Forster. CQmmissiQner's
pQsitiQn is that the petitiQn fails tQ identify a failure tQ act.
Filed 12/05/08: MQtion to dismiss filed by Atty ZmistQwksi, attorney
fQr LQuise Regan.
12/26/08 Letter entering appearance, filed 12/10/08. s/HQffman, Esq.
12/26/08 MotiQn TQ Dismiss PetititiQn And FQr Stay Of Filing Administrative
RecQrd With InCQrporated MemQrandum Of Law, filed 12/10/08. s/FQrster, AAG
12/24/08 Plaintiff-Petitioner's MemQrandum in OppQsitiQn tQ MQtiQn tQ Dismiss,
filed. s/HQffman, Esq.
1/2/09 Reply to Plaintiff Petitioners' MemQrandum in OppQsitiQn tQ MQtiQn tQ
Dismiss, filed. s/Dumais, Esq.
1/5/09 Letter regarding MQtiQn tQ Dismiss, filed. s/HQffman, Esq.
sent to attorneys of record
1/8/09 Hearing held with HQn. Justice JQseph Jabar, presiding.
Bryan Dench, Esq. fQr the PetitiQner and Sarah FQrster,AAG for the
RespQndent.
Oral arguments made tQ the CQurt. CQurt tQ take matter under advisement.
1/22/09 DECISION, Jabar, J. (1/21/09)
FQr this reaSQn, the CQurt finds that the Regan's MQtion tQ dimiss this
pening 80C appeal shall be GRANTED. It is hereby ORDERED that the petitiQner
80C appeal is hereby DISMISSED.
CQpies mailed tQ attys. Qf recQrd.