The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. CV-2022-38
MERYL NASS, M.D.,
Plaintiff/Petitioner
V.
ORDER ON MOTION TO DISMISS
MAINE BOARD OF
LICENSURE IN MEDICINE and
DENNIS SMITH, Executive Director,
Defendants/Respondents
INTRODUCTION
On February 16, 2022, Dr. Meryl Nass, M.D. filed a Petition for Declaratory
Judgment and for Review of Agency Action, purportedly pursuant to M.R.Civ.P.
80B, 1 against the Maine Board of Licensure in Medicine (BLIM or the Board), and
its Executive Director. Nass seeks an order "revoking" two investigative subpoenas
issued by the Board directed at her in connection with an investigation of Dr. Nass
by the Board. Dr. Nass asserts that the subpoenas should be "revoked" by the court
because, it is alleged, they were issued in accordance with an unconstitutional
statutory scheme that does not provide for "pre-compliance judicial review."
Furthermore, she seeks a declaration that the Board's subpoenas violate the 4th
Amendment to the United State Constitution and that the statutes authorizing the
subpoenas are unconstitutional, both facially and as applied.
1 It is the court's understanding and belief that judicial review of state agency actions,
including the Board of Licensure in Medicine, is governed by M.R.Civ .P. BOC. See Cayer
.v. Town of Madawaska, 2016 ME 143, <ff 24 n.3, 148 A.3d 707; Annable v. Bd. of Envt'l Prat.,
507 A.2d 592,594 n.5 (Me. 1986).
The Board, on March 7, 2022, moved to dismiss the petition because (1) Dr.
Nass failed to exhaust her administrative remedies by seeking to vacate or modify
the subpoenas pursuant to 5 M.R.S. § 9060 (l)(C), and (2) the statutory framework,
as a matter of law, provides for pre-compliance or pre-enforcement judicial review
and, therefore, is constitutional.
In the Spring of 2022, the court was prepared to conduct oral argument in this
proceeding and a related matter brought by Dr. Nass against the Board in CV-2022
21, when counsel for Dr. Nass withdrew. New counsel entered their appearance on
May 11, 2022, and obviously needed time to become familiar with the issues in both
cases. On October 24, 2022, the court reached out to the parties to get a sense of
how the litigation stood. The proceedings in CV-22-21 have been stayed by
agreement of the parties. The parties have waived oral argument on the motion to
dismiss in this matter - CV-22-38.
DISCUSSION
The two subpoenas are dated January 12, 2022, and direct Dr. Nass to
produce: (1) her patient-appointment calendar from July 1, 2021 to the present; (2)
a list of all patients seen and treated (in-person or via telehealth) from July 1, 2021
to the present, and; (3) the complete medical records from July 1, 2021 to the present
relating to two identified patients.
Both subpoenas stated that they were being issued in furtherance of an
investigation the Board was conducting. They also advised Dr. Nass that if she
objected to either subpoena, she could petition the Board to vacate or modify them.
Dr. Nass did not attempt to have the Board vacate or modify either subpoena but,
rather, filed this action against the Board.
The Board has the statutory authority and duty to investigate complaints on
its own motion or on the complaint lodged by someone else. · 32 M.R.S. §§ 3269(8)
and 3282-A(l). Further, the Board is empowered to issue subpoenas "[i]n aid of
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[its] investigative authority" and "in accordance with the terms of Title 5, section
9060, except that the authority applies to any stage of an investigation and is not
limited to an adjudicatory proceeding." 10 M.R.S. §§ 8003-A(l) and 8001-A(4).
According to the terms of 5 M.R.S. § 9060(l)(C), any witness who has been
subpoenaed "may petition the agency to vacate or modify a subpoena issued in its
name," and the agency may grant the petition if it finds that the subpoenaed evidence
"does not relate with reasonable directness to any matter in question," or if the
attendance of the witness or the production of evidence is unreasonable, oppressive
or issued without sufficient advance notice.
As an initial matter, the Board seeks dismissal of this action because Dr. Nass
failed to exhaust her administrative remedies by petitioning the Board to vacate or
modify the subpoenas in accordance with section 9060( l )( C). The court agrees. The
doctrine of "exhaustion of administrative remedies" "rests on the premise that an
agency has the primary authority to make certain decisions deemed relevant to the
determination of the controversy." Bryant v. Town of Camden, 2016 ME 27, ~ 10,
132 A.3d 1183. The Law Court has stated that "a party must 'proceed in the
administrative arena until all possible administrative remedies are exhausted before
initiating action in the courts." Id. quoting Cushing v. Smith, 457 A.2d 816, 821
(Me. 1983).
Here, Dr. Nass has alleged that the subpoenas issued by the Board "are not
relevant to any legitimate investigation" and are overbroad. Title 5 M.R.S. §
9060(1 )(C) expressly authorizes the agency that issued a subpoena to vacate or
modify it because it seeks evidence that is not reasonably related to the matter in
question or because it is unreasonable or oppressive. Contrary to Dr. Nass' assertion,
the Board does have the authority "to adjudicate the validity of its own investigative
subpoena;" and the Board's decision on a petition to vacate or modify would
constitute final agency action, which would be appealable to the Superior Court. See
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Nat 'l Org. for Marriage v. Comm 'n on Governmental Ethics & Election Practices,
2013 ME 53, 1 2, 66 A.3d 579. See also McDonald v. Board of Osteopathic
Licensure, 2004 Me. Super. LEXIS 61 **2-3 (Mead, J.). Before resorting to
litigation in the courts, Dr. Nass could have and should have sought relief from the
Board as permitted by section 9060(1)(C).
Nevertheless, assuming that Dr. Nass was not required to petition the Board
for relief under section 9060(1)(C), she contends that the subpoenas are illegal and
in violation ofthe 4th Amendment because she does not have the opportunity for pre
compliance or pre-enforcement judicial review of the reasonableness of the
subpoenas. Her reliance on City of Los Angeles v. Patel, 576 U.S. 409 (2015),
however, is misplaced. In that case, the Supreme Court considered a city ordinance
that required hotels to maintain records of guests and to tum over such records to the
police upon demand. Failure to do so was punishable as a misdemeanor and
potentially subjected the hotel operator who failed to turn over the records to the
police to immediate arrest.
Dr. Nass is not subject to such a scheme under Maine law. If Dr. Nass fails
to comply with the Board's subpoenas, the Board my seek to enforce compliance
through a contempt proceeding in court, where Dr. Nass would receive judicial
review of the reasonableness of the subpoenas before any penalties for non
compliance could be imposed. 5 M.R.S. § 9060(1)(0). Such a procedure complies
with the 4th Amendment.
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CONCLUSION
The entry is:
Respondent's Motion to Dismiss is GRANTED.
The clerk is directed to incorporate this Order into the docket of this civil case
by notation reference in accordance with M.R.Civ.P. 79(a).
Dated: December 21, 2022
./· ..
W 1lham R. Stokes
Justice, Superior Court
JUDGMENT ENTEREiL\ 2 lZl t2 2,
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