Calnan v. Hurley

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION

Docket No. CV-22-188

)

CHRIS CALNAN et al., )

Plaintiffs,

Vv. )

SAM HURLEY, in his official role as ) ORDER ON PENDING MOTIONS

Maine Emergency Medical Services )

Director, )

and )

)

MAINE EMERGENCY MEDICAL )

SERVICES,

Defendants. )

)

Plaintiffs Calnan et al. (collectively <Plaintiffs=) have filed this declaratory

judgment action against Defendant Sam Hurley, in his official capacity as Director of

Maine Emergency Medical Services, as well as Maine Emergency Medical Services

(collectively, <Defendants=). For relief, Plaintiffs seek to invalidate a rule promulgated by

the Maine Emergency Medical Services Board (<MEMS Board=) imposing certain

vaccination requirements on EMS workers. Before the court are two dispositive motions:

(1) Defendants9 motion to dismiss and (2) Plaintiffs9 motion for summary judgment. Also

pending are Plaintiffs9 motion for leave to amend their statement of material facts and

Plaintiffs9 motion to exempt the parties from the ADR process.

BACKGROUND

The challenged immunization rule was promulgated in the wake of the Department

of Health and Human Services9 (<DHHS=) vaccination rule for healthcare workers, which

excluded EMS and dental personnel from its scope. See Pls.9 Compl. 4 13-23. On August

26, 2021, MEMS issued an emergency immunization rule. Pls.= Compl. § 24.

Simultaneously, MEMS began the process of promulgating a permanent immunization rule

for its workers. Pls.9 Compl. { 25. The permanent immunization rule4titled <Chapter 21

Immunization Requirements=4was ultimately adopted and went into effect on August 7,

2022. See Pls.9 Compl. Ex. A. The immunization rule essentially requires all EMS workers

who provide <direct patient care=! to provide proof of vaccination against COVID-19 and

to obtain an annual flu shot. See id. EMS workers are considered vaccinated against

COVID-19 when they have received all the recommended doses in the primary series. /d.

For statutory authority supporting the rule9s promulgation, MEMS cited 32 M.R.S. §

84(1)(A). Id.

This lawsuit was initiated in December 2022 by <individuals who lost employment

as EMS workers as a result of the implementation of the Immunization Rule.= Pls.= Compl.

{ 10. Plaintiffs characterize this matter as 88an action to determine the validity of the

[immunization rule]= pursuant to 5 M.R.S. § 8058 (see Pls.9 Compl. 7 1, 4), although they

reference MLR. Civ. P. 80C in a number of places as well. E.g., Pls.9 Compl. 7. As grounds

for challenging the rule, Plaintiffs assert that MEMS (1) lacked statutory authority to

promulgate the rule; (2) <may have also violated the rule-making procedures required

under the Administrative Procedures Act=; and (3) increased EMS worker shortages in

violation of its duties under the Emergency Medical Services Act (<EMS Act=). See Pls.9

Compl. {] 33-37, 54-55. Plaintiffs ask the court to invalidate the immunization rule; award

<compensation for lost wages and lost benefits under M.R. Civ. P. 80(C)(i) and 14 M.R:S.

§ 5960=; and award <compensation for other costs incurred under 14 M.R.S. § 5962.=

Defendants filed a motion to dismiss, which was followed by Plaintiffs9 motion for

summary judgment. Several additional motions are also pending, as noted below.

' <Direct Patient Care= means any activity that places an individual within six feet of a patient

for a period of fifteen minutes or more. Pls.9 Compl. Ex. A.

STANDARD OF REVIEW

Motion to Dismiss Standard

Defendants seek to dismiss the complaint pursuant to M.R. Civ. P. 12(b)(1),

12(b)(2), and 12(b)(6).

M.R. Civ. P. 12(b)(1). To the extent Defendants challenge this court9s subject matter

jurisdiction over Plaintiffs9 claims, that presents a question of law. Tomer v. Me. Human

Rights Comm'n, 2008 ME 190, § 9, 962 A.2d 335. <When a motion to dismiss is based on

the court's lack of subject matter jurisdiction, [the court] make[s] no favorable inferences

in favor of the plaintiff.= Jd.

M.R. Civ. P. 12(b)(2). With respect to rule 12(b)(2) motions challenging personal

jurisdiction, the court is not confined to the four corners of the complaint. Dorf v.

Complastik Corp., 1999 ME 133, 4] 12, 735 A.2d 984 (8Facts regarding jurisdictional

questions may be determined by reference to affidavits, by a pretrial evidentiary hearing,

or at trial when the jurisdictional issue is dependent upon a decision on the merits.9=).

<When the court proceeds only upon the pleadings and affidavits of the parties, the plaintiff

need only make a prima facie showing that jurisdiction exists, and the plaintiffs written

allegations of jurisdictional facts should be construed in its favor.= Jd. § 14 (quotation

marks omitted).

M.R. Civ. P. 12(b)(6). Finally, a motion to dismiss under rule 12(b)(6) <tests the

legal sufficiency of the complaint.= Livonia v. Town of Rome, 1998 ME 39, § 5, 707 A.2d

83. <For purposes ofa Rule 12(b)(6) motion, the material allegations of the complaint must

be taken as admitted.= /d. <In reviewing a dismissal, [the court] will examine the complaint

in the light most favorable to the plaintiff to determine whether it sets forth elements of a

cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some

legal theory.= Jd. <A dismissal should occur 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 claims.=

Id. (quotation marks omitted).

The general rule is that only the facts alleged in the complaint may be considered

on a motion to dismiss. Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, 4 8, 843

A.2d 43. However, <official public documents, documents that are central to the plaintiff's

claim, and documents referred to in the complaint may be properly considered on a motion

to dismiss without converting the motion to one for a summary judgment when the

authenticity of such documents is not challenged.= Jd. § 11.

Summary Judgment Standard

<A summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, referred to in

the statements [of material fact] show that there is no genuine issue as to any material fact

set forth in those statements and that any party is entitled to a judgment as a matter of law.=

Platz Assocs. v. Finley, 2009 ME 55, § 10, 973 A.2d 743 (quoting MLR. Civ. P. 56(c)). In

assessing whether this standard has been met, the court must view the facts in the light

most favorable to the non-moving party. Lightfoot v. Sch. Admin. Dist. No. 35, 2003 ME

24, | 6, 816 A.2d 63.

DISCUSSION

I. Defendants9 Motion to Dismiss

Defendants move to dismiss the complaint on three grounds. First, they seek

dismissal under M.R. Civ. P. 12(b)(2), arguing that Plaintiffs failed to name the proper

party. Second, they ask the court to dismiss any Rule 80C claims for lack of subject matter

jurisdiction pursuant to M.R. Civ. P. 12(b)(1). And finally, Defendants argue that dismissal

is required under MLR. Civ. P. 12(b)(6) because Plaintiffs9 Section 8058 challenge to the

immunization rule fails as a matter of law. These contentions are addressed below.

A. M.R. Civ. P. 12(b)(2)

Plaintiffs name Maine Emergency Medical Services and Sam Hurley, in his official

capacity as EMS Director, as defendants in this action. Defendants argue that dismissal is

warranted under M.R. Civ. P. 12(b)(2) because Plaintiffs failed to name the proper

defendant. According to Defendants, the EMS Board is the proper party because it is the

entity that has been vested with the authority to promulgate rules. The named defendants,

by contrast, <lack rulemaking authority= and <did not promulgate the rule= challenged in

this action. Defs.9 Mot. Dismiss 8.

<When a party seeks to sue an agency of the State, the proper party defendant is any

officer, office, department, agency, authority, commission, board, or institution against

whom the plaintiff has alleged a right to final relief.= Me. State Empl. Ass'n SEIU Local

1989 v. Dep't of Corr., 682 A.2d 686, 689 (Me. 1996). Moreover, the Law Court has held

that <[t]he mere misidentification of an agency of the State does not necessitate the

dismissal of the complaint.= /d. at 690. Rather, upon learning of the misidentification, the

court <should simply change the title of the case to reflect correctly the adversary parties

involved.= Id.

To place Defendants9 contention in context, it is helpful to review the Maine

Emergency Medical Services Act. The Act defines <Maine Emergency Medical Services=

to include <the board, the emergency medical services director and staff within the

Department of Public Safety responsible for carrying out the purposes of this chapter.= 32

M.R.S. § 83(16-A). The board is primarily responsible for carrying out the purposes of the

Act and has been vested with rulemaking authority. See 32 M.R.S. §§ 84, 88. The director

is charged with <administer[ing]

Maine Emergency Medical Services.= 32 M.R.S. § 88-A.

The board, director, and Maine EMS staff are <all under the auspices of the Department of

Public Safety.= Berard v. McKinnis, 1997 ME 186, ] 7 n.6, 699 A.2d 1148.

Here, Plaintiffs have appropriately named MEMS, a statutorily defined entity of

which the Board is a part. Plaintiffs also seek compensation for lost wages and benefits4

relief that if granted, would seemingly be enforceable against the director as head

administrator. See SEJU Local 1989, 682 A.2d at 689 (finding bureau was properly named

as a party where, inter alia, it could <be charged with providing part of the relief sought ...

or with insuring the Department's compliance with any judgment=). Moreover, even if

either party was misnamed, dismissal is not the appropriate remedy. Rather, the court

should simply recaption the matter to reflect the Board as the proper defendant. See id. 690.

B. M.R. Civ. P. 12(6)(1)

Although Plaintiffs9 complaint primarily relies on 5 M.R.S. § 8058 as the source for

this court9s jurisdiction, the complaint also references Rule 80C and asserts that the

challenged <rule is a final agency action affecting the rights, duties and privileges of the

individual Plaintiffs.= Pls.9 Compl. { 7. Defendants seek to dismiss any claims based on

Rule 80C for lack of jurisdiction because Plaintiffs fail to point to any adjudicatory decision

rendered by the agency; rather <the only agency-related action Plaintiffs appear to

challenge is the Board9s promulgation of the Rule.= Defs.9 Mot. Dismiss 8-10. Plaintiffs

suggest in reply that they are not making a separate claim for relief under Rule 80C, noting

that the rule is <only relevant to the Plaintiffs9 case insofar as 80C case law supports the

damages claims Plaintiffs are making under their declaratory action.= Pls.9 Reply to Defs.9

Omnibus Mem. 3 n.2.

Based on Plaintiffs9 filings, the court considers this action to be a challenge to the

agency9s rulemaking pursuant to 5 M.R.S. § 8058. There is no dispute regarding this

court9s ability to exercise jurisdiction under that provision. Thus, the primary question, as

discussed next, is whether Plaintiffs have stated a claim for relief under Section 8058.

C. M.R. Civ. P. 12(b)(6)

Defendants argue that Plaintiffs9 <Section 8058 claim seeking a declaratory

judgment that the rule is invalid should be dismissed as a matter of law.= Defs.9 Mot.

Dismiss 11. Section 8058 is the provision of the Administrative Procedure Act (<APA=)

addressing judicial review of rules and the rulemaking process. Cumberland Farms N., Inc.

v. Maine Milk Comm'n, 428 A.2d 869, 873 (Me. 1981). Under that provision, <judicial

review of an agency rule ... may be had by any person who is aggrieved in an action for

declaratory judgment in the Superior Court[.]= 5 M.R.S. § 8058(1).

Consistent with the terms of Section 8058, the Law Court has approached

rulemaking challenges in three steps: (1) <If the rule exceeds the rule-making authority of

the agency, it [will be deemed] invalid=; (2) <If a rule does not exceed the rule-making

authority, the court next reviews 8any other procedural error9 related to the promulgation

of the rule=; and (3) <if the rule is procedurally correct and within the agency's rule-making

authority, it is reviewed substantively 8to determine whether the rule is arbitrary,

capricious, an abuse of discretion or otherwise not in accordance with law.9= Conservation

Law Found. v. Dep't of Env9t Prot., 2003 ME 62, § 21, 823 A.2d 551.

Plaintiffs9 complaint poses a theory of relief that fits into each category. First,

Plaintiffs argue that the agency lacks statutory authority to promulgate rules governing

immunization. Second, they assert that the <agency may have also violated the rule-making

procedures required under the Administrative Procedures Act.= Pls.9 Compl. 4 55.

Plaintiffs later elaborate on this vague claim in their motion papers, contending that the

rule was improperly characterized as a <routine technical rule= and was promulgated

without the necessary legislative review and approval. Finally, Plaintiffs argue that the

<agency's rule making actions violated its duties and obligations under the Emergency

Medical Services Act by substantially increasing worker shortages and otherwise hindering

and preventing the provision of necessary and essential services to Maine communities.=

Pls.9 Compl. § 54. Each claim is addressed below.

1. The Agency9s Authority to Promulgate the Immunization Rule.

<State agencies may exercise only that power which is conferred upon them by law.=

Molasses Pond Lake Assoc. v. Soil & Water Conservation Com., 534 A.2d 679, 681 (Me.

1987). <*The source of that authority must be found in the empowering statute, which

grants not only the expressly delegated powers, but also incidental powers necessary to the

full exercise of those invested.9= Jd. Indeed, an authorizing statute may <grant{] such

powers as may be fairly implied from its language.= State v. Fin & Feather Club, 316 A.2d

351, 355 (Me. 1974). <These powers are: [1] those necessarily arising from powers

expressly granted, [2] those reasonably inferred from powers expressly granted, [and] [3]

those essential to give effect to powers expressly granted.= /d. <[A]n agency's construction

of the enabling statute is entitled to great deference= by the court. Molasses Pond, 534 A.2d

at 681.

In adopting the immunization rule, the Board relied on the authority conferred to it

in 32 M.R.S. § 84(1)(A). That provision states:

1. Powers and duties. The board has the following powers and duties.

A. The board shall conduct an emergency medical services program to

fulfill the purposes, requirements and goals of this chapter. The board

shall adopt the forms, rules, procedures, testing requirements, policies and

records appropriate to carry out the purposes, requirements and goals of

this chapter.

32 MLR.S. § 84(1)(A) (emphasis added); see also 32 M.R.S. § 88(2)(B) (<With the advice

of the commissioner, the board shall adopt rules in accordance with the Maine

Administrative Procedure Act to carry out this chapter.=).

Thus, the Board is vested with broad rulemaking authority that is limited only by

the requirement that the rule be appropriate to carry out a purpose, requirement, or goal

of the EMS Act. Jd. The purposes and goals of the Act are identified in Section 81-A:

It is the purpose of this chapter to promote and provide for a comprehensive

and effective emergency medical services system to ensure optimum patient

care. The Legislature finds that emergency medical services provided by an

ambulance service are essential services. The Legislature finds that the

provision of medical assistance in an emergency is a matter of vital concern

affecting the health, safety and welfare of the public.

It is the intent of the Legislature to designate that a central agency be

responsible for the coordination and integration of all state activities

concerning emergency medical services and the overall planning, evaluation,

coordination, facilitation and regulation of emergency medical services

systems. Further, the Legislature finds that the provision of prompt, efficient

and effective emergency medical dispatch and emergency medical care, a

well-coordinated trauma care system, effective communication between

prehospital care providers and hospitals and the safe handling and

transportation, and the treatment and nontransport under appropriate

medical guidance, of the sick and injured are key elements of an emergency

medical services system. This chapter is intended to promote the public

health, safety and welfare by providing for the creation of a statewide

emergency medical services system with standards for all providers of

emergency medical services.

32 MLR.S. § 81-A.

Some purposes and goals of the EMS Act, therefore, are <ensur[ing] optimum

patient care,= the <safe handling and transportation ... of the sick and injured,= and

<promot[ing] public health, safety and welfare.= /d. Thus, the court concludes that the

agency was acting pursuant to its statutory authority in promulgating the rule: by requiring

EMS workers who provide direct patient care to become vaccinated against transmissible

and potentially deadly diseases, the Board was taking <appropriate= action <to carry out= a

purpose or goal of the Act, 1.e., ensuring optimum and safe patient care and promoting

public health, safety, and welfare. See 32 M.R.S. §§ 81-A, 84(1)(A).

Moreover, contrary to Plaintiffs9 suggestions, the Legislature need not explicitly

grant the Board the power to adopt immunization requirements4as it did with DHHS4in

order for the Board to promulgate rules governing the vaccination of EMS workers.

Compare 22 M.R.S. § 802(1)(D)(3) (<[DHHS] may establish procedures for control,

detection, prevention and treatment of communicable, environmental and occupational

diseases, including public immunization and contact notification programs=). The Law

Court has explained that authority may be <reasonably inferred from powers expressly

granted.= Fin & Feather Club, 316 A.2d at 355. And here, the power to promulgate the

vaccination rules was gleaned by reasonable inference from the powers expressly set forth

in 32 MLR.S. § 84(1)(A); see also id. § 81-A.

Nor does the Legislature9s grant of immunization authority to DHHS preclude the

Board from adopting vaccination rules applicable to its own licensees. The notion that the

Board be allowed to adopt vaccination rules in an area where DHHS has not acted is fully

consistent with the considerable discretion professional boards have in policing their

licensees, as well as the Board9s prerogative to protect public health, safety, and welfare

through rules that reasonably regulate the occupation. See 32 M.R.S. §§ 81-A, 84(1)(A).

For all the forgoing reasons, the court concludes that the Board acted within its authority

when it adopted the challenged rule.

2. Alleged Procedural Errors Related to the Adoption of the Immunization

Rule.

Plaintiffs further assert that the Board improperly characterized the immunization

rule as a <routine technical rule94as opposed to a <major substantive rule9 4and

promulgated it without the necessary legislative review and approval. In response, the

Board maintains that the rule9s designation as <routine technical= was appropriate because

the enabling statute (32 M.R.S. § 84(1)(A)) was enacted in 1982, a time when all rules

were routine technical.

In 1995, the Maine Legislature amended the APA with legislation titled <An Act to

Ensure That Rulemaking by Agencies Does Not Exceed the Intent of Authorizing

Legislation.= See L.D. 1123 (117th Legis. 1995). Those amendments were designed <to

provide for greater legislative oversight of certain new agency rules.= L.D. 1123, Statement

of Fact (117th Legis. 1995). As a result of this amendment, the APA now recognizes two

categories of rules4<routine technical rules= and <major substantive rules= 4and for each

category, establishes a different rulemaking procedure. See 5 M.R.S. § 8071(2). <Major

substantive rules= are:

rules that, in the judgment of the Legislature:

(1) Require the exercise of significant agency discretion or interpretation

in drafting; or

(2) Because of their subject matter or anticipated impact, are reasonably

expected to result in a significant increase in the cost of doing business, a

significant reduction in property values, the loss or significant reduction

of government benefits or services, the imposition of state mandates on

units of local government as defined in the Constitution of Maine, Article

IX, Section 21, or other serious burdens on the public or units of local

government.

5 MLR.S. § 8071(2)(B). This category is subject to a full rulemaking procedure, and after

being provisionally approved by the agency, must be submitted to the Legislature for

review and authorization before final adoption. 5 M.R.S. § 8072; Stewart v. Maine Dep't

of Health and Human Services, ROCSC-CV- 12-063, (Mar. 12, 2014).

10

Meanwhile, <routine technical rules= are defined as <procedural rules that establish

standards of practice or procedure for the conduct of business with or before an agency and

any other rules that are not major substantive rules... .= 5 M.R.S. § 8071(2)(A). These

rules are subject to a comparatively limited rulemaking procedure and may be adopted by

the agency without prior legislative approval. See 5 M.R.S. § 8071(3)(A); Stewart,

ROCSC-CV- 12-063.

Under Section 8071, <[t]he Legislature reserved to itself the authority to assign an

agency's rules to one category or the other, and it does so at the time it adopts the legislation

authorizing the agency to promulgate the rules.= Stewart, ROCSC-CV-12-063 (emphasis

added). This is the reason why some authorizing statutes, such as the enabling statute under

which the Board acted in this case (see 32 M.R.S. § 84(1)(A)), do not specify whether the

agency rules to be promulgated are <routine technical= or <major substantive=: They were

enacted by the Legislature before the 1995 amendments and rule classification scheme took

effect.

For rules promulgated pursuant to 32 M.R.S. § 84(1)(A)4which is an authorizing

statute enacted prior to the 1995 amendments that has not been given a designation4the

<major substantive= classification and corresponding legislative approval requirement does

not apply. Rather, rules adopted under 32 M.R.S. § 84(1)(A) are subject to standard

rulemaking procedures4i.e., the procedures that apply to <routine technical rules.= See

L.D. 1123, Statement of Fact (117th Legis. 1995) (indicating in the statement of fact

accompanying the 1995 amendments that <[r]outine technical rules are subject to current

rule-making requirements=).

Indeed, Section 8071 is clear that <rules adopted pursuant to rule-making

authorization delegated to an agency after January 1, 1996 are subject to= the

classification scheme and other procedures established by the 1995 amendments. 5 M.R.S.

§ 8071 (emphasis added). Even the title of the subchapter in which the classification

scheme appears is telling: <Rulemaking Procedures Governing Rules Authorized and

Adopted after January 1, 1996.= In other words, it is not enough that the rules be adopted

1]

after January |, 1996; the statutory authorization allowing the agency to promulgate the

rules also has come after 1996.

Thus, because 32 M.R.S. § 84(1)(A) is a pre-1996 enabling statute and because the

Legislature has not subsequently amended the provision to include a <major substantive=

designation, the Board appropriately treated the immunization rule as a <routine technical=

rule that did not require legislative scrutiny or approval.

3. Whether the Immunization Rule Violated the A gency9s Duties and Obligations

Under the EMS Act by Increasing Worker Shortages.

Plaintiffs further maintain that the immunization rule contravenes the applicable

statutory scheme by increasing worker shortages, thereby preventing local governments

from maintaining the staff necessary to serve Maine communities. <When an agency

utilizes its expertise in setting policy, as long as it does not contravene its statutory

authority, [the court will] defer to its policy determinations.= Conservation Law Found.,

2003 ME 62, § 31, 823 A.2d 551.

As discussed above, the Board acted within its statutory authority when it

promulgated the immunization rule. Adopting a vaccination rule to promote public health

and safety4even if it ultimately had adverse effects on staffing4is a classic policy

decision that warrants deference by the court.

Because Plaintiffs9 challenges to the immunization rule fail as a matter of law,

Defendants9 motion to dismiss will be granted.

Il. Plaintiffs9 Motion for Summary Judgment and Other Pending Motions

Also pending are Plaintiffs9 (1) motion for summary judgment, (2) motion for

leave to amend their statement of material facts, and (3) motion to exempt the parties

from the ADR process. Having granted Defendants9 motion to dismiss, these motions

will be dismissed as moot.

The entry is:

e Defendants9 motion to dismiss is GRANTED;

12

e Plaintiffs9 motion for summary judgment is DISMISSED as moot;

e Plaintiffs9 motion for leave to amend their statement of material facts is

DISMISSED as moot; and

e Plaintiffs9 motion to exempt the parties from the ADR process is

DISMISSED as moot.

The clerk is directed to incorporate this order on the docket by reference pursuant

to MLR. Civ. P. 79(a).

Date: July 14, 2023 < Ve )

Michaela Murphy ~

Justice, Maine Superior Court

Entered on the docket 4+ | 3/22 .