Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stewart v. Maine Department of Health and Human Services

Superior Court of Maine, Knox

March 12, 2014

JOHN STEWART, Plaintiff
v.
MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant

DECISION AND JUDGMENT

A. M. HORTON JUSTICE, SUPERIOR COURT

In this declaratory judgment action, Plaintiff John Stewart asks the court to invalidate a rule promulgated by the Defendant Maine Department of Health and Human Services (DHHS) that establishes registration fees to be paid by dispensaries and caregivers under the Maine Medical Use of Marijuana Program.

The legal issue presented is: Under the rulemaking provision of the Maine Medical Use of Marijuana Act, 22 M.R.S. § 2424(1), may the DHHS adopt a rule establishing registration fees for the Maine Medical Use of Marijuana Program (MMMP), 10-144- C.M.R. ch. 122, § 7, as a "routine technical rule" for purposes of the Maine Administrative Procedure Act? See 5 M.R.S. § 8071(2), (3) (defining the categories of rules and rulemaking requirements for each).

Plaintiff asserts that, because section 7 of the MMMP rules sets agency fees that are not within any cap or range defined by the Maine Use of Medical Marijuana Act, 22 M.R.S, § 242 et seq., section 7 must be deemed a "major substantive rule, " and it must be invalidated because it has not been subjected to the formal rulemaking and legislative approval process that the Maine Administrative Procedure Act (Maine APA) mandates for "major substantive rules". DHHS asserts that, because the Maine Medical Use of Marijuana Act expressly provides that rules adopted pursuant to the Act are "routine technical rules" for purposes of the Maine APA, the court should uphold the challenged rule and does not need to decide whether it does or does not set agency fees within a statutory cap or range.

Factual Background

The parties have filed a Joint Stipulated Record in which the following facts are stipulated for purposes of this case. See DeCambra v. Carson, 2008 ME 37, ¶ 2, 953 A.2d 1163.

Plaintiff is a resident of Town of Washington, County of Knox, State of Maine, and is a registered caregiver under the Maine Medical Marijuana Program. (Joint Stip. Rec. ¶ 1). Pursuant to 22 M.R.S. § 2424(3), [1] DHHS adopted and continues to enforce "Rules Governing the Maine Medical Use of Marijuana Program 10-144 C.M.R, Chapter 122" (the "Rules") as "routine technical rulers]" that have not been approved by the Maine Legislature pursuant to 5 M.R.S.A. § 8072(1).[2] {See Joint Stip. Rec. ¶ 8), Section 7 "Fees" of the Rules establishes registration fees that must be paid by caregivers and dispensaries under the MMMP. (Joint Stip. Rec. ¶ 8).

Pursuant to Section 7 "Fees" of the Rules, Plaintiff Stewart made the following registration payments: $300 on March 3, 2011; $300 on April 27, 2011; $900 on April 30, 2012; $331 on February 15, 2013, and $900 on April 25, 2013, (Joint Stip. Rec. ¶ 9(a)-(e), all of which payments were accepted by DHHS, (Joint Stip. Rec. ¶ 10).[3]

Although it is not part of the stipulations, the Plaintiff does not appear to dispute that the DHHS Rules Governing the Maine Medical Use of Marijuana Program 10-144 C.M.R. Chapter 122, have been validly promulgated and adopted under the procedure applicable to "routine technical rules, " his point being that section 7 "Fees" of the Rules does not qualify as a "routine technical rule."

Procedural Background

On November 20, 2012, Plaintiff Stewart filed the instant action, seeking a declaratory judgment invalidating the fees section of the Rules Governing the Maine Medical Use of Marijuana Program, 10-144 C.M.R. ch. 122, § 7, because it is a "major substantive rule" that under the Maine APA had to be promulgated under formal rulemaking procedures and approved by the Maine Legislature. See 5 M.R.S.A, § 8072(l).

On August 7, 2013, by agreement of the parties, the court entered a scheduling order pursuant to which briefing on the stipulated record was bifurcated to focus on two separate issues. The first question to be resolved is whether the provision of the Maine Medical Use of Marijuana Act that authorizes DHHS to promulgate rules for the Maine Medical Use of Marijuana Program as "routine technical rules" within the meaning of 5 M.R.S.A. § 8071(2), included the authority to adopt a rule setting fees for MMMP as a "routine technical rule." If that question is were resolved in favor of DHHS, the court would uphold the rule and enter judgment for DHHS. However, if the first question were resolved in Plaintiff Stewart's favor, i.e., that the Maine Medical Use of Marijuana Act does not authorize DHHS to adopt a "routine technical rule" establishing fees regardless of any contrary provision in the Maine APA, the parties would then brief, and the court would decide, the second issue: whether the fees prescribed by Section 7 "Fees" of the Rules were established "under a cap or within a range set in the statute, " within the meaning of the Maine APA, 5 M.R.S. § 8071(3), thus qualifying the rule as a "routine technical rule."

Consistent with the scheduling order, this Decision and Judgment addresses the first issue only, and resolves it in favor of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.