United States District Court, D. Maine
For MAINE MUNICIPAL ASSOCIATION, Plaintiff: JAMES D. POLIQUIN, PETER J. DETROY, III, RUSSELL PIERCE, LEAD ATTORNEYS, NORMAN, HANSON & DETROY, PORTLAND, ME.
For CITY OF PORTLAND, CITY OF WESTBROOK, Plaintiffs, Counter Defendants: JAMES D. POLIQUIN, PETER J. DETROY, III, RUSSELL PIERCE, LEAD ATTORNEYS, NORMAN, HANSON & DETROY, PORTLAND, ME.
For REHMA REBECCA JUMA, SUAVIS FURAHA, Intervenor Plaintiffs: JACK B. COMART, ROBYN R. MERRILL, LEAD ATTORNEYS, MAINE EQUAL JUSTICE PARTNERS, AUGUSTA, ME; ZACHARY L. HEIDEN, LEAD ATTORNEY, AMERICAN CIVIL LIBERTIES UNION OF MAINE FOUNDATION, PORTLAND, ME.
For MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES, MARY MAYHEW, Commissioner, Maine Department of Health and Human Services, Defendants, Counter Claimants: CLIFFORD RUPRECHT, LEAD ATTORNEY, ROACH RUPRECHT SANCHEZ & BISCHOFF, P.C., PORTLAND, ME.
ORDER ON MOTION TO REMAND
JOHN A. WOODCOCK, JR.,
CHIEF UNITED STATES DISTRICT JUDGE
The rules under which a federal court evaluates whether to retain a case removed from state court are occasionally obtuse. Here, the Plaintiffs filed a complaint in state court, the Defendants removed it to federal court, and the Plaintiffs want it returned to state court. Under rules peculiar to a federal court's retention of jurisdiction in such a case, the Court agrees with the Plaintiffs that the case belongs in state, not federal, court and remands the case to state court.
In making this ruling, however, the Court cautions the parties that it is making no express or implied comment on the merits of the Plaintiffs' lawsuit or the merits of the Defendants' defenses and counterclaims. A backdrop to this lawsuit is a seminal controversy between the authority of the Governor of the state of Maine to enforce a statute without formal administrative rulemaking and the authority of the Attorney General of the state of Maine to prevent its enforcement without such formal rulemaking. The Court rules only that a state, not a federal court should determine a legal question so fundamental to the proper operation of Maine state government.
A. Factual Backdrop
1. The Personal Responsibility and Work Opportunity Act of 1996
On August 22, 1996, President Clinton signed into law " The Personal Responsibility and Work Opportunity Act of 1996" (PRWORA), which provided that an alien not lawfully present in the United States is not eligible for state or local public benefits unless the state passes a new law after August 22, 1996 affirmatively making them eligible. 8 U.S.C. § 1621(a); see Petition for Review Under Rule 80C with Compl. For Declaratory J. and Injunctive Relief ( Compl.), Attach. 2, Ex. A, Me. Dep't of Health & Human Servs., Office for Family Independence, General Assistance Program Guidance at 1 (ECF No. 5-2).
2. The Maine Department of Health and Human Services June 13, 2014 Notice to Maine Municipalities
On June 13, 2014, the Maine Department of Health & Human Services
(DHHS) issued " General Assistance Program Guidance" to all municipalities regarding enforcement of PRWORA. Id. at 1-2. In its guidance memorandum, DHHS notified municipalities that it " will no longer provide reimbursement to a municipality for General Assistance provided to aliens who are not lawfully present in the United States." Id. at 1. The Plaintiffs refer to this notice as the DHHS " Operating Memorandum." See First Am. Pet. for Review Under Rule 80C with First Am. Compl. for Declaratory J. and Injunctive Relief at 5 (ECF No. 5-7) ( First Am. Compl.).
3. The Governor's June 20, 2014 Letter to Maine Municipalities
On June 20, 2014, Governor Paul R. LePage wrote to the administrators of Maine municipalities, addressing " contradictory information" between DHHS and the Maine Attorney General regarding " enforcement of the federal law that prohibits giving General Assistance to illegal aliens." Compl. Attach. 2, Ex. B, Letter from Governor Paul R. LePage to Town Adm'r at 1 (June 20, 2014). He wrote that " DHHS worked with the Office of the Attorney General for months on a proposed rule to exclude certain non-citizens from General Assistance." Id. at 1. Although the proposal was initially approved by the Attorney General's Office, the Governor wrote that " Attorney General Mills then said the rule was unconstitutional." Id. The Governor wrote that DHHS " went back and tailored our proposed rule to meet the Attorney General's concerns and to stay within the boundary of federal law, but she turned us down again." Id. The Governor said that the Administration " found it inexplicable that the state's top law enforcement official would encourage municipalities to violate federal law." Id. He emphasized that he expected " the head of each municipality to communicate with DHHS to certify in writing compliance with federal law." Id. at 2. He informed the municipalities that if " DHHS finds that a municipality fails to comply with the law, it will cut off all General Assistance reimbursement to that community." Id.
4. The Maine Attorney General's June 24, 2014 Statement
On June 24, 2014, the state of Maine Attorney General Janet T. Mills issued a statement providing further background and identifying her concerns regarding the General Assistance guidance. Compl. Attach. 2, Ex. D, Statement of the Attorney General Regarding General Assistance Guidance (June 24, 2014). In her statement, Attorney General Mills said that in January 2014, the Office of the Attorney General advised DHHS that " there were serious constitutional issues with the rule they were proposing." Id. Despite her reservations, " public hearings proceeded and DHHS sent the rule to the Attorney General's Office for final approval." Id. The Attorney General referred to a memorandum dated May 16, 2014 " drafted by nonpartisan staff" which " describes in detail three distinct and serious legal and constitutional concerns" with the proposed rule. Although the DHHS administrators sent " a last minute substantive change to the Attorney General's Office" , she said that " this too failed to comply with the law." Id. She expressed the opinion that " [t]he fact remains that the executive branch lacks authority to promulgate a change in General Assistance eligibility,
whether by rule or by edict or by form." Id. (emphasis in original).
In her statement, the Attorney General made the following points: (1) that " [i]f the administration desires to change policy based on an 18-year old federal statute, it must do so in accordance with the Maine Constitution and law, with transparency and public input, and without shifting the burden onto cash-strapped towns" ; (2) that the federal statute has " never been enforced to our knowledge" ; (3) that the federal statute " lacks an enforcement mechanism" ; (4) that the federal statute " represents an intrusion into states' rights" ; (5) that the federal statute represents " a questionable expansion of Congress' authority under Article I, section 8 of the United States Constitution" ; (6) that if the policy were lawfully adopted, " the towns are justifiably concerned about how it would be carried out in a consistent and lawful manner across Maine's nearly 500 municipalities" ; (7) that " people who seek General Assistance--the person fleeing domestic violence, the victim of human trafficking, the asylum seeker awaiting federal approval, the family who lost their home to fire or to war--are least likely to have this paperwork on hand during a crisis" ; (8) that " [d]enying emergency benefits to children of immigrants, legal or otherwise, might run afoul of Supreme Court rulings as far back as 1977 and 1982" ; and, (9) that the " Governor's edict" makes " no such fine distinctions and therefore puts towns at risk of lawsuits everywhere they turn, depleting scarce property tax revenues provided for police, fire, rescue and schools." Id.
Characterizing the DHHS action as " ill-advised" , the Attorney General noted that the municipalities " have a right to appeal any decision under 22 M.R.S. [§ ] 4323, and any applicant has a right to appeal a denial of General Assistance benefits under 22 M.R.S. [§ ] 4322." Id.
5. The Plaintiffs' First Amended Complaint
On July 10, 2014, the Maine Municipal Association, the city of Portland, and the city of Westbrook as Plaintiffs filed suit in Maine Superior Court in Cumberland County against the DHHS and DHHS Commissioner Mary Mayhew as Defendants. State Ct. Record Attach. 1, State Ct. Docket Sheet at 1 (ECF No. 5-1). On July 28, 2014, the Plaintiffs filed an amended complaint. First Am. Compl. The First Amended Complaint seeks judicial review of what they claim are " procedural of the Operating Memorandum and related correspondence from the Office of the Governor, which were not adopted by appropriate agency rulemaking procedure under the Maine Administrative Procedure Act." Id. ¶ 5. Plaintiffs noted that the " determination of 'lawfully present alien' status or 'unlawfully present alien' status for persons in the United States is not part of the statutory criteria for eligibility under the Municipal General Assistance law, 22 M.R.S. § 4301 et seq." Id. ¶ 8. Echoing the Attorney General's concerns, the Plaintiffs assert that " [s]uch determinations made by a General Assistance administrator would not be in all cases readily ascertainable substantively under federal law, and would significantly increase program costs given the population served by General Assistance, which often involves persons--both citizens and non-citizens--who may have fled life-threatening circumstances without documentation, or who do not have the means to readily verify lawfully present alien status." Id.
The Plaintiffs state that under Maine law, 22 M.R.S. § 4305(3)(C), General Assistance benefits must be " furnished or denied to all eligible applicants within 24 hours of the date of submission of an application"
and that such benefits are " also administered, by statute, often on an emergency basis, subject to 22 M.R.S. § 4310." Id. Because the DHHS memorandum would " require that any such potentially difficult and complicated determinations about federal 'lawful' or 'unlawful' alien status be made within 24 hours" , the Plaintiffs say that these " issues complicate the implementation of the Operating Memorandum policy and procedure, and jeopardize overall reimbursement to the municipality." Id. Noting the strict 24-hour or emergency deadlines, the Plaintiffs claim that " if a municipality were to err on the wrong side of determining eligibility because of a complicated 'lawfully present alien' status issue . . ., then that error would jeopardize the municipality's right to its statutorily authorized reimbursement." Id. ¶ 11.
After reciting in detail the Attorney General's statement, the Plaintiffs maintain that DHHS guidance statement is " not entirely consistent with the federal law it purports to enforce, because it makes no provision for aspects of the federal definition of qualified alien status, such as an alien or child of an alien who, under 8 U.S.C. § 1641(c), is the subject of domestic violence." Id. ¶ 17. They also assert that a DHHS denial of " any and all reimbursements for non-compliance with the Operating Memorandum would also be in contravention of existing properly promulgated DHHS rules." Id. ¶ 18. They claim that such " substantive and conflicting differences between the DHHS, the Office of the Governor, and the Attorney General" place the Plaintiffs " in an irreconcilable predicament." Id. ¶ 19. They say that the DHHS has issued a revised report form that requires municipalities to report the " Total # of not 'Lawfully Present' non-citizens, as defined in DHHS guidance that were assisted and for whom reimbursement is being requested." Id. ¶ 25. They point out that the DHHS revised form requires a certification from the respective municipal officer that he or she is " not seeking reimbursement for Non-Citizens who are not 'Lawfully Present' as defined in the . . . Guidance Documents." Id. They complain that DHHS provided " no lead time or any implementation phase for the new protocol" and no " flexibility in the transition time and resources for training and new administrative practice to accommodate the immediate changes required by the Operating Memorandum . . . ." Id. ¶ ¶ 27, 28.
Framed by an assertion that the Governor's and DHHS's actions violated the Maine Administrative Procedures Act (MAPA), 5 M.R.S. § § 8001 et seq., the Plaintiffs assert that the Operating Memorandum (1) violates " constitutional and statutory provisions, as alleged above" , (2) is " [i]n excess of the statutory authority of DHHS" ; (3) is " [m]ade upon unlawful procedure, (4) is " [a]ffected by bias or error of law; (5) is " [u]nsupported by substantial evidence on the whole record" , and (6) is " [a]rbitrary or capricious, or characterized by abuse of discretion." Id. ¶ 30.
The Plaintiffs ask the Court to (1) declare that all terms of the Operating Memorandum are null and void for failure to comply with formal rulemaking proceedings in accordance with the MAPA; (2) declare that all municipalities which operate a General Assistance Program pursuant to 22 M.R.S. § 4301 et seq. are not required to comply with the terms of the Operating Memorandum or the related correspondence from the Office of the Governor; (3) declare that the terms of the Operating Memorandum, including policy and operational changes it contains, and any related revisions to General Assistance reimbursement forms, require substantive rulemaking procedures under the MAPA in order to be judicially enforceable
requirements for municipal reimbursement of benefits under the Municipal General Assistance law; and (4) enjoin the DHHS from enforcement of the terms of the Operating Agreement or any policy or operational change contained in it, before appropriate rulemaking is complete under the MAPA, resulting in an ...