Thomas D. Warren Justice, Superior Court
Before the court is a motion by plaintiffs City of Portland and City of Westbrook seeking the entry of judgment in their favor on counts III and IV of the second amended petition and an amendment of the court's June 9, 2015 order to provide for reimbursement. Defendants oppose the motion, which they characterize as a motion for reconsideration, and simultaneously suggest that injunctive relief should be issued prohibiting Portland and Westbrook from providing benefits to persons who are ineligible for state and local benefits under 8 U.S.C. § 1621(a).
Portland and Westbrook are correct that the court's June 9, 2015 order did not expressly resolve the claims for reimbursement in counts III and IV. However, the court did rule that
PHS has no obligation to reimburse Portland and Westbrook for persons ineligible under 8 U.S.C § 1621(a). June 9, 2015 Order at 18-19.
That ruling now needs to be amended to provide that, once a recent amendment to 22 M.R.S. § 4301(3) goes into effect, certain non-citizens who would otherwise have been ineligible under section 1621(a) have been made eligible under 8 U.S.C. § 1621(d). The amendment in question is contained in Laws 2015, ch. 324, which is one of the statutes affected by the Law Court's recent advisory opinion that certain legislation not vetoed within 10 days will become law pursuant to Me. Const., Art IV, pt. 3, § 2. Opinion of the Justices, 2015 ME 107.
Chapter 324 is now scheduled to go into effect on October 15, 2015 and provides that effective July 1, 2015 an eligible person for purposes of the General Assistance statute shall include
in accordance with 8 United States Code, Section 1621(d) ... a person who is lawfully present in the United States or is pursuing a lawful process to apply for immigration relief except that assistance for such a person may not exceed 24 months.
Laws 2015, Ch. 324, amending 22 M.R.S. § 4301(3).
Once it takes effect, chapter 324 will qualify as a state law enacted after the 1996 federal welfare reform statute which "affirmatively provides" for the eligibility of certain non-citizens who would otherwise be ineligible for state and local benefits. See 8 U.S.C. § 1621(d). Accordingly, when chapter 324 takes effect, DHHS will be obliged to reimburse municipalities for up to 24 months of General Assistance to all non-citizens who are lawfully present or who are pursuing a lawful process to apply for immigration relief.
In all other respects the motion by Portland and Westbrook is denied. Portland and Westbrook's motion is primarily based on the argument that under the General Assistance statute and regulations DHHS cannot begin withholding reimbursement as a penalty for noncompliance until after municipalities have been notified to file a corrective action plan and that plan has not been accepted or the municipality remains in violation 60 days after the plan has been filed. See 22 M.R.S. § 4323(2); 10-344 C.M.R. ch. 323, § XII. In this case DHHS withheld reimbursement without waiting for a corrective action plan.
The corrective action protocol on which Portland and Westbrook rely, however, is applicable when there has been "a violation of this chapter, " 22 M.R.S. § 2243(2), referring to chapter 1161 of Title 22. Similarly, under 10-344 C.M.R. ch. 323 § XII reimbursement may be withheld only if "a municipality is not complying with the requirements of the General Assistance statutes, the regulations promulgated thereunder, or the municipality's ordinance."
The court expressly found in its June 9 order that, while Portland and Westbrook may have been violating 8 U.S.C. § 1621(a), they were not violating any provision of the General Assistance statutes or regulations. As a result, DHHS is not entitled to invoke the enforcement and penalty provisions of 22 M.R.S. § 4323(2). June 9, 2015 order at 16-17. It follows that because the enforcement and penalty provisions are inapplicable, Portland and Westbrook are not entitled to require that the corrective action protocol be followed by DHHS before any reimbursement can be withheld.
As the June 9 order makes clear, the court's ruling that DHHS may withhold reimbursement is not based on the General Assistance statute or regulations but on DHHS's separate claim for declaratory relief based on federal law as set forth in count I of defendants' counterclaim. To the extent that Portland and Westbrook have provided General Assistance to non-citizens who are not eligible for benefits under 8 U.S.C. § 1621(a), the court will not require DHHS to provide reimbursement. At the same time, the court agrees with the MMA and the municipal plaintiffs that DHHS has no statutory or inherent authority to enforce 8 U.S.C. § 1621(a) generally and therefore reiterates its ruling that DHHS is not entitled to injunctive or declaratory relief requiring Portland or Westbrook to comply with 8 U.S.C. § 1621(a).
Portland and Westbrook point out that in its June 9 order the court found that the DHHS "Flow Chart" was imperfect and incomplete in some respects and that Portland and Westbrook are not required to comply with either the Flow Chart or the June 13, 2014 DHHS "Program Guidance" Memorandum. To the extent that Portland and Westbrook separated their requests for past reimbursement based on the Flow Chart (Stipulated Record ¶¶ 12, 17 and Exhibits G and I) and to the extent that DHHS's reimbursement decisions were based on the Flow Chart (see Stipulated Record Exhibit J), this would not preclude Westbrook and Portland from seeking reimbursement for any General Assistance payments made to persons who were in fact eligible under 8 U.S.C. § 1621 but ...