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MS. S. v. Regional School Unit 72

United States District Court, D. Maine

March 21, 2017

MS. S., individually and as parent, and legal guardian of BS, a minor, Plaintiff,
v.
REGIONAL SCHOOL UNIT 72, Defendant, and MAINE DEPARTMENT OF EDUCATION, Intervenor.

          CERTIFICATE OF QUESTIONS OF STATE LAW TO THE MAINE SUPREME JUDICIAL COURT SITTING AS THE LAW COURT

          JON D. LEVY U.S. DISTRICT JUDGE.

         This case involves two questions of law of the State of Maine that may be determinative of the case and for which there are no clear controlling precedents in the decisions of the Maine Supreme Judicial Court. As recognized in Dinan v. Alpha Networks, Inc., federal-state comity is promoted where “the state court of last resort [is] given opportunity to decide state law issues on which there are no state precedents which are controlling or clearly indicative of the developmental course of the state law.” Dinan v. Alpha Networks, Inc., 2013 ME 22, ¶ 12, 60 A.3d 792 (quoting White v. Edgar, 320 A.2d 668, 675 (Me. 1974)). Accordingly, for the reasons explained below, I hereby certify two questions to the Maine Supreme Judicial Court sitting as the Law Court and respectfully request the Law Court to provide instructions concerning these questions of state law pursuant to 4 M.R.S.A. § 57 (2016) and Maine Rule of Appellate Procedure 25.

         I. BACKGROUND

         In May 2013, the Plaintiff, Ms. S., filed a request for a due process hearing with the Maine Department of Education on behalf of her son, B.S., regarding alleged violations of the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C.A. § 1400, et seq. (2016). Ms. S. claimed that the violations took place during BS's ninth grade through twelfth grade years when BS was a student in Regional School Unit 72 (the “School District”).

         The hearing officer granted Ms. S. a limited compensatory remedy related to a one-month period following BS's dismissal from high school in December 2011, but otherwise found no violations of IDEA as to BS's eleventh and twelfth grade years. The hearing officer dismissed the claims related to BS's ninth and tenth grade years as time-barred under § XVI.13.E of the Maine Unified Special Education Regulation (“MUSER”), 05-071 C.M.R. ch. 101, a filing limitation that requires claims to be brought within two years of when a parent knew or should have known of an IDEA violation:

A parent or [School Administrative Unit] must request an impartial hearing on their due process hearing request within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the due process hearing request.

05-071 C.M.R. ch. 101, § XVI.13.E (2017). When Ms. S. then argued that the two-year filing limitation is void because it was not passed in compliance with the Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8001-11008 (2016), the hearing officer determined that he lacked the authority to consider the issue. The questions presented by this certificate concern the validity of this provision.

         Ms. S. sought judicial review in the U.S. District Court, contending with respect to B.S.'s ninth and tenth grade years that the two-year filing limitation was void and has no legal effect. Her argument encompassed two different MUSER provisions: (1) the filing limitation contained in MUSER § XVI.13.E, which is quoted above; and (2) a “look-back term” contained in MUSER § XVI.5.A(2) that limits how far back in time a claim may reach once a parent knows or should have known of an alleged violation:

The due process hearing request must allege a violation that occurred not more than two years before the date the parent or [School Administrative Unit] knew or should have known about the alleged action that forms the basis of the due process hearing request.

05-071 C.M.R. ch. 101, § XVI.5.A(2) (2017).

         Prior to January 2010, both the filing limitation and the look-back term specified four year periods. 05-071 C.M.R. ch. 101, §§ XVI.5.A(2), XVI.13.E (Lexis Nexis 2009). In January 2010, the Maine Department of Education submitted to the Maine Legislature an emergency regulation that contained multiple amendments to the MUSER, including an amendment that reduced the § XVI.5.A(2)'s look-back term from four to two years. See Dep't of Educ., State of Me., 05-071 Ch. 101, Maine Unified Special Education Regulation, Birth to Age Twenty, Emergency Regulation, January 19, 2010, 147. The emergency regulation made no change to § XVI.13.E's four-year filing limitation. Id. at 157. The Maine Legislature subsequently approved the emergency regulation as proposed by the Department of Education. See L.D. 1741 (124th Legis. 2010). When the Department of Education issued the finally-adopted regulations as approved by the Maine Legislature, in November 2010, it also revised the text of § XVI.13.E so as to reduce the filing limitation period from four to two years. See Dep't of Educ., State of Me., 05-071 Ch. 101, Maine Unified Special Education Regulation, Birth to Age Twenty, Final Adoption, 2010, 162.

         The Legislature passed three legislative resolves after 2010, each containing amendments to MUSER but none of which addressed or altered the two-year filing limitation contained in § XVI.13.E. See L.D. 106, 125th Leg. (2011); L.D. 1724, 125th Leg. (2012); L.D. 323, 126th Leg. (2013). In 2011, the Legislature specifically declined to pass a resolve that would have changed the filing limitation from two to six years. See L.D. 662, 125th Legislature (2011); S. Leg. Rec., 125th Leg., 1st Reg. Sess. at S-684-685; H.R. Leg. Rec., 125th Leg., 1st Reg. Sess. at H-420.

         Ms. S. argues that the Department of Education's revision of the text of § XVI.13.E in November 2010 so as to reduce the filing limitation period from four to two years was a substantive change under the Maine Administrative Procedure Act, 5 M.R.S.A. §§ 8052, 8072 (2016). Consequently, she contends that the Department of Education was required, but failed, to publish the new regulation, to provide notice for public comment, and to submit the filing limitation change to the Maine Legislature for review and approval. Because the Department of Education failed to comply with these provisions, Ms. S. argues that the two-year filing limitation contained in § XVI.13.E is void under §§ 8057 and 8072 of the Maine Administrative Procedure Act and has no legal effect.

         The School District argues that the two-year filing limitation is valid because the Maine Department of Education explicitly stated that its purpose was to align Maine's limitation period with IDEA's two-year period, 20 U.S.C.A. § 1415(f)(3)(C) (2016), when it proposed the 2010 MUSER amendments, and the Maine Legislature intended to amend both the filing limitation and the look-back period from four to two years to harmonize the state and federal requirements when it approved the emergency regulation in 2010. See Dep't of Educ., State of Me., Notice of Agency Rule-making Proposal, Proposed Rule Number 98-P, Nov. 24, 2009. Testimony of Susan A. Gendron, Commissioner, Maine Department of Education, In Support of L.D. 1741, Feb. 8, 2010. The School District also notes that in 2011, the Maine Legislature declined to pass a resolve that would have changed the filing limitation from two to six years, and that this refusal makes clear the Legislature's recognition of a two-year filing limitation under § XVI.13.E See L.D. 662, 125th Legislature (2011); S. Leg. Rec., 125th Leg., 1st Reg. Sess. at S-684-685; H.R. Leg. Rec., 125th Leg., 1st Reg. Sess. at H-420. Finally, the School District also argues that if the 2010 filing limitation ...


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