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Carson v. Commissioner of Department of Health & Human Services

Superior Court of Maine, Kennebec

June 27, 2019


          Plaintiffs Attorney Timothy Shannon, Esq. Scott Anderson, Esq.

          Defendant's Attorney Deanna White, AAG/Kevin Beal, AAG


         Before the Court is Petitioners Brownie Carson, Sarah Decato and Donna Ellis's 80C petition for review of the Commissioner of the Department of Health and Human Services's ("DHHS's" or "the Department's") failure to act. Additionally, DHHS has filed a motion to dismiss the 80C petition. The parties have briefed both the merits of the petition as well as the motion to dismiss. Petitioners are represented by Attorney Timothy Shannon and the Department is represented by Assistant Attorney General Deanna White.


         Pursuant to Maine Law, the Department is required to establish and staff a Public Health Nursing Program. 22 M.R.S. §§ 1961, 1964. The staffing requirements are as follows;

Notwithstanding any other provision of law, and without further approval or justification, the department shall promptly fill all public health nurse positions within the Public Health Nursing Program for which funding is provided.
The department shall widely post public notices for public health nurse vacancies under this section on publicly accessible state websites and in other appropriate locations. Public notice must be posted within 30 days of the effective date of this section for vacancies then existing and within 30 days of each subsequent vacancy that occurs. The department shall recruit and hire qualified individuals for these vacant positions.
Notwithstanding any other provision of law, the department may not transfer or otherwise repurpose any funds appropriated or allocated for the salaries, benefits and other costs of public health nurses and the services they provide.

22 M.R.S.A. § 1964 (enacted by P.L. 2017, c. 312). In addition to these provisions, an uncodified portion of section 1964's enacting legislation states: "The staffing for the Public Health Nursing Program . . . required by Title 22, section 1964, must be achieved as soon as possible after enactment of this Act, but no later than March 1, 2018." P.L. 2017, c. 312, pt. B. (effective November 1, 2017) (hereafter "Chapter 312").

         Petitioners filed the instant petition because they claim that the Department has refused to act as required by law by failing to adequately post notices of vacant nursing positions and by failing to fill all vacant nurse positions for which funding is available.[1]

         I. The Department's Motion to Dismiss

         The Department argues that the Petition should be dismissed for three reasons: (1) the petition is moot; (2) the Petitioners lack standing; and (3) the separation of powers doctrine. The Department also argues that Count II should be dismissed because it only alleges a request for a remedy and that remedy is not available in this case.

         l. Mootness

         The Department argues that the petition is now moot because the March 1, 2018 deadline for filling all vacancies has passed and because the Department is continuing to fulfill the essential goals of the PHN statute.

         Essentially, the Department is arguing that the petition is moot because it is substantially complying with the statute. However, whether the department has substantially complied with the PHN laws and whether a substantial compliance standard is the appropriate standard of review are the same issues which must be decided on the merits of the appeal itself. Consequently, the petition is not moot.

         2. Standing

         Petitioner Brownie Carson is a Senator in the Maine Legislature who authored amendments to the statutes governing the PHN program. See P.L. 2017, c. 312. Petitioners Sarah DeCato and Donna Ellis are nurses by training who have worked in various public health capacities for twenty and thirty years respectively. Both DeCato and Ellis claim to have applied for vacant PHN positions. Neither DeCato or Ellis have been hired for any vacant PHN positions.

         In order to have standing to pursue 80C review of an agency's failure or refusal to act, a person must be aggrieved by the failure or refusal to act. 5 M.R.S. § 11001(2). A person is aggrieved if they have suffered a particularized injury. Nelson v. Bayroot, LLC, 2008 ME 91, 5 10, 953 A.2d 378. A particularized injury is something which operates "prejudicially and directly upon the party's property, pecuniary or personal rights" and which is distinct from any ...

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