Plaintiffs Attorney Timothy Shannon, Esq. Scott Anderson,
Defendant's Attorney Deanna White, AAG/Kevin Beal, AAG
ORDER ON RESPONDENT'S MOTION TO DISMISS AND ON
PETITIONERS' 80C APPEAL
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
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
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").
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
The Department's Motion to Dismiss
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.
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.
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.
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.
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 ...